Appeal from the United States District Court for the Eastern District of Wisconsin, No. 88 C 35, Thomas J. Curran, Judge.
Wood, Jr., Posner, and Flaum, Circuit Judges.
A Wisconsin jury convicted Brian Nelson of first-degree sexual assault on his daughter, "T.," who had been three years old at the time of the crime. The judge sentenced Nelson to five years in prison. Alter exhausting his state remedies, see State v. Nelson, 138 Wis. 2d 418, 406 N.W.2d 385 (1987), Nelson sought federal habeas corpus. The district court held that he had been convicted in violation of his rights under the confrontation clause of the Sixth Amendment ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him"). 688 F. Supp. 1304 (E.D.Wis. 1988). T. had not testified at Nelson's trial, but statements that she had made to a psychologist had been admitted into evidence through the psychologist's testimony, improperly in the district judge's view. The state appeals.
A growing sensitivity to the prevalence of child abuse in our society has caused an upsurge of prosecutions. See generally Note, To Keep the Balance True: The Case of Coy v. Iowa, 40 Hastings L.J. 437 (1989). Such prosecutions place a strain on traditional notions of procedural justice. See, e.g., Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C.L.Rev. 257 (1989); Tuerkheimer, Convictions Through Hearsay in Child Sexual Abuse Cases: A Logical Progression Back to Square One, 72 Marq.L.Rev. 47 (1988). This is especially so when, as in the present case, the crime has left no physical traces, the child is very young and is directly or indirectly the principal witness against the alleged abuser, and the case involves incest, thus pitting child against parent.
Brian and Susan Nelson, T.'s parents, were divorced in 1982, when T. was two years old. Susan received custody of the child, and Brian received visitation rights. According to Susan Nelson's testimony, beginning in August 1983 T. would become apprehensive and even hysterical when Brian Nelson came to pick her up. After one of the visits T. begged her mother not to make her go to her father's house again. By October, T. would go "berserk" when told she was going to her father's house; she would cry and scream and beg not to be forced to go. The visits ceased for a time but resumed around Christmas. Shortly after their resumption, T. tried to pull her mother's pants down while playing tag, explaining that daddy had taught her to play tag this way. T. also insisted to her mother that a picture of Michael Jackson, the popular singer, be brought into the bathroom to watch her. T. pointed to her vagina and said that Michael Jackson doesn't look like this and "daddy doesn't look like this either." When her mother asked her how she knew this, T. replied, "I pulled his underpants down." Susan told T. it must have been an accident, but T. insisted that daddy had told her to pull down his underpants and that it was all right because Cheryl (the defendant's new wife) was not at home. T.'s visits to her father now ceased for good. Suspecting that Nelson was sexually abusing T., Susan retained Dr. Donald McLean, a clinical psychologist whose name Susan had been given by the domestic relations court when she had asked the court whether she "had to force" T. to visit Brian Nelson.
All this was according to Susan Nelson, to whose testimony the defendant did not object. The spotlight now switches to Dr. McLean, who testified for the state as an expert witness and whose testimony was objected to on the grounds both that it was inadmissible hearsay and that its admission infringed Nelson's constitutional right to confront his accuser.
McLean had held 59 evaluation and treatment sessions with T. between January and September 1984. (The sessions ended on the eve of Brian Nelson's criminal trial; he had been indicted in April.) The sessions were conducted mainly in McLean's "play therapy room," which was equipped with dolls and other toys. "Play therapy" is an established technique for obtaining information about the feelings and problems of young children. See, e.g., Ax-line, Play Therapy: The Inner Dynamics of Childhood (1947). According to McLean's testimony, T. revealed at several sessions that (in his words) she had "touched daddy where he went to the bathroom." McLean placed "anatomically correct" male and female dolls in the play therapy room and T. in one of the early sessions placed the female doll's face against the male doll's genitalia and said, "she gets mud on her face." Asked what she meant, she replied, "its white and sticky." T. told McLean that her father had told her not to talk about the incident and also had told her to say that Mitch (Mitchell Blada, who had moved in with Susan after the divorce) had done it.
