State v. Jeffrey L. Hineman, 2023 WI 1, 1/10/23, reversing a per curiam court of appeals opinion, 2020AP226, case activity (including briefs)

At Hineman’s trial for sexual assault of a child, a police officer testified that she believed the child had accused Hineman of touching him several months before her investigation began, and several months before the child made similar statements in a forensic interview. This wasn’t true, and the officer’s police report contradicted her testimony on this point: it said a CPS report had noted no allegations of abuse. But when defense counsel attempted to impeach the officer with her own report, the officer testified that she “didn’t know if” she’d “documented” the alleged prior consistent accusation, and while she “would think [she] would have” written such information in the report, she “might not have.”  It would have been easy to prove conclusively that there was no such allegation: counsel just needed the CPS report. But she didn’t have it, because the state–in what it concedes was a violation of its Brady obligations–didn’t turn it over. SCOW now says “eh, who cares?” and reverses the court of appeals’ grant of a new trial.

“Who cares?” is another way of saying the court thinks the report not “material.” That’s  Brady‘s third and final prong: Hineman had to show a reasonable probability he would not have been convicted if the state had turned over the report. (Hineman concededly met the other two prongs–that the CPS report was exculpatory, and that the state had suppressed it.)

The court reaches this result by the simple expedient of ignoring Hineman’s chief argument. He asserted that the CPS report mattered because the officer testified on the stand that her own police report might be erroneous or incomplete, and that she believed the CPS report had contained allegations of touching. Obviously, the CPS report could have disproved this claim, and dispelled any suggestion that the child had made such accusations before the police began their investigation. As it was, Hineman was left with the officer’s statement, contrary to her report, that such accusations had been made.

Simple to state! But you won’t find any reference to this logical chain in the unanimous opinion. Instead, the court declares that the CPS report isn’t material because it “contains the same information as Investigator Hintz’s police report except for the identity of the reporter, which is not material.” (¶33). But the whole point is that Hintz’s testimony disavowed her police report’s (correct) statement that the CPS report documented no abuse claims, and suggested it documented the opposite. What good was the police report in countering Hintz’s claim that her report was wrong?

Hineman had also raised ineffectiveness claims against trial counsel, alleging the failure to make an opening statement, failure to object to certain testimony as being unnoticed expert testimony, and arguable concession of guilt during closing harmed him. The court holds these acts and omissions were not deficient performance. (¶¶38-53).

Justice Karofsky writes separately to share her views about the credibility of children’s accusations of sexual assault. She’s joined by Rebecca Bradley.