Robert J. Dietrich v. Judy P. Smith

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1672
ROBERT J. DIETRICH,
Petitioner-Appellant,
v.
JUDY P. SMITH,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:11-cv-00117-WEC—William E. Callahan, Jr., Magistrate Judge.
ARGUED SEPTEMBER 17, 2012—DECIDED DECEMBER 4, 2012
Before EASTERBROOK, Chief Judge, and BAUER and
WOOD, Circuit Judges.
BAUER, Circuit Judge. Robert J. Dietrich pleaded guilty
to first-degree sexual assault of a child in violation of
Wis. Stat. § 948.02(1)(b) and was sentenced to thirteen
years of initial confinement and ten years of extended
supervision. After exhausting his post-conviction rem-
edies in the Wisconsin courts, Dietrich filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2254 in the

-- 1 of 15 --

2 No. 12-1672
Eastern District of Wisconsin. The district court denied
relief, but granted a certificate of appealability on the
question of whether Dietrich’s due process rights were
violated when the state trial court did not conduct an
in camera review of the victim’s counseling records
prior to her therapist testifying at Dietrich’s sentencing
hearing. For the following reasons, we affirm.
I. BACKGROUND
In 2006, B.T., then fourteen years old, was failing her
freshman year of high school. She was also having
trouble with her friends at school, who had accused her
of making a bomb threat. In April 2006, she attempted
suicide. In July 2006, B.T. told the police that Dietrich,
a family friend, had sexually assaulted her between
June and August 2004 when she was twelve years old.
Dietrich was charged in Milwaukee County Circuit
Court with one count of repeated first-degree sexual
assault of a child and two counts of intimidation of a
child victim. The complaint alleged that during the sum-
mer of 2004, Dietrich had multiple sexual encounters
with twelve-year-old B.T. Dietrich entered not guilty
pleas on all counts.
In a pre-trial motion, Dietrich sought an in camera
review of B.T.’s counseling records. Dietrich believed the
records would show that though the alleged sexual
assaults occurred in 2004, B.T. did not tell her therapist
about the assaults until after her April 2006 suicide at-
tempt. Dietrich’s defense rested on his conjecture that

-- 2 of 15 --

No. 12-1672 3
B.T. invented the allegations of sexual assault in order
to deflect the police and her parents from the true
reasons for her mental anguish, namely trouble with
friends at school. The State opposed the motion on the
grounds that the records were privileged. Relying upon
State v. Green, 646 N.W.2d 298, 310 (Wis. Ct. App. 2002),
the trial court denied Dietrich’s motion, reasoning that
Dietrich had failed to demonstrate a reasonable likeli-
hood that B.T.’s mental health records actually contained
relevant information necessary for a determination of
his guilt or innocence.
Dietrich subsequently reached a plea agreement with
the district attorney and pleaded guilty to one count of
first-degree sexual assault of a child. In exchange for
Dietrich’s guilty plea, the State agreed to move to
dismiss counts two and three, and to recommend ten
years of initial confinement in prison, with the amount
of extended supervision left up to the court.
At the sentencing hearing, the State called several
witnesses including B.T.’s therapist, who was called to
to testify regarding how the sexual assaults had affected
B.T.’s life. Dietrich objected and argued that in light of
the denial of his pre-trial motion for an in camera
review of B.T.’s records, it was “not fair” to allow her
therapist to testify at sentencing because he had no way
to challenge the therapist’s statement. The State re-
sponded that the therapist was only providing the
court with her opinion, and that the court could give
whatever weight to her testimony that it deemed appro-
priate. The trial court agreed with the State and allowed
the therapist to testify.

