Obriecht didn’t show the victim’s mental health records might contain relevant information necessary to his defense, so the circuit court properly denied his motion to conduct an in camera review of the records.
Obriecht, who was charged with two counts of having sexual intercourse with a child aged 16 or older, § 948.09, sought an in camera review of the victim’s mental health and school records. The court denied access to the former, but ultimately granted access to the latter under § 118.125(2)(f). (¶¶2-3). He ultimately pled to one count and, during the sentencing hearing, learned the victim was seeking mental health treatment as a result of the incident. He then filed a post conviction discovery motion for an in camera review of the victim’s counseling records under State v. Robertson, 2003 WI App 84, 263 Wis. 2d 349, 661 N.W.2d 105, which held that postconviction requests for in camera review of mental health records are assessed by applying factors from the newly discovered evidence test and the test under State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), as modified by State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298. The circuit court denied the motion. (¶¶4, 6).
The court of appeals affirms because, assuming without deciding that Obriecht met the newly discovered evidence factors, he didn’t meet the basic showing required under Shiffra-Green:
¶14 Obriecht fails to demonstrate a reasonable likelihood that the records will contain exculpatory information or information capable of undermining the victim’s credibility or bearing on the victim’s ability to relate events truthfully or accurately. Rather than evidence, his motion consists primarily of unsupported conclusory assertions. First, in the absence of evidence to the contrary, there is nothing inherent in the victim’s decision to seek counseling that suggests she is incapable of relating events truthfully or accurately or that she has in fact not done so. Second, Obriecht has not offered any evidence, such as expert testimony, that the disabilities from which she evidently suffers, including ADHD and “cognitive limitations,” potentially impact her ability to relate reliable evidence.
In addition, Obriecht didn’t demonstrate the evidence isn’t merely cumulative because he knew before his conviction that the victim had sought mental health counseling. (¶15). The fact he was denied access to the mental health records before conviction doesn’t matter:
¶16 Whether or not the court had granted these earlier requests, Obriecht has not provided any evidence that the records he presently seeks to obtain would not constitute evidence cumulative to the information already available to Obriecht’s defense. Obriecht already had information at his disposal to evaluate and impeach the victim’s credibility, such as testimony from school officials, police reports, and the opinions of professionals familiar with the victim. Indeed, the court granted Obriecht access to the victim’s school records, pursuant to Wis. Stat. § 118.125(2)(f), for the explicit purpose “of impeachment of any witness who has testified in [this] action.” Yet the circuit court did not find any factual support in the record for the proposition that the victim was unable to perceive events or report them truthfully, or that she had not done so, nor did it believe that such information might be gleaned from the mental health records requested prior to his plea. While that prior denial of access is not before us, Obriecht has similarly provided no evidence that the requested records would not be merely cumulative to the records to which his counsel already had access.