On Point

State v. Jeffrey D. Marker, 2013AP2725-CR, District 2, 3/26/14; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court erred in dismissing a complaint charging Marker with operating under the influence of a controlled substance because the complaint was sufficient to establish probable cause, applying Lofton v. State, 83 Wis. 2d 472, 478, 266 N.W.2d 576 (1978). After police received a tip about a reckless driver, an officer tracked down the vehicle, which he stopped after observing it weave in its lane. Marker had slurred speech, performed poorly on field sobriety tests, and admitted taking numerous prescription medications, which was confirmed by blood test results. (¶4). The levels of those substances in his blood don’t preclude a probable cause finding:

¶6        Marker’s only argument on appeal is that the blood report’s indication that the drugs were found at “low therapeutic concentration” means that the other facts alleged do not add up to probable cause. We disagree. Slurred speech, the call from the complainant about erratic driving, Marker’s own voluntary admission to the officer that Marker had been pulled over earlier that day, the poor performance on the field sobriety tests—these are sufficient to establish probable cause even without the blood test results. Furthermore, that the drugs were at low therapeutic levels does not mean that they could not have an impairing effect in combination. The significance of the drugs’ levels would be a question for trial, not a detail that renders the rest of the alleged facts meaningless and strips the complaint of probable cause.

Question Presented:

 Did the Fifth Circuit err in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal?

Lower court decision: Jennings v. Stephens, 537 Fed. Appx. 326 (5th Cir. July 22, 2013)

Docket

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Jennings’s certiorari petition raised four issues, but the court took only one, which raises a question about procedure in federal habeas appeals on which the circuits have split. Besides resolving that circuit split, the answer the court gives to the question that will be important to practitioners who win some sort of relief in the district court and face an appeal by the state.

Jennings was sentenced to death for a homicide. He filed a federal habeas petition alleging that trial counsel was ineffective at the sentencing proceeding based on three allegations of deficient performance. The district court granted relief on two of the allegations—the failure to discover and present mitigating evidence of  mental impairment and disadvantaged background—but denied relief on the third allegation—counsel’s argument during summation that he could not quarrel with a death sentence. The state appealed the grant of habeas relief to circuit court, but Jennings did not file a separate notice of appeal and motion for a certificate of appealability (COA) seeking review of the district court’s denial of relief on the third allegation of deficient performance. He did, however, raise the third allegation in his appellate brief. Relying on its own precedent, Wiley v. Epps, 625 F.3d 199, 204 n.2 (5th Cir. 2010), the Fifth Circuit Court of Appeals held Jennings’s claim on the third allegation was procedurally barred.

There is a circuit split on whether a habeas petitioner can raise arguments in opposition to the state’s appeal concerning grounds for relief not adopted by the district court unless the petition has first sought a COA. In Grotto v. Herbert, 316 F.3d 198, 209 (2nd Cir. 2003), the Second Circuit reached the same conclusion as the Fifth Circuit did in this case, while our home circuit takes the view that the COA requirement, 28 U.S.C. § 2253(c), does not require a petitioner to seek a COA when an appeal is already before the court based on the state’s appeal of a grant of habeas relief. Szabo v. Walls, 313 F.3d 392, 397-98 (7th Cir. 2002). The Seventh Circuit reads the statute as dealing only with prisoners who are appellants, and does not address prisoners who are appellees making arguments in support of the relief they have obtained. It “serves a gatekeeping function,.. and once a case is properly before the court of appeals … there are no remaining gates to be guarded.” Id. at 298. The Supreme Court will decide the matter next term.

State v. Jesse A. Van Camp, 2013AP2059-CR, District 3, 3/25/14; court of appeals decision (1-judge; ineligible for publication); case activity

Although an “[a]dmittedly … close case” (¶15), police had reasonable suspicion to stop Van Camp under all the circumstances, including his “somewhat evasive” driving behavior, even though they observed no specific criminal activity, applying State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990); State v. (Marvin) Williamson, 113 Wis. 2d 389, 402, 335 N.W.2d 814 (1983) (stop upheld where two men appeared startled and stared at police officers sitting in their squad car and then turned and walked away); and State v. (Stance) Williamson, 58 Wis. 2d 514, 517-18, 206 N.W.2d 613 (1973) (stop upheld where defendant drove a circuitous route and pulled his car over to the curb in response to approach of marked squad car):

