Redmond, Jessie L. v. Kingston, Phil ( 2001 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 99-2333
    Jessie L. Redmond,
    Petitioner-Appellant,
    v.
    Phil Kingston, Warden,
    Respondent-Appellee.
    Appeal from the United States District Court for the
    Eastern District of Wisconsin.
    No. 98-C-106--Rudolph T. Randa, Judge.
    Argued October 26, 2000--Decided February 14, 2001
    Before Bauer, Posner, and Ripple, Circuit Judges.
    Posner, Circuit Judge. Under the current regime
    governing federal habeas corpus for state prison
    inmates, the inmate must show, so far as bears on
    this case, that the state court which convicted
    him unreasonably applied a federal doctrine
    declared by the United States Supreme Court, 28
    U.S.C. sec. 2254(d)(1); Williams v. Taylor, 
    529 U.S. 362
    (2000); Morgan v. Krenke, 
    232 F.3d 562
    (7th Cir. 2000), in this case the doctrine that
    unreasonably limiting the cross-examination of a
    prosecution witness infringes the constitutional
    right of confrontation. E.g., Delaware v. Van
    Arsdall, 
    475 U.S. 673
    , 679-80 (1986); Davis v.
    Alaska, 
    415 U.S. 308
    (1974). The petitioner,
    Redmond, a counselor at an institution for drug-
    and alcohol-abusing minors, was convicted of
    statutory rape of Heather, a 15-year-old resident
    of the institution. The specific charge was that
    he had traded cocaine to her for sex. The state
    acknowledged at argument that the principal
    evidence of the offense was Heather’s testimony
    and that of another resident, Michelle, who,
    however, merely repeated what Heather had told
    her had happened. There was also evidence that
    Heather had tested positive for cocaine after the
    alleged offense but that she had a long history
    of using cocaine and might have gotten it from
    someone other than Redmond or for something other
    than sex.
    Eleven months before the alleged offense,
    Heather had told her mother that she had been
    forcibly raped, and she had offered her torn
    clothes as evidence. She had repeated the story
    of the rape, with many circumstantial details, to
    a hospital nurse and to a police officer
    investigating the incident, but later had
    admitted making up the story (and ripping her
    clothes herself) in order to get her mother’s
    attention. Her new story was that she had had sex
    with the man she had accused of forcible rape,
    but that it had been with her consent. Since she
    was underage, the police continued to investigate
    the incident as a crime. The man was never found,
    and there is no evidence other than Heather’s
    say-so that the incident actually occurred. There
    is no serious doubt that her recantation of the
    forcible-rape story was truthful. Redmond offered
    more than thirty police reports of the
    investigation of Heather’s claim that she had
    been forcibly raped, convincingly demonstrating
    its falsity, and in addition the district
    attorney had instituted contempt charges against
    Heather. Compare Hughes v. Raines, 
    641 F.2d 790
    ,
    792 (9th Cir. 1981).
    Redmond wanted to bring out her lie on cross-
    examination in order to show that Heather would
    lie about a sexual assault in order to get
    attention, and thus had a motive to accuse him
    falsely. The trial judge, seconded by the
    Wisconsin court of appeals, refused to permit
    this cross-examination. The court of appeals held
    that although the state’s rape-shield law makes
    an exception for a prior false charge of a sexual
    assault, Wis. Stat. sec. 972.11(2)(b)3, Heather’s
    false charge did not have "sufficient probative
    value to outweigh its inflammatory and
    prejudicial nature," and therefore, under another
    section of the statute, sec. 971.31(11), it was
    inadmissible. The court thought the false charge
    merely "cumulative of other evidence which went
    to Heather’s credibility," namely that she had
    begun using drugs at the age of 12, had stolen
    and occasionally danced (!) to obtain money for
    cocaine, had run away from the institution, had
    skipped school, and had told lies in the past.
    Furthermore, the court thought the evidence of
    the false charge might have "confused the issue"
    since "the initial recantation involved consent
    which was not an element of the current charges,"
    and also that it might have misled the jury "into
    focusing on Heather’s willingness to have sexual
    intercourse with a complete stranger, instead of
    on the charges against Redmond." State v.
    Redmond, 
    1996 WL 485095
    , at *10 (Wis. App. Aug.
    28, 1996).
    With all due respect, we believe that the court
    of appeals’ analysis and conclusion cannot be
    considered a reasonable application of the
    Supreme Court’s confrontation doctrine. Compare
    State v. DeSantis, 
    456 N.W.2d 600
    , 608-09 (Wis.
    1990). The evidence of the false charge of
    forcible rape was not cumulative of other
    evidence bearing on Heather’s credibility,
    because none of the other evidence either
    involved a false charge of being sexually
    assaulted or furnished a motive for such a
    charge. The fact that a teenage girl has a
    disordered past and lies a lot (who doesn’t?)
    does not predict that she will make up stories
    about having sex. To indulge such an assumption
    would be to place such persons largely beyond the
    protection of the law. But the fact that the girl
    had led her mother, a nurse, and the police on a
    wild goose chase for a rapist merely to get her
    mother’s attention supplied a powerful reason for
    disbelieving her testimony eleven months later
    about having sex with another man, by showing
    that she had a motive for what would otherwise be
    an unusual fabrication. Delaware v. Van 
    Arsdall, supra
    , 475 U.S. at 679-80; Wealot v. Armontrout,
    
    948 F.2d 497
    (8th Cir. 1991); United States v.
