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Rizzo v. Smith

June 9, 2008

JOSEPH F. RIZZO, JR., PETITIONER-APPELLANT,
v.
JUDY P. SMITH, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 04 C 563-Patricia J. Gorence, Magistrate Judge.

The opinion of the court was delivered by: Evans, Circuit Judge.

ARGUED APRIL 10, 2008

Before FLAUM, KANNE, and EVANS, Circuit Judges.

Almost a decade ago, Joseph F. Rizzo, who was 58 years old at the time, was convicted, after a jury trial in the Circuit Court of Kenosha County, Wisconsin, on several counts of having sexually assaulted a child. He was sentenced to serve a term of 65 years.

After his conviction, Rizzo embarked on an appellate route that took him first to the trial court on post-trial motions, then to the Wisconsin Court of Appeals which granted his request for a new trial, then to the Wisconsin Supreme Court which affirmed in part and remanded in part, then back to the trial court which denied relief, then back to the state appellate court which affirmed the denial of relief, then back to the state supreme court which declined to consider the case again, and then to the United States District Court for the Eastern District of Wisconsin where Rizzo's request for federal habeas relief was denied. In 2007, the case arrived here on Rizzo's appeal from the order of the district court.

In his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Rizzo argued that the state trial court's denial of his requests for access to the complainant's treatment records and for an independent psychological examination of the complainant violated his constitutional rights to due process and to confront and cross-examine his accusers. He also maintained that the state supreme court and state court of appeals' decisions denying him relief were unreasonable. The federal district court (Magistrate Judge Patricia J. Gorence, sitting with the parties' consent) disagreed and denied Rizzo's petition in a comprehensive 32-page memorandum and order. We start our review with the facts.

In late 1995, the parents of a 14-year-old girl, we'll call her "Daphne," asked Rizzo, a neighbor and family friend who had previously helped them with marital problems, to counsel their daughter about various personal and disciplinary problems she was having. In May 1996, Daphne told her parents that Rizzo touched her inappropriately during their counseling sessions; the sessions were immediately cancelled. Around the same time, Daphne began seeing Dr. Linda Marinaccio Pucci, a clinical psychologist. Dr. Pucci testified that, during their fifth therapy session, Daphne told her that, until recently, an adult had been "messing with her" but that she would not disclose further details. Daphne returned to Dr. Pucci in the summer of 1997 for additional therapy, at which point both Daphne and her parents told Dr. Pucci that Daphne had been molested by a neighbor. Daphne and her family eventually reported Rizzo's alleged misconduct to the police in June 1997. As investigation ensued and state criminal charges were filed.

Before trial, Rizzo motioned the court to conduct an in camera review of Dr. Pucci's reports and records. In response, the State provided a six-page summary prepared by Dr. Pucci, explaining her knowledge of the case and treatment of Daphne. The State also agreed that the trial court could conduct an in camera review of Dr. Pucci's records concerning Daphne to determine if they contained exculpatory information. After reviewing the records, the state trial judge (Michael S. Fisher) denied Rizzo access to them, reasoning as follows:

Well, very frankly, if you go through this entire file and you go through it essentially line by line, you won't find anything different than what you find in [Dr. Pucci's] summary. . . . [T]here is really no information that is contained in this file that you don't know about already that would be exculpatory in any way or even lead to anything that is exculpatory . . . .

Rizzo also filed a pretrial motion requesting that Daphne submit to an independent psychological examination. At a subsequent hearing, Rizzo's counsel explained that he asked for the examination because the State would be eliciting expert testimony from Dr. Pucci "concerning the issues that would be relevant to an independent fact finder's evaluation of whether [or] not a person is a victim of a sexual assault." As a result, he said, "the predicate is laid based on the Maday criteria for the Court to order the alleged victim make herself available for independent psychiatric evaluation."*fn1 The prosecutor responded that, while the State had initially intended to elicit such evidence from Dr. Pucci, it decided not to. Specifically, the prosecutor stated that the State did "not intend on direct examination, subject to the defense opening the door based on cross-examination, [to] elicit expert Jensen type testimony from Dr. Pucci."*fn2 Accordingly, the judge concluded that Rizzo was not entitled to the requested psychological examination of Daphne.

At trial, Dr. Pucci gave extensive factual testimony with regard to her knowledge and treatment of Daphne. Following this testimony, Dr. Pucci and the prosecutor had the following exchange:

Q: Do you have an opinion to a reasonable degree of psychological certainty why someone would, in this position, would not immediately report a crime like this?

A: Often people are reluctant to report this kind of crime because of threats the offender or the abuser makes to them about it, either directly telling them not to tell or threatening them if they do tell. Often people are embarrassed. They may be afraid that they are not going to be believed. Sometimes they have some positive feelings about the abuser and may not want to get that person into trouble. Those tend to be the most common reasons.

Rizzo objected to this evidence and renewed his request for Dr. Pucci's treatment records. The judge overruled the objection and denied the request for the records. The jury ...


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