¶16      Specifically, this case began when [Officer] Sweetman observed two males in a bar after “bar time” try to avoid being seen by him. While there is no indication that Van Camp was one of those individuals, it was reasonable for Sweetman to suspect from this behavior that there was something amiss at the bar. Sweetman then observed Van Camp emerge from the bar at 2:17 a.m. When Sweetman began following Van Camp, Van Camp immediately turned on the first available road and turned into a residential driveway. After Sweetman passed the road, Sweetman observed Van Camp exit the driveway. When Sweetman turned around and turned onto the road, Van Camp pulled his vehicle over. Sweetman’s vehicle was then momentarily side-by-side with Van Camp’s, and Sweetman stopped his vehicle, waiting to see what Van Camp was going to do.  Van Camp then crossed the intersection and traveled straight into another residential driveway. These specific and articulable facts support the circuit court’s finding that Van Camp’s driving was “somewhat evasive,” or an attempt to avoid Sweetman. Additionally, it is reasonable to infer from Van Camp’s actions of pulling into two residential driveways after 2:00 a.m. for no apparent purpose that some sort of wrongful activity was afoot….

State v. Philip B. Caminiti, 2013AP730-CR, District 4, 3/20/14; court of appeals decision (not recommended for publication); case activity

The prosecution of Caminiti for conspiracy to commit child abuse, §§ 939.31 and 948.03(2)(b), based on his instructions to his congregants to use a rod to discipline their children did not violate his First Amendment rights to advocacy or freedom of religion. Nor did it violate the right of parents to raise their children as they see fit. In addition, the circuit court did not err in admitting expert testimony regarding reasonable discipline of children, and there was no error in the conspiracy jury instruction.

Caminiti was the pastor of a small church that emphasized strong theological unity among its members. Based on his literal interpretation of the Bible (this text, perhaps) he believes that a graduated system of child discipline includes the use of the rod, which may be employed if milder forms of discipline fail and the parents perceive the child is intentionally misbehaving. Caminiti advised church members on how, when, and why a rod would be used, and once demonstrated rod discipline by striking himself hard enough to cause pain. He instructed that children only months old could be disciplined, that the child’s bottom must be bare, and that the rod should be a wooden dowel (or something similar). The rod discipline could leave marks or bruises, but Caminiti believed that causing some pain was consistent with discipline and correction, so bruises “were not a telltale sign of something bad.”

Caminiti did not discipline any of the eight children in this case. The discipline was administered by the child’s parents (or, in one case, the child’s mother’s boyfriend). Thus, he was charged with conspiracy to commit child abuse based on his advice, direction, and encouragement regarding rod discipline. 

Rights to advocacy, freedom of religion, and to raise one’s children 

Right to advocacy: Caminiti’s free speech right to advocacy under Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), was not violated by this prosecution:

¶23      Caminiti argues that the evidence does not show that he “instructed anyone to spank a specific child at any specific time.” As we understand it, Caminiti is arguing that this shows he was merely advocating the use of force in the abstract. We are not persuaded.

¶24      The Brandenburg test is not, to paraphrase Caminiti’s argument, a “specific [victim] at a[] specific time” test; it is an “inciting or producing imminent lawless action” test. See Brandenburg, 395 U.S. at 447-48. … We conclude that the jury could have reasonably inferred that Caminiti was inciting or producing the imminent use of abusive force against the children, particularly (but not only) when Caminiti gave parents a “look” or other indication during church services, causing the parents to promptly remove their children from the room in order to mete out the rod discipline Caminiti had taught them. Stated another way in terms of Brandenburg, the jury could reasonably infer that Caminiti was “‘preparing a group for violent action and steeling it to such action.’” Seeid. at 448 (quoted source omitted).

Note, though, that corporal punishment is not per se unlawful, so advocating its use does not automatically equate to advocating “lawless action”; instead, to advocate lawless corporal punishment, one would have to advocate conduct that goes beyond the child discipline privilege under § 939.45(5), which looks at reasonableness under all the circumstances. Thus, even if the Brandenburg test doesn’t include a “specific victim at a specific time” element, showing Caminiti incited imminent unlawful corporal punishment would seem to require a focus on the discipline of particular children in particular circumstances. That focus also seems necessary given the test’s “imminent action” requirement, under which advocating for unlawful conduct to take place at some indefinite future time is not sufficient. Hess v. Indiana, 414 U.S. 105, 108 (1973) (per curiam); McCoy v. Stewart, 282 F.3d 626 (9th Cir. 2002).

