Prosecutors may be forced to drop sexual assault charges against a Racine County billionaire after the state Supreme Court on Wednesday clarified an earlier ruling about potential evidence in the case.
The issue pitted a girl's right to privacy of her medical records vs. the defendant's right to discover information that might discredit the state's case.
Samuel Curtis "Curt" Johnson III, is charged with indecently touching a girl when she was between ages 12 and 15. Johnson, 58, is an heir to the S.C. Johnson household products company fortune.
His defense asked that the girl be made to turn over records of her counseling sessions during the time of the alleged offenses, so that a judge could privately determine whether anything in those records might be helpful to the defense.
The girl, who has since moved out of state and indicated she doesn't want to assist prosecutors, has declined to allow the judge to see such records. Normally, that would mean she would then be barred from testifying against Johnson. Her testimony is critical to the state's case against Johnson.
But the trial judge proposed allowing her testimony and instructing the jury that she had declined to make her mental health records available for the judge's review, and that, therefore, the jury could presume that the information would have helped Johnson.
The Court of Appeals rejected that option and ruled that the girl could not testify without allowing the trial judge to review her counseling records.
Then the Supreme Court reversed that ruling in July, suggesting the trial judge's solution was acceptable. But because the 3-2 opinion seemed to be based on a combination of rationales, both sides asked the high court to reconsider. Johnson's attorneys argued it allowed the testimony without the records, and prosecutors argued it seemed to allow for a jury instruction about inferences in favor of the defendant.
Wednesday's decision, by the same 3-2 margin, clarifies that the court was in fact deadlocked in July, meaning the Court of Appeals decision stands as the controlling ruling in the case. The decision was per curiam, meaning it was joined by justices Annette Ziegler, Patience Roggensack and N. Patrick Crooks but not attributed to any single author.
Justices David Prosser and Michael Gableman did not participate.
In a separate opinion, one that both concurs and dissents with portions of the ruling, Justice Ann Walsh Bradley, joined by Chief Justice Shirley Abrahamson, write that the original ruling was not a deadlock.
Bradley notes that all five justices agreed that the girl was not required to produce her mental health records and that she could be called to testify against Johnson. She also says the previous decision did not directly address whether a so-called curative instruction to the jury was the appropriate way to address the situation.
In that case, Bradley found, the Court of Appeals' finding — that the special instruction should not be given — should stand.