State v. Ginger M. Breitzman, 2015AP1610-CR, District 1, 8/16/16 (not recommended for publication), petition for review granted 3/13/2017; case activity (including briefs)
The court of appeals rebuffs Breitzman’s arguments that there was insufficient evidence to convict her of child neglect and disorderly conduct and that her trial lawyer was ineffective.
Sufficiency of the evidence
The charge of child neglect under § 948.21 was based on an incident one winter’s day when Breitzman’s son, J.K., came home from school to find a locked house and was unable to rouse Breitzman from sleep to let him in. (¶4). J.K. was indisputably under 18 at the time and Breitzman was responsible for his welfare, so the element in dispute is whether Breitzman intentionally contributed to the neglect of J.K. by failing “to provide necessary care, food, clothing, medical or dental care, or shelter so as to seriously endanger the physical health of the child.” Wis. JI-Criminal 2150. The court finds J.K.’s testimony to be sufficient to satisfy that element:
¶15 J.K. testified that he waited outside of his home for approximately five hours before his mother let him in the house. He stated that the temperature got progressively colder, prompting him to take shelter under a grill cover. J.K. was certain his mother was home because her car was in the driveway; however, she did not answer his phone calls or come to any of the house’s doors despite J.K.’s repeating knocking and doorbell ringing. The jury found J.K. credible and clearly concluded that Breitzman endangered J.K.’s health and safety by leaving him outside for five hours in the winter. J.K.’s testimony supports the jury’s conclusion.
But did it “seriously” endanger J.K.’s physical health? That’s the standard, which the court quotes (¶14) but then doesn’t apply.
The disorderly conduct arose from an incident where J.K. burned some popcorn, after which Breitzman directed foul language at him, told him to get his stuff out of his room, and said she was going to call the police. (¶5). Good enough to support the guilty verdict:
¶18 …. The basis of the disorderly conduct charge was Breitzman’s conduct towards J.K. during the popcorn incident, in which she yelled at J.K., calling him a “retard,” a “fuck face,” and a “piece of shit.” Breitzman does not deny calling J.K. those names, but rather contends that her conduct did not tend to cause or provoke a disturbance. Here, J.K. had his phone hidden in his pocket, allowing his friend to hear Breitzman’s foul language. J.K. later cried to his friend and essentially stated that he had reached a breaking point, prompting J.K. to contact the police the following day. The jury could reasonably conclude that Breitzman’s language and tone towards J.K. “unreasonably offends the sense of decency or propriety of the community,” thus satisfying the elements of Wis. Stat. § 947.01(1). Because the statute encompasses conduct that tends to cause a disturbance that is “‘private in nature,’” we must conclude that the evidence supports the jury’s finding that Breitzman’s conduct was profane and that it disturbed J.K. See [State v.] Schwebke, [2002 WI 55,] 253 Wis. 2d 1, ¶31[, 644 N.W.2d 666]….
Breitzman argues trial counsel was ineffective for: 1) not moving to dismiss the disorderly conduct charge on free speech grounds; 2) failing to object to other acts evidence; and 3) arguing a theory of defense (reasonable parental discipline) that contradicted Breitzman’s own testimony denying the disciplinary acts. The court of appeals agrees with the circuit court’s postconviction decision that trial counsel was not deficient. (¶¶19-25).
That’s the short version of the IAC claims, which is all you get from this decision. The court of appeals doesn’t acknowledge, much less engage, Breitzman’s argument on the free speech claim. Instead it cites the circuit court’s statement that it would have denied a motion to dismiss on First Amendment grounds, and says counsel can’t be ineffective for filing a motion that would have been denied. (¶22). But the question is whether the circuit court would have been correct in denying a dismissal motion. On that topic the court of appeals utters not a peep, ignoring Breitzman’s argument that however inappropriate or degrading her comments to J.K., they don’t fall under an exception to the First Amendment bar against criminalizing speech: they were not an incitement or a threat; they were not obscene, libelous or defamatory; they were not “fighting words”—words which by their very utterance “tend to incite an immediate breach of the peace,” Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942)—and were not uttered under circumstances of “clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears,” In re A.S., 2001 WI 48, ¶41, 243 Wis. 2d 173, 626 N.W.2d 712 (quoting Feiner v. New York, 340 U.S. 315 (1951)). If Breitzman’s words don’t fall into an exception, she’s being punished for the content of her speech. That the court of appeals skates over the substance of this argument is inexplicable. UPDATE (8/18/16): The Volokh Conspiracy has a short post here noting that the logic of the court’s decision on the First Amendment issue makes the DC statute very broad and very vague.
The other IAC claims are intertwined, though the court takes a divide-and-conquer approach to them. As to the other acts, the court validates the circuit court’s conclusion that trial counsel had a reasonable strategy for allowing in J.K.’s testimony about various other bad things his mother did “because a central theory of the defense was that J.K. had a tendency to exaggerate” and make “grandiose” allegations against his mother, which the defense would counter by having Breitzman deny the claims. (¶23). But this strategy is rational only if you can show the allegations are exaggerated or grandiose based on evidence other than contradictory testimony from Breitzman, whose credibility is as much at issue (if not more so) as J.K.’s. Moreover, the other-acts strategy was undermined by counsel’s eliciting from Breitzman herself an admission to the worst other act (slapping J.K. (¶7)) in an effort to show J.K. had a motive to lie about the other charges, and by counsel’s arguing that Breitzman’s alleged bad acts were reasonable parental discipline—an approach that assumes J.K. is telling the truth about the bad acts. Individually these approaches may look reasonable; viewed together they show not a deliberate, reasoned strategy, but an irrational, inconsistent one.