On Point

State v. Jeffrey A. Adamczak, 2013 WI App 150; case activity

Admission of other acts evidence

Adamczak was charged with sexual exploitation by a therapist in violation of Wis. Stat. § 940.22 for having sexual contact with Sabrina. He testified the contact occurred, but only after the patient-therapist relationship was over. (¶¶3, 5). Before trial the state moved to admit the testimony of Sarah and Gail, two other patients of Adamczak’s who said he made “inappropriate [sexual] comments” to them during treatment sessions. Applying State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), the trial court granted the state’s request. (¶¶4, 10-12).

The court of appeals holds the trial court erroneously exercised its discretion. First, the testimony was not offered for an acceptable purpose. The fact the comments were not the type a therapist would make to a patient was not, as the trial court thought, a proper purpose; moreover, the allegations were also dissimilar to the alleged criminal conduct and so did not show motive and intent, as the state claimed. (¶14). Second, the testimony was irrelevant:

¶15      ….  The statements made to Gail and Sarah established that Adamczak might have engaged in boorish behavior towards the two women, but they throw no light on when Adamczak began having sexual contact with Sabrina. As noted, at trial Gail testified that Adamczak never touched, hugged, or kissed her, and never sought to contact her. The same is true with Sarah. Adamczak never touched or kissed her, nor did he contact her. Thus, as Sullivan instructs, their testimony does not have “a tendency to make the consequential fact or proposition more probable or less probable than it would be without the evidence,” see id., because “the probative value lies in the similarity between the other act and the charged offense,” see id. at 786. Here, there is little similarity between the other acts evidence and the charged offense.

But the court’s erroneous exercise of discretion was harmless. Besides the fact that the lack of sexual contact with Gail and Sarah undermined the state’s claim that Adamczak used his position as a therapist to obtain sexual contact with patients, their testimony paled in comparison to the other acts testimony of yet another patient, Christie, who alleged contact exactly like that Sabrina described and whose testimony Adamczak did not challenge. Further, “numerous email exchanges between Sabrina and Adamczak strongly pointed to sexual contact while Sabrina was still his patient.” Thus, the court concludes there was no reasonable possibility that the admission of testimony from patients Gail and Sarah contributed to the conviction. (¶¶17-18).

Admission of letter written to victim by defense counsel

Trial counsel was not ineffective for failing to object to the admission of the letter he sent to Sabrina before charges were filed in which he claimed to be concerned about Adamczak’s mental health due to the issue between Adamczak and Sabrina and suggests that a solution can be found that would not require Sabrina to report Adamczak. (¶¶3, 19). First, the court rejects the argument the letter was improper hearsay:

¶22      There is evidence in the record that Adamczak approved Attorney Boyle writing the letter to Sabrina. Therefore, the letter falls clearly within Wis. Stat. § 908.01(4)(b)3 as a “statement by a person authorized by the party to make a statement concerning the subject.” Here, Adamczak authorized Attorney Boyle to make a statement, i.e., write a letter to Sabrina, concerning her decision to report Adamczak to the authorities. Consequently, the letter was admissible. Trial counsel is not ineffective for failing to bring meritless challenges. State v. Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769 N.W.2d 110.

The court also rejects the claim that allowing the letter to be read to the jury “put defense counsel in the position of being an unsworn witness whose credibility was implicitly at issue.” (¶19). Instead, the court concludes, Sabrina testified she did not know what the letter meant, and in any event defense counsel “argued convincingly in his closing argument as to why he sent the letter.” (¶24). Thus, it is “sheer speculation” to believe the letter was seen by the jury as an attempt to bribe or intimidate Sabrina that would have prejudiced the jury against defense counsel and, by extension, the defendant. (¶24).

But isn’t the fact that defense counsel undertook to explain in closing argument why he sent the letter prove that he did become an unsworn witness? And while the court of appeals thought he argued the point “convincingly,” doesn’t that simply underscore the fact that the jury was put in the position of judging defense counsel’s credibility? Furthermore, Sabrina’s testimony about the letter–reproduced in ¶24 of the opinion–seems hardly so benign as the court suggests. She said she ultimately didn’t know what to think, but she also clearly considered, and apparently didn’t dismiss, the possibility the letter was meant as a bribe or intimidation. It’s hard to see why the court concludes from this that she “[c]learly” didn’t believe the letter was meant as either of those things. Of course, even if the court’s reasoning here is quite unsatisfactory, it may be that the admission of the letter, like the admission of the testimony of Gail and Sarah, was harmless (or more precisely, not prejudicial).

