In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4247
RUSSELL MARTIN,
Petitioner-Appellant,
v.
WILLIAM GROSSHANS, Administrator,
Division of Probation and Parole,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 C 1062—Charles N. Clevert, Jr., Judge.
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ARGUED JUNE 9, 2005—DECIDED SEPTEMBER 15, 2005
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Before BAUER, RIPPLE, and MANION, Circuit Judges.
BAUER, Circuit Judge. Russell Martin appeals the district
court’s denial of his petition for a writ of habeas corpus.
Martin was convicted of three counts of second-degree
sexual assault in 1995. Though he has completed his prison
and parole term, he is still serving a term of probation.
Martin’s habeas petition is based on his claim that his trial
counsel was ineffective; we agree and therefore reverse and
remand with instructions to grant the writ of habeas
corpus.
2 No. 04-4247
I. Background
Martin entered the Nashotah House Seminary in Wiscon-
sin in 1985. He completed the three-year program and
became an ordained Episcopal priest in 1988. In 1994, while
working at a parish in Jacksonville, Florida, Martin was
informed that he had been accused of sexually molesting a
boy while he was at Nashotah House. The boy, Carl S.,
claimed that Martin had molested him three separate times
in the course of one evening in either the fall of 1987 or the
spring of 1988. Carl S. was thirteen years old at the time of
the assaults. He first raised this accusation to his therapist
in 1993; the state of Wisconsin filed a criminal complaint
charging Martin with three counts of second-degree sexual
assault on June 14, 1994.
Martin’s case went to trial in 1995. At trial, Carl S.
testified about the assaults and his mother testified that he
began to have behavioral problems at about the same time
period. Denise Watson Gilbreath, a Florida attorney, and
Officer Charles Morancheck also testified for the prosecu-
tion. Martin’s claim stems, in part, from the testimony of
these two individuals.
Gilbreath is a former prosecutor with experience in sexual
abuse cases involving children. She was a member of the
Jacksonville parish where Martin worked and was ap-
proached by him in 1993 to help develop a policy for dealing
with allegations of sexual misconduct in the parish.
Gilbreath testified that Martin strongly disagreed with the
policy recommendation she eventually helped develop.
Specifically, she stated that Martin became very agitated
and felt that the policy needed to ensure that people
accusing ministers of sexual abuse were telling the truth
before the parish involved the police. Gilbreath testified
that she felt that this was an inappropriate reaction that
focused too greatly on protecting the accused clergymen, not
the accusers.
No. 04-4247 3
Officer Morancheck testified regarding his meeting with
Martin and his attorney in March 1994. He had previously
called Martin and confirmed that he had been informed
of the allegations against him. Morancheck stated that
at the meeting Martin, on the advice of counsel, provided
only biographical information and did not answer questions
about Carl S.’s allegations. Morancheck testified that after
describing the accusations to him, Martin did not make any
verbal responses, but raised an eyebrow and pursed his lips.
Martin testified in his own defense, as did his wife and
eight character witnesses. At closing argument, the pros-
ecutor argued that the jury should not be swayed by the
testimony of Martin’s character witnesses, because even
men like Jeffrey Dahmer and Theodore Oswald had charac-
ter witnesses. Martin was convicted on all three counts.
II. Discussion
Since Martin filed his habeas petition after April 24,
1996, the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2254, governs our review. We may
not issue a writ of habeas corpus unless the state court
proceedings either: (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 proceeding. 28 U.S.C. § 2254(d). Martin contends that
the state court’s ruling that he was not denied the effective
assistance of counsel is contrary to clearly established
federal law as articulated by the Supreme Court in Strick-
land v. Washington, 466 U.S. 668 (1984).
Under Strickland, Martin must show that his counsel’s
performance was deficient and that the deficient perfor-
mance prejudiced his defense. 466 U.S. at 687. To be
4 No. 04-4247
deficient, counsel’s representation must fall below an
objective standard of reasonableness. Id. at 688. Deficient
performance prejudices the defense when the errors were
serious enough to deprive the defendant of a fair trial. Id.
at 687. Martin claims that his trial counsel was ineffective
for failing to: (1) object on proper grounds to Gilbreath’s
testimony regarding Martin’s behavior and emphasis on the
protection of clergy members from false accusations of
sexual abuse; (2) object on proper grounds to Officer
Morancheck’s testimony regarding Martin’s exercise of his
rights to counsel and silence; and (3) move for a mistrial
following the prosecution’s closing argument, which com-
pared Martin to Jeffrey Dahmer among others.
