State v. Thiel

• Decision Date: 15 July 2003
• Docket Number: No. 01-1589-CR.,01-1589-CR.
• Citation: 264 Wis.2d 571,665 N.W.2d 305,2003 WI 111
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. James R. THIEL, Defendant-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

264 Wis.2d 571

2003 WI 111

665 N.W.2d 305

STATE of Wisconsin, Plaintiff-Appellant, v. James R. THIEL, Defendant-Respondent-Petitioner.

No. 01-1589-CR.

Supreme Court of Wisconsin.

Oral argument April 30, 2003.

Decided July 15, 2003.

For the defendant-respondent-petitioner there were briefs by Bruce J. Rosen, Susan C. Blesener, and Pellino, Rosen, Mowris & Kirkhuff, S.C., Madison, and oral argument by Bruce J. Rosen.

For the plaintiff-appellant the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. DAVID T. PROSSER, J.

This is a review of an unpublished decision of the court of appeals¹ that reversed a decision of the Circuit Court for La Crosse County, Dale T. Pasell, Judge.

¶ 2. The defendant, Dr. James R. Thiel (Thiel), was convicted of seven counts of sexual exploitation by a therapist in violation of Wis. Stat. § 940.22(2).² Following his conviction, Thiel claimed that his trial counsel was constitutionally inadequate. After a two-day Machner hearing,³ Judge Pasell concluded that Thiel's counsel's performance did not meet constitutional standards and that Thiel was entitled to a new trial.

¶ 3. The State appealed. The court of appeals found that while Thiel's counsel may have been deficient in a few instances, any deficient performance was not prejudicial to Thiel's defense, and the court reversed the circuit court's decision. State v. Thiel, No. 01-1589-CR, unpublished slip op., ¶¶ 25-26, 28, 33-34 (Wis. Ct. App. Oct. 3, 2002). Judge Charles Dykman dissented, writing: "Was this a fair trial? When a trial judge answers that question "no," and there are facts and evidence to support that answer, appellate courts should only in a rare case reverse that answer." Id., ¶ 41 (Dykman, J., dissenting).

¶ 4. This is a unique, subtle, and difficult case in which the credibility of the complaining witness was central to the jury's verdict. Thiel's trial counsel often performed effectively. However, he failed to use a great deal of available evidence to impeach the State's chief witness because of inadequate trial preparation. We conclude that counsel's performance was deficient in several respects and that the cumulative effect of the deficiencies prejudiced Thiel's defense to an extent that it undermines our confidence in the outcome of the trial. Because we find that Thiel received constitutionally inadequate representation, we reverse the decision of the court of appeals and remand the matter to the circuit court for a new trial.

I

¶ 5. The relevant facts are as follows. On August 19, 1999, JoAnn P. (JoAnn) reported to the City of La Crosse Police Department that she had engaged in sexual relations with her psychiatrist, Dr. James Thiel. JoAnn told Lieutenant Michael Brohmer (Lt. Brohmer) that she had seen Thiel professionally from August 1994 through July 1999, with a break between 1995 and 1997. She told Lt. Brohmer that the relationship became sexual in May 1997 and continued until she ended it in February 1999. JoAnn asserted that the sexual contact took place not only during her office appointments but also at Thiel's home in La Crosse. According to JoAnn, she and Thiel met regularly—as often as three or four times a week.

¶ 6. JoAnn alleged that she disclosed the full nature of her relationship to a friend in the spring of 1999. The friend, Brian Ekern (Ekern), an assistant district attorney for Vernon County, testified that he counseled JoAnn to discontinue the sexual relationship and informed JoAnn that Thiel was committing a crime by engaging in a sexual relationship with her. On the eve of Thiel's trial, it was disclosed that Ekern and JoAnn had been involved in their own sexual relationship.

¶ 7. Even after JoAnn discontinued her sexual relationship with Thiel, she continued to see him for therapy. JoAnn's last appointment with Thiel took place July 30, 1999. At that appointment, she asked for Thiel's assistance in filing for government disability benefits. When Thiel refused, JoAnn became angry and claimed that she had a sample of his semen. JoAnn brought a semen sample with her when she reported her complaint against Thiel to Lt. Brohmer a few weeks later. Initially, JoAnn resisted providing the sample for testing, but by the end of the meeting, which included the intervention of the district attorney's office, she acquiesced. Brohmer sent the sample to the state crime laboratory for DNA testing.

