Sussman v. Jenkins

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-3940

G ORDON E. SUSSMAN,
Petitioner-Appellant,
v.

L ARRY JENKINS,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:09-cv-00035-bbc—Barbara B. Crabb, Judge.

A RGUED A PRIL 21, 2010—D ECIDED A PRIL 1, 2011

Before C UDAHY, R IPPLE and H AMILTON, Circuit Judges.
R IPPLE, Circuit Judge. Gordon E. Sussman was charged
in Wisconsin state court with multiple counts of posses-
sion of child pornography, two counts of repeated
sexual assault of the same minor and two counts of ex-
hibiting harmful material to a minor. A jury convicted
Mr. Sussman on the child pornography and sexual
assault charges, but acquitted him of the harmful-
material counts. After exhausting avenues of review in
state court, Mr. Sussman filed an application for a
2 No. 09-3940

writ of habeas corpus under 28 U.S.C. § 2254 in the
United States District Court for the Western District of
Wisconsin, challenging his convictions for child sexual
assault. The district court denied Mr. Sussman relief,
but granted him a certificate of appealability with
respect to his claim that he received ineffective assistance
of counsel at trial. We conclude that, in assessing
the prejudice suffered by Mr. Sussman through the ex-
clusion of the disputed evidence, the Wisconsin ap-
pellate court unreasonably applied the Confrontation
Clause of the Sixth Amendment, as made applicable
to the states through the Fourteenth Amendment. Ac-
cordingly, we reverse the judgment of the district court
and remand the case with instructions to issue a writ of
habeas corpus unless the State elects to retry Mr. Sussman.

I
BACKGROUND
A. Facts
Mr. Sussman was convicted in Wisconsin state court
of possession of child pornography and repeated sexual
assault of the same minor, Scott. The testimony at trial
established the following course of events.

1.
In 1998, Scott was in the third grade at West Middleton
Elementary School, which Mr. Sussman’s children also
had attended. At the request of the principal, Mr. Sussman
No. 09-3940 3

became a mentor to Scott. In this role, he would come
to school and help Scott with his work. However, they
also would spend time together outside of school;
initially, these activities included biking, canoeing and
kayaking. A few times per month, Mr. Sussman took
Scott to Rutabaga, Mr. Sussman’s business. Scott testified
that, when he was at Mr. Sussman’s office, they would
view pornographic pictures. Scott also testified that,
when viewing pornography, he or Mr. Sussman mastur-
bated each other. These sexual activities took place in
other places as well; in all, Scott estimated that they
masturbated each other “[p]robably over 50 [times].”
Tr. 230.1
In 1999, Mr. Sussman ceased to mentor Scott. The
circumstances surrounding the termination of the formal
mentoring relationship are unclear. It appears that
Mr. Sussman had given Scott a book, which Scott
took with him to school; at trial, Scott could not recall
the name of the book. A teacher found the book and
believed it was inappropriate for school. Although the
school mentoring relationship ended, Mr. Sussman con-
tinued to see Scott outside of school.
In October 2000, Scott moved from Wisconsin to
Indiana and lived there for about a year and a half. He
saw Mr. Sussman only occasionally during this period.
In April 2002, Scott moved back to Wisconsin to live
with his sister. Shortly after arriving there, Mr. Sussman

1
Tr. refers to the transcript of Mr. Sussman’s jury trial in
Wisconsin state court.
4 No. 09-3940

took Scott shopping and also brought him to Rutabaga
to view pornography and to masturbate. Scott also
related other incidents of sexual contact both before
and after his return to Wisconsin.
In May 2002, Scott moved back to Indiana. Up until
this point, Scott had not told anyone about the abuse
because he “was embarrassed and . . . thought it [sexual
contact] was right.” Id. at 278. However, in July 2002,
Scott told his mother, Joann McDonald, about the abuse.
According to the testimony at trial, friends of McDonald,
who had been abused themselves, advised McDonald
that “Scott was acting like someone that had been
sexually abused.” Id. at 1097. McDonald related these
discussions to Scott and instructed him: “[T]ell me
honestly have you ever been, has anybody ever touched
you or done anything to you that felt uncomfortable.” Id.
at 313. When Scott confirmed her suspicions, McDonald
reported the abuse to the authorities. Mr. Sussman ulti-
mately was charged in Wisconsin state court with six-
teen counts of possession of child pornography, two
counts of repeated sexual assault of the same minor
and two counts of exhibiting harmful material to a minor.

2.
At trial, defense counsel’s strategy was to cast doubt
on Scott’s credibility in two ways. Counsel first intended
to expose the inconsistencies in the statements that Scott
No. 09-3940 5

had made to the police and to others.2 Defense counsel
also planned on introducing prior false allegations of
sexual assault that Scott had made against his father.

a.
Mr. Sussman’s counsel first confronted Scott with the
inconsistent versions of events that he had related to
investigating officers. Scott’s first interview was with
Mark Rochon of the Valparaiso, Indiana Police Depart-
ment. After Scott recounted all of the incidents of
abuse that he could remember, Officer Rochon advised
Scott and his mother that none of these occurred within
the jurisdiction of the Valparaiso Police Department.
Defense counsel resumed his cross-examination of Scott
by discussing that statement by Officer Rochon:
Q. Do you recall that then, after you said
just that’s all that happened, the officer
turned to your mother and said that be-
cause these occurred, none of these oc-
curred within the jurisdiction of Valpa-
raiso Police Department, he would tell
her about the correct agency to contact;
do you recall that?
A. No.

2
In his opening statement, counsel for Mr. Sussman stated that
“the uncertainty of the charges . . . reflect[s] the vagueness
of Scott’s allegations, because he never told the story the same
way twice. He has contradicted himself repeatedly . . . .” Tr. 118.
6 No. 09-3940

Q. And do you remember that after he said
that, you said oh, I just remembered that
an incident occurred at Inman’s Recre-
ational Center; do you recall that?
A. Yes.
Id. at 316.
Defense counsel also brought to light how, only one
hour after speaking with Officer Rochon, Scott spoke
with Detective Horn and described the incident at
Inman’s Recreational Center differently than he had
with Officer Rochon:
Q. And then do you recall telling Detective Horn
that Mr. Sussman picked you up in his red
Volvo 940 station wagon at approximately
11:00 a.m.?
A. I don’t recall saying that.
Q. And you don’t recall telling Officer Rochon
an hour earlier that it happened at night?
A. No.
....
Q. And do you recall that after talking for a while,
you told Detective Horn that Mr. Sussman
didn’t ask you to jack him off, but asked you
to give him a blow job; do you recall that?
A. Yes.
....
No. 09-3940 7

Q. And do you recall telling Detective horn [sic]
that occasionally you would perform oral sex
on Mr. Sussman, and Mr. Sussman would
perform oral sex on you?
A. No.
Q. And then do you recall telling him that on one
occasion you thought it was in the Detroit area
that Mr. Sussman had you sit on his lap and
Mr. Sussman penetrated you anally?
A. Yes.
Q. And do you recall telling the officer addition-
ally, at that time, that Mr. Sussman mentored
several other children at the West Middleton
Elementary School, and that you thought
he was molesting them too?
A. No.
Id. at 321-24.
After questioning Scott about the interview with De-
tective Horn, defense counsel moved on to inconsistencies
in statements that Scott had made on the following
day to an officer in Madison, Wisconsin.
Q. And do you recall that Officer Martin asked
you the very next day, after talking to
Officer Rochon and Detective Horn, whether
Mr. Sussman was mentoring anybody else,
and that you said no; you recall that?
A. No, I don’t.
8 No. 09-3940

Q. And do you recall that Officer Martin said to
you the very next day, after you spoke to
Detective Horn, if you were ever anally as-
saulted during your contacts with Mr.
Sussman, and you said no; you recall that?
A. Yes.
Id. at 324-25. Defense counsel then probed incon-
sistencies in Scott’s recounting of events during an inter-
view with Jennifer Sutton of Safe Harbor, which had
occurred the day after his discussions with the Madison
police. Scott informed Sutton that no “blow jobs” had
occurred, but that anal sex had occurred. Id. at 330-31.
Other information provided to Sutton was new as well:
Q. Now, do you recall that on the 9th when you
talked to Officer Martin, you told him of
two occurrences when Mr. Sussman had you
watch pornography on the computer; is
that correct?
A. Yes.
Q. And the very next day you told Miss Sutton
that it happened over 50 times; is that correct?
A. Yes.
Id. at 331-32. Scott also admitted that he told Officer
Martin about four instances of sexual assault, but told
Sutton that “it was 50 incidents” and “whenever I was
with him.” Id. at 333-34 (internal quotation marks omitted).
In addition to exposing inconsistencies in Scott’s state-
ments, counsel for Mr. Sussman called numerous wit-
No. 09-3940 9

nesses to testify to Scott’s general lack of regard for the
truth. See id. at 743 (James Pippitt, former employee of
Mr. Sussman, testifying that “Scott was truthful only
insofar as it would help him along”); id. at 1836 (Kim
Varian, Scott’s cousin, testifying that she did not think
Scott was a “truthful person”); id. at 1846 (Scott’s uncle
testifying that Scott was a “schemer”); id. at 1893 (Barbara
O’Connor, an acquaintance of Scott’s mother, testifying
that Scott’s quality for truthfulness was “very poor”); id.
at 1905 (Edward Fox, Scott’s former neighbor, testifying
that Scott “wasn’t very truthful”); id. at 1912-13 (Diane
Boles, Scott’s former teacher, testifying that Scott was
“manipulative and precocious” and “not always truth-
ful”); id. at 1931 (Patrick Kinney, Scott’s former principal,
“recall[ing] situations where [he] felt that Scott struggled
between fact and fiction”); id. at 1953 (Darren Bush,
former employee of Mr. Sussman, testifying that Scott
“doesn’t know what truth is”).

b.
Defense counsel not only attempted to cast doubt on
Scott’s veracity generally, but he attempted to show that
Scott previously had levied false allegations of sexual
assault to get attention and in retaliation. Specifically,
defense counsel inquired whether Mr. Sussman was the
first person whom Scott had accused of sexual assault.
Counsel’s attempts to elicit testimony on this subject
drew immediate objections from the state’s attorney.
The objection initially was overruled.
10 No. 09-3940

Mr. Sussman’s counsel then continued with his ques-
tioning:
Q. You made such an allegation [of sexual assault]
against your father; is that correct?
A. Yes.
Q. You once threatened your father to accuse
him of sexual assault if he didn’t let you ride
your bike in the street; is that correct?
A. No.
Q. You also, during the course of a custody pro-
ceeding in which your mother and father
were fighting over custody of you, made an
allegation, while you were in the Madison
Meriter Hospital psychiatric ward, that your
father had sexually abused you; is that correct?
A. I did not say that in that phrase.
....
Q. Did you tell the people at the Meriter Hospital
psychiatric unit that your father had inap-
propriately touched you sexually when you
were in the shower?
A. No.
Q. All right, Scott. You tell me what you think
you said to them.
A. I told them, they had asked me if I can remem-
ber anything in my life that somebody had
touched me appropriately—or done anything.
And I told them that what I remember is my
No. 09-3940 11

dad taking a shower with me and him helping
me bathe. That’s what I remember telling them.
....
Q. Is that correct, did I understand you correctly
that you were asked this in a context of a
question about inappropriate touching?
A. Yes.
....
Q. It is something which you repeated over
a year later to Bryce Mitchell;[3 ] is it not?
A. I guess so.
Q. Yeah. And when you repeated it to Bryce
Mitchell over a year later—
Id. at 354-56. At this point, the prosecutor objected on
grounds of physician-patient privilege. The jury was
sent out of the room, and the court overruled the objection.
While the jury was out of the room, however, the prose-
cutor returned to the issue of prior untruthful allegations.
For the first time, the prosecutor argued that, according
to sections 971.31 and 972.11(2) of the Wisconsin Statutes,
any testimony concerning prior false accusations of
sexual assault was improper absent a pretrial determina-

