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Police misconduct not grounds for new trial

By: David Ziemer, [email protected]//September 16, 2011//

Police misconduct not grounds for new trial

By: David Ziemer, [email protected]//September 16, 2011//

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Despite evidence that the police withheld exculpatory evidence and witnesses were not truthful at trial, a state prisoner convicted in 1994 of sexual assault and attempted homicide will not get a new trial.

The 7th Circuit held on Sept. 14 that the suppressed evidence would not have been admissible anyway under Wisconsin’s rape-shield law, sec. 972.11(2).

The victim testified that, while working as a masseuse at a massage parlor in Superior, Jamie Jardine sexually assaulted her at gunpoint, and later shot her with it when she lunged for the gun. Her skull was also fractured, but she did not know how that happened.

An expert witness testified the head wound was consistent with being pistol-whipped.

Jardine testified the massage parlor also was a brothel and the sex was consensual. He testified the gun went off accidentally, when the victim seized it inexplicably. He had no explanation for the head wounds.

After many years, Jardine successfully obtained DNA testing of sheets and towels from the massage parlor that the detective had withheld, and DNA testing of the gun.

The DNA tests revealed at least three other men had ejaculated on the sheets and towels, but not Jardine. The butt of the gun yielded no testable genetic material.

Nevertheless, the state courts denied relief and Jardine sought relief in federal court. The district court denied his petition for habeas corpus, and the 7th Circuit affirmed.

Addressing the gun first, the court held that Jardine had no claim under Brady v. Maryland, 373 U.S. 83 (1963), because the state never suppressed the gun. The court found, “Nothing in Jardine’s petition suggests his defense team was unaware of his own gun’s existence, the state’s possession of it, or the prosecution’s theory of its role in the crime. Nor does Jardine allege he unsuccessfully requested access to the gun.”

Turning to the semen-stained sheets and towels, the court acknowledged the evidence supports Jardine’s contention that the massage parlor was also a brothel. It also contradicted the testimony of another masseuse who denied at trial that prostitution took place at the parlor.

But the court found that Jardine’s own testimony negated the materiality of the evidence.

“How was [the victim’s] head injured so badly on the night she was shot in the leg, and in a manner that suggested pistol-whipping with the butt of a gun like Jardine’s?” the court asked. “Nor is there a plausible basis for contending that the evidence of prostitution somehow means [the victim] suffered a freakish fall, rather than the pistol-whipping suggested by expert analysis of her injuries.”

The court further found that the evidence would be inadmissible under Wisconsin’s rape shield law, which the court called “sweeping.” Using the evidence to show the victim had sex with other customers would violate the rape-shield law.

And using it to impeach the other masseuse’s denial that prostitution took place at the parlor would violate sec. 906.08(2), the rule against impeachment through extrinsic evidence of collateral acts.

The court acknowledged state rape-shield laws cannot bar evidence if application would violate a defendant’s rights under the Confrontation Clause.

However, the U.S. Supreme Court has never deemed a rape-shield law unconstitutional for that reason. Accordingly, the court held it was not unreasonable for the Wisconsin state courts to conclude that the evidence would have been inadmissible, even if the detective had not withheld it.

Before concluding, the court iterated that none of the evidence would have undermined the evidence that the victim was pistol-whipped by Jardine. “At all events, portraying [the victim] as promiscuous, or poking holes in her and [the other masseuse’s] testimony, would not solve Jardine’s biggest problem: [the victim’s] vicious head wound, acquired on the evening he admittedly had sex with and shot her, and inflicted in a manner consistent with pistol-whipping with the butt of a gun like his.”


The case is noteworthy for two reasons; one procedural, and one substantive.

The district court in this case summarily dismissed the petition without reviewing the state-court transcripts and pleadings, and without the state’s response. Nevertheless, it granted a certificate of appealability.

The court advised district courts who issue certificates of appealability to avoid granting summary dismissal, explaining, “The conclusion that a constitutional claim is debatable among reasonable jurist … sits in obvious tension with the conclusion that the claim ‘plainly appears’ from the petition and attachments to be a loser, as required for summary dismissal under Rule 4.”

The case is also noteworthy for its assumptions about Wisconsin’s rape-shield law and its relation to acts of prostitution.

The underlying purpose of all such state laws is the same – to prevent sexual assault victims from being harassed and humiliated about their sexual histories with men other than the defendant.

Interpreting the original version of the statute, the Wisconsin Supreme Court held in State v. Gavigan, 111 Wis.2d 150, 330 N.W.2d 571 (1983), that, in some circumstances, prior sexual conduct could be admissible if offered for a legitimate reason other than harassment of the victim. But the legislature responded immediately by enacting sec. 972.11(2)(c), barring such evidence regardless of the purpose for which it is offered.

The Wisconsin court of Appeals held the provision unconstitutional in State v. Herndon, 145 Wis.2d 91, 426 N.W.2d 347 (Ct.App.1988).

Like the case at bar, the prior sexual conduct at issue involved prostitution. The court found, in Herndon’s case, the defendant had a right under the Confrontation Clause to present the evidence and because the rape-shield law was absolute, and permitted no exceptions, it violated the Confrontation Clause.

Shortly thereafter, Herndon was overruled by the Wisconsin Supreme Court, in State v. Pulizzano, 155 Wis.2d 633, 456 N.W.2d 325 (1990).

But the court did so without ever rejecting the Herndon court’s conclusion that, in his case, the Confrontation Clause entitled him to present the evidence.

Instead, the court held it was erroneous for the Herndon court to hold sec. 972.11(2)(c) facially overbroad. Pulizzano, 456 N.W.2d at 330. The court permitted as-applied challenges to the law, and in fact, held that in Pulizzano’s case, it did violate the Confrontation Clause to preclude the defendant from cross-examining the complainant about prior sexual abuse.

Despite overruling Herndon, the court proceeded to apply a balancing test nearly identical to the one the Court of Appeals applied in Herndon. Id., at 333.

The court even acknowledged that its interpretation “amounts to the same prohibition declared unconstitutional in Herndon.” Id., at 330.

The result is that Herndon can’t be cited, because it was overruled, even though the Supreme Court adopted its reasoning almost in its entirety.

But even though it can’t be cited, it is an excellent resource nonetheless. It is a very thorough opinion that reviews how rape-shield laws are interpreted in dozens of other states, when the defendant claims the conduct was not merely consensual, but that he paid for it.

Ultimately, a defendant can only present such evidence if it would violate the Confrontation Clause to deny its admission. As a policy matter, though, it is questionable why the rape-shield law should apply if the complainant is in fact a prostitute, and the defendant claims that he paid for sex.

As the Court of Appeals noted in Herndon, “Both the common law and the legislatively created rape shield laws have rejected the ignoble, outmoded and unfounded prior belief that an unchaste woman is more likely to consent to sex than a chaste woman.” Herndon, 426 N.W.2d at 362.

But it is not at all unfounded to believe that a prostitute is more likely to consent to sex in exchange for money than a chaste woman.

CASE: Jardine v. Dittmann, No. 09-3929.


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