McLean related the following conversation he had had with T. at one of the sessions: "Do you pull someone's underpants down and touch him where he goes to the bathroom, and the child said yes . . . and I said, well, who is it that you touch where he goes to the bathroom, and the child answered Mitch. And I said you told me it was Daddy. Was it Mitch or Daddy, and the child said Daddy. And I said then why did you say Mitch, and she said it was Mitch, and I said then it was not Daddy. She said it was Daddy, then Mitch, then Daddy, and she answered with he told me to say it was Mitch. I said who told you to say it was Mitch. She said Daddy." When Dr. McLean asked T. whether she would tell only the truth to anyone who talked to her, she replied, "I don't have to tell the truth." McLean further testified that throughout the sessions T. was very anxious, and that she was both reluctant to talk about the incidents involving her father and very hostile to him. At one session, after again describing fellatio with her father in the bathroom, she became extremely agitated and said she was "mad" at her father. She began beating the male anatomically correct doll and throwing it around the room. She said she was beating "Daddy Brian."
The state called another clinical psychologist, Dr. Burton Silberglitt, as an expert witness. The defendant did not object to his testimony, which was based on a single interview with T. in March 1984. Dr. Silberglitt testified that T. had tried to avoid discussing her father because, in his words, it was "discomforting to her and frightening to her and traumatic to her to get into this." She had, however, told Silberglitt that she "played with his thing that he put in the toilet." Silberglitt also testified that T. had said, referring to her father, that "whatever came out of his pants was sticking out, and [she] indicated to me, you know, made a motion of an erect penis." He also testified that T. was very agitated and required therapy. Another witness who testified for the state without objection was a social worker, Mary Anne Jensen. She testified that in January 1984 T. had drawn a picture of herself and her father. The picture, which was admitted into evidence without objection, depicts the defendant as an erect penis.
When the state rested its case, Nelson moved for dismissal on the ground that the testimony about what T. had said was hearsay and that the state had failed to show that T. was unavailable to testify either in person or, at the very least, through a videotape of the play therapy sessions; therefore the admission of the hearsay violated his right of confrontation. (But of course a videotape would not have cured the absence of confrontation.) The judge denied the motion to dismiss, ruling that T.'s age -- four at the time of trial -- and the testimony of the two psychologists concerning the traumatic impact on her of having to testify about her father's conduct made her unavailable to testify at trial, and concluding that therefore her out-of-court statements were admissible.
The trial then resumed, and two psychologists testified for the defense. Dr. David Nichols, who had interviewed T. in March 1984 at Nelson's request, testified that the interview had revealed little about the alleged sexual assaults but that T. had told him that she did not like to visit her father and that she "gets white mud on her face." Nichols had concluded that sexual abuse had occurred, and had recommended to the domestic relations court that Nelson not be permitted to visit with T. The other psychologist, Dr. Walter McDonald, had not interviewed T. but had examined Dr. McLean's clinical notes. McDonald agreed that T. was suffering from anxiety, anger, and trauma, but speculated that her increasing sexual preoccupation during the therapy sessions with McLean might have been a consequence of the presence of anatomically correct dolls. He acknowledged, however, that this theory was no more plausible than McLean's, which was that the defendant had sexually abused T.
Alter the trial, Nelson asked the trial judge to set aside his conviction, and in April 1985 the judge held an evidentiary hearing to determine once again whether T. had been unavailable to testify at the trial. The only witness called by either side was Dr. McLean (the state called him), who testified that T. would not have responded to direct questioning about the sexual contacts with her father, that such questioning could have had a traumatic effect on her, that she was fearful of her father, and that his presence in the courtroom while she testified would have harmed her psychologically. McLean acknowledged that therapy sessions with T. could have been videotaped but pointed out that a large number of the sessions would have had to be taped, because she had volunteered information about the sexual incidents with her father only gradually and intermittently. Nelson declined to present any evidence on the question of T.'s availability to testify at his trial, arguing that the seven-month lapse of time between the trial and the hearing prevented him from adducing meaningful evidence. The judge disagreed, and concluded that T. had indeed been unavailable to testify at trial.
Whether the Supreme Court of Wisconsin correctly found that the admission into evidence of T.'s statements to Dr. McLean did not violate Wisconsin's hearsay rule is an issue of state law; it is nothing to us. The only question for us is whether the admission of those statements, as the district court believed, denied Brian Nelson his Sixth Amendment right (held applicable to state prosecutions in Pointer v. Texas, 380 U.S. 400, 403-04, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)) to confront the witnesses against him. In a literal sense it did not, since T. was not a witness. The prosecution witnesses were Nelson's ex-wife, the two psychologists called by the state, and the social worker. Nelson had every opportunity to confront them -- to look them in the eye and make them quail under his righteous gaze. This case is not like Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988), where the child witnesses testified behind a screen that prevented the defendant from establishing eye contact with them. ...