3
Bryce Mitchell was a counselor who treated Scott on an
inpatient and outpatient basis.
12 No. 09-3940

tion of admissibility.4 The court agreed that the issue had

4
Section 971.31 of the Wisconsin Statutes provided, in relevant
part:
(11) In actions under s. 940.225, 948.02, 948.025, or
948.095, evidence which is admissible under s. 972.11(2)
must be determined by the court upon pretrial
motion to be material to a fact at issue in the case and
of sufficient probative value to outweigh its inflam-
matory and prejudicial nature before it may be intro-
duced at trial.
Wis. Stat. Ann. § 971.31(11) (West 2007).
For its part, section 972.11 of the Wisconsin Statutes (the “rape
shield law”) provided, in relevant part:
(2)(a) In this subsection, “sexual conduct” means any
conduct or behavior relating to sexual activities of the
complaining witness, including but not limited to
prior experience of sexual intercourse or sexual
contact, use of contraceptives, living arrangement and
life-style.
(b) If the defendant is accused of a crime under
s. 940.225, 948.02, 948.025, 948.05, 948.06, or 948.095,
any evidence concerning the complaining witness’s
prior sexual conduct or opinions of the witness’s prior
sexual conduct and reputation as to prior sexual con-
duct shall not be admitted into evidence during the
course of the hearing or trial, nor shall any reference to
such conduct be made in the presence of the jury,
except the following, subject to s. 971.31(11):
1. Evidence of the complaining witness’s
past conduct with the defendant.
(continued...)
No. 09-3940 13

“not been determined prior to trial, and so the Court is
wrong. The Court will sustain his objection.” Id. at 365.
After further exchanges, the court stated, “I’m not sure
how . . . we can hold a pretrial hearing during the
middle of trial,” and granted the motion to strike any
reference to Scott’s statements to Mitchell. Id. at 367. In
light of the court’s ruling, Mr. Sussman’s counsel made
the following offer of proof:
And I can tell the Judge I am prepared to show that
he made such an allegation of his father, against
his father. That he repeated it on two occasions;
once to Detective Maida and Jennifer Anderson,
from Child Protective Services; and once to
Bryce Mitchell. And that there was a third occasion
where this was discussed with his mother
present with Detective Frey, and that his mother
in his presence said that he had admitted to
her that this was a false allegation because he
was upset with his father and that he, [Scott,]

4
(...continued)
2. Evidence of specific instances of sexual
conduct showing the source or origin of
semen, pregnancy or disease, for use in
determining the degree of sexual assault
or the extent of injury suffered.
3. Evidence of prior untruthful allegations
of sexual assault made by the complaining
witness.
Wis. Stat. Ann. § 972.11(2)(a)-(b) (West 2007).
14 No. 09-3940

did not deny it when that was stated in his pres-
ence.
Id. at 370. In a Supplemental Offer of Proof filed with
the trial court, Mr. Sussman provided the following
information in support of his efforts to introduce prior
false allegations of sexual assault: (1) that an investiga-
tion of possible abuse took place in 1998 based on
Scott’s reporting of inappropriate touching by his
father; specifically, his father had “touch[ed] his private
parts,” commented that “it’s growing and it’ll be as big
as mine,” patted Scott’s buttocks and “told him not to
tell anyone,” St. R.151 at 2 (internal quotation marks
omitted);5 (2) that, if called to testify, Scott’s father
would state that, in 1998, “Scott had told a therapist
that [his father] had molested him,” that a restraining
order was subsequently entered against Scott’s father,
that (after authorities determined the allegations were
unsubstantiated) Scott went to live with his father, and
that Scott later apologized to his father in 2001, stating
that “he was only trying to get attention,” id. (emphasis
added); (3) that, if called to testify, Scott’s cousin
would state that, “[w]hile Scott was living with me[,]
I confronted him about the accusations and threats he
had made against his dad” and that “Scott admitted to
me that he had made the accusation against his dad
because he was angry with him” and because “[h]e felt
abandoned by his dad,” id. at 3 (emphasis added); and (4) that

5
St. R. refers to documents taken from the state trial-court
record.
No. 09-3940 15

a report from Detective Bruce Frey recounted that Joann
McDonald, Scott’s mom, had stated that any earlier
allegations that Scott had made were “merely . . . to get his
father’s attention and that he wanted his father more in
his life,” id. at 5 (emphasis added).
When the jury returned to the room, the court in-
structed: “You are to disregard and strike from the
record any reference that was made with respect to a false
claim of sexual assault repeated to a Bryce Mitchell. . . .
You are not to use it in your deliberations.” Tr. 374.
Although counsel was precluded from asking about
prior false allegations of sexual assault, counsel did cross-
examine Scott about threats he had directed at his un-
cle. Scott admitted that, while staying with his uncle,
Scott had threatened to call 911 to report abuse; how-
ever, Scott claimed that he made this threat because
his uncle slapped him.
Counsel next explored Scott’s discussions with his
counselor, Bryce Mitchell:
Q. So during all this period of time, this span of
time that you say Mr. Sussman was assaulting
you and showing you pornography, you
were meeting with her on a regular basis; is
that correct?
A. Yes.
Q. And you met with her often and came to trust
her; is that correct?
A. Yes.
16 No. 09-3940

....
Q. And you came to trust her with very intimate
details about your life; is that correct?
A. For the most part, yes.
....
Q. Have you discussed Gordon Sussman with
her often; is that correct?
A. Yes.
Q. And you were asked directly whether Gordon
Sussman ever did anything sexual with you;
is that correct?
A. I don’t recall.
Q. Do you recall unequivocally stating to Bryce
Mitchell that he did not?
A. I don’t.
Q. And if you said such a thing, would you have
been lying to Bryce Mitchell?
....
A. Yes.
Id. at 377-79.6

6
Although counsel for Mr. Sussman could not pursue the false
allegations of sexual assault that Scott made against his
father, defense counsel did ask Scott about other false allega-
(continued...)
No. 09-3940 17

In between witnesses on the fourth day of trial and
outside the presence of the jury, Mr. Sussman’s counsel
noted for the record that he had given the court a memo-
randum addressing the court’s “prior ruling on whether
we can go into a . . . prior false allegation. If Ms. McDonald
[Scott’s mom] testifies, that will be an issue during
her testimony.” Id. at 871-72. In that memorandum,
Mr. Sussman responded to the State’s objection that the
false-accusation testimony was barred because counsel
had failed to seek pretrial determination of admissibility.
Mr. Sussman explained that the objection should be
overruled because (1) “the accused’s right to confronta-
tion and to present evidence overrides the procedural
requirement for a pretrial determination of the admissi-
bility of the evidence [under the Wisconsin statute]”;
(2) the testimony “is not properly subject to Wis. Stat.
§§ 971.31(11) and 972.11(2)(b), as the evidence demon-
strates a lack of prior sexual conduct”; (3) “failure on the
part of defense counsel to seek a pretrial ruling on this
issue does not prejudice the State by reason of surprise,”

6
(...continued)
tions that he had made against Mr. Sussman; Scott testified
accordingly:
Q. But nonetheless you [Scott] told one of the detec-
tives you talked to early on, Detective Horn, that
Mr. Sussman was mentoring at least three others
and sexually molesting them; is that correct?
A. Yes.
Tr. 436.
18 No. 09-3940

but exclusion could prejudice the defendant and pro-
vide a ground for reversal of the conviction; and
(4) “the evidence is probative and relevant and satisfies
the prerequisites for admission.” St. R.180 at 1-2. With
respect to the first argument, Mr. Sussman’s counsel cited
State v. Pulizzano, 456 N.W.2d 325 (Wis. 1990), and Davis
v. Alaska, 415 U.S. 308, 320 (1974), for the proposition
that “the State’s interest in protecting a witness cannot
require yielding of so vital a constitutional right as the
effective cross-examination of an adverse witness.” St.
R.180 at 7-8 (internal quotation marks omitted). The
supporting papers also anticipated, and responded to,
arguments that there were no prior false accusations, see
id. at 14-15 (“Scott has admitted the falsity of his claims
to his father and to child protective services.”), and that
the false accusations were not relevant, see id. at 16 (“Evi-
dence demonstrating the complainant’s bias, credibility
and truthfulness is basic to the prosecution and defense
of criminal charges.”).
Immediately prior to McDonald’s testimony, Mr.
Sussman’s counsel stated his intent to ask about Scott’s
admission of a prior false allegation of sexual assault
against his father, as well as Scott’s failure to dispute
his mother’s statement to that effect. The prosecutor
again noted that a pretrial motion was required. Further-
more, the prosecutor did not believe that the evidence
was admissible under Wisconsin’s rape shield law. 7 In
the prosecutor’s view, “that’s why we needed the
hearing for you to have all of those facts, because it’s at

7
See supra note 4.
No. 09-3940 19

the time of hearing all those facts that you decide
whether its going to be even probative at all on anything
in this case.” Tr. 978. The court then scheduled time
the following morning to hear each side.
At the hearing, Mr. Sussman’s counsel argued that,
although the evidence was relevant on its face, its proba-
tive value had increased as a result of testimony Scott
had given at trial. Specifically, it rebutted Scott’s statement
that he did not reveal the abuse by Mr. Sussman prior to
2002 because he thought it was “right.” Counsel stated:
If Scott [last name deleted] made a prior allegation
of sexual abuse, if, as Scott [last name deleted]
claims, he didn’t allege sexual abuse, but alleged
only that his father touched him, however one
chooses to view that testimony the evidence will
show, as is supported by our written offer of
proof and the documentation, that having made
that allegation, an investigation was launched.
Child Protective Services sent a worker and a
police officer to discuss this with him, the
guardian ad litem in the then current custody
proceeding did an investigation and discussed
this with him, and so certainly would have im-
pressed upon Scott [last name deleted] the import
of such an allegation and the import of such con-
duct.
And it is a fair inference, . . . if not stated fact,
that by the end of that, Scott [last name deleted]
knew that such an allegation caused people trou-
ble. That fact, coupled with the additional fact
that he admitted subsequently to his father, to his
20 No. 09-3940

mother, and to his aunt—or cousin, rather, with
whom he was living—that he had made the al-
legation falsely to get his father’s attention, strikes
at the heart of the notion which [Scott] put
forward on the stand that I didn’t know such
conduct was wrong; i.e., “I thought it was right.”
So it is relevant to impeach the testimony of [Scott].
Id. at 1010-12. The court agreed that the evidence was
relevant, but stated that it “ha[d] a problem with the
method by which you may be able to go about doing it.”
Id. at 1018.
In response, the prosecutor argued that
[e]xclusion of this evidence is justified as a
sanction for the defendant’s failure to comply
with discovery under 971.31(11) of Wisconsin
statutes. . . . The defendant seeks to introduce this
evidence that is potentially admissible under part
of the rape shield law . . . . [I]t must be deter-
mined by the court upon a pretrial motion. He
attempts to now argue that he can evade that law
claiming that his constitutional right trumps the
procedural requirements of the statute.
Id. at 1023 (emphasis added). The prosecutor also
believed that the State was prejudiced by Mr. Sussman’s
attempt to introduce these prior statements. The pros-
ecutor contended that counsel’s failure to bring the
pretrial motion was a “deliberate and willful tactical
decision, not withstanding [sic] their denial[,] to ambush
the State with this evidence at trial.” Id. at 1025. In the
prosecutor’s view, counsel’s “mere invocation” of the
No. 09-3940 21

defendant’s right “to confront his accusers . . . d[id] not
overcome the countervailing public interest of the
integrity of the adversary system.” Id. at 1026. The pros-
ecution also maintained that, in fact, Scott had not
levied a false accusation of sexual assault against his
father, that the prior false allegation was too remote in
time to be relevant, and, finally, that even if the evi-
dence of false accusations were admissible, Mr. Sussman
should not be allowed to use extrinsic evidence to
prove those allegations.
The trial court then framed the issue in terms of
Mr. Sussman’s right to cross-examine Scott on his state-
ment that the sexual contact between him and
Mr. Sussman “was right.” The court stated:
It’s the question as to whether or not he gets to
rebut the idea that “I thought it was right,” is
necessary to the case. I think that probably that
prong is correct. It may be very necessary. And
is the probative value of the evidence out-
weighed by its prejudicial effect.
It seems to me that, in the fairness of this matter,
I think it would be appropriate to allow inquiry
of [Scott’s mother] as to whether or not Scott [last
name deleted] had ever made an allegation, or
made a statement about inappropriate touching.
Typically, I think that would or should only come
through the complaining witness. In some ways
it was addressed. I think you are entitled to
show that he had a foundation for knowing that
the acts complained of in this case were inappro-
priate, they were not right, they were not normal.
22 No. 09-3940

