By Jean DiMotto
Editor’s note: Bench Blog is the latest addition to Wisconsin Law Journal’s daily commentary features. Recently retired Milwaukee County Circuit Judge Jean DiMotto will twice a month contribute her thoughts on notable cases and the legal community.
In an unusually terse decision, the Wisconsin Supreme Court reached a startling new conclusion in Shiffra jurisprudence without a unifying analytic rationale.
In 1993, the Court of Appeals in State v. Shiffra allowed an in-camera inspection of privileged, privately held mental health records if the defendant shows materiality to the presentation of his defense. If the alleged victim who holds the confidentiality privilege refuses to allow the inspection, she is precluded from testifying. In a sexual assault, this may be fatal to continued prosecution of the case.
Trial court departs from precedent
The recent high court decision in State v. Johnson, revisiting Shiffra, is so abbreviated – just eight pages — that it’s necessary to resort to the briefs for the facts.
T. S. was a young teenager when her stepfather, Samuel Curtis Johnson III, allegedly began sexually abusing her. During at least some of this time, T. S. was in counseling with a clinical psychologist and a psychiatrist. Despite the fact that both counselors are mandatory reporters, neither made a report to appropriate authorities.
The defense moved Racine County Circuit Court Judge Eugene Gasiorkiewicz for access to T. S.’s mental health records, arguing that the lack of a child abuse report reasonably indicated that T. S. either didn’t disclose or denied sexual abuse by the defendant. Johnson argued that the records would allow him to undermine T. S.’s credibility at trial.
Under the Shiffra line of cases, Gasiorkiewicz concluded that Johnson met his burden to show materiality of the records and was entitled to an in-camera inspection, but T. S. objected to the inspection. The state therefore asked the court to order the inspection, presumably as a way to ensure that T. S. could testify against the defendant.
The court declined to order the inspection. Rather, breaking with Shiffra’s mandate, it ruled that T. S. could still testify, for reasons that are not part of the appellate record.
Departing further from precedent, Gasiorkiewicz ruled that T. S.’s refusal to agree to in-camera review created a presumption that the records would’ve been helpful to the defense, and therefore he would inform the jury of the defense request for the records, T. S.’s objection to release of the records and the presumption favoring the defense.
Appellate courts weigh in
On interlocutory review in an unpublished opinion, a split District II Court of Appeals panel affirmed in part and reversed in part. Judge Paul Reilly’s majority opinion offered a classic application of Shiffra: The defense had met its burden for in-camera inspection and in light of T. S.’s refusal to allow the inspection she couldn’t testify. Since she couldn’t testify, the ruling about a presumption and the jury instruction was mooted.
Chief Judge Richard Brown’s dissent argued that T. S. should be able to testify because the trial court had the authority under sec. 146.82(2)(a)4. to require an in-camera inspection over T. S.’s objection.
In a cryptic per curiam decision, the state Supreme Court declined by a 4-1 majority to overrule Shiffra, and agreed by a 3-2 majority that the defendant had met his burden for an in-camera inspection of T. S.’s records. Justices David Prosser and Michael Gableman recused themselves.
The third issue, whether the trial court could require the in-camera inspection, was the most vexing because it was intertwined with whether T. S. could testify.
Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley agreed that a trial court could order the inspection. Furthermore, they agreed that Shiffra doesn’t necessarily mandate suppression of the privilege-holder’s testimony if she refuses to release her confidential records.
Justices Patrick Crooks and Annette Ziegler disagreed, concluding that the trial court couldn’t require production of the records. But their analyses differed. Crooks reasoned that Shiffra should be applied as originally understood, i.e., refusal to produce records means preclusion from testifying.
In a different vein, Ziegler reasoned that the defendant hadn’t met his burden for an in-camera inspection, therefore nothing stood in the way of T. S. testifying.
Justice Pat Roggensack believed that Shiffra shouldn’t apply to privately held mental health records, as opposed to those generated and held by a governmental agency. Without the application of Shiffra, there was no impediment to the privilege holder testifying.
A frustrating outcome
Not to decide is to decide. Cobbling together a plurality from these fractious points of view, the court “determined” — its word — that in this case the trial court may not require production of T. S.’s records and that T. S. may nonetheless testify.
These are substantial determinations. Shiffra’s sanction of precluding the privilege-holder from testifying upon refusal to release confidential records for an in-camera review has been embedded in Wisconsin law for 20 years. Indeed it was its longstanding and repeated application in appellate cases that led the court to decline to overrule it.
Technically, the case doesn’t set precedent because under the rules for applying plurality decisions, there’s no standard binding lower courts when none has received majority support of the highest court. Yet the case opens the door to trial court rulings that gut Shiffra without the court having overruled Shiffra.
Moreover, language such as “Shiffra does not necessarily require” preclusion of testimony, without more, and absent majority agreement, deprives the bench and bar of guidance in how to balance the competing, compelling societal interests at stake in Shiffra circumstances: the privilege in confidential records and the right to present a defense.
For example, left undetermined is whether the trial court’s creation of a presumption in favor of the defense and its corollary jury instructions are permissible.
Not only is it intellectually frustrating to have such diversity of opinion underlie a dramatic pronouncement by the court, but it’s also a blow to the soul of Wisconsin’s legal community.
The fractured relationships on the court are well known, but are they so deep and longstanding that they have broken the collective will of the court to seek common ground? Where is Sandra Day O’Connor when we need her?
Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.