Sussman v. Jenkins

Decision Date01 April 2011
Docket NumberNo. 09–3940.,09–3940.
Citation636 F.3d 329
PartiesGordon E. SUSSMAN, Petitioner–Appellant,v.Larry JENKINS, Respondent–Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

James Geis (argued), Attorney, Chicago, IL, for PetitionerAppellant.Daniel J. O'Brien (argued), Assistant Attorney General, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for RespondentAppellee.Before CUDAHY, RIPPLE and HAMILTON, Circuit Judges.RIPPLE, Circuit Judge.

Gordon E. Sussman was charged in Wisconsin state court with multiple counts of possession of child pornography, two counts of repeated sexual assault of the same minor and two counts of exhibiting harmful material to a minor. A jury convicted Mr. Sussman on the child pornography and sexual assault charges, but acquitted him of the harmful-material counts. After exhausting avenues of review in state court, Mr. Sussman filed an application for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Western District of Wisconsin, challenging his convictions for child sexual assault. The district court denied Mr. Sussman relief, but granted him a certificate of appealability with respect to his claim that he received ineffective assistance of counsel at trial. We conclude that, in assessing the prejudice suffered by Mr. Sussman through the exclusion of the disputed evidence, the Wisconsin appellate court unreasonably applied the Confrontation Clause of the Sixth Amendment, as made applicable to the states through the Fourteenth Amendment. Accordingly, we reverse the judgment of the district court and remand the case with instructions to issue a writ of habeas corpus unless the State elects to retry Mr. Sussman.

IBACKGROUND

A. Facts

Mr. Sussman was convicted in Wisconsin state court of possession of child pornography and repeated sexual assault of the same minor, Scott. The testimony at trial established the following course of events.

1.

In 1998, Scott was in the third grade at West Middleton Elementary School, which Mr. Sussman's children also had attended. At the request of the principal, Mr. Sussman became a mentor to Scott. In this role, he would come to school and help Scott with his work. However, they also would spend time together outside of school; initially, these activities included biking, canoeing and kayaking. A few times per month, Mr. Sussman took Scott to Rutabaga, Mr. Sussman's business. Scott testified that, when he was at Mr. Sussman's office, they would view pornographic pictures. Scott also testified that, when viewing pornography, he or Mr. Sussman masturbated each other. These sexual activities took place in other places as well; in all, Scott estimated that they masturbated each other [p]robably over 50 [times].” Tr. 230.1

In 1999, Mr. Sussman ceased to mentor Scott. The circumstances surrounding the termination of the formal mentoring relationship are unclear. It appears that Mr. Sussman had given Scott a book, which Scott took with him to school; at trial, Scott could not recall the name of the book. A teacher found the book and believed it was inappropriate for school. Although the school mentoring relationship ended, Mr. Sussman continued to see Scott outside of school.

In October 2000, Scott moved from Wisconsin to Indiana and lived there for about a year and a half. He saw Mr. Sussman only occasionally during this period. In April 2002, Scott moved back to Wisconsin to live with his sister. Shortly after arriving there, Mr. Sussman took Scott shopping and also brought him to Rutabaga to view pornography and to masturbate. Scott also related other incidents of sexual contact both before and after his return to Wisconsin.

In May 2002, Scott moved back to Indiana. Up until this point, Scott had not told anyone about the abuse because he “was embarrassed and ... thought it [sexual contact] was right.” Id. at 278. However, in July 2002, Scott told his mother, Joann McDonald, about the abuse. According to the testimony at trial, friends of McDonald, who had been abused themselves, advised McDonald that “Scott was acting like someone that had been sexually abused.” Id. at 1097. McDonald related these discussions to Scott and instructed him: [T]ell me honestly have you ever been, has anybody ever touched you or done anything to you that felt uncomfortable.” Id. at 313. When Scott confirmed her suspicions, McDonald reported the abuse to the authorities. Mr. Sussman ultimately was charged in Wisconsin state court with sixteen counts of possession of child pornography, two counts of repeated sexual assault of the same minor and two counts of exhibiting harmful material to a minor.

2.

At trial, defense counsel's strategy was to cast doubt on Scott's credibility in two ways. Counsel first intended to expose the inconsistencies in the statements that Scott had made to the police and to others.2 Defense counsel also planned on introducing prior false allegations of sexual assault that Scott had made against his father.

a.