Burt v. Titlow, USSC No. 12-414, 11/5/13

United States Supreme Court decision, reversing Titlow v. Burt, 680 F.3d 577 (6th Cir. 2012)

When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a “‘doubly deferential’” standard of review that gives both the state court and the defense attorney the benefit of the doubt. Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 17). In this case, the Sixth Circuit failed to apply that doubly deferential standard by refusing to credit a state court’s reasonable factual finding and by assuming that counsel was ineffective where the record was silent. Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and Strickland v. Washington, 466 U. S. 668 (1984), do not permit federal judges to so casually second-guess the decisions of their state-court colleagues or defense attor­neys, the Sixth Circuit’s decision must be reversed. (Slip op. at 1).

Titlow and her aunt, Billie Rogers, were charged with murdering Rogers’s husband. Titlow initially made a deal with the state to plead to manslaughter and testify against Rogers. But after entering her plea, and on the eve of Rogers’s trial, she hired a new lawyer, protesting she was innocent. After the prosecutor rejected her demands for a better sentence recommendation under his plea deal, she successfully moved to withdraw her plea. Rogers’s trial went forward and she was acquitted. Titlow was then tried, convicted of second degree murder, and given a longer sentence than she would have received under the plea agreement. (Slip op. at 1-2).

On direct appeal in state court Titlow argued her second lawyer was ineffective for advising her to withdraw her plea because he didn’t take the time to learn enough about the case and inadequately advised her about the strength of the state’s case.  The state courts held the lawyer acted reasonably given Titlow’s assertions of innocence, saying that “[w]hen a defendant proclaims … innocence …, it is not objectively unreasonable to recommend that the de­fendant refrain from pleading guilty—no matter how ‘good’ the deal may appear.” (Slip op. at 2-3). Titlow sought federal habeas relief, and the Sixth Circuit reversed, concluding the state court’s decision was based on an unreasonable interpretation of the factual record because the lawyer argued for plea withdrawal based not on Titlow’s claim of innocence, but on the fact the sentence to be recommended under the plea agreement exceeded state sentencing guidelines. Further, the Sixth Circuit was troubled that “[t]he record in this case contains no evi­dence” that counsel fully informed Titlow of the possible consequences of withdrawing the guilty plea. 680 F.3d at 589.

The Supreme Court unanimously reverses, citing the “formidable barrier” to habeas relief erected by AEDPA and concluding the record “readily supports” the state court’s findings that trial counsel acted based on Titlow’s assertions of innocence. (Slip op.  4-8). “Even more troubling” for the Court was the Sixth Circuit’s reasoning that the record contains no evidence that counsel adequately advised Titlow about whether to withdraw his plea:

We have said that counsel should be “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” Strickland, 466 U. S., at 690, and that the burden to “show that counsel’s performance was deficient” rests squarely on the defendant, id., at 687. The Sixth Circuit turned that presumption of effectiveness on its head. It should go without saying that the absence of evidence cannot overcome the “strong pre­sumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Id., at 689. As Chief Judge Batchelder correctly explained in her dissent, “[w]ithout evidence that [trial counsel] gave incorrect ad­vice or evidence that he failed to give material advice, Titlow cannot establish that his performance was defi­cient.” 680 F. 3d, at 595. (SLip op. at 9).

As we noted in our post on the cert grant in this case, the Court would reach the substantive issue in the case–the right to the effective assistance of counsel during plea negotiations–only if it first got past the deferential standard of review required in federal habaes cases under AEDPA. Thus, the decision is mainly another ringing reaffirmation of the limits of federal habeas review, and to that extent offers little that is new. On the other hand, the decision offers some guidance regarding counsel’s duties in plea negotiating, as it explicitly affirms counsel has the same duties even when the defendant is asserting innocence. In particular, the majority notes, “[a]lthough a defendant’s proclamation of inno­cence does not relieve counsel of his normal responsibili­ties under Strickland, it may affect the advice counsel gives.” (Slip op. at 8). Justice Sotomayor’s concurrence expands, helpfully, on this point:

Regardless of whether a defendant asserts her innocence (or admits her guilt), her counsel must “make an independent examination of the facts, circumstances, pleadings and laws involved and then … offer his informed opinion as to what plea should be entered.” …. A defendant possesses “‘the ultimate authority'” to determine her plea. …. But a lawyer must abide by his client’s decision only after having provided the client with competent and fully informed advice, including an analysis of the risks that the client would face in proceeding to trial. (Sotomayor concurrence at 1-2 (quoted sources omitted)).

