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Habeas – Confrontation – Rape Shield and Prior False Allegation

Gordon Sussman v. Jenkins, 7th Cir No. 09-3940, 4/1/11

7th circuit decision, granting habeas relief in State v. Sussman, 2007AP687-CR; in chambers opinion on stay

Habeas – Confrontation – Rape Shield and Prior False Allegation

The state court unreasonably restricted Sussman’s cross-examination of his chief accuser, and thus violated his right to confrontation, by precluding him from inquiring into the complainant’s prior false allegations of sexual misconduct.

By contrast, a trial court’s limitation on cross-examination aimed at exposing a witness’s motive or bias reaches the core of Confrontation Clause concerns. To justify limiting a defendant’s right to confront his accusers on issues of motive and bias, the countervailing policy interest must be concrete and articulable, not based on surmise or speculation. See Olden v. Kentucky, 488 U.S. 227, 232 (1988).21 Furthermore, a defendant has the right to explore fully each potential motive or source of bias. …

We have the same concerns here as we did in Redmond. In seeking to examine Scott on the false allegations against his father, Mr. Sussman’s counsel was not attempting simply to expose another incident of Scott’s lack of truthfulness; instead, he was attempting to “reveal[] possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.” Davis, 415 U.S. at 316. The offer of proof established that Scott made false allegations of sexual abuse against his father at a time when he had no contact with his father and in an attempt to get his father’s attention. See St. R.151 at 18, 22. Similarly, Scott’s allegations against Mr. Sussman came shortly after Scott moved back to Indiana and was seeing less of Mr. Sussman. The jury reasonably could have concluded that Scott was prone to use allegations of sexual abuse against father figures as a means either of gaining their attention or as a means of punishing them for abandoning him. See Redmond, 240 F.3d at 591-92 (“[T]he fact that the girl had led her mother, a nurse[] and the police on a wild goose chase for a rapist merely to get her mother’s attention supplied a powerful reason for disbelieving her testimony eleven months later about having sex with another man, by showing that she had a motive for what would otherwise be an unusual fabrication.”). In short, “[w]e are dealing here with something far more potent than ‘general credibility’ evidence which, under confrontation clause standards, may have a lower status.” White, 399 F.3d at 26. We are addressing evidence that exposes a motive to fabricate a specific kind of lie under a specific set of circumstances and, therefore, directly implicates Mr. Sussman’s rights under the Confrontation Clause.

Court’s discussion of Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001), the application of which largely dictates the result here, is too lengthy to be recited in any detail, except to say that Sussman is an important elucidation of an already-important rape shield case. Undertaking an exhaustive analysis of the facts (the pdf opinion file is 74 pages long), the court essentially discerns that the false allegations were crucial to the defense and that whatever interests the State had in limiting this line of inquiry were trivial in comparison. And yet, one omission stands out – Redmond‘s recognition that a false allegation stands outside rape shield strictures isn’t acknowledged by the court here, 240 F.3d at 592:

And thus the court’s ruling, though ostensibly based on the rape-shield statute, derives no support from that statute. The statute protects complaining witnesses in rape cases (including statutory-rape cases) from being questioned about their sexual conduct, but a false charge of rape is not sexual conduct. … See Wis. Stat. § 972.11(2)(a) (defining such conduct); cf. United States v. Bartlett, 856 F.2d 1071, 1088 (8th Cir.1988); United States v. Stamper, supra, 766 F.Supp. at 1399 and n. 2. The false-charge “exception” to the rape-shield statute is not really an exception, but rather a reminder of the limited meaning of “sexual conduct” as defined in the statute. …

Also: State v. Baker, 679 N.W.2d 7, 10 (Iowa 2004) (“Virtually all cases considering the issue have found that false claims of prior sexual conduct do not fall within the coverage of rape-shield laws”; collecting cases). Had Sussman pressed this particular point, the court might have simply found a straightforward confrontation violation, as it did in Redmond, but there is simply no way to know. Safest bet is to comply with procedural hurdles, even if they arguably don’t apply. The procedural wrinkle here: although trial counsel gamely sought to cross-examine on the false allegations, he neglected to seek permission to do so through a pretrial motion, as is required of rape shield issues per §§ 971.31 and 972.11. His cross-examination was thwarted on that procedural basis and postconviction litigation assumed that counsel’s failure to file a pretrial motion worked a procedural default of the issue. The confrontation objection therefore was litigated as a matter of ineffective assistance of counsel. But Redmond suggests real reason to doubt necessity for a pretrial motion; the Sussman court doesn’t take up that cause but then again, neither did Sussman. Given trial counel’s Machner hearing testimony “that he simply forgot that Wisconsin law requires that there be a pretrial determination of the admissibility of prior false allegations of sexual abuse,” the court swiftly concludes that his performance was deficient, and proceeds to the controverted issue of prejudice (slip op., p. 49). In other words, the issue is formally resolved through the prism of ineffective assistance with the focus on prejudice, rather than on harmless error resulting from a non-defaulted confrontation objection. The court ultimately concludes that the defense inability to adduce crucial, non-cumulative evidence was prejudicial. Indeed, the court takes up a separate impairment on Sussman’s right of cross-examination and, though expressing doubt that it alone would have supported relief, determines that it had its own cumulative impact, which fortifies the conclusion of prejudice.

Along the way, the court makes this observation, which may be of recurrent value with respect to AEDPA review of an IAC claim:

However, if a state court does not reach either the issue of performance or prejudice on the merits, then “federal review of this issue ‘is not circumscribed by a state court conclusion,’ and our review is de novo.” Toliver v. McCaughtry, 539 F.3d 766, 775 (7th Cir. 2008) (quoting Wiggins v. Smith, 539 U.S. 510, 534 (2003)).

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