Mr. Sussman's counsel first confronted Scott with the inconsistent versions of events that he had related to investigating officers. Scott's first interview was with Mark Rochon of the Valparaiso, Indiana Police Department. After Scott recounted all of the incidents of abuse that he could remember, Officer Rochon advised Scott and his mother that none of these occurred within the jurisdiction of the Valparaiso Police Department. Defense counsel resumed his cross-examination of Scott by discussing that statement by Officer Rochon:

Q. Do you recall that then, after you said just that's all that happened, the officer turned to your mother and said that because these occurred, none of these occurred within the jurisdiction of Valparaiso Police Department, he would tell her about the correct agency to contact; do you recall that?

A. No.

Q. And do you remember that after he said that, you said oh, I just remembered that an incident occurred at Inman's Recreational Center; do you recall that?

A. Yes.

Id. at 316.

Defense counsel also brought to light how, only one hour after speaking with Officer Rochon, Scott spoke with Detective Horn and described the incident at Inman's Recreational Center differently than he had with Officer Rochon:

Q. And then do you recall telling Detective Horn that Mr. Sussman picked you up in his red Volvo 940 station wagon at approximately 11:00 a.m.?

A. I don't recall saying that.

Q. And you don't recall telling Officer Rochon an hour earlier that it happened at night?

A. No.

....

Q. And do you recall that after talking for a while, you told Detective Horn that Mr. Sussman didn't ask you to jack him off, but asked you to give him a blow job; do you recall that?

A. Yes.

....

Q. And do you recall telling Detective horn [sic] that occasionally you would perform oral sex on Mr. Sussman, and Mr. Sussman would perform oral sex on you?

A. No.

Q. And then do you recall telling him that on one occasion you thought it was in the Detroit area that Mr. Sussman had you sit on his lap and Mr. Sussman penetrated you anally?

A. Yes.

Q. And do you recall telling the officer additionally, at that time, that Mr. Sussman mentored several other children at the West Middleton Elementary School, and that you thought he was molesting them too?

A. No.

Id. at 321–24.

After questioning Scott about the interview with Detective Horn, defense counsel moved on to inconsistencies in statements that Scott had made on the following day to an officer in Madison, Wisconsin.

Q. And do you recall that Officer Martin asked you the very next day, after talking to Officer Rochon and Detective Horn, whether Mr. Sussman was mentoring anybody else, and that you said no; you recall that?

A. No, I don't.

Q. And do you recall that Officer Martin said to you the very next day, after you spoke to Detective Horn, if you were ever anally assaulted during your contacts with Mr. Sussman, and you said no; you recall that?

A. Yes.

Id. at 324–25. Defense counsel then probed inconsistencies in Scott's recounting of events during an interview with Jennifer Sutton of Safe Harbor, which had occurred the day after his discussions with the Madison police. Scott informed Sutton that no “blow jobs” had occurred, but that anal sex had occurred. Id. at 330–31. Other information provided to Sutton was new as well:

Q. Now, do you recall that on the 9th when you talked to Officer Martin, you told him of two occurrences when Mr. Sussman had you watch pornography on the computer; is that correct?

A. Yes.

Q. And the very next day you told Miss Sutton that it happened over 50 times; is that correct?

A. Yes.

Id. at 331–32. Scott also admitted that he told Officer Martin about four instances of sexual assault, but told Sutton that “it was 50 incidents” and “whenever I was with him.” Id. at 333–34 (internal quotation marks omitted).

In addition to exposing inconsistencies in Scott's statements, counsel for Mr. Sussman called numerous witnesses to testify to Scott's general lack of regard for the truth. See id. at 743 (James Pippitt, former employee of Mr. Sussman, testifying that “Scott was truthful only insofar as it would help him along”); id. at 1836 (Kim Varian, Scott's cousin, testifying that she did not think Scott was a “truthful person”); id. at 1846 (Scott's uncle testifying that Scott was a “schemer”); id. at 1893 (Barbara O'Connor, an acquaintance of Scott's mother, testifying that Scott's quality for truthfulness was “very poor”); id. at 1905 (Edward Fox, Scott's former neighbor, testifying that Scott “wasn't very truthful”); id. at 1912–13 (Diane Boles, Scott's former teacher, testifying that Scott was “manipulative and precocious” and “not always truthful”); id. at 1931 (Patrick Kinney, Scott's former principal, “recall[ing] situations where [he] felt that Scott struggled between fact and fiction”); id. at 1953 (Darren Bush, former employee of Mr. Sussman, testifying that...

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