Tim Ryan, tryan@wolfrivermedia.com
Leader File Photo Damon J. Anker, seated beside attorney Kevin Musolf, listens to the judge read the verdict against him on 114 counts of possessing child pornography in Shawano-Menominee County Circuit Court in February 2013. Anker was found guilty of all but three of the counts. He was appealing his conviction when he died in prison last week, according to the state Department of Corrections.
A Shawano man who was looking to overturn his conviction on more than 100 counts of child porn possession died in prison on Friday, according to the Wisconsin Department of Corrections.
Damon J. Anker, 38, was sentenced in April 2013 to 34 years in prison and another 17½ years of extended supervision. He had been convicted in February of that year after a five-day jury trial.
He was appealing the conviction on the grounds of ineffective counsel.
Anker was still awaiting an opinion and/or decision from the state Court of Appeals at the time of his death, according to court records.
The last activity in the case had been briefs filed in February.
The Shawano-Menominee County District Attorney’s office and its victim/witness office were notified of Anker’s death on Monday.
The notice states only that Anker died while incarcerated on July 21 and that any victims involved in the offenses for which he was convicted should be notified.
No cause of death was revealed.
The district attorney’s office had no further information.
The DOC issued this response via email to a Leader request for more information: “Inmate Damon Anker, who was confined at Green Bay Correctional Institution, was transported to the hospital the evening of July 21st. He subsequently died on July 22nd. DOC has begun an internal investigation and contacted the Brown County Sheriff’s Office, which is standard procedure following an inmate death. DOC is not confirming the cause of death.”
Anker was denied on a motion to appeal his case in Shawano-Menominee County Circuit Court in July 2015, but that was only a first step allowing him to take his case to the state appeals court.
During that hearing, Anker’s attorney for the appeal, Greg Petit, argued that the original defense counsel Kevin Musolf conceded several elements of the state’s case against Anker by not challenging whether the children depicted in the images and videos found on Anker’s computer were underage or were engaged in sexually explicit activities.
Musolf had argued during the trial that the images and videos were inadvertently downloaded while Anker was browsing for legal porn. His defense rested on the claim that Anker did not knowingly possess child porn and had not looked at the material.
Musolf said his reason for not challenging the age of the children or the explicit nature of the videos was simple.
“The jury was going to see them,” he said. “They could tell if they were old enough or not, under 18 or not. If I’m sitting there arguing that this person, who would at least clearly appear to be under the age of 18, and I say, ‘They’re not under the age of 18,’ the jury would in my opinion potentially just say, ‘Well, this guy’s an idiot. Obviously this person’s under 18 and he’s trying to tell me they’re not.’ Therefore, we’d lose credibility on our good argument, of the knowledge element.”
Anker testified at the trial, denying knowledge of the images and videos but never addressing the age of the children or the acts depicted.
In his ruling denying the motion to overturn the convictions, Judge James Habeck said Musolf made a reasonable strategic decision not to challenge the age question.
“He made a strategic evaluation as to the fact that you call wolf if you keep saying this child isn’t under 18 and everybody on the jury is looking at an 8-year-old girl with no breast development and no pubic hair, ‘Who are they trying to kid?’” Habeck said. “All you do is ruin your own credibility.”