¶ 8. Based on JoAnn's report and the physical evidence she provided, Thiel was charged with two counts of sexual exploitation by a therapist contrary to Wis. Stat. § 940.22(2).⁴ The police arrested Thiel and took a blood sample for comparison with the physical evidence provided by JoAnn. When the DNA test results came back, they showed that Thiel was not the source of the semen. At a December meeting with police and a La Crosse County deputy district attorney, JoAnn admitted that the sample was not Thiel's and that she had lied about the sample's origin. It is unclear whether JoAnn had advance warning of either the general subject matter of the meeting or the DNA test results. JoAnn explained that she had submitted false evidence because she hoped it would force Thiel to confess.

¶ 9. On September 1, 1999, Thiel waived his preliminary examination. On October 4, the State filed an eight-count information, alleging seven counts of sexual exploitation by a therapist and one count of intimidation of a victim. The information was filed before the state crime laboratory had completed work on the semen sample. The eighth count of the information was dismissed on November 17.

¶ 10. On December 15 the State filed a motion for a continuance based on the crime lab results that excluded the defendant. This delayed the scheduled date of trial from January 10, 2000, to March 1, 2000, with jury selection scheduled for February 28.

¶ 11. On January 13, 2000, Thiel retained Attorneys John Brinckman and Margarita Van Nuland who served as his counsel at trial. The two attorneys were retained 46 days before trial was scheduled to begin. In late February, the March 1 trial date was rescheduled. Judge Pasell later wrote:

On February 24, 2000, four days before trial, the State filed and scheduled for hearing the same day another motion for continuance. It also filed a motion for the admission of "other acts" evidence. Those motions were served on Thiel on that day. Over Thiel's objection, the trial was continued again for an additional week to allow for a hearing on the "other acts" motion prior to jury selection. On March 3, 2000, the "other acts" motion was heard, and two of the five other acts sought to be admitted by the State were ruled admissible.

¶ 12. Thiel's first attorney, Roger LeGrand, had asked for an early trial on October 19, 1999. He opposed the continuance on December 15. Thiel's new attorney opposed the delay in the March 1 trial. Thiel was concerned that the State would locate some of his former patients who might corroborate JoAnn's account through "other acts" testimony, and so he insisted that the trial not be delayed. Thiel's trial attorneys abided by his wishes and did not seek a continuance of the trial, even though one attorney informed Thiel that he could use more time to prepare. Ultimately, after the Machner hearing, Judge Pasell found that "[t]his was a case where counsel went to trial before counsel was ready to try the case."

¶ 13. The trial began on March 14, 2000, and lasted three days. The prosecution presented JoAnn's testimony against Thiel, including her description of Thiel's unclothed appearance, her description of the inside of Thiel's house, and her description of Thiel's personal habits. The prosecution also presented Ekern, who corroborated that JoAnn confided in him about the relationship. There were two "other acts" witnesses. The first, Thiel's ex-wife, who had once been his patient, testified that her sexual relationship with Thiel began before their professional relationship had ended, and she corroborated, in some respects, JoAnn's description of Thiel's unclothed physical appearance and his personal habits. The second witness, another of Thiel's former patients, also testified regarding sexual contact with Thiel during a therapy session. In addition, Dr. David Metzler, a psychiatrist who had seen JoAnn after she discontinued her treatment with Thiel, testified as an expert during the prosecution's rebuttal. He contended that a psychiatrist should document any contact with patients that occurs outside of an appointment. During Dr. Metzler's testimony, the court indicated that Dr. Metzler should confine his testimony to standards that physicians might employ, rather than his own personal practice. Thiel's trial counsel made one objection to a portion of Dr. Metzler's testimony, but did not move to strike any of it.

¶ 14. The defense presented witnesses who testified that it was implausible that Thiel was carrying on an extensive relationship with JoAnn. Thiel's former girlfriend testified about her frequent unannounced visits to Thiel's house and said that there was never any indication that Thiel could be spending significant amounts of time with another woman. A business manager and receptionist from Thiel's office testified that neither had observed any inappropriate or suspicious interaction between JoAnn and Thiel.

¶ 15. Thiel also testified, stating that at no time did he have any inappropriate relationship with JoAnn. The defense theory was that JoAnn's accusation was in retaliation for Thiel's refusal to assist her in obtaining disability benefits. Thiel further explained that the details JoAnn provided regarding the interior of his house could have been gathered by JoAnn when she showed up at his residence three times unannounced or if she entered his house when he was not there. He testified that such entry was possible because he generally left his house...