In addition, the test includes two requirements the court quotes (¶21) but leaves out of its analysis (¶24)—namely, that Caminiti’s advocacy was: 1) “directed to” inciting or producing imminent lawless action (a requirement interpreted as meaning the speaker intends to incite or produce imminent lawless action, see, e.g., Thomas Healy, Brandenburg in a Time of Terror, 84 Notre Dame L. Rev. 655, 665, 697-702 (2009)); and 2) “likely” to incite or produce unlawful action. But it’s difficult to see how these requirements are satisfied here. Again, advocating corporal punishment isn’t automatically advocating lawless action; Caminiti’s preaching could be put to legal or illegal use. Thus, there must be strong, substantial evidence to prove both Caminiti’s intent to incite imminent unlawful discipline and the likelihood his advocacy incited the parents to unlawful discipline. So while the court cites evidence from which the jury could reasonably infer that Caminiti was inciting or producing the imminent use of force (¶24), that’s not the whole test under Brandenburg; and even a generous reading of the facts laid out in the parties’ briefs shows the evidence in support of that inference (much less an inference about intent or likelihood) is awfully thin.

Right to freedom of religion: The prosecution did not violate Caminiti’s right to freedom of religion under the Wisconsin Constitution, which provides broader protection than the First Amendment, State v. Miller, 202 Wis. 2d 56, 64, 549 N.W.2d 235 (1996).

Miller establishes a four-part test. The state concedes the first two parts—that Caminiti has a sincerely held religious belief, and that his belief is burdened by the child abuse statute. The state meets its burden to prove the third and fourth parts–that it has a compelling interest in preventing child abuse, and that its interest cannot be served by a less restrictive alternative. (¶¶29-34). The court rejects Caminiti’s argument that the state lacks a compelling interest in preventing the minor, transient pain and unintended marks or bruising that are the normal consequence of corporal punishment because the question under Miller is whether the child abuse statute (and parental discipline privilege) is based on a compelling interest, and not whether the state has a compelling interest in prohibiting all normal consequences of corporal punishment. (¶¶29-30).

Right of parents to raise children as they choose: The prosecution did not violate the right of the parents to raise and discipline their children by prosecuting him based on a per se theory that all corporal punishment of infants and toddlers is child abuse:

¶39      We need not resolve whether such a “per se” theory is constitutionally permissible because we disagree with Caminiti that it was the prosecutor’s theory here. We also disagree with the implicit assumption in Caminiti’s argument that the jury likely reached a verdict based on this per se theory. Rather, we agree with the State that the prosecutor advocated a “detailed, contextual child-abuse analysis, not a per se approach.” This is evident from the extensive fact-witness testimony that the prosecutor elicited, the prosecutor’s closing arguments, in which the prosecutor relied on that testimony after reviewing it at great length, and the jury instructions.

Though two experts (a physician and psychologist) who recommended against corporal punishment did advocate per se rules (¶¶43-44), Caminiti asserted the parental discipline privilege, § 939.45(5), as an affirmative defense (¶5) and the jury was properly instructed that under that privilege they had to consider all of the circumstances (¶¶36, 41). See Wis. J.I.-Criminal 950, State v. Kimberly B., 2005 WI App 115, ¶¶29-33, 283 Wis. 2d 731, 699 N.W.2d 641. Because of the evidence over and above the expert testimony, and because juries are presumed to follow instructions, the experts’ testimony does not show that Caminiti was prosecuted based on a per se theory, let alone that the jury reached its verdict based on such a theory. (¶45).

