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BENCH BLOG: Disappointing majority opinion lacks guidance

By: Jean DiMotto//April 7, 2014//

BENCH BLOG: Disappointing majority opinion lacks guidance

By: Jean DiMotto//April 7, 2014//

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Court of Appeals’ decision and justice’s dissent were more thoughtfully considered

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.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler & Condon SC.

In an overly long opinion, the Wisconsin Supreme Court decided a child abuse case involving a presentence plea withdrawal without an appropriate illumination of the law.

In State v. Lopez, Minerva Lopez was charged with multiple counts of physically abusing her 14-year-old daughter. Lopez admitted much of the abuse in statements to police.

In a videotaped interview taken shortly after her mother’s arrest, the girl appeared emaciated and injured, and detailed numerous incidents of abuse. The state gave notice that it intended to use the videotape during trial pursuant to Wis. Stat. sec. 908.08, which relates to use of child videotapes. A year later, the state declared its intent to use the three-hour videotape in conjunction with the girl’s live testimony.

Trial court proceedings

The case languished because Lopez repeatedly sought to discharge her attorneys. Her third request to discharge counsel was denied as a dilatory tactic.

One month before her trial date, Lopez decided to accept a plea negotiation that had been extended several months earlier. Her attorney, like the prior two, was bilingual, and used a bilingual plea questionnaire with Lopez.

After an appropriate plea colloquy, Dane County Circuit Judge Nicholas McNamara accepted her pleas to six of the 22 counts. A presentence investigation was ordered. Two weeks later both Lopez and her daughter testified against the father.

Four months later, 10 days after the PSI recommended a substantial prison term and no contact with her children, and one day after the father was sentenced to 57 years of imprisonment, Lopez moved pro se to withdraw her plea. Counsel, noting his now-adversarial position to Lopez since he had advised her to accept the plea offer, was allowed to withdraw. New bilingual counsel was appointed and a plea withdrawal hearing scheduled.

At the hearing, McNamara concluded that despite the suspicious timing of her motion, Lopez had a fair and just reason to withdraw her pleas, thus shifting the issue to whether the state would be substantially prejudiced by the plea withdrawal.

The state asserted that the victim had just turned 16, with the noteworthy consequence that the videotape could not be admitted under sec. 908.08 because it only applies until a child’s 16th birthday. Since the state considered the videotape central to its case, including its depiction of the girl’s physical condition at the time, it argued that a plea withdrawal now would cause it substantial prejudice at a later trial. Moreover, it noted that in the 20 months since the videotape was recorded, “memories do fade.”

In contrast the defense argued that the victim had testified just five months earlier in the father’s trial, the state had the experience of presenting the case once already (albeit with the videotape), the witnesses and the transcripts of their testimony were all still available, and so the prejudice to the state was minimal.

McNamara had viewed the videotape and found the girl’s testimony “credible” and “compelling.” He said, “I think this is an absolutely clear and easy call” that the state would be substantially prejudiced if it could not use the videotape. He also noted the passage of time and his hope that ongoing therapy was helping the girl put the abuse behind her, thus making it harder for her to now recall it with the same detail she used 20 months ago.

Appellate courts weigh in

In a brief, unpublished summary disposition by the District IV Court of Appeals, the trial court was reversed in a divided opinion. Judges Paul Higginbotham and Gary Sherman reasoned that the age limit in sec. 908.08 is a legislative determination and therefore the limit could not be prejudicial to the state.

It also held that any assertion of the victim’s faded memory was purely speculative. Additionally, it concluded that the state was not substantially prejudiced because it could still use the video portion of the tape to show the girl’s physical condition.

Justice Annette Ziegler authored the state Supreme Court’s opinion. A key portion of the 107-paragraph opinion is as follows.

“The test for substantial prejudice that Lopez espouses is whether the State might still be able to prove guilt beyond a reasonable doubt without admitting the audiovisual recordings under Wis. Stat. § 908.08. The test, however, is not as Lopez wishes. The test is whether the State would be substantially prejudiced if Lopez were allowed to withdraw her pleas. The substantial prejudice that would result in this case is that the State would lose the ability to admit significant, persuasive, ‘compelling’ evidence that would otherwise have been admissible under § 908.08 at trial.”

The court then analyzed McNamara’s exercise of discretion and concluded that he appropriately exercised his discretion in concluding that there would be substantial prejudice to the state.

The dissent

Justice Ann Walsh Bradley asserted, as did the Court of Appeals, that visual portions of the tape could still have been shown to the jury. Moreover, there were multiple admissions by Lopez of the abuse, including under oath at the trial of the father, and photographs and detailed medical records of the victim. In addition, since McNamara found the videotape reliable and trustworthy, case law supported it being admitted under the residual hearsay exception.

Bradley then made the common-sense observation that “if the State can prove its case beyond a reasonable doubt, it is unclear how the State would be substantially prejudiced” by not using the videotape.

She observed that whether a trial court’s discretionary decision should be given deference “does not mean that we simply accept” the decision. Rather the court must make sure that the decision was based on facts in the record. Here, the record lacked any facts about memory loss of the victim. And there was no factual basis for McNamara’s “hope” that therapy helped her forget the abuse such that she could not testify about it in detail.

Finally, Bradley distinguished the two cases relied on by the majority as involving a 5-year-old and 4-1/2-year-old, respectively. The “inference [of memory loss] is much more tenuous when applied to the victim here who was 14 years old at the time of the incidents.”


I am reminded of the legal adage, “Bad facts make bad law.”

The abuse here was startlingly cruel. Nonetheless, after reading the majority decision, I was left wondering why all the verbiage, including lengthy and unnecessary quotations from the trial court record, some of which were repeated later in the decision.

The standard of substantial prejudice was circularly defined, and the primary rationale in the 107 paragraphs is sustaining McNamara’s discretionary decision as reasonable despite a speculative record.

Both the dissent and the decision of the Court of Appeals are trenchant. Both looked, as courts must, through the appalling abuse to see the proper application of a legal standard to facts of record. Evidentiary issues were appropriately considered and legal precedent thoughtfully applied.

But we are left with a majority opinion that neither teaches nor guides.


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