And I will permit you to do that, but not permit
you to go any further with respect to that, how-
ever. . . . [T]hat’s the ruling. If you want clarifica-
tion, he can ask whether or not she is aware that
he [ha]s ever made a prior allegation about inap-
propriate touching. And if she knows, she can
answer.
Id. at 1047-48. At this point, the prosecutor interrupted
to get further clarification of the court’s ruling:
[THE PROSECUTOR]: Your Honor, just to get a
clarification under what statu[t]e you believe that
that’s admissible when we have the language
in 972.11(2)(b).[8]
THE COURT: I’m not sure that—I’m not—and
I guess I look at it and say he offers it under
rape shield, I’m not sure that it is sexual conduct
of the child. And so I don’t, I guess I look at it
and say, I say that it’s not squarely under 972.11.
[THE PROSECUTOR]: Then isn’t it under 906.08?
THE COURT: 906.08,[9 ] I agree that it should

8
See supra note 4.
9
Wisconsin Statutes section 906.08 provides:
(1) Opinion and reputation evidence of character.
Except as provided in s. 972.11(2), the credibility of a
witness may be attacked or supported by evidence in
the form of reputation or opinion, but subject to the
following limitations:
(continued...)
No. 09-3940 23

come in—
[THE PROSECUTOR]: Doesn’t 906.08 begin by
referring you in trials such as this?
THE COURT: That we should go back.

9
(...continued)
(a) The evidence may refer only to character
for truthfulness or untruthfulness.
(b) Except with respect to an accused who
testifies in his or her own behalf, evidence of
truthful character is admissible only after the
character of the witness for truthfulness has
been attacked by opinion or reputation evi-
dence or otherwise.
(2) Specific instances of conduct. Specific instances
of the conduct of a witness, for the purpose of attacking
or supporting the witness’s credibility, other than a
conviction of a crime or an adjudication of delin-
quency as provided in s. 906.09, may not be proved by
extrinsic evidence. They may, however, subject to
s. 972.11(2), if probative of truthfulness or untruthful-
ness and not remote in time, be inquired into on cross-
examination of the witness or on cross-examination
of a witness who testifies to his or her character for
truthfulness or untruthfulness.
(3) Testimony by accused or other witnesses. The giving
of testimony, whether by an accused or by any other
witness, does not operate as a waiver of the privilege
against self-incrimination when examined with re-
spect to matters which relate only to credibility.
Wis. Stat. Ann. § 906.08 (West 2000).
24 No. 09-3940

[THE PROSECUTOR]: Right.
THE COURT: And my theory of this is I don’t
want to, to the extent that I can, I guess the ques-
tion is whether or not you’re going to put Scott
[last name deleted] back on the stand.
[DEFENSE COUNSEL]: I don’t know yet.
I do want to say I understand the court’s ruling.
I just want to say for the record [the prosecutor]
said I offered it under 906.08. You said I offered it
under 972.11. That isn’t what I said. I’m saying I’m
offering it under 903 and 904.
THE COURT: Well, no—
[DEFENSE COUNSEL]: 904.03. I said, Your
Honor, it was relevant. That’s 904.03. And I said
it shows motive and intent under 904.04.[1 0 ] That’s

10
Wisconsin Statutes section 904.04 provided:
(1) Character evidence generally. Evidence of a person’s
character or a trait of the person’s character is not
admissible for the purpose of proving that the person
acted in conformity therewith on a particular oc-
casion, except:
(a) Character of accused. Evidence of a pertinent
trait of the accused’s character offered by an
accused, or by the prosecution to rebut the
same;
(b) Character of victim. Except as provided in
s. 972.11(2), evidence of a pertinent trait of
character of the victim of the crime offered by
(continued...)
No. 09-3940 25

what I’m saying, is it’s relevant, and it’s relevant
to rebut. I’m not, I understand your ruling. I just
want the record to be clear that that’s not what
I was saying I was offering it under.
[THE PROSECUTOR]: But 904.04(b) Character of
Victim starts out the same way. It’s except as
provided in 972.11(2), comma. It puts you
right back to no comment about any evidence
concerning the complaining witness’s prior sex-
ual conduct or opinions of the prior sexual con-
duct or the reputation as to prior sexual conduct
shall be admitted into evidence during the

10
(...continued)
an accused, or by the prosecution to rebut the
same, or evidence of a character trait of peace-
fulness of the victim offered by the prosecu-
tion in a homicide case to rebut evidence that
the victim was the first aggressor;
(c) Character of witness. Evidence of the charac-
ter of a witness, as provided in ss. 906.07,
906.08 and 906.09.
(2) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that the person
acted in conformity therewith. This subsection does
not exclude the evidence when offered for other pur-
poses, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident.
Wis. Stat. Ann. § 904.04 (West 2007).
26 No. 09-3940

course of the trial or hearing, nor shall any refer-
ence to such conduct be made in the presence
of the jury, except . . .
THE COURT: It’s not sexual conduct. It’s not
sexual conduct. It was . . . from what I have here,
that the patting on the butt, the washing of his
genitals by his father was for sexual gratification
of the father or the child. The fact is he made
a statement that he was touched inappropri-
ately—he thought he was touched inappropriately
by the father, which would indicate that he indi-
cated that he was patted on the butt, he was
touched [on] his genitals, and that he knew, that
there is reason to believe that he knew at the time
that he made that report that that was inappro-
priate. And he said that he thought the masturba-
tion that he performed on Mr. Sussman and
Mr. Sussman allegedly performed on him was
right. And this goes to say no, there’s an independ-
ent basis for you to know that it wasn’t right.
And he has a right to prove that or show that other
than just simply—I agree he has a right to show
that other than simply argue that that was a pre-
posterous statement by the child.
....
THE COURT: He can ask her whether or not he
has previously reported what he thought was an
unlawful touching and that would place us at that
point.
[THE PROSECUTOR]: Isn’t that sexual conduct?
No. 09-3940 27

THE COURT: I don’t think it’s sexual conduct.
[DEFENSE COUNSEL]: May I make an inquiry
on clarification. You’re saying that’s what I can ask
her. I’m presuming though that what you’re saying
is I may prove that he has made such a prior
allegation. I may not wish to do it through her.
THE COURT: Now you’re getting back, if you’re
talking, you’re getting back through extrinsic
evidence.
[DEFENSE COUNSEL]: No. I understand what
you’re saying is I can show that he knew it was
wrong conduct by showing that he had made prior
allegations of inappropriate sexual conduct.
THE COURT: No, no.
....
You can explain the question that he knew it was
right. And you can do that through his mother, or
you can do it through him. And you can elect now
as to whether or not you are going to recall him
and do it through cross-examination or do it
through her.
....
[DEFENSE COUNSEL]: I don’t mean to exasper-
ate Your Honor. But I’m not sure I’m being clear.
So let me attempt. What I don’t understand is this:
If it is relevant to show that he knew that such
touching was wrong, while this was going on, and
say, for example, Bryce Mitchell testified that we
28 No. 09-3940

talked about this during the period in question,
and he knew that such touching was wrong, am
I precluded from doing that?
THE COURT: Yes. Yes. The probative value of
you going through Bryce Mitchell to go through
your discussions with him, I think the prejudicial
effect is far outweighed by the probative value.
One, it will be cumulative of what I’m allowing
you to obtain through the mother. And I simply
think that it’s, that the probative value is minimal
at that point.
[DEFENSE COUNSEL]: I don’t know that I will
obtain it through . . . her. I don’t know that she
will be truthful, Your Honor. What you’re saying
is I have to prove my case during the course of
the State’s—through cross-examination of the
State’s witnesses.
THE COURT: No. No. You can prove your case.
You can prove your case. Okay?
Id. at 1048-55.
In sum, the court did not revisit its initial ruling
barring the prior false allegation evidence based on coun-
sel’s failure to raise the issue in a pretrial motion. Never-
theless, the court did allow Mr. Sussman’s counsel,
through cross-examination, to inquire whether Scott
“previously [had] reported what he thought was an
unlawful touching,” id. at 1052, in order to rebut Scott’s
testimony that he did not report his sexual interaction
with Mr. Sussman because Scott thought it “was right.”
No. 09-3940 29

Mr. Sussman’s counsel interpreted this ruling as not
only precluding him from calling other witnesses, such
as Scott’s father or counselor, to establish prior false
accusations of sexual abuse, but also as precluding him
from calling Scott’s counselor for any other purpose. As
a result, defense counsel never sought to admit, and the
jury never read, any of Mitchell’s treatment notes. One
treatment note from November 1999 contained the fol-
lowing statement: “I reported that cl [Scott] firmly
denies any inappropriate contact w[ith] Mary or Gordy
[Sussman].” R.206, Ex. 1.1 1
Near the end of trial, counsel for Mr. Sussman offered
the testimony of Suzette Cyr, a friend of McDonald’s
with whom McDonald also had had a romantic relation-
ship. Cyr testified that she and Scott were friends and
that Scott had visited her at her home in Dallas during
his Christmas vacation of 2003 and during summer vaca-
tion of 2004. Cyr testified that Scott had told her that
“[i]t never happened. . . . This thing with Gordy. He never
did it.” Tr. 1861. Cyr admitted that, subsequent to this
conversation, she had written McDonald threatening to
expose Scott’s statement unless McDonald repaid a loan

11
Counsel for Mr. Sussman did mention Scott’s denial to Bryce
Mitchell during closing arguments. The State’s objection to
his statement was sustained by the court. Tr. (June 30, 2005) 119.
Although the jury was not able to see Mitchell’s note or hear
testimony from Mitchell, Mr. Sussman’s counsel did elicit
testimony from one of Scott’s teachers as well as Scott’s
sister that Scott never had complained of abuse by Mr. Sussman.
See Tr. 633, 961.
30 No. 09-3940

that Cyr had made to her. On cross-examination, she
also admitted to writing other threatening letters to
individuals with whom she had been romantically in-
volved.
An acquaintance of McDonald, Barbara O’Connor,
echoed the possibility that both Scott and McDonald
may have had a financial motive in pursuing criminal
action against Mr. Sussman. O’Connor testified that
McDonald had anticipated filing a civil suit against
Mr. Sussman and “get some money out of it.” Id. at 1892.
McDonald said she would use the money to “send[] Scott
to college and some other things.” Id. According to
O’Connor, when Scott heard this, “[his] eyes light up, and
he kind of had a smile . . . on his face” and said that “he
could probably get a pool like Suzette had.” Id. at 1892-93.
After a ten-day trial, a jury convicted Mr. Sussman on
the child pornography and child sexual assault charges.
He was acquitted on the charges of exposing Scott to
harmful material.