Admission of expert testimony

The trial court did not err in admitting the testimony of the two experts that explained why they believed that corporal punishment of toddlers and infants was not appropriate. Rejecting Caminiti’s argument that the testimony was irrelevant because he did not know of their opinions or theories of child development at the time the discipline was occurring, the court concludes that “the pertinent question is not whether the expert opinions are irrelevant because Caminiti or the parents did not know of those opinions. Rather, because the standard the jury was required to apply is a reasonable person standard, the pertinent question is whether the expert opinions are irrelevant to what a reasonable person of ordinary intelligence and prudence would believe under all of the circumstances.” (¶49). And any error in admitting the testimony was harmless in light of the fact-witness testimony, Caminiti’s own “incriminating” testimony (¶51), and the fact that much of the expert testimony underscored what a person of ordinary intelligence and prudence would have already believed. (¶¶50-54).

Conspiracy instruction

It was not error to instruct the jury on the elements of conspiracy, Wis. J.I.-Criminal 570, without including in the conspiracy instruction a statement that Caminiti could be convicted only if he intended and agreed that the parents discipline their children unreasonably. The court takes Caminiti to be arguing that the state had to show he intended and agreed that the discipline to be imposed would be unreasonable because the unreasonableness of the discipline is an element of the conspiracy crime. (¶¶63-64). The court disagrees: “Although the State had to prove that the discipline was unreasonable, the State’s burden on the affirmative defense does not make the unreasonableness of the discipline an element of child abuse or an element of the conspiracy crime.” (¶65). The court thus concludes the instructions as a whole “adequately informed the jury of the elements of conspiracy and the nature of the privilege.” (¶66).

But did the instructions adequately inform the jury of the interaction between conspiracy and the privilege, which effectively creates a requirement that Caminiti intend to commit unreasonable child discipline? Or did the instructions (the pertinent parts are reproduced at ¶66 n.8) allow the jury to convict if all Caminiti did was advise the use of corporal punishment—which satisfies the elements of child abuse—because the privilege language referred only (and specifically) to the acts of the parent, not Caminiti? This question ultimately comes back to Brandenburg and its requirement of proof the defendant intended to incite or produce imminent unlawful action. At least one court has held it was error not to instruct the jury about these requirements, United States v. Freeman, 761 F.2d 549 (9th Cir. 1985) (trial court erred in failing to instruct jury on possible freedom of speech defense in prosecution for aiding and abetting violation of federal tax laws), and Caminiti argued the lack of a Brandenburg instruction was an error entitling him to a new trial in the interest of justice; the court rejects the claim as undeveloped, however. (¶24 n.5).

Which brings us to a final note about Brandenburg. Though the case has been around for 45 years, it is not without significant “ambiguities,” it has been applied by the Supreme Court only twice, without any elucidation (Hess, cited above, and NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (advocating harm to persons who didn’t comply with boycott was protected under test)), and it has been given very crabbed (if not outright inaccurate) readings by lower courts. Marc Rohr, Grand Illusion? The Brandenburg Test and Speech that Encourages or Facilitates Criminal Acts, 38 Willamette L. Rev. 1, 1-49 (2002). Further, it dealt with speech that was itself the crime (the applicable statute made it a crime to “advocate … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” 395 U.S. at 444-45), while this case involved speech that is not itself criminal allegedly inciting someone to engage in a non-speech crime. Maybe, then, the issue here is more akin to, or overlaps into, “crime-facilitating speech”–speech that provides instruction that has a “dual uses,” one valuable, one that may facilitate crime by others, and which should be given First Amendment protection similar to that given by Brandenburg to incitement. Healy, Time of Terror at 662 n.34; Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1104-08, 1128, 1174-94, 1217 (2005). And maybe some of these issues will be addressed if the case gets further review.

State v. Jimmie G. Minett, 2014 WI App 40; case activity

Issue:  Whether under State v. Popenhagen, 2008 WI 55, 309 Wis. 2d 601, 749 N.W.2d 611, suppression of evidence discovered during a strip search may be a remedy for violation of § 968.255?

Holding:  “No,” said the court of appeals.  Popenhagen simply abrogated case law that prohibited the circuit court from suppressing evidence obtained in violation of a statute when the statute does not expressly require suppression.  Slip op. ¶9.  It held that “the circuit court has discretion to suppress or allow evidence obtained in violation of a statute that does not specifically require suppression of evidence obtained contrary to the statute, depending on the facts and circumstances of the case and the objectives of the statute.”  Popenhagen, ¶64.

