seventh circuit court of appeals decision, denying habeas relief on review of Wis. COA No. 2008AP1533-CR; prior history: 2001AP713-CR, 1995AP1856-CR
Habeas – Exculpatory Evidence – Available to Defendant
Jardine argues that the State suppressed exculpatory evidence, namely that post-conviction testing of the gun he admittedly possessed but denied using to club the victim didn’t reveal the presence of the victim’s DNA. Suppression of Brady material requires that the undisclosed evidence have been “not otherwise available to a reasonably diligent defendant,” citing Harris v. Kuba, 486 F.3d 1010, 1015 (7th Cir. 2007). Therefore, Jardine’s claim necessarily fails:
… Nothing in Jardine’s petition suggests his defense team was unaware of his own gun’s existence, the state’s possession of it , or the prosecution’s theory of its role in the crime. Nor does Jardine allege that he unsuccessfully requested access to the gun. Thus, Jardine’s Brady claim about his gun never leaves the ground. See Harris, 486 F.3d at 1015 (prosecution did not withhold defendant’s own alibi from him); United States v. Lee, 399 F.3d 864, 865 (7th Cir. 2005) (prosecution did not suppress defendant’s own pants, which contained a gun). 2
Footnote 2 stresses that Jardine doesn’t raise this issue as a matter of ineffective assistance of counsel, and goes on to observe that “declining to request DNA testing can be sound strategy when weaknesses in a defendant ’s story could lead reasonable lawyers to think the client guilty and any test results potentially damning.”
Habeas – Exculpatory Evidence – Materiality
Jardine, convicted of sexually assaulting and trying to kill a masseuse, argues that the State suppressed exculpatory evidence in the form of evidence that would have shown, contrary to the victim’s claim, that the massage parlor was a place of prostitution and she a prostitute. Although the suppressed evidence tended to support the defense theory of consensual sex, Jardine’s own testimony at trial, during which he admitted shooting the victim but claimed it was accidental, dooms the claim:
But not all suppressed evidence that has some tendency to exculpate or impeach is material under Brady, and relief may be granted only if introducing the evidence would have cast “the whole case in such a different light as to undermine confidence in the verdict.” Strickler v. Greene, 527 U.S. 263, 290 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). …
Here, Jardine’s argument that the evidence of prostitution was material founders on his own testimony. His story places him alone at the scene and raises a very troubling question: How was Grandhagen’s head injured so badly on the night she was shot in the leg, and in a manner that suggested pistol-whipping with the butt of a gun like Jardine’s? …
At all events, portraying Grandhagen as promiscuous, or poking holes in her and McKay’s testimony, would not solve Jardine’s biggest problem: Grandhagen’s vicious head wound, acquired on the evening he admittedly had sex with and shot her, and inflicted in a manner consistent with pistol-whipping with the butt of a gun like his.
The court strongly suggests that, “If used to show that Grandhagen herself had sex with other customers, either to bolster Jardine’s testimony that she consented or to impeach her generally, introducing the evidence would violate Wisconsin’s sweeping rape-shield law, WIS. STAT. § 972.11(2).” Highly probative evidence might violate the right to confrontation, but evidence of consensual sexual activity “with other men is archetypally prejudicial and not highly probative of consent in a particular case; precisely that concern underlies rape-shield statutes.” (Not clear whether the court’s observation is dicta, given its holding that the evidence wasn’t material, but it is worrisomely broad if nothing else.)
Habeas – State’s Response to Petition – Certificate of Appealability
The district court summarily dismissed Jardine’s habeas petition without ordering a return, but nonetheless issued a certificate of appealability, which left the record on appeal “thin.” The court now strongly cautions against that practice (footnote 1):
… [C]ommon sense says that coupling summary dismissal with a certificate of appealability is poor practice. The conclusion that a constitutional claim is debatable among reasonable jurists, as required for a certificate of appealability under 28 U.S.C. § 2253(c), see Slack v. McDaniel, 529 U.S. 473, 484 (2000), sits in obvious tension with the conclusion that the claim “plainly appears” from the petition and attachments to be a loser, as required for summary dismissal under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. All the more so if, as here, the district court premises the certificate on reasonable debate about the import of suppressed evidence in light of all the other evidence.
… [W]e respectfully advise district judges who plan on issuing a certificate of appealability to avoid Rule 4 and let the warden respond to the petition with exhibits.