B. State and District Court Post-trial Proceedings
1.
On July 14, 2006, Mr. Sussman filed a petition for state
postconviction relief pursuant to section 974.02 of the
Wisconsin Statutes. See St. R.206. He alleged that his
trial counsel had been constitutionally ineffective. Al-
though the petition identified several grounds of ineffec-
tiveness, only two are pertinent to the issues presently
before us: First, Mr. Sussman’s counsel had failed to file
No. 09-3940 31

a pretrial motion under section 971.31(11) of the Wis-
consin Statutes that would have allowed Mr. Sussman
to introduce evidence of Scott’s prior false reports of
sexual abuse. Specifically, Mr. Sussman argued that, “[i]f
filed, that motion would have opened the door for
Mr. Sussman to inform the jury that, on at least three
prior occasions, [Scott] had falsely reported sexual
abuse.” Id. at 4. Second, counsel had failed to introduce
the note made on November 24, 1999, by Mitchell that
indicated that Scott had denied any inappropriate
conduct by Mr. Sussman.
On November 30, 2006, the Circuit Court held a hearing
to consider Mr. Sussman’s petition. During the hearing,
Mr. Sussman’s counsel testified to his understanding of
the evidence that Scott had made false allegations of
sexual abuse against his father. Counsel explained that
it was his “belief prior to trial . . . that [Scott] had made
the allegation against his father in the context of the
custody dispute, had subsequently recanted that allega-
tion, and then subsequent to that, revived it when
meeting with Bryce Mitchell.” Tr. of Hr’g on Postcon-
viction Motion at 29. Specifically, Mr. Sussman’s trial
counsel testified that he had a signed statement
from Scott’s father, in which Scott’s father attested: “In
December of 1998, Scott threatened to call the police if
I did not let him ride his bike in the street. He said he
would tell them that I had sexually assaulted him. In
October of 1998, there was a civil restraining order
against me; Scott had told the therapist that I had
molested him.” Id. at 76 (quotation marks omitted).
32 No. 09-3940

After child protective authorities determined that the
claim was unsubstantiated, see St. R.151 at 15, Scott re-
peated this claim of inappropriate touching to Mitchell
in October 1999, see St. R.206, Ex. 2 at 25, and again to
Mitchell in March 2000, see St. R.206, Ex. 4. Mr. Sussman’s
trial counsel also testified that other evidence of a false
allegation included an interview with Detective Frey.
According to trial counsel, “Scott[’s] [last name deleted]
mother . . . told Detective Frey that on one occasion her
son had made an allegation against his father for some
type of sexual abuse, but had later indicated that he
had lied to get his dad’s attention and nothing really
happened.” Tr. of Hr’g on Postconviction Motion at 77.
Trial counsel explained that he would have used the
false accusations both to impeach Scott’s credibility and
to rebut Scott’s stated reason for not reporting the abuse
by Mr. Sussman, namely that Scott thought the sexual
contact was “right.” See id. at 31. Trial counsel explained
that his strategy was thwarted when the trial court sus-
tained the prosecutor’s objection to the evidence on the
ground that trial counsel had failed to bring a pretrial
motion. He further testified that the failure to do so was
not a part of his strategy, but that “[i]t was an omission.
I forgot.” Id. at 32.
In his testimony, Mr. Sussman’s trial counsel also
addressed the potential impact of Mitchell’s note. He
explained that his strategy would have been to use the
therapist’s note to impeach Scott’s credibility. However,
because he misunderstood the breadth of the trial court’s
ruling with respect to Scott’s psychiatric records, he
failed to offer this evidence.
No. 09-3940 33

On March 8, 2007, the Circuit Court denied the petition.
With respect to counsel’s failure to file a pretrial motion to
determine the admissibility of Scott’s prior false accusa-
tions against his father, the court stated, “[w]hether
properly phrased as a failure to show deficient perfor-
mance or failure to show prejudice, it appears quite clear
that trial counsel’s failure to file a motion under Wis. Stat.
§ 971.31(11) can only constitute ineffective assistance if
the motion itself would have had merit.” St. R.224 at 6
(citing State v. Swinson, 660 N.W.2d 12, 26 (Wis. Ct. App.
2003)). The court further explained that to have merit,
the motion would have had to satisfy three requirements:
(1) the proffered evidence fits within section 972.11(2)(b)3
of the Wisconsin Statutes;1 2 (2) the evidence is material
to a fact at issue in the case; and (3) the evidence is
of sufficient probative value to outweigh its inflam-
matory and prejudicial nature (the “DeSantis factors”).
Id. at 6-7 (citing State v. DeSantis, 456 N.W.2d 600, 605
(Wis. 1990)).13

12
See supra note 4.
13
In State v. DeSantis, 456 N.W.2d 600, 602 (Wis. 1990), the
Supreme Court of Wisconsin considered “whether the circuit
court abused its discretion and violated the defendant’s con-
stitutional rights to confront witnesses and to present a
defense when it precluded testimony the defendant proffered
concerning the complainant’s prior untruthful allegations.” In
DeSantis, the defense sought “to introduce at trial that the
complainant had made prior untruthful allegations of sexual
assault.” Id. After a pretrial hearing, the court determined
(continued...)
34 No. 09-3940

13
(...continued)
that, based on Wisconsin Statutes section 972.11 (the rape
shield law), “the defendant could not cross-examine the com-
plainant about her prior allegations of sexual assault on
grounds of ‘relevancy as well as remoteness.’ ” Id. at 604.
Turning to this issue, the Supreme Court of Wisconsin opined
that, under the rape shield law, the “first determination the
circuit court must make under sec. 971.31(11) is whether the
evidence falls within the exception set forth in sec. 972.11(2)(b)3,
that is whether the defendant has established a sufficient
factual basis for allowing the jury to hear the evidence that the
complainant has made prior allegations of sexual assault that
are untruthful.” Id. at 605-06. With respect to this issue, the
court “conclude[d] that the defendant should produce
evidence at the pre-trial hearing sufficient to support a rea-
sonable person’s finding that the complainant made prior
untruthful allegations.” Id. at 606. “In other words,” the court
explained,
in order to admit evidence of untruthful prior allega-
tions of sexual assault, a circuit court must be able to
conclude from the proffered evidence that a reasonable
person could reasonably infer that the complainant
made prior untruthful allegations of sexual assault.
If the evidence does not meet this basic threshold, the
circuit court must conclude that the evidence
does not come within the exception provided by
sec. 972.11(2)(b)3.
Id. at 606-07. The court believed that
this reasonableness standard balances the public
policies underlying secs. 972.11(2)(b)3 and 971.31(11).
(continued...)
No. 09-3940 35

13
(...continued)
The legislature sought to respond to claims that rules
of evidence served to humiliate and degrade com-
plainants by allowing the defendant to put the com-
plainant on trial and served to deter complainants
from pressing charges. The legislature also sought to
protect a defendant’s constitutional rights to a fair
opportunity to defend and to a jury trial, as well as
the defendant’s interest in avoiding erroneous pre-
liminary fact-finding by the circuit court. We con-
clude that the reasonableness standard strikes the
appropriate balance between these competing policies
and interests and is consistent with legislative intent.
Id. at 607. Therefore, according to the Supreme Court of Wis-
consin, the DeSantis factors are an attempt by the legislature
to balance policy concerns and federal constitutional rights.
However, the Supreme Court of Wisconsin also noted the
independent obligation of trial courts to ensure that these
factors are not applied in such a way as to run afoul of constitu-
tional mandates, specifically the right to confront one’s accusers:
We recognize that the circuit court may not deny the
defendant a fair trial or the right to present a defense
by a mechanistic application of rules of evidence.
Davis v. Alaska, 415 U.S. 308 (1973). The rights to con-
front witnesses and to defend are, however, not abso-
lute and may bow to accommodate other legitimate
interests in the criminal trial process. Chambers v.
Mississippi, 410 U.S. 284, 295 (1973). The evidence
declared inadmissible was of a prejudicial and inflam-
matory nature and of minimal, if any, probative value.
(continued...)
36 No. 09-3940

The court concluded that the motion would not have
had merit because the false-accusation evidence failed
to satisfy the first and third requirements. The evidence
failed the first requirement because it did not describe
a sexual assault: It described merely how Scott’s father
had touched Scott’s intimate parts, but not that his
father had touched Scott for purposes of sexual gratifica-
tion or sexual degradation. The evidence failed the
third requirement because its probative value was sig-
nificantly outweighed by its prejudicial effect; the false
accusations were “of a rather ambiguous nature, [were]
temporally remote from the allegations against the de-
fendant, especially considering the youth of the com-
plaining witness, and contained vastly different sur-
rounding circumstances.” Id. at 8. On the other hand, the
court continued, “[t]he potential for improper use and
confusion by the jury, however, would have been unac-
ceptably high. Extensive testimony regarding this
alleged report of sexual abuse would likely have
focused undue attention on the complaining witness’
behavior in a situation quite unlike the one actually being

13
(...continued)
The exclusion of evidence of minimal, if any, probative
effect in view of its highly inflammatory nature does
not depart from general principles of the law of evi-
dence or of constitutional law. We conclude that
the circuit court did not abuse its discretion when it
excluded the evidence and did not violate the defen-
dant’s constitutional rights.
Id. at 609 (parallel citations omitted).
No. 09-3940 37

tried.” Id. Moreover, concluded the court, “even were
this evidence admissible, . . . the Court is convinced that
trial counsel’s failure to present this evidence was not
prejudicial. Significant evidence was actually presented
regarding the complaining witness’ propensity to lie. A
temporally remote addition to this evidence would not
create a reasonable probability of a different outcome.” Id.
Turning to counsel’s failure to offer the therapist’s note,
the court assumed that counsel’s assistance had been
deficient, but the court concluded that it was not constitu-
tionally prejudicial for two reasons. First, trial counsel
questioned Scott about his denial to the therapist, and
Scott responded that, if he had made such a denial, he
was lying. Thus, according to the court, the note would
have added little else to Mr. Sussman’s defense. Second,
Scott’s credibility was thoroughly examined in other
ways, and the therapist’s note would have been a
minor addition to the impeachment of Scott.
Mr. Sussman appealed to the Court of Appeals of
Wisconsin. He asserted that his Sixth Amendment right
to effective assistance of counsel had been violated by
his trial counsel’s two deficiencies. See R.5, Ex. D at 20
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
With respect to the first deficiency—the failure to file the
pretrial motion to determine the admissibility of the
prior false claims evidence—Mr. Sussman disputed the
circuit court’s rationale that the motion would have
been meritless. Id. at 23 (stating that “[i]f, at trial, the
court had denied the timely motion, that ruling
would have been grounds for reversal in this appeal”
38 No. 09-3940

because “the law permitted Mr. Sussman to introduce
Scott’s prior false accusation against his father”). Mr.
Sussman contended that the evidence met the three
DeSantis requirements because (1) Scott admitted at trial
that he had previously accused his father of “sexual
assault,” which could have been confirmed by several
witnesses, (2) the evidence was material because the
court and prosecutor admitted that it was “important”
and “crucial” and (3) the evidence had probative value.
Id. at 24-28 (internal quotation marks omitted). To sup-
port his claim that the evidence had probative value,
Mr. Sussman invited the court’s attention to Redmond v.
Kingston, 240 F.3d 590 (7th Cir. 2001). In Redmond, the
Wisconsin courts had concluded that evidence of a
prior false accusation was “inadmissible because the
false charge did not have sufficient probative value
to outweigh its inflammatory and prejudicial nature.”
R.5, Ex. D at 26. Mr. Sussman explained:
The Seventh Circuit Court of Appeals ruled that
the Wisconsin courts’ decision to exclude the
prior false sexual abuse accusation for failing
the balancing test, when the complainant’s credi-
bility was the central issue, constituted an unrea-
sonable limitation on Redmond’s right to cross-
examine a prosecution witness. The court granted
Redmond’s habeas corpus petition because the limita-
tion infringed on his sixth amendment right of confron-
tation.
No. 09-3940 39

