Appellate puts trial courts in tough spot

POSTED: Tuesday, April 5th, 2011 at 8:17 am


BY: David Ziemer

An April 1 opinion from the 7th Circuit creates a conundrum for state courts when criminal defense attorneys fail to follow the rules for submitting evidence the alleged victim in a sexual assault case has made false allegations before.

A trial court faced with that situation is caught between a rock and a hard place. If the court does not enforce the rule, the rule has no teeth; but if the court does enforce the rule, there is a good chance the defendant will have to be retried because counsel was ineffective.

Case law is clear that exclusion of such evidence violates the Confrontation Clause. Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001). In addition, under Wisconsin law, such evidence is specifically admissible under sec. 972.11(2).

However, pursuant to sec. 971.31(11), the defendant must file a pretrial motion seeking its admission.

Unfortunately, for Gordon E. Sussman, when he was charged in Wisconsin state court with repeated sexual assault of a minor and other charges, his attorney failed to file the required motion. The evidence of prior false accusations was thus excluded, and Sussman was convicted.

He then claimed that his trial counsel was ineffective for failing to file the required motion under sec. 971.31(11), but the trial court denied the claim. The Wisconsin Court of Appeals affirmed, holding that, even if Sussman’s attorney was deficient, it was not prejudicial.

The Wisconsin Supreme Court denied review, and the federal district court denied habeas corpus relief. But the 7th Circuit reversed, in an opinion by Judge Kenneth F. Ripple, holding that trial counsel was deficient for not filing a pretrial motion, and the deficiency was prejudicial.

The problem for Wisconsin state courts is that the holding guts sec. 971.31(11) of all its force.

Effectively, if the court enforces the procedural rule, and the evidence would otherwise have been admissible, counsel is deficient per se, and the defendant will have to be retried, provided the deficiency is prejudicial. But if the court permits admission of the evidence, just to avoid a retrial, the rule has no teeth.

The 7th Circuit called the evidence “crucial,” and therefore, Sussman was prejudiced. But there is nothing particularly unique about Sussman’s case. Evidence of prior false accusations of sexual assault is so powerful that it is likely to be deemed “crucial” in almost all cases.

Thus, the trial court has to guess, in the middle of trial, how prejudicial enforcement of the rule will prove to be. But in the middle of trial, the court is in a poor position to make that call.

What the Court Held

Case: Sussman v. Jenkins, No. 09-3940

Issue: Was trial counsel ineffective for failing to introduce evidence the alleged victim had made false accusations of sexual assault against others?

Holding: Yes. The failure to obtain admission of the evidence was deficient, the deficiency was prejudicial, and it was unreasonable for Wisconsin state courts to hold otherwise.

David Ziemer can be reached at david.ziemer@wislawjournal.com.