Harrison v. Tegels

Decision Date27 October 2016
Docket Number16–cv–124–bbc
Citation216 F.Supp.3d 956
CourtU.S. District Court — Western District of Wisconsin
Parties Richard H. HARRISON, Jr., Petitioner, v. Lizzie TEGELS, Respondent.

Colleen Marie Marion, Katie Ruth York, Wisconsin State Public Defender, Madison, WI, for Petitioner.

Gregory M. Weber, Sandra L. Tarver, Wisconsin Department of Justice, Madison, WI, for Respondent.

OPINION AND ORDER

BARBARA B. CRABB, District Judge

In 2011, petitioner Richard Harrison, Jr. was charged with repeated sexual assault of his then stepdaughter, D.M.K. There were no third-party witnesses to the alleged assaults and no physical evidence. Instead, the state relied entirely on a recorded interview that D.M.K. gave to the police and the trial testimony of D.M.K.'s mother, Kimberly, who recounted what D.M.K. allegedly told her about the assaults.

Petitioner's theory of the case was that D.M.K.'s mother persuaded her daughter to fabricate the allegations because petitioner and Kimberly were divorcing and she wanted to prevent petitioner from gaining custody over several children that they shared. In his opening statement, petitioner's counsel promised the jury that he would reveal many inconsistencies in D.M.K.'s and Kimberly's allegations, showing them to be incredible. Counsel broke this promise. Although he presented evidence that D.M.K.'s mother had made false accusations against petitioner in the past, counsel failed to present evidence of numerous and significant inconsistent statements that both D.M.K. and Kimberly made about almost every aspect of the alleged assaults, such as the type of conduct involved, the frequency of the assaults, their location and what petitioner allegedly said to D.M.K. during the assaults. In addition, counsel failed to object to D.M.K.'s statement at trial that petitioner often hid from the police around the time that the alleged assaults occurred, even though it was undisputed that the petitioner's hiding had nothing to do with the alleged sexual assaults.

The jury convicted petitioner and the state court sentenced him to 30 years in prison. After exhausting his remedies in state court, petitioner filed a petition under 28 U.S.C. § 2254 for a writ of habeas corpus, which is fully briefed and ready for review. Now represented by the Wisconsin Office of the State Public Defender, petitioner challenges his conviction on the ground that the Wisconsin Court of Appeals applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), unreasonably when it rejected his argument that his trial counsel provided ineffective assistance by failing to (1) impeach D.M.K. and her mother with prior inconsistent statements and (2) object to inadmissible character evidence.

In considering any petition for a writ of habeas corpus, a federal court must balance carefully a petitioner's rights under the Constitution with the state's and the alleged victim's right to finality. Particularly when the alleged conduct involves a heinous crime against a young victim, it is difficult to set aside thoughts about the hardship that the child may have to endure if the case is tried a second time. On the other side of the scale is the petitioner's right to a fair trial, a right that exists to prevent innocent persons from being convicted unjustly and, as in prisoner's case, being sentenced to 30 years in prison. When the interests on both sides are so important, a mistake in overemphasizing either finality or certainty can have serious consequences.

Congress and the Supreme Court have created a legal framework that informs federal courts how to weigh the interests in punishing criminal conduct against the interests in preventing wrongful convictions. Federal courts can grant relief to prisoners challenging a state conviction, but only in narrow circumstances. 28 U.S.C. § 2254(d). In light of the deference a federal court must give both trial counsel and the state court, it is a rare case in which a federal court may grant a habeas petition in the context of a claim for ineffective assistance of counsel. Harrington v. Richter , 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

This is one such rare case. By failing to present evidence on the very issue he told the jury would prove his client's right to acquittal, petitioner's trial counsel deprived petitioner of the ability to present a defense and receive a fair trial. Counsel has admitted that his failure to introduce what could have been critical impeachment evidence was the result of his ignorance of the law of evidence, not trial strategy. Further, because witness credibility was the key issue at trial, counsel's failure crippled petitioner's defense, sending the message to the jury that counsel needed to mischaracterize the evidence because he knew that the evidence supporting petitioner was weak.

The inconsistent statements were not related simply to minute details that could be dismissed easily by the jury as misstatements or the result of a diminished memory. Some of the differences were fundamental and dramatic, such as the change in D.M.K.'s statement that petitioner assaulted her hundreds of times (the statement the jury heard) to a revised estimate of between one and five assaults (the statement the jury could not consider). Considering the importance of credibility to the trial, the large number of the inconsistencies and their significance and trial counsel's announcement to the jury that he had ample evidence to show that D.M.K. could not be believed, I conclude that the failure by counsel to impeach D.M.K. and her mother was both deficient and prejudicial and that the conclusion of the Wisconsin Court of Appeals to the contrary was unreasonable. Although counsel's failure to object to the inadmissible character evidence may have been a less serious error, it increases the likelihood that petitioner was prejudiced.