Id. (emphasis added).1 4
Mr. Sussman argued that the Strickland prejudice
prong was satisfied with respect to both of counsel’s
deficiencies because “the missing [evidence] exposed
Scott’s willingness and motivation to lie about the
ultimate fact” on which “the jury was being asked to pass
judgment” and because the evidence “would [have]
influence[d] the fact finder’s assessment of the credibility
of an important witness.” Id. at 29-30. He argued
that because Scott’s credibility was crucial to the pros-
ecution’s case—the State lacked physical evidence or
eyewitness testimony—“[t]here is a reasonable proba-
bility [that] had the missing [evidence] been presented
the result would have been different.” Id. at 31.1 5

14
See infra pp. 60-63.
15
Mr. Sussman’s argument in his reply brief even more point-
edly addresses how the violation of his rights under the Con-
frontation Clause establishes prejudice:
[State v.] Thiel[, 665 N.W.2d 890 (Wis. 2003),] and
Redmond, read together, conclusively establish Mr.
Sussman’s deficient performance claim. Because, as
Mr. Sussman claims and the state does not dispute, if
denial of a timely filed motion would have violated his
sixth amendment right to confrontation (Redmond)
and if defense counsel’s failure to file a meritorious
§ 971.11(b)(2)(3) motion is deficient performance as a
matter of law (Thiel)—then Mr. Sussman’s deficient
performance claim on this point absolutely satisfies
the Strickland test.
R.5, Ex. F at 5.
40 No. 09-3940

For its part, the State maintained that Mr. Sussman’s
counsel had brought out “ample proof” that Scott had
accused his father of sexual assault and that these ac-
cusations were false. R.5, Ex. E at 19. Furthermore, the
State argued that, “had the motion been filed, it would
have failed.” Id. The State submitted that the trial court
had not erred in its ruling on the postconviction motion
that
Sussman [had] failed to make a sufficient offer of
proof that a reasonable person could infer that
Scott in fact made a prior untruthful allegation of
sexual assault against his father, as opposed to a
truthful allegation that his father touched him
on his intimate parts when he bathed him as a
child in the shower. At the very least, it was rea-
sonable for the trial court to limit the amount of
evidence on this point . . . .
Id. at 22 (emphasis in original) (internal citation omitted).
The State also argued that defense counsel’s failure to
introduce the note from Bryce Mitchell was not deficient
performance: “Whether or not [defense counsel] should
have, or even could have, gotten the cryptic note written by
Bryce Mitchell in November of 1999 into evidence . . .,
[defense counsel]’s overall performance on this point
remained competent.” Id. at 13. Turning to prejudice, the
State argued that the evidence only would have been
cumulative “to that introduced by [defense counsel] which
established almost conclusively that Scott was seeing
therapists and teachers for the duration of his relation-
No. 09-3940 41

ship with Sussman but complained to no one about
sexual abuse.” Id. at 14-15.
The Court of Appeals of Wisconsin affirmed. On both
alleged errors by trial defense counsel, the court by-
passed the deficiency prong of the ineffective assistance
of counsel claim and held that there was no prejudice.
With respect to Mr. Sussman’s claim of ineffective assis-
tance of counsel based on the prior false allegation of
sexual assault, the court stated
that Sussman cannot show prejudice. In a well-
explained and thorough decision denying the
postconviction motion, the circuit court ex-
plained that it would not have granted a pre-trial
motion to allow the evidence had it been brought.
The court explained that the evidence did not
meet the first and third elements of the three-part
test outlined in State v. DeSantis. . . . Because the
motion to allow the evidence could not have
been successful for the reasons explained by the
trial court, counsel’s failure to bring the motion
did not prejudice Sussman.
R.5, Ex. B at 4 (emphasis in original). With respect to
Mr. Sussman’s claim of ineffective assistance based on
his attorney’s failure to introduce Mitchell’s note, the
court stated:
Although the note was not introduced as evidence,
Sussman’s attorney brought the contents of the
note to the jury’s attention through questioning
when Sussman’s attorney asked the victim at
trial whether he had denied sexual contact with
Sussman to his therapist. . . . Moreover, the note
42 No. 09-3940

would have been insignificant in impeaching
the victim’s credibility because other substantial
evidence was introduced at trial in an attempt
to impeach the victim’s credibility. . . . We cannot
conclude that the result of the proceeding would
have been different had the note been introduced.
Id. at 2-3.
Mr. Sussman petitioned for review to the Supreme
Court of Wisconsin. He contended that the state court of
appeals had analyzed unreasonably the importance of
counsel’s deficiencies. With respect to the prior false-
accusation evidence, Mr. Sussman argued that the ap-
pellate court’s ruling was “an unreasonable application
of Wisconsin law (State v. DeSantis, 155 Wis.2d 774, 456
N.W.2d 600 (1990)), an unreasonable application of
the Supreme Court’s confrontation doctrine, and an
unreasonable determination of the facts to arrive at a
decision contrary to established state and federal inef-
fective assistance of counsel and confrontation clause
jurisprudence.” R.5, Ex. G at 11. Mr. Sussman em-
phasized that Scott admitted to falsely accusing his
father of “sexual assault” and “inappropriately touched
him while taking a shower.” Id. at 11-12 (internal quotation
marks omitted). He analogized his case again to
Redmond and also to White v. Coplan, 399 F.3d 18, 25 (1st
Cir. 2005).1 6 He believed that the evidence would have

16
In White v. Coplan, 399 F.3d 18 (1st Cir. 2005), the petitioner,
White, had been convicted of the sexual assault of two sisters.
During his trial, White was prohibited from cross-examining
(continued...)
No. 09-3940 43

been probative of Scott’s motive to falsely accuse his
father figures when they withdrew from him. With
respect to the therapist’s note, he submitted that it was
necessary because Scott had testified that he could not
remember ever having made the denial to the therapist
and because Cyr’s testimony required corroboration.
Mr. Sussman’s brief concluded by suggesting that the
court of appeals’s “unfounded judgments result in a
decision that is contrary to established state and federal
ineffective assistance of counsel jurisprudence and also
at odds with the Supreme Court’s confrontation doc-
trine.” Id. at 15.
The Wisconsin Supreme Court denied the petition for
review.

2.
Having exhausted his remedies in the state courts,
Mr. Sussman brought this habeas petition in the district
court. He asserted that his trial counsel had been inef-
fective for the two reasons identified in the state-court
proceedings. According to Mr. Sussman, the decision of
the Court of Appeals of Wisconsin was an unreasonable

16
(...continued)
the complaining witnesses concerning alleged prior false
allegations of sexual assault because White had not estab-
lished that the allegations were “demonstrably false,” a re-
quirement for admission under New Hampshire law. Id. at 22.
On habeas review, the First Circuit determined that the state-
court ruling infringed White’s rights under the Confronta-
tion Clause.
44 No. 09-3940

application of Strickland’s ineffective assistance of
counsel principles because the court applied an overly
strict prejudice standard and reached unreasonable
factual conclusions. Mr. Sussman contended that the
therapist’s note was essential to impeach effectively
Scott and to corroborate other witnesses’ testimony
about Scott’s denial. Turning to the prior false-accusa-
tion evidence, Mr. Sussman argued that, based on
DeSantis, Redmond and White, see R.12 at 16-17, this was
important impeachment evidence because it showed
Scott’s “motive . . . to vent his anger and to get his father’s
attention,” because the false accusation was repeated
“during the same time period covered by the charging
instrument,” and because “the admitted lie and the
accusations against Mr. Sussman similarly accused the
only two father figures in Scott’s life of inappropriately
touching his genitals,” R.1 at 16. Again, much of
Mr. Sussman’s legal argument focused on Redmond:
The Seventh Circuit Court of Appeals ruled that
the Wisconsin courts’ decision to exclude the
prior false sexual abuse accusation for failing the
balancing test, when the complainant’s credibility
was the central issue, constituted an unreasonable
limitation on Redmond’s right to cross-examine a
prosecution witness. The court granted Redmond’s
habeas corpus petition because the limitation
infringed on his sixth amendment right of con-
frontation. This case presents the same issue in an
ineffective assistance of counsel context.
R.12 at 16-17 (emphasis added).
No. 09-3940 45

A magistrate judge recommended denying relief, and
the district court agreed. Addressing the prior false
accusations, the district court held that it had “no
authority to review the correctness of the appellate court’s
decision that the trial court had interpreted Wis. Stat.
§ 972.11(2) properly”; however, it did have authority
to determine “whether the exclusion of the evidence of
the prior allegation of sexual abuse prejudiced peti-
tioner.” R.19 at 4. The court concluded that Mr. Sussman
had not been prejudiced because he was not “prevented
entirely from bringing the victim’s prior false accusation
to the jury’s attention. Counsel was allowed to question
Scott’s mother about the matter and to put in exten-
sive evidence from other witnesses about Scott’s propen-
sity to lie.” Id. at 5. Concerning the failure to offer Mitch-
ell’s note, the district court held that, contrary to
Mr. Sussman’s assertions, the state appellate court’s
conclusion that there was no reasonable probability of
a different outcome was not an unreasonable one.
The district court nevertheless granted Mr. Sussman
a certificate of appealability with respect to these ineffec-
tive assistance of counsel issues.

II
DISCUSSION
A. Applicable Standards
A state prisoner’s habeas claims are governed by the
deferential standards set forth in the Antiterrorism
46 No. 09-3940

and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2254:
Under AEDPA, when a state court actually has
adjudicated a petitioner’s claims on their merits,
a federal habeas court may grant relief only
when the state court’s adjudication of the claim
“(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined by
the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court pro-
ceeding.” 28 U.S.C. § 2254(d).
Williams v. Bartow, 481 F.3d 492, 498 (7th Cir. 2007).
We evaluate the substance of Mr. Sussman’s inef-
fective assistance of counsel claims according to the
familiar standard set forth in Strickland v. Washington,
466 U.S. 668 (1984).
The law governing ineffective assistance claims,
announced in Strickland, requires that [the defen-
dant] must demonstrate that (1) counsel’s perfor-
mance fell “outside the wide range of profession-
ally competent assistance” and (2) “there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S.
at 690, 694.
Allen v. Chandler, 555 F.3d 596, 600 (7th Cir. 2009) (parallel
citations omitted). Because “[a]n ineffective-assistance
No. 09-3940 47

claim can function as a way to escape rules of waiver and
forfeiture and raise issues not presented at trial,” the
Strickland standard “must be applied with scrupulous
care, lest ‘intrusive post-trial inquiry’ threaten the
integrity of the very adversary process the right to
counsel is meant to serve.” Harrington v. Richter, 131 S. Ct.
770, 788 (2011) (quoting Strickland, 466 U.S. at 689-90). “To
satisfy Strickland’s deficiency component, the convicted
defendant must show that counsel’s performance fell
below an objective standard of reasonableness. This
means identifying acts or omissions of counsel that
could not be the result of professional judgment.” United
States ex rel. Thomas v. O’Leary, 856 F.2d 1011, 1015 (7th
Cir. 1988) (internal citations omitted). “The question
is whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not
whether it deviated from best practices or most common
custom.” Harrington, 131 S. Ct. at 788 (quoting Strickland,
466 U.S. at 690). Our review of counsel’s performance
is “highly deferential,” and the defendant is required to
“overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound trial strategy.” Strickland, 466 U.S. at 689 (internal
quotation marks and citations omitted).
As the Supreme Court recently emphasized in Harring-
ton, 131 S. Ct. at 788, when a habeas petitioner raises an
ineffective assistance claim, “[t]he bar for establishing
that a state court’s application of the Strickland standard
was ‘unreasonable’ is a high one, and only a clear error
in applying Strickland will support a writ of habeas cor-
pus.” Allen, 555 F.3d at 600. “This principle applies
48 No. 09-3940

because ‘Strickland builds in an element of deference to
counsel’s choices in conducting the litigation [and]
§ 2254(d)(1) adds a layer of respect for a state court’s
application of the legal standard.’ ” Ouska v. Cahill-
Masching, 246 F.3d 1036, 1053 (7th Cir. 2001) (alteration
in original) (quoting Holman v. Gilmore, 126 F.3d 876, 881
(7th Cir. 1997)). “When § 2254(d) applies, the question is
not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.”
Harrington, 131 S. Ct. at 788.
However, if a state court does not reach either the
issue of performance or prejudice on the merits, then
“federal review of this issue ‘is not circumscribed by a
state court conclusion,’ and our review is de novo.” Toliver
v. McCaughtry, 539 F.3d 766, 775 (7th Cir. 2008) (quoting
Wiggins v. Smith, 539 U.S. 510, 534 (2003)).

