State v. Donovan L. Lewis, 2009AP2531-CR, District 4, 8/26/10
court of appeals decision (3-judge, not recommended for publication); for Lewis: Shelley Fite, SPD, Madison Appellate; BiC; Resp.; Reply
Defense access to a complainant’s privileged counseling records requires first convincing the trial court to conduct an in camera inspection to see if the records contain information material to innocence. And that requires showing a reasonable likelihood the records contain non-cumulative material information. State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), as modified by State v. Green, 2002 WI 68. Lewis, charged with sexual assault of a co-worker, 14-year-old D.M.O., can’t make this showing:
¶18 Lewis’s defense theory is that D.M.O. is lying when he says he had oral sex with Lewis.[6] The key components of this defense theory are that (1) D.M.O. is homosexual, (2) his parents disapprove of this, (3) in reaction to his parents’ disapproval he was motivated to fabricate sexual encounters with Lewis, and (4) his general lack of truthfulness played a role in this fabrication. As for the first two components, even if there is a reasonable likelihood that there is information in D.M.O.’s counseling records that he is homosexual and that his parents disapprove of this, it is cumulative to evidence the defense already had and is therefore not necessary to the defense. Two persons who had worked with D.M.O. testified that he had told them his parents did not like the fact that he was gay. In addition, D.M.O. acknowledged that he was gay, that his parents didn’t accept it, and that he told people at work he was homosexual and his parents had problems with it.[7]
¶19 As for the third component—that in reaction to his parents’ disapproval D.M.O. was motivated to fabricate sexual encounters with Lewis—Lewis’s showing falls far short of a specific factual basis demonstrating a reasonable likelihood that his counseling records contain information on this point. There is no evidence that D.M.O. told his co-workers anything about his relationship with Lewis. As for his parents, the only evidence at the hearing on how they first learned of any relationship between Lewis and D.M.O. was that they found explicit emails between Lewis and D.M.O. This is not consistent with D.M.O. fabricating a sexual relationship with Lewis for “his parents’ benefit.”
As to “general lack of truthfulness”: D.M.O.’s own mother described him as a pathological liar, but Lewis can’t show “that his lying had anything to do with fabricating sexual encounters with males,” ¶23. OK, but if he could make that showing, then he wouldn’t need the records, would he? A fact-specific case, to be sure (as such cases tend to be, in the nature of things). But the larger message seems to be, good luck getting these records. You have to make a fairly compelling showing of materiality before the trial court inspects them to determine if they are … material. And if you can make that showing? Well, then in all likelihood that just means you’ve already acquired what you need and the records would be merely cumulative. Heads I win, tails you lose. Further Shiffra/Green discussion, in Davis v. Litscher, 290 F.3d 943 (7th Cir. 2002).
