Richard M. Fischer v. Ozaukee Co. Circ. Ct., 741 F. Supp. 2d 944 (E.D. Wis. 2010)

federal habeas decision (pdf file: here), granting relief in State v. Fischer, 2010 WI 6; respondent’s Rule 59 motion to amend judgment denied 1/7/11

Habeas Review – Right to Present Defense – Expert Opinion, Based PBT

Preventing Fisher from adducing expert opinion he wasn’t driving with a prohibited alcohol content based on analysis of his PBT, because of the absolute evidentiary bar under § 343.303  on PBTs, denied Fischer his constitutional right to present a defense.  Summary of habeas court’s analysis:

• A state rule resulting in exclusion of defense evidence is constitutionally valid so long as not arbitrary or disproportionate to the rule’s purpose (p. 3). When a rule results in outright denial or significant diminution of the right to present a defense–the Wisconsin ban on PBT evidence worked a complete denial of Fischer’s defense–then the fact-finding process must be closely scrutinized because its integrity is called into question (p. 7).
• Exclusion of unreliable evidence, such as polygraph testing, serves an important interest, but PBT unreliability was not the basis for exclusion according to the majority of the Wisconsin supreme court. Instead, the purpose was to further the state’s interest in arresting and convicting drunk drivers, by disincentivizing suspected drunk drivers from refusing to take PBTs (pp. 9-12). (Though expressly declining to rule on whether the alternative rationale for exclusion, PBT unreliability, would have supported the ban, the cort strongly suggests that it would have, pp. 17-18.)
• The “stated rationale” for exclusion “is wholly speculative and arbitrary” (p. 12). “The Wisconsin Supreme Court’s conclusion that the purpose of banning PBT’s at trial is to keep the roads appears to have been made form whole cloth” (p. 14). Thus, while Fischer’s interest in exonerating himself is obviously quite strong, the state’s countervailing interest isn’t entitled to much if any weight (pp. 15-19).

The rationale for categorical exclusion, not the exclusion itself, leads to relief, because the state has greater latitude to exclude unreliable evidence.

The United States Supreme Court recognized: “State and federal governments unquestionably have a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial. Indeed, the exclusion of unreliable evidence is a principal objective of many evidentiary rules.” Scheffer, 523 U.S. at 309. In the context of polygraph examinations, the Court held that because there was no consensus that polygraph evidence is reliable, the wholesale exclusion of such evidence was a reasonable restriction that did not offend a defendant’s right to present a defense. Id. at 310-12. The exclusion of evidence determined to be unreliable also served other important interests such as ensuring that the trial does not devolve into a trial over the reliability of the evidence and thus detract and distract from the central question of the defendant’s guilt or innocence. Id. at 315.

All the same could be said regarding PBTs and, in fact, was said by the lower courts that heard this matter and by three Justices concurring in Fischer. However, this court is unable to rely upon the rationale stated by the trial court, the court of appeals, or a minority of the Wisconsin Supreme Court in order to resolve Fischer’s petition. Rather, this court must constrain its review to the majority decision of the Wisconsin Supreme Court, and the majority expressly rejected the state’s argument that concerns about reliability warranted the wholesale exclusion of PBT results for any purpose in a drunk driving case. …

This frees the habeas court to take a look at the policy advanced by the state court majority for exclusion: suspected drunk drivers falling into a “narrow gap between reasonable suspicion and probable cause to arrest” will be more likely to agree to the PBT if it isn’t admissible at any subsequent trial.

Although arresting and convicting suspected drunk drivers is undisputedly a compelling state interest, in the opinion of this court, the Wisconsin Supreme Court’s stated rationale that this interest bars the admission of PBT evidence for the purpose of presenting it at trial is wholly speculative and arbitrary. Neither the state nor the Wisconsin Supreme Court has supported this conclusion through any legislative history or any other factual support. Although the Wisconsin Supreme Court refers to its prior decision in County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), wherein the court discussed the legislative history of § 343.403, Renz does not offer any meaningful insight into why the legislature concluded that PBTs were inadmissible for any purpose. …

The Wisconsin Supreme Court’s conclusion that the purpose of banning PBTs at trial is to keep the roads safe appears to have been made from whole cloth. This is not to say that a statute is arbitrary if a rationale for upholding the law is not found within the legislative history, or that a court tasked with determining whether a law’s application is arbitrary is limited to what is contained in the legislative history. This court merely highlights the lack of support in the legislative history to demonstrate how the conclusion of the Wisconsin Supreme Court appears to have been a product of pure speculation.  A contrary, and perhaps stronger, but similarly speculative and arbitrary argument could be made that permitting defendants to utilize PBT results as Fischer seeks to do would also encourage a driver to take a PBT, thus serving the state’s interest.

The habeas court goes on to say that if anything the statutory PBT ban removes an incentive to agree to the test. On top of that, a “total prohibition” on potentially favorable defense evidence triggers “more searching” analysis “than the due process analysis that applies to an ordinary law.” If the evidentiary bar is either arbitrary or disproportionate to its designed purpose, it must give way. The court’s conclusion that the PBT ban was disproportionate to its stated purpose obviously follows: the defendant’s interest in exoneration is paramount and weighs heavily in favor of admissibility; the stated purpose, removing a disincentive to consenting to PBTs, carries little weight in favor of exclusion.

A succinct summary of this court’s balancing analysis is that the Wisconsin Supreme Court in Fischer determined that the state’s interest in removing a questionable disincentive for a narrow class of drivers that may be non-existent due to the almost indistinguishable probable cause definitions, outweighs the need of a criminal defendant to present reliable evidence that may provide a defense to the charged crime. The court must reject that balancing act. Accordingly, this court concludes that this situation clearly calls for an application of the United States Supreme Court’s holding that a state evidentiary rule must yield if its infringement upon a weighty right of the accused is disproportionate to the interest it was designed to serve. Thus, the court concludes that the Wisconsin Supreme Court’s decision affirming the exclusion of Fischer’s expert’s testimony involved an unreasonable application of federal law as determined by the United States Supreme Court and therefore, a conditional writ shall be granted.

On entirely separate procedural points, of interest because recurrent: the court reminds that a petitioner released on bail is nonetheless in “custody” for purposes of 2254 habeas review, Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist., 411 U.S. 345, 346 (1973). Fischer is out on bail from a 5-day sentence, so he satisfies the custody requirement. But if the sentence involves merely a fine or driver’s license suspension, then 2254 “custody” is lacking, citing among other cases, Barnickel v. U.S., 113 F.3d 704, 706, (7th Cir 1997).