Leather v. Paquin, Case No. 12-CV-1205-JPS
| Decision Date | 17 October 2014 |
| Docket Number | Case No. 12-CV-1205-JPS |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | BRYAN P. LEATHER, Petitioner, v. WARDEN JOHN PAQUIN, Respondent. |
On December 20, 2006, the State of Wisconsin charged the petitioner, Bryan Leather, with one count of second degree sexual assault of a child. (Docket #2, Ex. 1). After extraordinary delays in the pretrial process—during which time the charge against Mr. Leather was altered and added to (see Docket #2, Exs. 6-8)—the matter was tried to a jury in July of 2009 (Docket #2, Exs. 14-25). After the trial court judge allowed the prosecution to amend the pleadings so that the charges against Mr. Leather reflected the evidence presented during testimony (which the Court will discuss in further detail, below), the jury found Mr. Leather guilty of two counts of sexual assault of a child. (See Docket #2, Ex. 22, at 69; Docket #2, Ex. 25, at 39). The trial court sentenced Mr. Leather to 10 years of initial confinement and 10 years of extended supervision. (Docket #2, Exs. 26-28). Mr. Leather thereafter appealed to the Wisconsin Court of Appeals, which affirmed his conviction. (Docket #2, Ex. 29). The Wisconsin Supreme Court denied his subsequent petition for review on September 1, 2011. (Docket #2, Ex. 30).
Thereafter, Mr. Leather filed the petition for a writ of habeas corpus that is currently before this Court. (Docket #1). The petition was screened (Docket #4), after which the State of Wisconsin ("Wisconsin" or "the State," which appears on behalf of the respondent) raised exhaustion andprocedural default issues (Docket #8). The Court ordered that the parties address those issues in briefing. (Docket #9). After receiving the parties' submissions (Docket #10, #11), the Court determined that Mr. Leather could proceed on his habeas claims and directed the parties to file briefs addressing the substance of Mr. Leather's habeas petition (Docket #13). The parties did so. (Docket #13, #15, #18).
The matter is now fully briefed, so the Court will address it. In doing so, the Court will begin by discussing the underlying facts in greater detail. Thereafter, the Court will address Mr. Leather's substantive claims in support of his petition.
1. BACKGROUND
1.1 Pre-Charge Factual Background
Mr. Leather married Nicola Ciurro in 1995. (Docket #2, Ex. 23, at 16-17). Both brought children from previous marriages; most relevant to this case is Ms. Ciurro's daughter, M.W. (See Docket #2, Ex. 23, at 17). At the time Ms. Ciurro married Mr. Leather, she told him that M.W. had been diagnosed as being on the autism spectrum. (Docket #2, Ex. 23, at 17).
Ten years later, on December 12, 2006, M.W. told Ms. Ciurro that Mr. Leather had touched her inappropriately. (Docket #2, Ex. 16, at 49). Ms. Ciurro confronted Mr. Leather about this allegation, but did not make an official report that night. (Docket #2, Ex. 16, at 55-56). The next morning, Ms. Ciurro took M.W. to school—where Ms. Ciurro was principal and M.W. was a student—and arranged for M.W. to meet with a social worker. (Docket #2, Ex. 16, at 50-51). The social worker contacted Child Protective Services (CPS), which arranged to take M.W. to a secure location and ask her additional questions. (See Docket #2, Ex. 16, at 51-52). During that questioning, M.W. apparently disclosed additional occurrences of alleged abuse. (See Docket #2,Ex. 16, at 52). At some point during this process, M.W. received a medical examination. (Docket #2, Ex. 16, at 53).
On the night of December 13, 2006, after M.W. had made her allegations, the police arrested Mr. Leather. (Docket #2, Ex. 16, at 37-38). Mr. Leather was taken downtown to the Police Administration Building for criminal processing. (Docket #2, Ex. 16, at 39). What happened during the interrogation was the subject of a significant pretrial dispute, which the Court will discuss in further detail when discussing the procedural history of the case. Suffice it to say, for purposes of recounting the factual background, that Mr. Leather alleged that he: (1) was vehemently discouraged from receiving a lawyer; (2) was coerced into signing a confession that had been written by the investigating officer; and (3) was forced to write a separate apology letter to his wife (which the investigating officer forced him to alter in several places). (Docket #2, Ex. 12, at 47-57). Throughout this interview, Mr. Leather—who is blind in one eye—was allegedly suffering from symptoms of not having recently taken his prescription medications, which apparently treat his depression and Parkinson's Disease. (Docket #2, Ex. 12, at 33, 48, 51).
