In complicated habeas appeal, 7th circuit affirms and holds that failure to preserve evidence does not entitle petitioner to relief

Karl W. Nichols v. Lance Wiersma, No. 22-3059, 7/16/24

In a complicated case that contains many harsh lessons about the standards applicable to habeas petitions, the Seventh Circuit affirms an order denying habeas relief as the exculpatory value of unpreserved evidence was not “apparent.”

(Note that our prior post about COA’s decision can be found here).

This habeas appeal arises from a 2011 delayed report of sexual abuse by a young child. (p.2). M.R.W., the alleged victim, reported that Nichols had touched her vagina “years earlier” while living in Madison. (Id.). At that point, M.R.W. and her family had relocated to Kansas. (Id.). M.R.W. disclosed the abuse in a videotaped interview with Holzrichter, the director of a child advocacy center in Kansas. (Id.). The video was then reviewed by a DA in Madison, who asked Kansas authorities to conduct a second interview involving a Madison detective, who participated via phone. (p.3). The interview was again conducted by Holzrichter and recorded. (Id.).

During that second interview, M.R.W. brought with her a pad of paper on which she had “wrote down some things that I think I, I changed from my last interview.” (p.4). She proceeded to identify at least one of the substantive corrections noted on her pad. (Id.). After this exchange, Holzrichter moved to end the interview. (Id.). On the video, M.R.W. is seen raising her pad of paper and asking, “First can I tell you, um, the rest of this?” (Id.). As they walked out of the room, Holzrichter can then be heard telling M.R.W. “Sure. We can do that and then I’m going to take a copy of it so that they can have it, too.” (Id.). The list, however, vanished and has never been found. (p.5).

Nichols was ultimately charged with first-degree sexual assault of a child stemming from an alleged 2005 assault of M.R.W., when she was four years old. (Id.). The jury watched both videotaped interviews and received transcripts thereof. (Id.). After being convicted of the charged offense, Nichols filed a postconviction motion arguing that the State had violated his right to due process by not preserving M.R.W.’s list of corrections and that his lawyer was ineffective for not raising this issue pre-trial. (p.5).

The circuit court granted the motion and ordered dismissal with prejudice. (Id.). It found that the list was exculpatory and that the State had acted in bad faith when: (1) the prosecutor failed to seek out and disclose this evidence to the defense; (2) Holzrichter concealed the evidence by ending the interview as she did and not disclosing the list to authorities; and (3) the Madison detective filed a police report which listed only one correction without noting the list of corrections referenced during the interview. (Id.) Although it also concluded that trial counsel was ineffective, that claim was “moot” given the court’s order dismissing the case with prejudice. (Id.).

The Wisconsin Court of Appeals reversed, holding that Nichols failed to show that the list “had any exculpatory value.” (p.6). After his petition for review was denied, Nichols filed a habeas petition, which was also denied. (Id.). The Seventh Circuit addresses his two issues as follows:

Failure to Preserve Exculpatory Evidence 

To understand why Nichols does not prevail in federal court, one must understand the complicated interplay between the differing interpretations of SCOTUS’s case law regarding the duty to preserve exculpatory evidence.

First, it is “well-established” under California v. Trombetta and Arizona v. Youngblood that prosecutors have an affirmative duty to “preserve potentially exculpatory evidence on behalf of defendants” including impeachment evidence. (p.8). Accordingly, the Court is skeptical of the State’s conduct, observing that “it is difficult to fathom the loss of the child’s notes in this case[,]” given these well-settled discovery obligations. (p.9).

However, the failure to preserve evidence does not, in and of itself, merit reversal. Instead, the defendant must prove that the evidence in question was “material,” meaning that it would have created a “reasonable probability” of a different outcome. (Id.). 

Notably, Wisconsin and the Seventh Circuit part ways as to how claims under these authorities must be analyzed. The Seventh Circuit summarizes our due process/discovery violation law as follows:

According to Wisconsin courts, these cases stand for the proposition that a defendant’s due process rights are violated if the police (1) failed to preserve “apparently” exculpatory evidence, leaving the defendant with no ability to obtain
comparable evidence by any other reasonable means (with this portion of rule [sic] deriving from Trombetta); or (2) failed to preserve “potentially” exculpatory evidence in bad faith (with this portion of the rule deriving from Youngblood).

