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Sentencing – Due Process – In Camera Hearing, Privileged Information

Robert Dietrich v. Smith, 7th Cir No. 12-1672, 12/4/12

seventh circuit decisionon habeas review, affirming 2011C117 (E.D. Wis 2/23/12); prior history: State v. Dietrich, Wis. App. 2008AP1697-CR

After the trial court denied his request for an in camera inspection of the sexual assault victim’s mental health records, State v. Green, 2002 WI 68, ¶34, 253 Wis. 2d 356, 381, 646 N.W.2d 298; State v. Shiffra, 175 Wis. 2d 600, 608–610, 499 N.W.2d 719, 723 (Ct. App. 1993), Dietrich pleaded guilty. At sentencing, the victim’s therapist testified in aggravation of the offense. Dietrich objected on the ground that as a matter of due process, an in camera hearing should have preceded this testimony: absent such an opportunity for review, Dietrich was denied a meaningful opportunity to challenge the therapist’s assertions. The state and district courts rejected the argument; the seventh circuit now affirms.

Relief under AEDPA requires, in the first instance, violation of “clearly established Federal law.” Here, the operative principle is established by Pennsylvania v. Ritchie, 480 U.S. 39, 58 (1987) (due process requires access to privileged information if, after in camera review, the court determines it to be sufficiently material to the outcome). Although Ritchie on its facts addresses pretrial discovery, the court “see(s) no reason why Ritchie should not apply to sentencing proceedings as well,” fn. 1.

Applying Ritchie to the instant case, the Wisconsin appellate court found that Dietrich’s due process claim was insufficient because he failed to make a plausible showing that the victim’s counseling records would produce material evidence. We find this to be a reasonable application of Ritchie. The Supreme Court did not intend to require the trial court to undertake a blind fishing expedition through a victim’s mental health records for the sole purpose of possibly uncovering additional evidence that may aid in cross-examination, which the defendant has independently and speculatively determined would probably be most effective. …

In this case, Dietrich had already pleaded guilty to this crime; therefore the evidence was obviously not being sought because he believed it would be favorable to his defense. Instead, Dietrich sought evidence from privileged records in order to rebut testimony at his sentencing hearing. The evidence sought was immaterial, cumulative, and even if found, would not have altered the outcome of Dietrich’s sentencing proceeding. …

There is nothing in the record to indicate that the court placed any material weight on B.T.’s therapist’s testimony. The sentencing court, instead, took umbrage with Dietrich’s failure to take full responsibility for his crime. Therefore, there is nothing to suggest that Dietrich’s sentencing hearing would have had a different outcome had the court conducted an in camera review of B.T.’s counseling records, and Dietrich found the exact evidence he speculated might exist in those records. We therefore find that the Wisconsin appellate court reasonably applied Ritchie in this case, as Dietrich failed to make a plausible showing that the victim’s counseling records contained evidence material to his defense.

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