*Updated 3 pm April 18.
The victim at the center of the Curt Johnson sex assault case will not be allowed to testify, according to an opinion handed down Wednesday by the District 2 Court of Appeals. It was not a unanimous decision but a 2-1 decision.
The ruling upholds Racine County Circuit Court Judge Eugene Gasiorkiewicz's decision allowing an in camera review of the victim's records from counseling sessions, but reverses his decision that the victim could testify despite her decision to withhold her records for privacy reasons. The decision means the victim must allow Gasiorkiewicz to privately review her records before determining whether or not they should be released for use in the trial.
In its opinion, the appellate court said because the victim was in counseling at the time of the alleged assaults to address family issues, including her relationship with Johnson, Gasiorkiewicz was right to order the in camera review of the victim's medical records. More, these same records most probably "contain relevant evidence of (the victim's) recitation as to her relationship with and the actions of Johnson."
It is for this reason that the court upheld the circuit court's ruling for an in camera review.
But the Appeals Court reversed Gasiorkiewicz's decision to allow the victim to testify despite upholding her right to privacy by not releasing her records.
The panel points to, and sides with, State v Shiffra, a similar case where the court suppressed the victim's testimony "as a sanction for her refusal to release the records."
The Appeals Court ruling means Gasiorkiewicz must revisit any decisions he made relating to the victim, her records and her potential testimony to bring them in line with this decision.
On Nov. 29, saying the victim's records can remain sealed and she will be allowed to testify though the jury will be instructed that information withheld should be assumed to help the defense. He also re-ordered her to turn over her records for an in camera review, but still gave her options: issue a written statement saying she will comply or restate her right to privilege.
It was this opinion that both sides appealed; the prosecution asked the court to simply order the release of the records, and the defense moved that the victim be barred from testifying if she didn't release her records.
The judge's instructions from that Nov. 29 opinion will now have to be revised following the appellate court's decision.
Patch has calls into the Racine County District Attorney's office about where the case goes from here. now that questions have come up about to whom at a psychological clinic in Arizona Johnson allegedly made statements admitting to the abuse. Attorneys for the clinic say Johnson's records are confidential and should not be released despite Gasiorkiewicz ruling them admissable. A judge in Maricopa County is ordering an in camera review of those records.
Johnson was with first degree sexual assault of the same child. Since then, he pleaded not guilty and was released on $500,000 bail with the conditions that he remain in the state and surrender his passport. On , allowing him to go to Arizona for therapy, to travel for business and .
One of the billionaire heirs of the SC Johnson family, Johnson ran Diversey, Inc. until Feb. 2010. At that time, he stepped down citing personal problems, and his sister, Helen Johnson-Leopold took the reins. If convicted, Johnson faces up to 40 years in prison.
The Dissenting Opinion
Court of Appeals Chief Judge Richard S. Brown said that he agrees with the order for an in camera review because doing so protect's the public interest and negates the potential for the alleged victim to "veto the prosecution (which may well be what is going on here) and adequately protect the defendant’s interest in due process. It allows a neutral tribunal to review the materials to see if they may significantly undermine the witness’s credibility thus negating the risk that an innocent defendant may be convicted."
But where he veers from the other two judges is when it comes to the victim testifying.
"I do not, however, agree that Shiffra necessarily requires suppression of T.S.’s testimony," he wrote.
When the patient-doctor privilege is proven absolute then barring a victim from testifying is an appropriate step, but in this case, that benchmark has not been met and, Brown continued, neither Shiffra nor State v. Green sufficiently answer the question.
According to a statement from Dana Brueck from the Department of Justice to The Journal Times, the state will take the full 30 days allowed to determine if it will move forward and ask for a review by the Wisconsin Supreme Court.