Johnson failed to satisfy his burden for getting an in camera review of counseling records under State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, because he didn’t prove the records were likely to provide information over and above information that was available to him from another source—Johnson’s girlfriend, who was the complaining witness’s mother.
Johnson was alleged to have sexually assaulted his girlfriend’s 12-year-old daughter. She had made previous allegations about Johnson, but one was recanted and another resulted in charges that were dismissed. The daughter then began counseling. Johnson’s trial lawyer filed multiple motions to obtain the counseling records, but he never cited the governing Shiffra/Green standard or explaining why that standard was met, so the circuit court denied the motions. (¶¶2-9).
Johnson eventually pleaded guilty to reduced charges, but postconviction argued his trial lawyer was ineffective in arguing for in camera review of the counseling records because he failed to cite the proper legal standard and the facts in the case that supported in camera review. (¶¶10-11). The state conceded trial counsel was deficient in making his argument, but claimed there was no prejudice because, even if he’d competently argued for in camera review, the motion would have been denied. (¶¶17-20).
The court of appeals agrees. Citing evidence that the complainant’s mother had access to her daughter’s counseling information and that she was assisting the defense, the court says Johnson hasn’t shown that he couldn’t have obtained the information in the records from his girlfriend (and faults Johnson for not presenting evidence, whether from her or someone else, that she didn’t have access to the records, as he claims). (¶¶21-22).
Further, the court concludes, Johnson hasn’t shown the records were necessary to a determination of guilt or innocence, given other impeachment evidence Johnson had, or independently probative of his defense given that other impeachment evidence. (¶¶23-24). In particular, there was no evidence that the records likely contained information the child has a diagnosis of a psychological diagnosis that relates to her ability to be truthful. (¶25).
Because the Shiffra/Green motion would have been denied even if trial counsel had properly argued it, Johnson is not prejudiced by trial counsel’s deficient performance.