B. Deficient Performance
Mr. Sussman claims that his trial counsel’s failures fell
below an objective standard of reasonableness. As noted
previously, the state appellate court did not address the
merits of Mr. Sussman’s allegations of deficient perfor-
mance, but proceeded directly to the prejudice inquiry.1 7
Consequently, we review de novo Mr. Sussman’s claim
of deficient performance. See Toliver, 539 F.3d at 775.

17
The operative decision for purposes of AEDPA is “that of
the last state court to address the claim on the merits.” Garth
v. Davis, 470 F.3d 702, 710 (7th Cir. 2006).
No. 09-3940 49

Mr. Sussman argues that his counsel’s failure to bring
a pretrial motion concerning the prior false allegations
of sexual assault and to introduce Mitchell’s note were
not the result of a reasoned approach to trial. Instead,
counsel stated that he simply forgot that Wisconsin law
requires that there be a pretrial determination of the
admissibility of prior false allegations of sexual abuse.
Additionally, Mr. Sussman’s counsel testified that his
failure to introduce Mitchell’s note was the result of
confusion over the trial court’s evidentiary ruling.
Because these actions cannot be considered a part of
any sound trial strategy, Mr. Sussman maintains, his
counsel’s performance was constitutionally ineffective.
The State does not argue that counsel’s actions reflect a
sound trial strategy. Instead, it merely reiterates that
counsel’s actions are entitled to a presumption that they
were made in the exercise of reasonable professional
judgment. This statement is true as a general proposition
of law; nevertheless, it has little bearing on this case.
The testimony of Mr. Sussman’s counsel at the hearing
on the postconviction motion establishes that his coun-
sel’s actions were the result of oversight and confusion.
The State further emphasizes that Mr. Sussman is not
“constitutionally entitled to error-free representation.”
Respondent’s Br. 18. We agree. We often have stated
that “[i]t is essential to evaluate the entire course of the
defense, because the question is not whether the
lawyer’s work was error-free, or the best possible ap-
proach, or even an average one, but whether the
defendant had the ‘counsel’ of which the sixth amend-
50 No. 09-3940

ment speaks.” Williams v. Lemmon, 557 F.3d 534, 538 (7th
Cir. 2009). Nevertheless, we must keep in mind that the
Supreme Court “has allowed for the possibility that
a single error may suffice ‘if that error is sufficiently
egregious and prejudicial.’ ” Id. (quoting Murray v. Carrier,
477 U.S. 478, 496 (1986)). Consideration of this issue
necessarily overlaps with our consideration of the preju-
dice prong of the Strickland analysis, and, therefore, we
now turn to the question of whether Mr. Sussman was
prejudiced by counsel’s errors.

C. Prejudice
1. False Allegation Claims
a. Application of AEDPA Deference
Turning first to the prior false allegations of sexual
assault, Mr. Sussman takes the view that we should not
apply the deferential standard set forth in 28 U.S.C.
§ 2254(d) because the state court did not resolve on the
merits the question of whether Mr. Sussman was preju-
diced by his counsel’s actions. Mr. Sussman’s own sub-
mission, however, belies his assertion. He states in his
brief that, “[a]s to the false accusation, the state court held
Sussman did not meet the prejudice test because no prej-
udice could accrue from defense counsel’s failure to file
a pre-trial motion that would have been denied.” Peti-
tioner’s Br. 16. At bottom, Mr. Sussman’s argument is not
that the state court failed to resolve the issue of prejudice,
but that, because the state appellate court incorrectly
concluded that the motion would have been unsuccessful,
No. 09-3940 51

the court never weighed the potential impact of the
omitted evidence on the jury. Resolving a claim on an
improper or faulty basis is not the same as failing to
adjudicate the claim on the merits. See Malinowski v.
Smith, 509 F.3d 328, 332-34 (7th Cir. 2007). Here, there
is no question that, as Mr. Sussman tacitly acknowl-
edges, the state court held that Mr. Sussman had not
been prejudiced by his counsel’s error. Therefore, we
must evaluate this determination of the state appellate
court under the deferential AEDPA standard. See Har-
rington, 131 S. Ct. at 787-88.

b. Reviewability of Claims
The state appellate court determined that Mr. Sussman
was not prejudiced by his counsel’s failure because,
based on its balancing of the DeSantis factors,1 8 it would
have sustained the denial of a timely motion to intro-
duce the prior false allegations of sexual assault.
Mr. Sussman maintains that the state court both mis-
understood the nature of the prior false accusations as
well as underestimated their probative value.
DeSantis makes it clear that Wisconsin’s rape shield
law is an effort by the Wisconsin legislature to balance
the need to protect complainants’ dignity with the “de-
fendant’s constitutional rights to a fair opportunity to
defend and to a jury trial.” 456 N.W.2d at 607. Indeed,
considerations critical to a Wisconsin state court’s deter-

18
See supra note 13 and accompanying text.
52 No. 09-3940

mination of admissibility under Wisconsin Statutes
sections 972.11(2)(b)3 and 971.31(11) are also important
to a federal court’s Confrontation Clause analysis. See
infra pp. 54-60. To the extent that the state court
weighed the factors embodied in the state statute, it
engaged in a purely state-based process mandated by
its legislature. “[I]t is not the province of a federal
habeas court to reexamine state-court determinations
on state-law questions. In conducting habeas review, a
federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United
States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Conse-
quently, we cannot engage in the “reweighing” of the
DeSantis factors urged by Mr. Sussman.
However, as Mr. Sussman argues and as DeSantis
requires, the state court also must take into consideration
the principles animating the federal Confrontation Clause
in its final determination whether to admit evidence.1 9

19
Despite the State’s claim to the contrary, see Respondent’s Br.
44 n.4, Mr. Sussman had brought to the trial court’s attention
the possible confrontation clause issues attendant to ex-
cluding relevant testimony. See St. R.180 at 1-2 (“the accused’s
right to confrontation and to present evidence overrides the
procedural requirement for a pretrial determination of the
admissibility of the evidence [under the Wisconsin statute]”);
id. at 7-8 (quoting State v. Pulizzano, 456 N.W.2d 325 (Wis.
1990), and Davis v. Alaska, 415 U.S. 308 (1974), for the proposi-
tion that “the State’s interest in protecting a witness ‘cannot
require yielding of so vital a constitutional right as the effective
(continued...)
No. 09-3940 53

According to Mr. Sussman, the state court’s ruling inde-
pendently violated his rights to confront witnesses
against him. When placed within the overarching con-
text of his ineffective assistance claim, therefore, Mr.
Sussman maintains that he did suffer prejudice as a
result of his counsel’s failures because, although not

19
(...continued)
cross-examination of an adverse witness’ ”); cf. Tr. 1023 (prose-
cuting attorney stating that Mr. Sussman’s counsel is “at-
tempt[ing] to now argue that he can evade that law claiming
that his constitutional right trumps the procedural require-
ments of the statute”). Mr. Sussman also addressed the
interplay of the Confrontation Clause with his ineffective
assistance of counsel claims in his brief to the state appellate
court. He did so both by showing that the trial court had
failed to balance properly the DeSantis factors and also by
bringing to the appellate court’s attention federal case law
that speaks to a defendant’s rights under the Confrontation
Clause. See R.5, Ex. D at 23-29.
Moreover, after being denied relief by the state appellate
court, Mr. Sussman urged the state supreme court to review
his ineffective assistance claim related to the false accusations
for the following reasons:
The issue should be reviewed because the reviewing
court[’]s decision is based on a misunderstanding of the
standard of review and an unreasonable application of the
facts to the law. Its unfounded judgments result in a
decision that is contrary to established state and federal
ineffective assistance of counsel jurisprudence and also
at odds with the Supreme Court’s confrontation doctrine.
R.5, Ex. G at 15.
54 No. 09-3940

meritorious on state evidentiary grounds, the motion
ultimately would have been granted because of the im-
portance of the federal rights involved. As we shall
explain in greater detail in the paragraphs that follow,
this inquiry is a proper subject for habeas review.

c. Federal Claims
“Regardless of how a state court applies state evidence
rules, a federal habeas court has an independent duty
to determine whether that application violates the Consti-
tution.” Jones v. Cain, 600 F.3d 527, 536 (5th Cir. 2010).
Mr. Sussman relies heavily on our decision in Redmond,
to support his claim that the state court’s evidentiary
rulings adversely impacted his rights under the Con-
frontation Clause. In Redmond, we considered whether
the defendant’s rights under the Confrontation Clause
were implicated by the Wisconsin state court’s exclusion
of evidence related to prior false allegations of sexual
assault.20 We found it unnecessary in Redmond to
elaborate in great detail on the nature of those rights.
However, as our references in Redmond suggest, Davis v.
Alaska, 415 U.S. 308 (1974), provides an appropriate
starting point for such a discussion.

20
Notably, we read DeSantis as acknowledging—explicitly—
that the balancing test that it implemented must be applied in
a manner that gives full recognition to the important values
protected by the Confrontation Clause of the federal Con-
stitution.
No. 09-3940 55

(1)
In Davis, the Court reiterated that “[c]onfrontation
means more than being allowed to confront the witness
physically. ‘Our cases construing the [confrontation]
clause hold that a primary interest secured by it is
the right of cross-examination.’ ” Davis, 415 U.S. at
315 (alteration in original) (quoting Douglas v. Alabama,
380 U.S. 415, 418 (1965)). The Court observed that “[c]ross-
examination is the principal means by which the believ-
ability of a witness and the truth of his testimony are
tested.” Id. at 316. The Court noted that a witness’s credi-
bility could be called into question in two ways. First,
the defendant could launch a “general attack on the
credibility of the witness,” for instance, by “introduc[ing]
evidence of a prior criminal conviction of that witness.”
Id. “By so doing,” the Court explained, “the cross-examiner
intends to afford the jury a basis to infer that the witness’
character is such that he would be less likely than the
average trustworthy citizen to be truthful in his testi-
mony.” Id. The Court contrasted a “general attack” with
[a] more particular attack on the witness’ credibil-
ity [] effected by means of cross-examination
directed toward revealing possible biases, preju-
dices, or ulterior motives of the witness as they
may relate directly to issues or personalities in the
case at hand. The partiality of a witness is
subject to exploration at trial, and is “always rele-
vant as discrediting the witness and affecting the
weight of his testimony.” 3A J. Wigmore, Evidence
§ 940, p. 775 (Chadbourn rev. 1970). We have
56 No. 09-3940

recognized that the exposure of a witness’ motivation
in testifying is a proper and important function of the
constitutionally protected right of cross-examination.
Greene v. McElroy, 360 U.S. 474, 496 (1959).
Id. at 316-17 (emphasis added) (parallel citations omitted).
Thus, exposing a witness’s reasons for fabrication in a
specific case is at the heart of the Confrontation Clause.
Despite this weighty interest, a defendant’s right to
cross-examine is not unlimited. “[T]rial judges retain
wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on . . . cross-exami-
nation based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the wit-
ness’ safety, or interrogation that is repetitive or
only marginally relevant.” Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986). “In a criminal case, restrictions on the
defendant’s rights ‘to confront adverse witnesses and to
present evidence may not be arbitrary or disproportionate
to the purposes they are designed to serve.’ ” White, 399
F.3d at 24 (quoting Michigan v. Lucas, 500 U.S. 145, 151
(1991) (internal quotation marks omitted)).
Such language, clear although general, calls for a
balancing of interests depending on the circum-
stances of the case. Factors that the Supreme
Court has deemed relevant are the importance
of the evidence to an effective defense, Davis[, 415
U.S. at 319]; the scope of the ban involved, Van
Arsdall, 475 U.S. at 679; and the strength vel non
of state interests weighing against admission of
No. 09-3940 57