A. Deficient Performance
The Wisconsin Court of Appeals ruled that Martin’s
attorney was not deficient for failing to object to Gilbreath’s
testimony on grounds of relevancy and unfair prejudice
because her testimony was admissible to show Martin’s
consciousness of guilt. We find that Gilbreath’s testimony
was irrelevant and prejudicial, and that Martin’s defense
counsel performed deficiently for failing to make the proper
objections. By the state court’s logic, Martin’s reaction to
Gilbreath’s proposal and his emphasis on protecting clergy
from false accusations shows that he was conscious of his
own guilt and seeking to protect himself. This argument
doesn’t wash. First, Martin was not even aware of the
accusations against him at the time of his interactions with
Gilbreath. Moreover, his contact with Gilbreath was in a
completely different jurisdiction and several years after the
time of the alleged assaults. Second, and most important, a
belief that clergy should be protected from false allegations
of sexual misconduct and afforded due process does not
imply a guilty conscience. Martin’s actions in Florida had no
bearing on his arrest or prosecution in Wisconsin; nothing
No. 04-4247 5
that Gilbreath testified to could possibly have interfered
with the investigation of the Wisconsin authorities. Mar-
tin’s conduct at the meeting with Gilbreath and her testi-
mony about it does not make his guilt any more or less
probable. To hold that his behavior somehow revealed a
guilty conscience requires an illogical and speculative
step—a step which we are unwilling to take. The Wisconsin
court’s conclusion that Martin’s attorney was not deficient
for failing to properly object to Gilbreath’s testimony is
unreasonable; it is not “one of several equally plausible
outcomes.” Hall v. Washington, 106 F.3d 742, 749 (7th Cir.
1997).
Martin next argues that Morancheck’s testimony was
irrelevant and an impermissible comment on the exercise of
his constitutional rights. There seems to be little or
no reason why Morancheck was called to testify. His
testimony adds an imponderable to an already impondera-
ble prosecution decision and does not make Martin’s
guilt any more or less probable. The testimony should
have been excluded and Martin’s counsel performed de-
ficiently for failing to properly object to it.
Finally, Martin’s counsel was also deficient for failing
to move for a mistrial after the prosecution’s closing
argument. The prosecutor’s attempt to neutralize Martin’s
character witnesses by referring to Jeffrey Dahmer and
Theodore Oswald was inflammatory and improper. The
reference to Dahmer was particularly troubling, considering
the trial took place in Wisconsin in 1995, when the memory
of Dahmer’s sexual exploitation and gruesome murders of
young men was still fresh in the minds of area residents.
Martin’s counsel did not object before the jury because he
did not want to emphasize and call attention to the im-
proper argument. Even if this was a reasonable deci-
sion—and we doubt it—it does not change the fact that
counsel did not later move for a mistrial outside the
presence of the jury. This failure could not be part of any
6 No. 04-4247
legitimate trial strategy and falls below objective profes-
sional norms. We note that the prosecutor’s improper
argument was serious in nature, uninvited by the defense,
and not rebutted by the defense, apparently because of its
concern with not enhancing the damage already done. See
United States v. Durham, 211 F.3d 437, 442 (7th Cir. 2000).
Considering the incendiary nature of the prosecutor’s
closing, failure to move for a mistrial was deficient.
B. Prejudice
The Wisconsin Court of Appeals, without squarely
addressing deficiency, ruled that Martin was not prejudiced
by Morancheck’s testimony and the prosecutor’s closing
argument.1 However, the court misstated the burden of
proof in establishing prejudice. To demonstrate prejudice,
Martin must show that 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 694. The Supreme Court specifically explained that
a defendant “need not show that counsel’s deficient conduct
more likely than not altered the outcome in the case.” 466
U.S. at 693. In its opinion, the Wisconsin Court of Appeals
incorrectly placed the burden on Martin to “show that, but
for defense counsel’s unprofessional errors, the result of the
proceeding would have been different.” Appellee argues that
this mistake was most likely a mere typographical error,
and that any confusion on the part of the Wisconsin court
regarding the prejudice analysis would have been cleared
up by this court’s opinion in Washington v. Smith, 219 F.3d
620 (7th Cir. 2000). The problem with this explanation is
that Smith was decided several months after the decision
1
The Wisconsin Court of Appeals did not reach the issue of
prejudice regarding Gilbreath’s testimony, having found that
counsel was not deficient in failing to properly object to it.
No. 04-4247 7
by the Wisconsin Court of Appeals. We are not convinced
that the misstatement of law was a mere typo. The Wis-
consin court’s prejudice analysis was contrary to Strickland
and is not entitled to deference; we therefore review the
issue of prejudice de novo, applying the correct standard.
See Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
To return to the various errors being reviewed, we find
that even if these errors, in isolation, were not sufficiently
prejudicial, their cumulative effect prejudiced Martin’s
defense. See Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir.
2000); Smith, 219 F.3d at 634-35.
Because Gilbreath is a former prosecutor, her statements
that Martin acted inappropriately would be more persua-
sive to a jury. This was a close case that turned almost
exclusively on whether the jury believed Martin or Carl S.
The credibility of each of the two would have been of utmost
importance to the jury, and Gilbreath’s irrelevant and
prejudicial testimony undercut Martin’s credibility. Calling
Morancheck to testify that Martin acted on the advice of
counsel and did not verbally respond to the accusations
against him served no legitimate purpose and led the jury
to the impermissible inference that Martin must be guilty
since he retained a lawyer and did not defend himself at the
interview. In addition, as discussed above, the prosecutor’s
improper and inflammatory references to Jeffrey Dahmer
and Theodore Oswald had to have been extremely harmful
to Martin. The prosecution’s evidence was not overwhelm-
ing; the errors made by Martin’s counsel likely had a
greater impact on the jury than they would have in a
stronger prosecution case. Taking into account the totality
of the evidence, we believe that there is a reasonable
probability that the jury would have found differently
absent the errors of the prosecution and Martin’s trial
counsel.
8 No. 04-4247
III. Conclusion
We REVERSE the decision of the district court and REMAND
with instructions to grant the writ of habeas corpus.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-15-05