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Use of horrifying treatment writings in 980 trial no due process violation

Scott R. Schmidt v. Deborah McCulloch, 7th Circuit Court of Appeals No. 14-3651, 5/27/16

The Seventh Circuit upholds the denial of a Wis. Stat. ch. 980 detainee’s habeas corpus petition.

As practitioners know, many important rules that protect a criminal defendant go out the window once the state alleges him a sexually violent person and seeks to commit him indefinitely. There are the constitutional rights that don’t apply–confrontation, Miranda, etc.–but perhaps more damaging is the fact that when you’re on trial for what you might do in the future, propensity evidence is not merely admissible, State v. Franklin, 2004 WI 38, 270 Wis. 2d 271, 677 N.W. 276, it’s pretty much the whole ballgame. Basically anything that makes the respondent seem frightening is fair game–including statements made as part of sex offender treatment, which of course typically demands that the participant be utterly frank about his crimes.

Scott Schmidt wrote some truly harrowing descriptions of his offenses, describing not only the facts of the crimes but his own excitement and gratification during them. They’re reprinted at length in the opinion, but the reader is earnestly cautioned: they’re disturbing. At trial, the state made extensive use of them; placing them before the jury through various witnesses and reciting from them in closing. Schmidt’s state-court appeal asked for reversal in the interest of justice, arguing that the statements were far more prejudicial than probative: so unfairly prejudicial, in fact, that they prevented the real controversy–his present likelihood of reoffense–from being fully tried. He did not prevail, of course, so he brought this habeas claim.

His federal constitutional claim is that his trial counsel was ineffective for not objecting to the introduction of his writings on Due Process grounds. After some discussion of whether he forfeited this claim by not raising it in the state courts, (Slip op. at 3), the majority concludes that regardless, the statements were highly probative of his psychopathy and his “fixation on rape and other violence against women,” and therefore admissible. (Slip op. at 9-11).

A concurrence suggests that Schmidt may be barred from federal habeas because he did not “fairly present” his Sixth Amendment claim to the state courts. (Slip op. at 14-16). It ultimately concludes, however, that the extremely deferential AEDPA standard defeats his claim, because the state court decision was not “an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States.” (Slip op. at 17-18).

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