SCOW ducks First Amendment question

State v. Ginger Breitzman, 2017 WI 100, 12/1/17, affirming an unpublished court of appeals decision; case activity (including briefs)

Breitzman was convicted at trial of several counts of child abuse (for physical assaults) and neglect of her son, J.K. She was also convicted of a charge of disorderly conduct for an incident inside their home in which she called him a “fuck face,” a “retard,” and a “piece of shit.” The lead issue is whether her trial lawyer was ineffective for not trying to get the DC dismissed because her words were protected by the First Amendment. The court refuses to decide.

Which is not to say that the six-justice majority doesn’t make some questionable law. It declares the First Amendment question “unsettled” and holds that therefore, counsel cannot have been ineffective for failing to raise it. This notion has been popping up a lot lately. We have observed that it doesn’t make a lot of sense; Rob Henak has constructed a pretty convincing argument that it also contravenes Strickland v. Washington.

This case makes a good example of the mischief the “unsettled law” doctrine can make. The First Amendment generally prevents the government from punishing speech. There are some exceptions–true threats, obscenity, etc.–which are not protected from punishment. But speech falling outside these exceptions is generally not subject to government control.

The supreme court, though, professes uncertainty as to “whether profane speech is otherwise protected as free speech.” It is. Cohen v. California, 403 U.S. 15 (1971). And though the court tacks on some modifiers so that the question becomes whether “profane conduct that tends to cause or provoke a disturbance is protected as free speech,” it doesn’t identify any authority suggesting that it may not be. What the court is doing is hypothesizing, with no supporting authority, that there could be a First Amendment exception for the speech here–and then announcing that this manufactured uncertainty excuses trial counsel’s failure to raise what would have been a complete defense to the charge.

Breitzman also argued her trial counsel was ineffective in two other ways. During opening statements, he suggested to the jury that Breitzman’s physical attacks on her son were an exercise of reasonable parental discipline–when her testimony, and defense, were that the charged incidents simply had not occurred. He also did not try to keep the jury from learning about an uncharged incident where she had hit J.K. in the face while driving a car.

The court rejects both arguments, declaring each decision “reasonable.” There is not a lot of law development here, but there is a pretty generous notion of the idea of “strategy.” In particular, the court blesses counsel’s “strategic” decision to let the jury hear about the uncharged striking of J.K. in the car because it provided him a motivation to lie. So the jury was apparently to conclude that J.K. was lying about the charged instances of abuse (which Breitzman denied) in retaliation for an actual instance of abuse (which she acknowledged). Query whose credibility was placed at risk by this gambit. As for the argument about reasonable parental discipline, it was apparently intended to mitigate the damage that might come from the jury’s hearing of the car incident–though the legality Breitzman’s conduct there was not an issue being tried.

Justice Abrahamson concurs with a somewhat mysterious description of her personal policy of not participating in decisions where she has missed any portion of the proceedings on a case. She adds that the “unsettled law” doctrine “is not sufficiently protective of a defendant’s constitutional and statutory rights to effective counsel,” but does not specify what she believes the standard ought to be, instead exhorting “the bench and bar” to develop a better one.