Popenhagen involved § 968.135, which provides for the subpoena of certain documents upon of showing of probable cause. The court of appeals saw this statute as fundamentally different from § 968.255, the strip search statute:

¶9 . . . Since the statute in Popenhagen expressly authorized “[m]otions to the court, including, but not limited to, motions to quash or limit the subpoena,” a suppression motion was allowed because “[a] motion to suppress documents obtained by a subpoena issued in violation of [the statute] is … similar in nature” to motions to quash or limit the subpoena.  Id., ¶¶36, 51. The court pointed out that a suppression motion was also “germane to the[] objectives” of the statute in question.  Id., ¶54.

¶10      The same is not true here. Firstly, this statute, unlike the statute in Popenhagen, enumerates specific remedies for its violation:  (1) a $1000 fine or imprisonment, Wis. Stat. § 968.255(4), and (2) civil damages or injunctive relief. Thus, unlike in Popenhagen, here there is no evidence that the legislature contemplated any remedies “similar in nature” to a motion to suppress.  Secondly, allowing such a motion would not be germane to the objectives of the statute.  This is a regulatory statute aimed at controlling law enforcement officers’ conduct via criminal penalties.  It does not mention probable cause and authorizes no motions to quash or limit the search.  So, while, in other cases, a suppression motion might be an appropriate remedy for a violation of the law that took place during a strip search—if, for instance, there was no probable cause for the search—where, as here, there was concededly no violation of any constitutional right but merely of the statute itself, the violation of the statute provides no basis for a suppression motion. See also Jenkins v. State, 978 So. 2d 116, 128-30 (Fla. 2008) (holding that absent constitutional violation, where the strip search statute did not expressly authorize suppression as a remedy, suppression was not a remedy).

Popenhagen generated a 54-page decision, including a concurrence by Justice Prosser, a concurrence/dissent by Justice Ziegler and a dissent by Justice Roggensack. Folks interested in suppressing illegally obtained evidence in situations where there has been no constitutional violation and no statute explicitly authorizes suppression might want to study Prosser’s and Ziegler’s concurrences in particular. They both highlight arguments that might achieve such a result—arguments that the Popenhagen majority (if forced to) might agree with. For more on strip searches and suppression see our prior post here.

State v. Patrick E. Gordon, 2014 WI App 44; case activity

The circuit court’s findings—Gordon was in a high-crime area; he and his friends “recognized the police presence”; and, as a result, Gordon engaged in a “security adjustment,” which is “a conscious or unconscious movement that an individual does when they’re confronted by law enforcement when they’re typically carrying a weapon” and involves placing a hand over the place the gun is to make sure it’s still there (¶¶3-7, 9, 14)—did not provide objective reasonable suspicion that Gordon was engaged in criminal activity:

¶15      First, although presence in a high-crime area could, given circumstances other than what we have here, be a significant aspect of the “reasonable suspicion” calculus, either standing alone or combined with what we have here, it adds nothing; sadly, many, many folks, innocent of any crime, are by circumstances forced to live in areas that are not safe—either for themselves or their loved ones. Thus, the routine mantra of “high crime area” has the tendency to condemn a whole population to police intrusion that, with the same additional facts, would not happen in other parts of our community. “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000)….

¶16      Second, recognition of “police presence” would be [present] in almost every case where police executed a Terry stop. Looking at police officers driving through one’s community certainly adds nothing by itself (that is, for example, without flight or attempted flight—see Wardlow, 528 U.S. at 124–125, discussed above and in footnote 4).

¶17      Third, the circuit court’s main rationale in denying Gordon’s suppression motion was what it found was Gordon’s “security adjustment.” But, as Officer Ticcioni recognized, many folks, most innocent of any nefarious purpose, may occasionally pat the outside of their clothing to ensure that they have not lost their possessions. Indeed, this makes even more sense in a high crime area than it might in other less crime-ridden parts of our community. Although, as Ticcioni explained, the “security adjustment” could, given additional facts (such as, for example, flight or attempted flight), support an objective “reasonable suspicion,” the additional facts here—high crime area and recognizing the police car as a police car—are far too common to support the requisite individualized suspicion here.

¶18      Permitting Terry stops of persons momentarily patting the outside of their clothing when the only additional facts are that those persons are in a high crime area and have seen a cruising police car would expand the individualized [“]reasonable suspicion” requirement so far so as to negate it….