-- 3 of 15 --

4 No. 12-1672
B.T.’s therapist testified that B.T. was diagnosed with
Post Traumatic Stress Disorder and reported having
nightmares and daytime flashbacks that were im-
pacting her at school. She also stated that B.T. was hos-
pitalized on two separate occasions for suicide ideation
and self-mutilation, which she attributed to B.T. hiding
the sexual assaults. B.T.’s therapist also opined that the
abuse negatively affected B.T.’s relationships with
others and her ability to trust people. Dietrich, in turn,
provided the court with a sentencing memorandum
setting forth alterative reasons for B.T.’s self-destructive
behavior. Dietrich also provided the court with a report
from his therapist, who stated that Dietrich was not
a pedophile motivated by an attraction to adolescent
girls, but rather that this crime was a isolated incident.
Ultimately, Dietrich was sentenced to thirteen years of
initial confinement, three years longer than recom-
mended by the State, and an additional ten years of
extended supervision.
After sentencing, Dietrich filed a post-conviction
motion asking the trial court to vacate his sentence and
order a re-sentencing. Dietrich asserted, among other
things, that his due process rights were violated when
he was denied an in camera review of B.T.’s counseling
records before her therapist made a statement at his
sentencing hearing. His motion was denied on all
counts. Dietrich then filed a notice of appeal to the Wis-
consin appellate court. The appellate court affirmed
the trial court in all aspects. Dietrich petitioned the Wis-
consin Supreme Court for review, and the petition was
denied. Dietrich then petitioned the district court for

-- 4 of 15 --

No. 12-1672 5
federal habeas corpus relief pursuant to 28 U.S.C.
§ 2254(d). On February 23, 2012, the district court denied
Dietrich’s petition, but granted him a certificate of
appealability on the sole issue of whether Dietrich’s
due process rights were violated when the circuit court
declined to conduct an in camera review of B.T.’s coun-
seling records before allowing B.T.’s therapist to testify
at Dietrich’s sentencing hearing.
II. DISCUSSION
Dietrich acknowledges, as he must, that under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”),
federal courts may only grant habeas relief if the state
court’s decision “was contrary to, or involved an unrea-
sonable application of, clearly established Federal law.” 28
U.S.C. § 2254(d). In this case, we review the decision of
the Wisconsin appellate court, and we will not disturb
its decision unless it is “both incorrect and unreasonable.”
Etherly v. Davis, 619 F.3d 654, 660 (7th Cir. 2010). That
standard is not met unless the decision in question
is objectively unreasonable and falls “well outside the
boundaries of permissible differences of opinion.” Id.
Dietrich contends that he could not meaningfully ques-
tion the validity of B.T.’s therapist’s testimony with-
out first viewing B.T.’s counseling records, or more pre-
cisely, without the trial court viewing B.T.’s counseling
records in camera. The district court concluded that this
issue possibly implicated Dietrich’s due process rights
based on the Supreme Court precedent set forth in Penn-
sylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d

-- 5 of 15 --

6 No. 12-1672
Although the proceeding at issue in Ritchie was pre-trial 1
discovery, we stand with the Sixth Circuit on this issue and see
no reason why Ritchie should not apply to sentencing pro-
ceedings as well. In United States v. Powell, 423 F. App’x 602,
608 (6th Cir. 2011) (unpublished), the Sixth Circuit applied
Ritchie to the defendant’s sentencing hearing and declined to
remand for an in camera review because the defendant failed
to establish a basis for his claim that the records he sought
contained material evidence that would affect the outcome
of sentencing.
40 (1987). Ultimately, the district court decided that
Ritchie did not entitle Dietrich to relief, but granted a
certificate of appealablity on that issue. We agree that
Ritchie is the relevant Supreme Court case that addresses
the standard for an in camera review of otherwise privi-
leged records; we will therefore examine Dietrich’s
claim under its precedent.1
In rejecting Dietrich’s claim, the Wisconsin appellate
court relied on State v. Robertson, 661 N.W.2d 105 (Wis.
Ct. App. 2003), in which the defendant sought post-
conviction discovery of confidential medical records. The
Robertson court held that to be entitled to an in camera
inspection of privileged records, a defendant must make
a preliminary showing that the sought-after evidence
is material to his or her defense. Id. at 109. The Robertson
court went on to say that a defendant must demonstrate
that the evidence being sought is relevant, and may
be helpful to the defense, or is necessary to a fair deter-
mination of guilt or innocence, in order to compel an in
camera review. Robertson, 661 N.W.2d at 109. Thus, even

