RACINE — The five Wisconsin Supreme Court justices who decided earlier this month that Curt Johnson’s stepdaughter may testify, but doesn’t have to fork over her private medical records first, merely “cobbled together” their ruling, his defense attorneys contend.
And in doing so, the state’s highest court violated their own, previous decisions against that very practice, according to a defense motion for reconsideration filed this week in Johnson’s state Supreme Court case.
Johnson, 58, an heir to the Johnson family household products fortune, is accused of molesting his teenage stepdaughter. The girl and her mother, who live out of state, have refused to waive her privacy rights, staunchly refusing to release her private medical records. Johnson’s defense attorneys had sought the ability to force the release of his stepdaughter’s confidential medical records, so Racine County Circuit Judge Eugene Gasiorkiewicz could conduct a private review of those files.
Five of the seven state Supreme Court justices agreed to hear the case. They ruled July 3 that Johnson’s stepdaughter can testify during his trial without first releasing her medical records.
“To achieve this result, the court pooled votes with disparate rationales, none of which garnered a majority vote,” Johnson’s defense attorneys wrote in their motion for the state Supreme Court to reconsider its ruling. “This approach violates the court’s decisions (in two prior cases), which bar the practice of reaching a mandate via minority vote-pooling.”
Those prior cases held that the “majority must agree on … one specific ground,” Johnson’s defense attorneys wrote. In making their ruling in Johnson’s case, “the court cobbled together a mandate that deprives Johnson of the constitutional right it recognized and affirmed.”
One of Johnson’s defense attorneys, Mark Richards of Racine, declined to comment Thursday about their motion.
In their motion asking the justices to reconsider their ruling, Johnson’s attorneys wrote that the justices “claim(ed) a four-vote majority for the mandate that (Johnson’s stepdaughter) can testify; however, the court acknowledges that the votes are cast ‘under varying rationales.’ … In sum, no rationale for allowing (the teen) to testify garners a majority vote of three, and two of the votes rest on rationales explicitly rejected by the majority. This is exactly the type of vote-pooling prohibited by (the two prior court rulings).”
Assistant Attorney General Marguerite Moeller also filed a motion this week for the justices to reconsider their ruling. In this prosecution motion, Moeller asked the justices to reconsider or to clarify the portion of their decision “regarding the propriety of a special (jury) instruction allowing the jury to draw an inference favorable to the defense (because the stepdaughter invoked) her statutory privilege regarding her therapy records.”
“We typically do not comment on pending matters,” Wisconsin Department of Justice spokeswoman Dana Brueck stated Thursday, declining to comment on both motions.
The justices could opt not to touch these motions, allowing their rulings to stand. Or, they could decide to reconsider their rulings on one or both of these motions.
But Richards said double motions in the same case, both of which were filed Monday, is “very intriguing.”
“That’s never happened before: both sides seeking reconsideration,” Richards said.
Racine County prosecutors charged Johnson, of Wind Point, in March 2011 after his then-15-year-old stepdaughter accused him of sexually assaulting her for three years, according to court records.
Gasiorkiewicz ruled in the fall of 2011 that Johnson’s attorneys could seek the stepdaughter’s medical records, but he would review them privately, which judges legally are allowed to do. Gasiorkiewicz has said he would have revealed any potentially relevant information to lawyers on both sides. But that decision was appealed.
A Court of Appeals ruling in April 2012 stated that Johnson’s stepdaughter shall not testify in court unless she first agrees to release her medical records.
The Wisconsin Department of Justice, on May 17, 2012, petitioned the Wisconsin Supreme Court to review this ruling and the case was argued before the state’s highest court on Feb. 25. The justices didn’t release their decision until July 3.
The trial, expected to last as much as a week, currently is set to begin Jan. 6 in Racine County. Another status conference is scheduled here for Aug. 13.
July 26, 2013 6:35 am • KRISTEN ZAMBO firstname.lastname@example.org