A salutary rejection of police reasoning that is, at the end of the day, not much more than a chant of lions and tigers and bears, oh my!

Joel D. Rhodes v. Michael Meisner, No. 13-C-0161 (E.D. Wis. Mar. 12, 2014)

Judge Lynn Adelman of the U.S. District Court, Eastern District of Wisconsin, has ordered a new trial for Joel Rhodes, concluding that in State v. Rhodes, 2011 WI App 145, 337 Wis. 2d 594, 807 N.W.2d 1, the Wisconsin Court of Appeals unreasonably determined that the trial court properly exercised his discretion in denying Rhodes’s request to reinstate his right to counsel on the eve of trial.

As explained in our post on the court of appeals decision, Rhodes waived his right to counsel several weeks before trial, though he also expressed interest in retaining a lawyer (Kovac) who had represented him in the past. On the first day of trial Rhodes asked the trial court to reinstate his right to counsel and requested an adjournment so Kovac could represent him. The trial court denied the request, concluding Rhodes was engaging in “gamesmanship.” The court of appeals concluded Rhodes’s initial waiver of counsel was valid and that the trial court properly exercised its discretion in denying Rhodes’s request to reinstate his right to counsel.

Judge Adelman assumes that Rhodes’s initial waiver of counsel was valid, and addresses only the determination that the trial court properly exercised its discretion in denying Rhodes’s request for counsel on the morning of trial. After concluding the court of appeals applied the proper legal standard (as subsequently established by Marshall v. Rodgers, 569 U.S. __, 133 S. Ct. 1446 (2013) (per curiam)) (slip op. at 20-21), Judge Adelman holds the court of appeals unreasonably determined the facts relating to Rhodes’s request for counsel. Specifically, the court of appeals held Rhodes made three “mutually exclusive requests” that imposed “impossible duties on the trial court.” 337 Wis. 2d 594, ¶40. Judge Adelman rejects this reasoning:

…[T]he record contains absolutely no support for the conclusion that Rhodes had made mutually exclusive requests. Rather, the record is clear that Rhodes had made alternative and consistent requests, which the trial court addressed on the first morning of trial: First, Rhodes asked the trial court to allow Kovac to represent him. When the trial court denied that request, Rhodes, now intending to represent himself at trial, raised an issue he had been having with accessing a recorded telephone conversation he intended to use at trial. … After the court dealt with his request for an adjournment [to allow him access to that recording], Rhodes raised the question of whether Kovac could serve as his stand-by counsel. The court denied that request. … Thus, Rhodes did not make mutually exclusive request or try to have the trial court do the impossible in an effort to obstruct the orderly administration of justice. He made three alternative and consistent requests, all of which the court denied. The court of appeals’s contrary finding constituted an unreasonable determination of the facts. See Carlson v. Jess, 526 F.3d 1018, 1027 (7th Cir. 2008) (state court’s factual finding is unreasonable when there is “nothing to back it up”). (Slip op. at 22-23).

Judge Adelman acknowledges the trial court could have properly exercised its discretion by denying Rhodes’s request “solely because it was untimely”–made as it was on the morning of trial. (Slip op. at 24). But the trial court didn’t base its decision on untimeliness alone; it also cited Rhodes’s “gamesmanship.” Because the second reason was based on a clearly erroneous factual finding, the decision constiutes an erroneous exercise of discretion:

When a court reviews for abuse of discretion, it reviews a judge’s reasoning process, not merely the outcome produced by that reasoning process. … The mere fact that the outcome–the bottom line–reached by the judge is within the range of permissible outcomes is not sufficient to allow a reviewing court to uphold it. This is especially true in a case like this, in which any of the available outcomes (denying the request or granting it) could have been reasonably selected by the judge. In such cases, the reasons given by the judge for making the choice he did determine whether the choice may be upheld. Here, the judge gave two reasons for his choice (untimeliness and gamesmanship), one of those reasons (gamesmanship) was based on a clearly erroneous factual finding, and the judge gave no indication that he would have made the same choice if he had not made the clearly erroneous factual finding. Thus, the clearly erroneous factual finding tainted the judge’s reasoning process, with the result that the ultimate decision must be set aside as an abuse of discretion….