1.2 Early Stages of Legal Proceedings
On December 20, 2006, Mr. Leather was charged in Milwaukee County Circuit Court with a single count of second degree sexual assault of a child. (Docket #2, Ex. 1). Mr. Leather maintained a not guilty plea throughout the state court proceedings. (See Docket #2, Ex. 1, and subsequent entries in the record).
After being charged, Mr. Leather ran into significant hurdles in presenting his defense, as there were major delays in processing his case, specifically two very important motions that he had filed.
The first motion was a Miranda-Goodchild motion, seeking to have his confessions barred on the basis of his assertion that he had not been read his Miranda rights and/or had been unlawfully coerced into confessing. (See Docket #2, Ex. 2). The record shows that, on October 24, 2007—more than ten months after Mr. Leather had been formally charged—this motion came before Judge Jeffrey Wagner, apparently after Judge William Brash had heard other portions of the case. (See Docket #2, Ex. 2, at 1, 10-11). The Miranda-Goodchild motion had come before Judge Brash four prior times, but never was addressed on its merits. (Docket #2, Ex. 2, at 9). And, likewise, on October 24, 2007, it went unaddressed again. On that day, the prosecutor informed Judge Wagner and Mr. Leather that the prosecution would not be able to proceed with the Miranda-Goodchild hearing or the previously-scheduled jury trial, because their investigative witness was to be deployed to Iraq for at least nine months. (Docket #2, Ex. 2, at 1-10). Over Mr. Leather's objection, Judge Wagner granted an adjournment of the case, meaning that Mr. Leather's Miranda-Goodchild motion went unaddressed yet again. (Docket #2, Ex. 2, at 14-15).
The second motion—brought by Mr. Leather pursuant to Wisconsin v. Schiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993)—was also discussed at the October 24, 2007, hearing. (Docket #2, Ex. 2, at 2-12). Under Schiffra, where a defendant makes a "preliminary showing that [otherwise privileged] evidence is material to his or her defense," the trial judge must conduct an in camera review of the evidence and allow the defendant to use any records that the judge determined to be relevant to the defense. 175 Wis. 2d at 605; 499 N.W.2d at 721. Mr. Leather attempted to use the Schiffra case to access M.W.'s psychological treatment records. (See Docket #2, Ex. 2, at 3-4). And that tactic was logical: the prosecution's case against him rested heavily onM.W.'s testimony against Mr. Leather (in conjunction with Mr. Leather's confessions). She was the only actual witness to the abuse, so her ability to accurately perceive and report the abuse against her was very important to the defense. For a substantial period of time, though, Mr. Leather did not receive the benefit of a ruling on his Schiffra motion. (See Docket #2, Ex. 2, at 3-4). Judge Brash heard arguments on the motion in March of 2007, but withheld a final ruling, ordering the prosecution to produce school and psychological records in the meantime. (Docket #2, Ex. 2, at 3-4). That matter still was not addressed and the records had not been turned over by the time of the October 24, 2007 hearing before Judge Wagner.
Judge Wagner did not substantively address either of those motions at the October 24, 2007 hearing. Rather, he converted the originally-scheduled trial date to a pretrial conference and requested that Mr. Leather, through counsel, prepare an order directing the disclosure of the school and psychological records. (Docket #2, Ex. 2, at 13, 15). Otherwise, Judge Wagner held the substance of the motions in abeyance.
The pretrial conference took place on December 3, 2007, but nothing was resolved. (See Docket #2, Ex. 3). In fact, the prosecutor was not able to attend the hearing and instead sent a co-worker who had little knowledge of the case. (Docket #2, Ex. 3, at 4, 9).
Finally, Judge Wagner received M.W.'s records and reviewed them. He then conducted a hearing on June 23, 2008, to discuss his review of those materials. (Docket #2, Ex. 4). He noted that he had reviewed the psychological and school reports and that most of them "had to do with academic performance and social functioning memory, but has nothing to do with anything exculpatory." (Docket #2, Ex. 4, at 3). Defense counsel askedwhether the records disclosed that M.W. was "cognitively disabled or retarded," and Judge Wagner responded that "that may be the case[, b]ut the Court doesn't find that probative." (Docket #2, Ex. 4, at 3-4). But then Judge Wagner backtracked. After defense counsel pointed out that a hospital report established that M.W. presented cognitively as "somebody 8 to 10-years-old," despite being 17 years old at the time of the report, Judge Wagner stated (Docket #2, Ex. 4, at 4-5).
Unfortunately, Judge Wagner then took counsel off the record. (Docket #2, Ex. 4, at 5). It is unclear precisely what the parties discussed with Judge Wagner in chambers, but, upon returning to the courtroom, Judge Wagner stated that ...
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