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Effective Assistance – Rape Shield

State v. Michael James Carter, 2010 WI 40

Wisconsin supreme court decision, reversing unpublished summary order; for Carter: John T. Wasielewski; BiC (State); Resp.; Reply

Counsel made a reasonable tactical decision not to search for admissibility of sexual conduct evidence as an exception to the rape shield law. Therefore, Carter can’t show deficient performance. Separately, this evidence wouldn’t have fallen within an exception anyway, so Carter can’t show prejudice. One by one, in the order discussed by the court (which is, as will be seen backward):

Deficient performance.

Carter was convicted of sexually assaulting a 5-year-old child. His postconviction claim is that counsel should have gained admissibility of evidence that the child was assaulted by her cousin. The latter evidence was nominally inadmissible under the rape shield law, subject to analysis under State v. Pulizzano, 155 Wis. 2d 633, 656-657, 456 N.W.2d 325 (1990). Counsel made the decision not to seek admissibility without determining “whether the evidence would have been admissible,” ¶15, but this did not make his performance deficient:

¶23  Strategic decisions made after less than complete investigation of law and facts may still be adjudged reasonable. Strickland, 466 U.S. at 690-91. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691 (emphasis added). In evaluating counsel’s decision not to investigate, this court must assess the decision’s reasonableness in light of “all the circumstances,” “applying a heavy measure of deference to counsel’s judgments.”  Id.

¶31  Sargent determined that evidence of a previous sexual assault against Cassandra was irrelevant to his defense strategy of challenging Cassandra’s credibility through Denise by demonstrating that there was a breakdown in Denise and Carter’s relationship, and Denise used Cassandra as a tool in that breakup. That determination was a reasonable one. Whether Cassandra was previously sexually assaulted by a third party would not have necessarily assisted the trier of fact in assessing whether Denise’s broken relationship with Carter caused her to pressure Cassandra into making allegations against Carter. If Denise pressured Cassandra into making up the allegations, the jury could have believed that Denise was the source of Cassandra’s sexual knowledge, regardless of the alleged previous sexual assault.

¶32  In addition, it was reasonable for Sargent to conclude that if he presented evidence of the previous sexual assault, the jury would have questioned his chosen defense theory. The jury could have found it even less likely that Denise would put her daughter through a lie about sexual assault allegations, given the fact that Cassandra was already a victim. It was a reasonable trial strategy to not risk causing greater sympathy for Cassandra by introducing her as a victim of sexual assault and then directly attacking her credibility. On balance, when evidence of the previous sexual assault is weighed with the strategy employed, and there is already an alternative source of sexual knowledge, that being Cassandra’s mother, the fact that Cassandra was previously sexually assaulted militates against the defense. Furthermore, the jury could have concluded that this child was vulnerable to sexual assault by Carter because she was previously a victim.  In the end, the jury had to decide who it believed: the child or Carter. Whether the child was a previous victim of sexual assault would not have necessarily assisted the jury in answering that question.[12]

¶33  Even more reasonable, however, was Sargent’s concern that presenting evidence of the previous sexual assault would have built up the jury’s sympathy for Cassandra. …

The sticking point is whether a reasonable tactical choice could have been made on less than complete research, the majority concluding, ¶34:

… Sargent reasonably decided that further investigation of the alleged prior sexual assault and its admissibility was unnecessary. However, to be clear, we do caution that the better practice is for counsel to always research and be familiar with pertinent legal authority.  In another case, the failure to do so may constitute deficient performance. Under “all the circumstances” of this case, id., however, we conclude that Sargent’s decision not to investigate was reasonable.

The concurrence disagrees on this point, ¶¶55-80, all but arguing that decision-making uninformed by full knowledge of operative legal principles is necessarily deficient. But why can’t counsel decide, without fully researching applicable evidentiary principles, that certain evidence wouldn’t advance the defense in any event? It’s not as if counsel failed to consider the import of the evidence at all. Rather, counsel looked closely at the facts (no one claims otherwise) and determined that presenting them to the jury would be counter-productive. The majority says that, taking everything into account, this effort wasn’t deficient as a matter of law. And that is all. A relatively narrow, fact-specific holding that could and should have ended the matter. Should have but did not. Hence the court’s further if unnecessary discussion on


The court concludes that the alleged prior assault wouldn’t have been admissible under the rape-shield law, § 972.11(2)(b), therefore failure to pursue its admissibility wasn’t prejudicial. State v. Pulizzano “articulated a narrow test that the defendant must satisfy in order ‘to present otherwise excluded evidence of a child complainant’s prior sexual conduct for the limited purpose of proving an alternative source for sexual knowledge,'” ¶42. Failure to satisfy 1 of the 5 Pulizzano factors defeats the claim; Carter fails two. He can’t show the prior assault “clearly occurred,” ¶¶45-48. Separately, the offer of proof of the prior alleged assault didn’t “closely resemble” the charged offense because the former involved sexual contact and the latter intercourse, ¶52.

A bit of judicial activism at work. Once the court determined that counsel’s performance was up to snuff then there was no need — none — to discuss prejudice. True, as the concurrence quite properly points out, ¶58, the case should have been resolved “solely” on the issue of no prejudice. Indeed, Strickland exhorts reviewing courts in just that manner. (“The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.”) It’s not apparent why the majority didn’t choose that route. But the fact is, it didn’t, and without deficient performance the issue of prejudice is entirely irrelevant. Worse, once the majority undertook to resolve prejudice as well as deficient performance it could have resolved it purely on the basis of no clear occurrence. The majority recognized as much, ¶48, but proceeded to the next analytical step (“clearly resembled”) anyway. The ensuing analysis is problematic, ¶¶49-52, not least because it makes the “clearly resembled” step overly stringent. Take note that the court very recently took review in a rape shield case, and it may be that even more obstacles to admissibility are in the offing.

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