the evidence. See Chambers v. Mississippi, 410 U.S.
284, 295 (1973).
White, 399 F.3d at 24 (parallel citations omitted). Thus,
we have upheld a court’s limitation of cross-examina-
tion when “the questions were designed not to elicit
information regarding the witnesses’ possible bias, but
rather to mine for further details concerning [a witness],
whose importance to the case already had been deemed
minimal.” United States v. Valles, 41 F.3d 355, 359 (7th Cir.
1994). Similarly, we determined that there had been
no Confrontation Clause violation when a court limited
cross-examination that “possibly could have impacted on
[the witness’s] general credibility but would not have
exposed a bias in favor of the government.” United States
v. Saunders, 166 F.3d 907, 919 (7th Cir. 1999). More
closely related to the present situation, we have upheld
a court’s decision not to allow cross-examination of a
child witness about prior, allegedly false, accusations of
sexual assault when the state trial court explicitly
found that the complainant “was not clever enough to
concoct false allegations of sexual abuse.” Cookson v.
Schwartz, 556 F.3d 647, 655 (7th Cir. 2009). That is, on
habeas review, we would not disturb a state trial court’s
factual finding that a witness was incapable of giving
effect to the type of motivation that the defense wished
to expose.
By contrast, a trial court’s limitation on cross-examina-
tion aimed at exposing a witness’s motive or bias reaches
the core of Confrontation Clause concerns. To justify
limiting a defendant’s right to confront his accusers on
58 No. 09-3940

issues of motive and bias, the countervailing policy interest
must be concrete and articulable, not based on surmise or
speculation. See Olden v. Kentucky, 488 U.S. 227, 232 (1988).2 1

21
In Olden v. Kentucky, 488 U.S. 227 (1988), the petitioner and co-
defendant, Harris, had been convicted of rape. The com-
plainant, Matthews, alleged that, after the incident, the defen-
dant had dropped her in the vicinity of the house of a friend,
Russell. As it turns out, Matthews—a Caucasian—was in a
relationship with Russell—an African American; indeed, by
the time of trial, they were living together. The defendants
claimed that the encounter had been consensual. Their “theory
of the case was that Matthews concocted the rape story to
protect her relationship with Russell, who would have
grown suspicious upon seeing her disembark from [the defen-
dant’s] car.” Id. at 230. The trial court granted the prosecutor’s
motion in limine to “keep all evidence of . . . [the] living
arrangement from the jury.” Id. The state appellate court
upheld the ruling on the grounds that “[f]or the trial court to
have admitted into evidence testimony that Matthews and
Russell were living together at the time of the trial may have
created extreme prejudice against Matthews,” id. at 231 (quota-
tion marks omitted), because jurors otherwise would have
looked askance at the witness’s interracial relationship. The
Supreme Court held that the state appellate court “failed to
accord proper weight to petitioner’s Sixth Amendment right
to be confronted with the witnesses against him.” Id. (internal
quotation marks omitted). Specifically, it reasoned:
While a trial court may, of course, impose reasonable
limits on defense counsel’s inquiry into the potential
bias of a prosecution witness, to take account of such
factors as “harassment, prejudice, confusion of the
(continued...)
No. 09-3940 59

Furthermore, a defendant has the right to explore fully
each potential motive or source of bias. In United States v.
Martin, 618 F.3d 705, 728 (7th Cir. 2010), for example, the
defendant alleged that his Confrontation Clause rights
had been violated when he was not permitted to cross-
examine a witness concerning any link “between [the
witness’s] involvement in [a] pending state murder
investigation and his testimony in the federal action.” We
agreed that “[t]he timing, nature and status of the [state]
murder investigation was probative of bias[,] and the
defense had the right to explore it fully and allow the
jury to draw its own conclusions.” Id. at 730. Additionally,
we determined that the fact
[t]hat the defendants were permitted to examine
other matters relating to [the witness’s] alleged
bias, such as the written plea agreement and [the
witness’s] prior convictions, does not resolve the
Sixth Amendment violation. The alleged bias
arising out of the [state] murder investigation
was a separate and independent area of bias,

21
(...continued)
issues, the witness’ safety, or interrogation that [would
be] repetitive or only marginally relevant,” Delaware
v. Van Arsdall, [475 U.S. at 679], the limitation here
was beyond reason. Speculation as to the effect of
jurors’ racial biases cannot justify exclusion of cross-
examination with such strong potential to demonstrate
the falsity of Matthews’ testimony.
Id. at 232 (initial alteration in original) (parallel citations
omitted).
60 No. 09-3940

which the defendants sufficiently had distin-
guished from the other areas of bias.
Id. (internal citations omitted).2 2

(2)
With this background in mind, we return to our evalua-
tion of the Confrontation Clause claims set forth in
Redmond. In that case, the petitioner, Redmond, had
been a counselor at an institution for minors suffering
from drug and alcohol addiction. He was convicted of
statutory rape of a fifteen-year-old resident, Heather; it
was alleged that he had given her cocaine in return for
sexual favors. At trial, the principal evidence was the
testimony of Heather and of another resident, who
“merely repeated what Heather had told her had hap-
pened.” Redmond, 240 F.3d at 591. The evidence that the
defense wished to introduce was based on the following
facts:
Eleven months before the alleged offense,
Heather had told her mother that she had been
forcibly raped, and she had offered her torn
clothes as evidence. She had repeated the story of
the rape, with many circumstantial details, to
a hospital nurse and to a police officer investi-

22
Although we determined in United States v. Martin, 618
F.3d 705, 730 (7th Cir. 2010), that a Confrontation Clause
violation had occurred, we determined that the error was
harmless.
No. 09-3940 61

gating the incident, but later had admitted
making up the story (and ripping her clothes
herself) in order to get her mother’s attention. Her
new story was that she had had sex with the
man she had accused of forcible rape, but that it
had been with her consent. Since she was under-
age, the police continued to investigate the
incident as a crime. The man was never found, and
there is no evidence other than Heather’s say-so
that the incident actually occurred. There is no
serious doubt that her recantation of the forc-
ible-rape story was truthful. Redmond offered
more than thirty police reports of the investiga-
tion of Heather’s claim that she had been forcibly
raped, convincingly demonstrating its falsity, and
in addition the district attorney had instituted
contempt charges against Heather.
Id. The state court had held that the evidence was inad-
missible because, under section 972.11(2)(b)3, “Heather’s
false charge did not have ‘sufficient probative value
to outweigh its inflammatory and prejudicial nature.’ ”
Id. We, however, determined that Redmond had made
out a prima facie case of a constitutional violation for
several reasons. First, the state court had treated the
prior false allegation of sexual assault as a general attack
on Heather’s credibility. This was incorrect; we explained:
With all due respect, we believe that the court of
appeals’ analysis and conclusion cannot be con-
sidered a reasonable application of the Supreme
Court’s confrontation doctrine. The evidence of
62 No. 09-3940

the false charge of forcible rape was not cumula-
tive of other evidence bearing on Heather’s credi-
bility, because none of the other evidence either
involved a false charge of being sexually assaulted
or furnished a motive for such a charge. The fact
that a teenage girl has a disordered past and lies
a lot (who doesn’t?) does not predict that she will
make up stories about having sex. To indulge
such an assumption would be to place such per-
sons largely beyond the protection of the law. But
the fact that the girl had led her mother, a nurse[]
and the police on a wild goose chase for a rapist
merely to get her mother’s attention supplied a
powerful reason for disbelieving her testimony
eleven months later about having sex with an-
other man, by showing that she had a motive for
what would otherwise be an unusual fabrication.
The evidence thus was not cumulative, or other-
wise peripheral, considering that testimony by
Heather was virtually the only evidence of
Redmond’s guilt that the prosecution had. Nor
was the evidence of her previous false charge of
rape prejudicial to the state . . . .
Id. at 591-92 (internal citations omitted). Additionally,
we believed that the state court had given excessive
weight to the possibility of jury confusion:
[I]n concluding that there was a danger of con-
fusion[,] the court committed a fatal analytical
mistake. It assumed that Heather would be re-
quired or permitted to testify that she had had
No. 09-3940 63

consensual sex with the alleged rapist, evidence
barred by the rape-shield law. The only evidence
that was relevant to her credibility in Redmond’s
case, however, the only evidence she would or
should have been permitted to give on that
subject, was that within the preceding year she
had made up a story about being forcibly raped.
Whether or not she had had sex with the alleged
rapist was irrelevant, since Redmond was not
prepared to try to prove that she had not. For
unexplained reasons the Wisconsin court of ap-
peals thought that if Redmond’s lawyer had been
permitted to ask Heather whether she had ever
made a false charge of forcible sexual assault,
the door would have been opened to an inquiry
into whether she had had sex on that occasion
at all. We cannot think of any reason why.
Id. at 592.

(3)
We have the same concerns here as we did in
Redmond. In seeking to examine Scott on the false allega-
tions against his father, Mr. Sussman’s counsel was not
attempting simply to expose another incident of Scott’s
lack of truthfulness; instead, he was attempting to “re-
veal[] possible biases, prejudices, or ulterior motives of
the witness as they may relate directly to issues or per-
sonalities in the case at hand.” Davis, 415 U.S. at 316.
The offer of proof established that Scott made false al-
64 No. 09-3940

legations of sexual abuse against his father at a time
when he had no contact with his father and in an
attempt to get his father’s attention. See St. R.151 at 18, 22.
Similarly, Scott’s allegations against Mr. Sussman came
shortly after Scott moved back to Indiana and was seeing
less of Mr. Sussman. The jury reasonably could have
concluded that Scott was prone to use allegations of
sexual abuse against father figures as a means either of
gaining their attention or as a means of punishing them
for abandoning him. See Redmond, 240 F.3d at 591-92
(“[T]he fact that the girl had led her mother, a nurse[] and
the police on a wild goose chase for a rapist merely to
get her mother’s attention supplied a powerful reason
for disbelieving her testimony eleven months later
about having sex with another man, by showing that
she had a motive for what would otherwise be an
unusual fabrication.”). In short, “[w]e are dealing here
with something far more potent than ‘general credibility’
evidence which, under confrontation clause standards,
may have a lower status.” White, 399 F.3d at 26. We are
addressing evidence that exposes a motive to fabricate
a specific kind of lie under a specific set of circumstances
and, therefore, directly implicates Mr. Sussman’s rights
under the Confrontation Clause.
Furthermore, the State’s interest in limiting the testi-
mony appears exaggerated. As explained by the
Supreme Court of Wisconsin in DeSantis, the State’s rape
shield law was designed “to respond to claims that rules
of evidence served to humiliate and degrade com-
plainants by allowing the defendant to put the com-
No. 09-3940 65

plainant on trial and served to deter complainants from
pressing charges.” 456 N.W.2d at 607. However, these
worthy concerns cannot be the only factors for judicial
consideration when there is a false allegation of sexual
assault.
The State maintains that the trial court’s refusal to
admit evidence of false allegations also was justified
because the evidence could have confused the jury.
The State maintains that there was insufficient evidence
that Scott’s allegations were false. It argues that it is
important that Scott did not take the initiative in
making allegations against his father, but merely re-
sponded to questions about inappropriate touching by
child protective services. Scott, the State claims, never
accused his father of any actual wrongdoing. Conse-
quently, the State believes that, had Mr. Sussman been
allowed to question Scott about his false allegations,
the jury’s attention would have been diverted to a periph-
eral matter.
We believe the State’s attempt to trivialize the impor-
tance of Scott’s allegations against his father evinces a
fundamental misunderstanding of the importance of the
guarantees of the Confrontation Clause in the truth-
finding process of a criminal trial. In any event, the
State’s argument overlooks the fact that Scott did not
make the false allegation only once to the representative
from child protective services. Scott repeated the allega-
tion to his therapist on two occasions after child protec-
tive services had determined that the allegations were
unsubstantiated. See St. R.206, Ex. 2 at 25; id., Ex. 4.
66 No. 09-3940