(p.10) (quoting McCarthy v. Pollard).

In contrast, the Seventh Circuit reads SCOTUS’s precedent differently:

We instead read both cases to stand for the same proposition: the destruction of potentially exculpatory evidence violates the defendant’s right to due process if (1) the State acted in bad faith; (2) the exculpatory value of the evidence was apparent before it was destroyed; and (3) the evidence was of such a nature that the petitioner was unable to obtain comparable evidence by other reasonably available means.

(p.10) (quoting McCarthy v. Pollard). As this is a habeas proceeding, the SCOTUS precedent is the “ultimate touchstone;” hence, it is a “dubious proposition” whether the Seventh Circuit needs to accept Wisconsin’s erroneous reading of these cases. (p.11).

However, even though Wisconsin’s rule is different, principles of deference still apply and the Seventh concludes that COA’s analysis contains enough of the SCOTUS precedent to survive habeas review. Looking holistically at COA’s decision, the Seventh holds COA “reasonably concluded (1) that the list had no apparent exculpatory value and (2) that the prosecution’s failure to produce the list was not the result of actions taken in bad faith.” (Id.).

As to whether COA reasonably held, as a matter of law, that the list lacked apparent exculpatory value, to say that the analysis gets a little in the weeds is a bit of an understatement. At its core, however, the deferential habeas standard of review does a lot of the heavy lifting: (1) COA identified “the correct legal standard” by citing the applicable SCOTUS precedents and (2) it then found that the list “lacked any exculpatory value.” (p.13). It also made an explicit finding that the “exculpatory nature of the list was not apparent” to law enforcement. (Id.). Even though the analysis is complicated by the fact that COA is applying what the Seventh believes to be an incorrect legal analysis, it gives COA’s decision “the benefit of the doubt” and holds that COA reasonably applied governing law when reaching its conclusion that “the chances were ‘extremely low’ that the contents of the list would have made a jury more likely to find Nichols not guilty, either as exculpatory or impeachment evidence.” (p.14). Any legal imprecision in COA’s decision is harmless, the court concludes, given its overarching finding that the list “lacked any exculpatory value.” (p.15).

Having concluded that COA did not unreasonably apply the law, the Seventh then addresses whether COA’s factual finding that the list lacked “apparent” exculpatory value was unreasonable. (Id.). Again, the analysis is complex here, given the posture: The circuit court made factual findings; then COA–independently reviewing the video evidence–concluded those findings were unreasonable. It held there was only one “reasonable inference”–that M.R.W. “spoke accurately, truthfully, and consistently with her corrections, in the second interview.” (p.17). While the Seventh peppers its analysis with gentle criticism and implies that it may have reached a different result, the standard calls for deference, and Nichols does not overcome that deference here. (p.18).

Likewise, COA did not unreasonably conclude that the circuit court’s finding of bad faith was clearly erroneous. (p.19). Here, COA reviewed the video of the interview de novo and concluded that it did not “support a reasonable view” that the interviewer intentionally cut off the interview to conceal M.R.W.’s corrections. (p.21). COA’s conclusions–including implicit factual findings arising from its legal analysis–are not unreasonable. (p.22).

Notably, the circuit court also concluded that the Madison detective’s production of a report stating that M.R.W. had only one correction was also proof of bad faith. (p.22). While there’s a fair amount of dispute here about the contours and interpretation of the trial court’s factual findings on this point, the Seventh Circuit concludes that COA did not unreasonably conclude that the trial court’s finding of bad faith on this point was clearly erroneous. (Id.). Here, COA made “a broader finding that the list lacked any exculpatory value.” (Id.). “Again, bad faith ‘turns on an official’s subjective knowledge that the evidence had exculpatory value,’ so evidence that lacks any exculpatory value cannot be disposed of in bad faith.” (Id.).

Ineffective Assistance

Finally, the court easily dispatches Nichols’s ineffectiveness claim, as he did not include it in his petition for review to the Wisconsin Supreme Court, thereby procedurally defaulting it. (p.23).

At its core, the Seventh holds that Nichols’s case highlights “a troubling lapse in police and prosecution procedures.” (p.23). Ultimately, however, the jury was presented with all relevant evidence and the defense was given a fair opportunity to air any conflicts between the child-victim’s multiple statements. Accordingly, it affirms.