Of course, a conclusion that petitioner is entitled to habeas relief does not mean that petitioner is innocent of the crimes of which he is accused. I am not deciding whether D.M.K. and her mother should be believed, only that petitioner's counsel failed to present important evidence that the jury should have been able to consider. The state retains the right to try petitioner again for the serious crimes alleged, but before petitioner is subjected to a 30–year prison sentence, he should have the opportunity to present a full defense.

OPINION
A. Background

Petitioner was married to the mother of the alleged victim for approximately six years. (I will follow the parties' lead in referring to the mother as "Kimberly" and the alleged victim as "D.M.K.") D.M.K. was Kimberly's daughter from a previous relationship. She was two 1years old when petitioner and Kimberly met; during the relevant time period (2009 and 2010), she was eight or nine years old. Petitioner and Kimberly had four other children during their marriage.

Sometime in 2010 (several months after Kimberly and petitioner stopped living together), Kimberly filed for divorce against petitioner. Shortly thereafter, Kimberly contacted the police, alleging that petitioner had sexually assaulted D.M.K.

On September 30, 2010, a police officer, Christine Giacomino, interviewed D.M.K. about this allegation. In February 2012, after petitioner was criminally charged, D.M.K. provided a second statement about the alleged assaults at petitioner's preliminary hearing. (The parties do not explain the long passage of time between the report to the police and petitioner's preliminary hearing.)

At petitioner's criminal trial in October 2012, defense counsel's theory of the case in his opening statement was that Kimberly prompted D.M.K. to fabricate allegations of abuse so that Kimberly would get custody of the children when they divorced. (Although petitioner would have no claim of custody over D.M.K. because she was not his biological daughter, a conviction for sexual assault would eliminate any chance that petitioner would win custody of his own children.) Counsel promised the jurors that they would hear many different, inconsistent versions of events from D.M.K. Dkt. # 6–19 at 106.

The state called D.M.K. to testify, but she had little substantive testimony to offer. When asked whether she "remember[ed] what happened between [her] and [petitioner]," she stated, "Not really, because I don't really think about it." Dkt. # 6–19 at 153–54. Instead of live testimony, the state presented its case primarily through a tape recorded interview that D.M.K. gave to officer Giacomino on September 30, 2010, more than two years earlier. Neither the state nor petitioner entered into evidence D.M.K.'s testimony from the preliminary hearing in February 2012. Petitioner's counsel cross examined D.M.K. about one difference between her testimony at the hearing and her statements during the interview. In particular, D.M.K. stated during the interview that petitioner had assaulted her outdoors multiple times, but on cross examination at trial, she admitted that she had stated at the preliminary hearing that she could not remember whether any assaults occurred outdoors. Dkt. # 6–19 at 148.

In addition to D.M.K. and officer Giacomino, the only witness the state called was D.M.K.'s mother, Kimberly. On cross examination, Kimberly admitted that she contacted the police about petitioner's alleged sexual assaults shortly after she filed for divorce. Id. at 171–72. In addition, she admitted that she had filed and then withdrawn two restraining orders against petitioner during their marriage and that she had requested the dismissal of one of the restraining orders on the ground that she lied about it. Id. at 167. Petitioner's counsel did not cross examine Kimberly about inconsistencies between her trial testimony and statements that she gave the police.

In his case, petitioner called three witnesses: Adrian Cruz (a doctor who examined D.M.K.), Patricia Harrison (petitioner's mother) and petitioner himself. Cruz testified that he saw no...

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2 cases
  • State v. Harrison
    • United States
    • Wisconsin Supreme Court
    • April 17, 2020
    ...after serving all terms of confinement in prison."5 State v. Harrison, 2015 WI 5, 360 Wis. 2d 246, 858 N.W.2d 372.6 Harrison v. Tegels, 216 F. Supp. 3d 956 (W.D. Wis. 2016).7 The record shows that he was not released due to failure to meet the terms of the bond that had been set.8 Supreme C......
  • State v. Harrison, Appeal Nos. 2017AP2440-CR
    • United States
    • Wisconsin Court of Appeals
    • March 21, 2019
    ...corpus in federal court seeking relief from his conviction in the 2011 case. He prevailed on that petition. See Harrison v. Tegels , 216 F. Supp. 3d 956 (W.D. Wis. 2016). On January 6, 2017, the circuit court entered an order vacating his conviction and sentence in the 2011 case.2 ¶11 In Au......

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