Please ensure Javascript is enabled for purposes of website accessibility
Home / Bench Blog / BENCH BLOG: Justices provide much-needed clarification

BENCH BLOG: Justices provide much-needed clarification

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 abbreviated opinion, the Wisconsin Supreme Court clarified its previous, murky plurality decision in State v. Johnson on State v. Shiffra jurisprudence.

Billionaire Samuel Curtis Johnson III, the stepfather of T. S., stands accused of repeatedly sexually assaulting her during her early teenage years. During the third year of the abuse, T. S. had two solo counseling sessions with the clinical psychologist who was treating Johnson and his wife for marital discord.

T. S. also had a number of sessions with an educational psychologist related to her struggles at school because of attention deficit disorder and conflict at home. Both psychologists are mandatory reporters of child sexual abuse, but no report was made by either to appropriate authorities.

Johnson’s Shiffra motion

Johnson therefore moved Racine County Circuit Judge Eugene Gasiorkiewicz for an in-camera inspection of both sets of counseling records, arguing that the lack of a child abuse report reasonably indicated that T. S. either didn’t disclose or denied Johnson’s sexual abuse. He asserted the records would allow him to undermine T. S.’s credibility at trial.

Gasiorkiewicz ruled that Johnson made the necessary showing of the counseling records’ materiality to his defense as prescribed by the Shiffra case. Accordingly, he ordered an in-camera inspection of the records.

T. S., however, declined to waive her statutory psychologist-patient privilege, thereby denying judicial inspection of her records. The state then asked Gasiorkiewicz to order production of the records for inspection, whereas Johnson asked for the traditional sanction under Shiffra: preclusion of T. S.’s testimony at trial. Gasiorkiewicz declined both requests.

Instead, in a thoughtful reading of Shiffra, he fashioned a sanction particular to the factual and procedural circumstances of the case. He would allow T. S. to testify but would instruct the jury of: the defense request for her records, T. S.’s objection by the invocation of her privilege, and the jurors’ option to draw an inference that the records would have been helpful to the defense.

Court of Appeals weighs 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 but in light of T. S.’s refusal to allow the inspection, she couldn’t testify.

Chief Judge Richard Brown, the author of the 1993 Shiffra case, dissented. He 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.

Johnson I opinion

In a cryptic per curiam decision from which Justices David Prosser and Michael Gableman recused themselves, 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.

The third issue, whether the trial court could require the in-camera inspection, was the most vexing. Cobbling together a plurality from fractious points of view, the court “determined” – its word – that Gasiorkiewicz may not require production of T. S.’s records but that T. S. may nonetheless testify. This startling conclusion was unsupported by a unifying rationale.

Although the plurality opinion didn’t set precedent, it turned on its ear the longstanding understanding of a Shiffra sanction without the court overruling Shiffra.

Moreover, language such as “Shiffra does not necessarily require” preclusion of testimony, without more, and absent majority agreement, deprived 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.

Johnson II opinion

Both Johnson and the state moved for reconsideration of the decision. Johnson argued that the decision violated the rule against minority pooling. That is, no single rationale allowing T. S. to testify garnered three of the five justices’ votes; rather, minority rationales were pooled to form a majority outcome.

In another cryptic per curiam opinion from which Prosser and Gableman recused themselves, the court granted Johnson’s motion. The court disagreed that it had engaged in minority pooling in the original opinion but did acknowledge that it needed to clarify that opinion.

The court made clear that its interpretation of Shiffra and State v. Green was now that consideration of the production of medical records was inseparable from whether the alleged victim may testify.

Accordingly, the three Shiffra/Green options are that “an alleged victim may:

  • produce the medical records and then testify;
  • not produce the records and then not testify; or
  • not produce the records because the records are not required to be produced, and nonetheless testify.”

Since no three justices in Johnson I accepted one of these options, the court was deadlocked and thereby the Court of Appeals’ decision was affirmed. The Court of Appeals’ ruling is that T. S. may not testify since she declined to produce her records.

A dissent was written by Justice Ann Walsh Bradley. While initially nitpicky (e.g., disagreeing about the definition of deadlocked) its essence was that consideration of whether the records should be produced can and should be separated from consideration of whether the appropriate sanction is preclusion of the victim’s testimony.


Gasiorkiewicz made a valiant attempt to apply Shiffra as it may originally have been intended: the sanction for invoking the statutory privilege to an in-camera inspection of one’s mental health records should be based on the specific factual and procedural context of each case. The dissents of both Bradley and Brown support this.

But the newest per curiam opinion is clear that the only sanction available is the one derived from “common practice and precedent” – preclusion of the alleged victim’s testimony.

Viewed from the point of view of the alleged victim, this may be a harsh result. It is not enough to be victimized sexually, but one must open up intimate counseling records for inspection by a court, potentially attorneys and litigants, and possibly the public. The alternative is preclusion from testifying which may be fatal to the prosecution of the alleged crime.

It smacks of re-victimizing the victim.

But turning the prism, an alleged victim can arguably control the prosecution of an alleged crime by invoking the confidentiality of records. In other words, this gives a mechanism to alleged victims who have been pressured, threatened or paid off to thwart a prosecution.

In all events, this latest decision is a de facto affirmance of Shiffra.

Leave a Reply

Your email address will not be published. Required fields are marked *