-- 6 of 15 --

No. 12-1672 7
though the appellate court did not cite Ritchie directly,
it did apply its constitutional standards through Rob-
ertson. We therefore now turn to whether the court’s
denial of Dietrich’s request for an in camera review
was an unreasonable application of Ritchie.
In Ritchie, the defendant was accused of molesting
his thirteen-year-old daughter. Ritchie sought discovery
of the daughter’s files held by Pennsylvania’s Children
and Youth Services (“CYS”) agency because he believed
they might contain the names of favorable witnesses, a
medical report from the CYS investigation, and other
unspecified exculpatory evidence. Ritchie, 480 U.S. at 44,
107 S.Ct. 989. The State argued that the files were privi-
leged and cited a Pennsylvania statute that forbade dis-
closure, short of a court order. Because the privileged
CYS files at issue were in the custody of the agency,
neither the government, the defense, or the court
reviewed them in their entirety prior to trial. Id. at 44, 107
S.Ct. 989. Acknowledging he had not reviewed the file
completely, the trial judge accepted CYS’ representation
that the file did not contain a medical report, and denied
discovery. Id. at 44, 107 S.Ct. 989.
On appeal, Ritchie argued that the trial court’s denial of
a review of the unseen, privileged CYS files prevented
him from learning the names of the “witnesses in his
favor,” as well as other evidence that might be contained
in the file. Ritchie, 480 U.S. at 55, 107 S.Ct. 989. Ritchie
argued that this denial implicated his Compulsory
Due Process rights. The Sixth Amendment of the
United States Constitution protects both the right of

-- 7 of 15 --

8 No. 12-1672
confrontation and the right of compulsory process by
requiring that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with
the witnesses against him; [and] to have compulsory
process for obtaining witnesses in his favor.” U.S. CONST.
amend. VI. In considering the argument, the Supreme
Court noted that it had never squarely held that the
Compulsory Process Clause guarantees the right to dis-
cover the identity of witnesses or to require the gov-
ernment to produce exculpatory evidence. Id. at 56, 107
S.Ct. 989. As a result, the Court chose to analyze
Ritchie’s claim under the “clear framework” of the Four-
teenth Amendment and did not decide whether or how
the guarantees of the Compulsory Process Clause differ
from those of the Fourteenth Amendment. Id. at 56, 107
S.Ct. 989. However, the Court made a point of noting
that the compulsory process rights provide no greater
protections in this area than those afforded by due pro-
cess. Id.
The Supreme Court ultimately remanded, finding that
Ritchie was entitled to have the CYS file reviewed by
the trial court to determine whether it contained infor-
mation that probably would have changed the outcome
of his trial. In reaching this conclusion, the Court ad-
dressed the burden that a defendant must meet, in order
to obtain an in camera review of privileged records, in
a footnote as follows:
The Commonwealth also argues that Ritchie is not
entitled to disclosure because he did not make a
particularized showing of what information he was

-- 8 of 15 --

No. 12-1672 9
seeking or how it would be material. See Brief for
Petitioner 18 (quoting United States v. Agurs, 427 U.S.
97, 109-110, 96 S.Ct. 2392, 2400-01, 49 L.Ed.2d 342
(1976) (“The mere possibility that an item of undis-
closed information might have helped the defense . . .
does not establish ‘materiality’ in the constitutional
sense”)) Ritchie, of course, may not require the trial
court to search through the CYS file without first
establishing that it contains material evidence. See
United States v. Valenzuela-Bernal, 458 U.S. 858, 867,
102 S.Ct. 3440, 3446, 73 L. Ed. 2d 1193 (1992) (“He
must at least make some plausible showing of how
their testimony would have been both material and
favorable to his defense”). Although the obligation
to disclose exculpatory material does not depend on
the presence of a specific request, we note that the
degree of specificity of Ritchie’s request may have
bearing on the trial court’s assessment on remand
of the materiality of the nondisclosure. See United
States v. Bagley, 473 U.S. 667, 682-683, 105 S.Ct.
3375 3383-3384, 87 L.Ed.2d 481 (1985) (opinion of
BLACKMUN, J.).
Ritchie, 480 U.S. at 58 n.15., 107 S.Ct. 989.
It is clear from this footnote, that although the Court
ultimately concluded Ritchie was entitled to an in camera
review, the Court intended to require a defendant to first
make a plausible showing that the privileged record at
issue contained material evidence, rather than for an
in camera review of confidential files to be an automatic
entitlement owed to the defendant. That is, the Court