While Titlow failed to show facts establishing deficient performance, “our statement about the facts of this case does not imply that an attorney performs effectively in advising his client to withdraw from a plea whenever the client asserts her innocence and has only a few days to make the decision. Had [Titlow] made a better factual record–had she actually shown, for example, that [trial counsel] failed to educate himself about the case before recommending she withdraw her plea–then she could well have prevailed.” (Sotomayor concurrence at 2).

Update (11/7/13): One of Scotusblog’s regular commentators, Rory Little, gives his take on the decision here. He aptly notes that if the Court is looking for vehicles to expound on the standard for effective assistance of counsel in plea bargaining announced in Lafler v. Coooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012), “Titlow suggests that they will be looking for direct review cases from the state and federal courts to clarify the law in this area, rather than through the foggy filter that federal habeas doctrine imposes.”

State v. Richard P. Selenske, 2013AP1403-CR, District 3, 11/5/13; court of appeals decision (1-judge; ineligible for publication); case activity

A dispute about a contract for the purchase of standing hay grew into a misdemeanor theft charge when Selenske, the farmer who owned the hay fields, would not let Kern, the farmer who purchased the hay, pick up the last of the bales. The bare-bones contract Selenske wrote didn’t include a completion date, but Kern complied with an oral request to cut and bale the hay in July. (¶¶2-3). Kern didn’t finish hauling all the bales away before August 12, though, at which point Selenske blocked him from taking any more. He claimed they had orally agreed the hay would be removed by July 15, and Kern’s failure to comply with that deadline meant the bales became his. (¶¶4-7).

To bolster his completion date claim, Selenske sought to introduce Kern’s hay cutting contract with the DNR as evidence of the “industry standard” for completion dates. (¶¶8, 15). He also asked for a jury instruction on certain civil law principles regarding the interpretation of contracts. (¶¶9-11). The circuit court held the DNR contract was irrelevant and that Selenske’s proposed instruction improperly incorporated civil law into the case. (¶19). The court of appeals affirms:

¶20      On appeal, Selenske ignores the circuit court’s reasoning and simply advances arguments concerning the importance of  the DNR contract and why his proposed instructions should have been given to the jury. He does not explain why the reasons given by the circuit court for excluding the evidence and refusing to give the proposed instructions are erroneous. See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (ignoring ground upon which circuit court ruled constitutes concession of the holding’s validity).

¶21      In any event, Selenske’s argument about the need for the jury to determine the contract’s completion date overlooks the written contract itself. “The interpretation of a written contract, including the determination of whether its terms are ambiguous, is a legal matter that we decide independently.” Town of Neenah Sanitary Dist. No. 2 v. City of Neenah, 2002 WI App 155, ¶9, 256 Wis. 2d 296, 647 N.W.2d 913. “[U]nambiguous contractual language must be enforced as it is written.” Id. Here, the written contract explicitly stated it was for the “2011 cutting.” Under this language, Kern was still within the terms of the contract on August 12, 2011. He had not breached the contract by failing to timely complete the contract. Because Kern did not breach the contract, Selenske’s arguments about his purported right to cancel and assume ownership of Kern’s bales fail.

The court also properly determined restitution. Selenske argued he was only responsible for restitution for thirty-seven bales, while Kern testified he lost all seventy bales. The circuit court accepted Kern’s testimony and it’s determination is supported by the record. (¶¶25-27).

The Sentencing Law and Policy blog (an affiliate of the law professor blogs network) tees up the issue nicely.  Their post is pasted in below.

When and how will SCOTUS take up Miller retroactivity issues?

The question in the title of this post is promoted by this local piece reporting on reactions to the Pennsylvania Supreme Court’s decision last week (reported here) that its state teens given mandatory LWOP before the US Supreme Court’s Miller ruling should not get any retroactive benefit from that decision. Here is an excerpt:

Nicholas White was 17 when a judge sentenced him to life in prison without parole for killing his father, Robert Grant White, 43, in 1998 in their home along Route 356.

 Last year, the Supreme Court declared such sentences unconstitutional, saying they amount to cruel and unusual punishment. But the Pennsylvania Supreme Court last week ruled, 4-3, that the opinion does not apply retroactively to cases such as White’s that were final before June 2012.