    Stamper, 
    766 F. Supp. 1396
    (W.D.N.C. 1991), aff’d
    without opinion under the name In re One Female
    Juvenile Victim, 
    959 F.2d 231
    (4th Cir. 1992).
    The evidence thus was not cumulative, or
    otherwise peripheral, considering that testimony
    by Heather was virtually the only evidence of
    Redmond’s guilt that the prosecution had. Nor was
    the evidence of her previous false charge of rape
    prejudicial to the state, except insofar as its
    prejudicial effect was a function of its
    probative weight, which of course is not the
    relevant meaning of prejudice. United States v.
    Jackson, 
    886 F.2d 838
    , 847 (7th Cir. 1989). The
    prejudice that offsets probative weight has to
    inhere in some extraneous fact, such as
    embarrassing but irrelevant details or, as the
    court believed, in the potential of the evidence
    to confuse the trier of fact. But in concluding
    that there was a danger of confusion the court
    committed a fatal analytical mistake. It assumed
    that Heather would be required or permitted to
    testify that she had had consensual sex with the
    alleged rapist, evidence barred by the rape-
    shield law. The only evidence that was relevant
    to her credibility in Redmond’s case, however,
    the only evidence she would or should have been
    permitted to give on that subject, was that
    within the preceding year she had made up a story
    about being forcibly raped. Whether or not she
    had had sex with the alleged rapist was
    irrelevant, since Redmond was not prepared to try
    to prove that she had not. For unexplained
    reasons the Wisconsin court of appeals thought
    that if Redmond’s lawyer had been permitted to
    ask Heather whether she had ever made a false
    charge of forcible sexual assault, the door would
    have been opened to an inquiry into whether she
    had had sex on that occasion at all. We cannot
    think of any reason why. The state could not have
    used the "fact" that Heather had had sex with the
    alleged forcible rapist to show that she
    fabricates only tales of being forcibly raped,
    because, all objections based on the rape-shield
    statute to one side, the state can no more show
    that Heather had sex with the alleged rapist than
    Redmond can show the contrary.
    And thus the court’s ruling, though ostensibly
    based on the rape-shield statute, derives no
    support from that statute. The statute protects
    complaining witnesses in rape cases (including
    statutory-rape cases) from being questioned about
    their sexual conduct, but a false charge of rape
    is not sexual conduct. See Wis. Stat. sec.
    972.11(2)(a) (defining such conduct); cf. United
    States v. Bartlett, 
    856 F.2d 1071
    , 1088 (8th Cir.
    1988); United States v. 
    Stamper, supra
    , 766 F.
    Supp. at 1399 and n. 2. The false-charge
    "exception" to the rape-shield statute is not
    really an exception, but rather a reminder of the
    limited meaning of "sexual conduct" as defined in
    the statute. The only basis for the court’s
    ruling was the general principle of the law of
    evidence, which is codified for federal trials in
    Fed. R. Evid. 403 but is equally a principle of
    Wisconsin’s law of evidence, see Wis. Stat. sec.
    904.03, that relevant evidence may be excluded if
    its probative value is substantially outweighed
    by its prejudicial (confusing, or cumulative)
    effect. When that unexceptionable rule is applied
    as it was here to exclude highly probative,
    noncumulative, nonconfusing, nonprejudicial
    evidence tendered by a criminal defendant that is
    vital to the central issue in the case (Heather’s
    credibility), the defendant’s constitutional
    right of confrontation has been infringed. Olden
    v. Kentucky, 
    488 U.S. 227
    , 232 (1988) (per
    curiam); Delaware v. Van 
    Arsdall, supra
    , 475 U.S.
    at 679-80; Davis v. 
    Alaska, supra
    , 415 U.S. at
    316-17; United States v. Sasson, 
    62 F.3d 874
    ,
    882-83 (7th Cir. 1995).
    Olden is factually very similar to the present
    case, which eliminates any question about the
    scope of the applicable federal doctrine declared
    by the Supreme Court, while cases such as Hogan
    v. Hanks, 
    97 F.3d 189
    , 191 (7th Cir. 1996), and
    United States v. Bartlett, 
    856 F.2d 1071
    , 1087-89
    (8th Cir. 1988), which upheld the exclusion from
    evidence of false rape charges, are readily
    distinguishable. They are cases in which the
    defendant wanted to use the falsity of the
    charges to demonstrate that the complaining
    witness was a liar, rather than to demonstrate
    that she had a motive to lodge a false accusation
    against the defendant. The use of evidence that a
    person has lied in the past to show that she is
    lying now is questionable, quite apart from rape-
    shield laws, since very few people, other than
    the occasional saint, go through life without
    ever lying, unless they are under oath. Cf. Fed.
    R. Evid. 404(b), 608(b); Hogan v. 
    Hanks, supra
    ,
    97 F.3d at 191; Hughes v. 
    Raines, supra
    , 641 F.2d
    at 793. The probative value of such evidence when
    used for such a purpose is small and may be
    outweighed by the prejudicial effect of revealing
    that the witness had made such a serious charge
    falsely. United States v. 
    Bartlett, supra
    , 856
    F.2d at 1088-89. But while "generally applicable
    evidentiary rules limit inquiry into specific
    instances of conduct through the use of extrinsic
    evidence and through cross-examination with
    respect to general credibility attacks, . . . no
    such limit applies to credibility attacks based
    upon motive or bias," Quinn v. Haynes, 
    2000 WL 1784161
    , at *5 (4th Cir. Dec. 6, 2000)--as in
    this case.
    The judgment is reversed with directions to
    order the petitioner released unless the state
    retries him within 120 days of the date of this
    decision.
    Reversed.