-- 9 of 15 --

10 No. 12-1672
stated that a defendant cannot obtain an in camera
review without “first establishing a basis for his claim
that it contains material evidence.” Id.
We addressed this requirement in Davis v. Litscher, 290
F.3d 943, 945 (7th Cir. 2002). In Davis the petitioner
was convicted of sexually assaulting and beating his
girlfriend and sought habeas relief, asserting that his
constitutional rights were violated when the trial court
denied his motion for an in camera inspection of the vic-
tim’s mental health records. The petitioner contended
that the Wisconsin appellate court violated his due pro-
cess rights by requiring him to make a greater showing
than necessary under Ritchie for an in camera review. Id.
We found that the files the petitioner sought would not
have shed any additional light on the victim’s mental
state on the night of the attack, as he suggested. Id. at
948. Rather, any evidence as to the victim’s drug habit
would be cumulative considering the victim admitted
she was using drugs on the night in question during a
preliminary hearing. Id. Affirming the district court,
we held that the defendant failed to make a “plausible
showing” that the evidence he sought would be mate-
rial and helpful to the defense. Id.
The Sixth Circuit has also addressed the burden a
defendant must reach under Ritchie in Renusch v.
Berghuis, 75 F. App’x 415 (6th Cir. 2003) (unpublished).
Our sister circuit reasoned in Renusch that the clearly
established rule of Ritchie is that, given a privilege
statute like Pennsylvania’s, a defendant is “entitled to
have a [government social services] file reviewed by the

-- 10 of 15 --

No. 12-1672 11
trial court to determine whether it contains informa-
tion that probably would have changed the outcome of
his trial, but only if the defendant has established a
basis for his claim that it contains material evidence, e.g.
by making some ‘plausible showing’ of how [the] testi-
mony would have been both material and favorable to
[the] defense.” Id. at 424. We agree that this is the
correct articulation of the standard set forth in Ritchie.
Applying Ritchie to the instant case, the Wisconsin
appellate court found that Dietrich’s due process claim
was insufficient because he failed to make a plausible
showing that the victim’s counseling records would
produce material evidence. We find this to be a rea-
sonable application of Ritchie. The Supreme Court did
not intend to require the trial court to undertake a blind
fishing expedition through a victim’s mental health
records for the sole purpose of possibly uncovering
additional evidence that may aid in cross-examination,
which the defendant has independently and speculatively
determined would probably be most effective. In fact, the
Ritchie plurality flatly rejected the argument that a de-
fendant is entitled to access confidential records simply
to aid in cross-examination: “[T]he Confrontation Clause
only guarantees an opportunity for effective cross-exami-
nation, not cross-examination that is effective in what-
ever way, and to whatever extent the defense might
wish.” Ritchie, 480 U.S. at 53 (citing Delaware v. Fensterer,
474 U.S. 15, 20, 106 S.Ct. 292, 99 L.Ed.2d 15 (1985)).
The Court specifically noted that the ability to question
adverse witnesses does not include the power to re-
quire the pretrial disclosure of any and all information