 The decision means White and more than 450 Pennsylvania inmates, including as many as 40 from Allegheny County, are not eligible for resentencing. “I can’t believe that it’s fair — that if your sentence came down one day, you get nothing, and if it came down the next day, you get a new hearing,” said Marc Bookman, director of the Atlantic Center for Capital Representation in Philadelphia.

 “But there is a silver lining here, and that is that the Pennsylvania Supreme Court does have another round of review, and that is with the U.S. Supreme Court,” said Turtle Creek attorney David Chontos. He represents Jeremy Melvin, 26, of McKeesport, who was 16 in 2005 when a Mercer County judge sentenced him to life without parole for killing a counselor at George Junior Republic, a private residential juvenile treatment center.

 Several legal experts said the case likely is bound for the Supreme Court, because Iowa, Mississippi and Illinois deemed the high court’s ruling retroactive, although Pennsylvania, Minnesota, Michigan and Florida have said it is not.

There seems little reason to doubt SCOTUS will be taking up this issue before too long. But when and how is a real interesting question, not only because the facts of the case taken up by the Justices could influence the public and legal discourse, but also because arguments about Miller retroactivity could (and I think should) prompt some reconsideration and modification of Teague habeas review jurisprudence.

Legal history buffs and women’s history enthusiasts might enjoy Cornell Alumni Magazine’s new interview of SCOTUS Justice Ruth Bader Ginsburg.  To read it, click here.

State v. Evan K. Saunders, 2013AP1229-CR, District 1, 11/5/13 (1 judge; ineligible for publication); case activity

This case concerns a gynecologist’s sexual assault of 4 different patients over 2 1/2 years.

Sufficiency of evidence:  Fourth degree sexual assault requires proof that the defendant had “sexual contact” with the victim without her consent.  Wis. Stat. § 940.225(3m).  And “sexual contact,” among other things, requires evidence that the defendant acted either with intent to harm the victim, or to become sexually aroused or gratified, or to sexually degrade or humiliate the victim.   Saunders said there was no evidence to prove harm, his own gratification, or degradation/humiliation of the victim because he touched intimate parts these women during their medical examinations.  See WIS-JI–Criminal 1219.

The court of appeals didn’t buy that argument–at all.  It spent over 5 pages cataloguing Saunders’s efforts to sexually arouse his patients during gynecological exams, and it highlighted the State’s expert’s testimony that there was no medical explanation for Saunders’s misconduct.  While Saunders presented contrary evidence, including some from the State’s expert, the court of appeals held that jury was free to accept the victims’ testimony, along with the portions of the State’s expert’s testimony that supported conviction, and “to infer from [that] evidence that Saunders had the intent necessary to find him guilty of all four fourth-degree sexual assault charges. Slip op. ¶19.  [Customary bow to State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990) regarding the court’s deference to a jury’s verdict.]

Joinder and Severance.  According to the court of appeals, the four sets of charges against Saunders were properly joined in one action because: (1) they involved the same types of offenses, and (2) they occurred over a relatively short period of time–here 2 1/2 years.  See Wis. Stats. § 971.12(1).  Is 2 1/2 years really a “short period of time”?  The court’s answer:  “[G]iven the similarities between each of the victim’s reports, two and one-half period of time is a relatively short period of time.”  Slip op. ¶26.  See State v. Hamm, 146 Wis. 2d 130, 138, 430 N.W.2d 584 (Ct. App. 1988) (crimes 15-18 months apart), which discusses the “relatively short” standard.

The court also held that Saunders  was not prejudiced by the denial of his motion to sever the 4 sets of charges:

¶36 Because we conclude that, if tried separately, the testimony of each of the victims would have been admissible in the trials of the others as other acts evidence, Saunders has not established that he was substantially prejudiced by joinder of the charges. As such, the trial court did not erroneously exercise its discretion when it denied Saunders’ motion to sever.

Talk about creative lawyering.  In a pending aggravated burglary case, a Tennessee DA moved to ban references to the prosecution as the “government” during trial because it sounds too oppressive.  The criminal defense lawyer’s response:  Judge, if we’re going to let parties ban words (a First Amendment violation) and pick their own designations, call me “Captain Justice, Guardian of the Realm and Leader of the Resistance” (admittedly not as high-ranking as “Attorney General”) and please refer to my client as “Citizen Accused” or “Innocent Man.”  Click here for the ABA Journal report, here for The Tennessean article, and Captain Justice for his cheeky response response brief.

Oh yeah.  According to The Tennessean, the court denied the DA’s motion.  The word “government” isn’t derogatory.  🙂