The State also insists that, if the evidence concerning
the prior false accusations had been admitted, the focus
of the trial would have shifted to the interaction
between Scott and his father as opposed to the interaction
between Scott and Mr. Sussman. As in Redmond, we
believe that these fears largely are unfounded. It is
Scott’s motive in bringing and repeating the allegations
against his father that makes those allegations relevant,
not the specific underlying actions that prompted the
allegations. Allowing Mr. Sussman to probe Scott’s
motive would not necessitate lengthy discussion of what
actually had occurred between Scott and his father.
Based on our analysis in Redmond 2 3 and the cases on
which Redmond relies—Davis, Van Arsdall and Olden—we
believe that, if Mr. Sussman’s counsel had filed a timely
pretrial motion with respect to the accusations, and,
furthermore, if the court had prohibited Mr. Sussman
from introducing that evidence, the state court’s ruling
would have run afoul of Mr. Sussman’s rights under
the Confrontation Clause. Therefore, we must conclude
that, by construing the task of evaluating the admissi-
bility of Scott’s accusation against his father with-
out any reference, much less a plenary reference, to the

23
The State makes no effort to distinguish Redmond; instead, it
relies on the magistrate judge’s conclusion that there are
“profound factual differences” between Redmond and Mr.
Sussman’s case. Respondent’s Br. 45, n.2 (quotation marks and
citation omitted). The State, however, never explains what those
differences are or whether they are important to our analysis.
No. 09-3940 67

principles of the Confrontation Clause, the state courts
applied unreasonably the applicable federal constitu-
tional guarantees as construed by the Supreme Court of
the United States.24
Nevertheless, even if the state court committed this
error, we still are faced with the question, for purposes
of ineffective assistance of counsel, whether counsel’s
failure to introduce this evidence prejudiced Mr.
Sussman. In assessing whether there is a reasonable
probability that the result of the proceeding would have
been different, we “must consider the evidence in its
totality.” Wright v. Gramley, 125 F.3d 1038, 1042 (7th Cir.
1997). “Whether such a reasonable probability exists
depends, of course, on the nature and strength of the
government’s case against” the defendant, and “the nature
of his attorney’s failures.” United States v. Morrison, 946
F.2d 484, 500 (7th Cir. 1991); see also Wright, 125 F.3d at
1042 (stating that a verdict supported weakly by the
record “is more likely to have been affected by errors

24
The present case, therefore, stands in contrast to Dunlap v.
Hepp, 436 F.3d 739 (7th Cir. 2006). In Dunlap, we denied habeas
relief to the petitioner, who had been convicted of child
sexual assault, because we concluded that the Supreme Court
of Wisconsin had not unreasonably applied “established law
as set out by the U.S. Supreme Court in Chambers or Davis.” Id.
at 745. “A highly significant factor” in our determination
was that “the Wisconsin court recognized that its rape shield
law must yield if it would deprive a defendant of his constitu-
tional rights.” Id. As noted above, this recognition was absent
from the Wisconsin courts’ consideration of Mr. Sussman’s case.
68 No. 09-3940

than one with overwhelming record support” (quotation
marks and citations omitted)).
The State urges that, even if this evidence had been
admitted, it would have been cumulative to Scott’s ad-
mission on cross-examination that he had accused his
father of sexual assault. However, there is an obvious
difference between an accusation and a false accusa-
tion. Mr. Sussman never was allowed to establish that
Scott’s prior accusation was, in fact, false; nor was he
allowed to explore Scott’s motives for falsely accusing
his father and to draw parallels between Scott’s allega-
tions against his father and Scott’s allegations against
Mr. Sussman.
Additionally, the State maintains that, even if
Mr. Sussman was prohibited from introducing false-
accusation evidence, he
was still able to present to the jury all of the fol-
lowing evidence: Scott’s admission that he
accused his father of sexual assault, Scott’s threat
to report his uncle for abuse, Scott’s false accusa-
tion that Sussman sexually assaulted other boys
he was mentoring, Suzette Cyr’s testimony that
Scott admitted in 2004 he was not sexually as-
saulted by Sussman, and Scott’s (and his mother’s)
overall reputation for untruthfulness. This all
supported the argument that Scott falsely ac-
cused his father of sexual assault when he was
a small child and was now falsely accusing
Sussman of the same.
No. 09-3940 69

Respondent’s Br. 45. The State, we believe, overestimates
the value of some of this evidence. For instance, when
Mr. Sussman’s counsel attempted to explore the fact
that Scott had repeated the allegations against his father
to Bryce Mitchell, the court sustained the State at-
torney’s objection and later instructed the jury: “You are
to disregard and strike from the record any reference
that was made with respect to a false claim of sexual
assault repeated to a Bryce Mitchell.” Tr. 374.2 5
We agree that this evidence is probative of Scott’s
truthfulness and, indeed, that Mr. Sussman’s counsel
was successful in generally discrediting Scott as a wit-
ness. However, this evidence does not take the place of
the false-accusation evidence that Mr. Sussman sought
to introduce. None of the above evidence demonstrates
that Scott lies specifically about sexual abuse when
he feels abandoned by father figures. See Redmond, 240
F.3d at 593 (distinguishing evidence of motive from
general attacks on credibility).
Also of significant importance to our conclusion is
the centrality of Scott’s testimony to the State’s case. See
Olden, 488 U.S. at 233 (considering strength of State’s
case in evaluating whether Confrontation Clause viola-
tion was harmless). Scott’s testimony was the only evi-
dence that Mr. Sussman committed the heinous acts of
which he was accused. Even without the false-accusation
testimony, the jury acquitted Mr. Sussman on the

25
Similarly, as will be discussed infra at page 72, the
State went to great lengths to discredit the testimony of Cyr.
70 No. 09-3940

charges related to exhibiting dangerous materials; it
appears, therefore, that the jury harbored doubts as to
some aspects of Scott’s testimony. See id. (noting that
the jury’s verdict could not be “squared with the
State’s theory of the alleged crime”). We believe that
this crucial evidence, which would have given the jury
a motive for Scott’s allegations against Mr. Sussman, very
well may have tipped the balance in favor of Mr. Sussman.

2. Bryce Mitchell’s Note
a.
Mr. Sussman also claims that he suffered prejudice as
a result of his attorney’s failure to offer into evidence
Mitchell’s note. Mr. Sussman first argues that we
should not defer to the state court’s determination on
the issue of prejudice because it applied the incorrect
substantive standard. Mr. Sussman maintains that he
was required only to establish a “reasonable probability”
that, but for counsel’s errors, the result would have
been different, Strickland, 466 U.S. at 694. The state appel-
late court, however, required him to meet a higher stan-
dard and to establish that the actual “result of the pro-
ceeding would have been different.” R.5, Ex. B at 3.
Mr. Sussman correctly cites the Strickland standard
and correctly notes that the state appellate court omitted
the “reasonable probability” language from its con-
cluding sentence. However, we do not believe that the
omission of this language renders the decision “contrary
to” Strickland. The state appellate court previously had
No. 09-3940 71

cited State v. Johnson, 449 N.W.2d 845 (Wis. 1990), as
providing the operative ineffective assistance standard,
and Johnson incorporates the ineffective assistance
standard set forth in Strickland. See Johnson, 449 N.W.2d
at 847-48. Furthermore, it is clear from the court’s
analysis that it did not believe that the note had a rea-
sonable probability of altering the jury’s verdict. The court
perceived that the “therapist’s note would have added
little to the information received by the jury” and that
“the note would have been insignificant in impeaching
the victim’s credibility.” R.5, Ex. B at 3. Consequently,
we do not believe the court’s use of a “short-hand” recita-
tion of the Strickland test suggests that it employed
the incorrect standard. See Woods v. Schwartz, 589 F.3d
368, 378 n.3 (7th Cir. 2009). We therefore evaluate the
state appellate court decision under the deferential stan-
dard set forth in AEDPA.

b.
The state appellate court concluded that Mitchell’s note
would have been insignificant in impeaching
the victim’s credibility because other substantial
evidence was introduced at trial in an attempt to
impeach the victim’s credibility. For example,
Sussman’s counsel elicited testimony from the
victim’s mother’s friend that the victim had said
the victim was lying about the sexual contact
with Sussman.
R.5, Ex. B at 3. With all due respect, we cannot conclude
that Mitchell’s note would have been merely cumulative
72 No. 09-3940

of Cyr’s testimony. Cyr did testify that Scott had stated
that his allegations against Mr. Sussman were untrue;
however, Cyr was thoroughly discredited by the State.
The State established that Cyr had become angry with
McDonald because McDonald allegedly had refused to
pay on a loan from Cyr. As a result, Cyr threatened
McDonald with legal action; more importantly, she also
threatened McDonald that, if McDonald did not pay,
Cyr “would come forward and tell what had happened
that day with Scotty, what he had said.” Tr. 1870. By
contrast, Mitchell was an objective third party, whom
Scott had grown to trust with the most personal aspects
of his life. Unlike Cyr, Mitchell had no motive at all to
record falsely what Scott had told her. We believe that
the jury would have given far more credence to
Mitchell’s note than it did to Cyr’s testimony.
Moreover, in assessing the prejudice resulting from
counsel’s failure, we must consider the overall strength
or weakness of the State’s case against Mr. Sussman.
As we have discussed previously, there were no
witnesses to, and no physical evidence substantiating,
the assaults. The State’s case rose or fell on the testimony
of Scott. Given that the jury acquitted Mr. Sussman on
the harmful-material charges, there were aspects of
Scott’s testimony that the jury members must have
doubted. It is difficult to say that Mitchell’s note would
not have had an impact on the jury’s deliberations.
Despite our estimation of the impact of this error,
our obligation to defer to “reasonable” state-court deter-
minations may well have required us to refrain from
No. 09-3940 73

granting the writ. In order to grant relief based on this
error alone, we would have to conclude that the ap-
pellate court’s contrary determination was “unreason-
able,” i.e., “lying well outside the boundaries of permissi-
ble differences of opinion.” Hardaway v. Young, 302 F.3d
757, 762 (7th Cir. 2002). Here, however, we are not
faced with a single error by counsel and, therefore, must
consider the cumulative impact of this error when com-
bined with counsel’s failure to secure a pretrial ruling
on the evidence related to the prior false accusations of
sexual abuse. See Goodman v. Bertrand, 467 F.3d 1022,
1030 (7th Cir. 2006) (stating that “we must assess the
totality of the omitted evidence under Strickland rather
than the individual errors” (internal quotation marks and
citation omitted)). If the jury had considered the false-
accusation evidence in conjunction with Mitchell’s
note, there is more than a reasonable probability that
the result would have been different. Indeed, we do not
believe that the state court, had it considered the force
of the evidence, reasonably could have reached a dif-
ferent result.

Conclusion
In sum, we believe that the state appellate court unrea-
sonably concluded that Mr. Sussman had not been preju-
diced by his counsel’s errors. Unlike the Supreme Court
of Wisconsin in DeSantis and unlike this court in
Redmond, its approach to the admission of the evidence
failed to consider the possible impact on the defendant’s
rights under the Confrontation Clause. We therefore
74 No. 09-3940

reverse the judgment of the district court and remand
the case with instructions to grant the writ with
respect to Mr. Sussman’s child sexual assault convic-
tions unless the State elects to retry Mr. Sussman.
R EVERSED and R EMANDED
with INSTRUCTIONS

4-1-11