-- 11 of 15 --

12 No. 12-1672
that might be useful in contradicting unfavorable testi-
mony. Ritchie, 480 U.S. at 53.
Here, Dietrich sought B.T.’s counseling records in the
hopes of finding evidence that would allow him to more
effectively rebut B.T.’s therapist’s conclusion that the
sexual assaults were the cause of B.T.’s psychological
problems. Dietrich argues that had he been able to
see B.T.’s counseling records, he believed those records
would show that B.T. herself had attributed her suicide
attempt to troubles she was having with her school
friends, rather than Dietrich’s sexual assault. Nonethe-
less, Dietrich had already offered this evidence to
the court through a report by the St. Francis Police De-
partment that stated that B.T. told the officers that she
attempted suicide because her friends at school were
being mean to her and accused her of making a bomb
threat. Therefore, the trial court rightly concluded that
no in camera review of B.T.’s counseling records was
necessary because even if the files contained the exact
information Dietrich speculated existed, that information
was first and foremost immaterial and cumulative at best.
The heart of the matter in Ritchie was whether a statuto-
rily mandated privilege trumped a defendant’s due
process right to potentially exculpatory evidence. Because
the subject statute in Ritchie allowed for disclosure of the
privileged file, via a court order, the Supreme Court
held that the legislature did not intend this privilege to
be absolute and remanded the case for the trial court
to conduct an in camera review of the file. The difference
between the facts in Ritchie, that required a remand for

-- 12 of 15 --

No. 12-1672 13
an in camera review, and the facts in this case, is
that in Ritchie the defendant sought undisputedly
material evidence (namely favorable witnesses) from
his daughter’s file that, if found, possibly could have
changed the outcome of his trial.
In this case, Dietrich had already pleaded guilty to
this crime; therefore the evidence was obviously not
being sought because he believed it would be favorable
to his defense. Instead, Dietrich sought evidence from
privileged records in order to rebut testimony at
his sentencing hearing. The evidence sought was im-
material, cumulative, and even if found, would not have
altered the outcome of Dietrich’s sentencing proceeding.
First, Dietrich already possessed evidence to rebut the
therapist’s conclusions as to the cause of B.T.’s psycho-
logical issues. Dietrich provided the court with a police
report in which B.T. stated she attempted suicide
because of trouble with friends at school, so any addi-
tional information from B.T.’s mental health records
offering that her issues with friends were to blame for
her mental anguish, as Dietrich hypothesized, would be
cumulative evidence. Additionally, even if the files con-
tained the exact evidence Dietrich speculated they did,
this evidence is immaterial. Whether B.T. had additional
factors in her life that were negatively affecting her
mental state, such as having trouble with her friends
at school, does not mean that B.T. did not suffer psycho-
logical consequences after being sexually assaulted by
a thirty-year-old man.
In fact, the trial court made no mention of B.T.’s thera-
pist’s opinion during sentencing. Rather, the trial court

-- 13 of 15 --

14 No. 12-1672
specifically noted that the pivotal issue for the court
was Dietrich’s attempt to shift the blame for the sexual
offense to the twelve-year-old victim. The court cited
Dietrich’s therapist’s report that indicated that Dietrich
believed that the “offense would not have happened
had the child not been overly affectionate.” The court
took great issue with Dietrich’s failure to take complete
responsibility for his actions.
The sentencing court explained how it wrestled with
the two factual scenarios it was presented as to what
occurred in this case.
I have [Dietrich’s] version that talks about, if
you will, an affectionate, promiscuous, encouraging,
curious and interested twelve-year-old who initiated
sexual contact because of a crush towards you, who
then after engaging in this behavior undertook a
course of self-destruction wherein she mutilated
herself, tried to kill herself, and generally allowed
her life to spiral out of control. Conversely, I have a
twelve-year-old who reports inappropriate sexual
contact that ultimately culminated in sexual inter-
course in various forms as defined by the law over
a two-and-a-half month period of time, not just re-
flecting one moment or instant in time. . . . Accord-
ingly, you have and haven’t accepted responsibility.
There is nothing in the record to indicate that the
court placed any material weight on B.T.’s therapist’s
testimony. The sentencing court, instead, took umbrage
with Dietrich’s failure to take full responsibility for
his crime. Therefore, there is nothing to suggest that

-- 14 of 15 --

No. 12-1672 15
Dietrich’s sentencing hearing would have had a dif-
ferent outcome had the court conducted an in camera
review of B.T.’s counseling records, and Dietrich found
the exact evidence he speculated might exist in those
records. We therefore find that the Wisconsin appellate
court reasonably applied Ritchie in this case, as Dietrich
failed to make a plausible showing that the victim’s
counseling records contained evidence material to
his defense.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
the district court.
12-4-12

-- 15 of 15 --