Opinion
No. C 95-2032 MJM.
June 27, 2001.
OPINION and ORDER
This matter comes before the court pursuant to petitioner Bart A. Hulbert, Sr.'s application for a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. no. 41). In his petition, Mr. Hulbert challenges his 1990 convictions in the Iowa District Court for Bremer County for sexual abuse in the second degree, lascivious acts with a child, and indecent contact with a child. Petitioner claims that but for his appellate counsel's ineffective assistance in failing to properly present and argue a point of error by the trial court, the Iowa Supreme Court would have reversed his conviction.
The court notes that petitioner has erroneously named the State of Iowa as respondent rather than the state officer having custody over the defendant, in this case the warden at the Iowa Men's Reformatory at Anamosa, Iowa. However, since this issue has not been raised by the State, the court shall proceed to analyze petitioner's claims as if they had been properly brought against the warden.
I. Procedural Background
In 1989, Bart A. Hulbert, Sr. was charged with four separate offenses under Chapter 700 of the Iowa Code in conjunction with the alleged sexual abuse of his daughter. Following a jury trial in February, 1990, Mr. Hulbert was found guilty of three crimes: second degree sexual abuse in violation of Iowa Code (I.C.) §§ 709.1 and 709.3, lascivious acts with a child in violation of I.C. § 709.8, and indecent contact with a child in violation of I.C. § 709.12(1). Mr. Hulbert was sentenced accordingly.
On direct appeal, the Iowa Court of Appeals affirmed in part, denied in part and remanded the case to the district court for trial de novo. The remand order was based on the appellate court's determination that the trial court erred in excluding the defense expert's testimony on psychological profiles of child sex abusers. Rehearing was made to the Iowa Supreme Court which thereafter vacated the decision of the court of appeals and affirmed the district court judgment. State v. Hulbert, 481 N.W.2d 329 (Ia. 1992).
Mr. Hulbert also raised a sentencing issue on direct appeal. Because that issue was decided in his favor, it is not included in this procedural history.
Mr. Hulbert sought state postconviction relief pursuant to I.C. § 663A. Following a trial in the Iowa District Court for Bremer County, his petition was denied. Mr. Hulbert again appealed and the Iowa Court of Appeals affirmed the denial of postconviction relief. Hulbert v. State, 529 N.W.2d 632 (Ia. App. 1995). The Iowa Supreme Court subsequently denied Mr. Hulbert's application for further review.
On April 24, 1995, Mr. Hulbert filed a habeas corpus petition in this court. On March 6, 1997, a "recast" petition was filed. In his petition, Mr. Hulbert cites trial error and ineffective assistance of appellate counsel as grounds for habeas relief. See doc. no. 41, ¶¶ 20-22. Because in his brief, however, Mr. Hulbert addresses only ineffective assistance claims, the court will assume he has abandoned his remaining claims.
II. Standard of Review
Federal courts may entertain a state prisoner's petition for habeas relief only on the grounds that the prisoner's confinement violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. § 2254(a) (1988). Because Mr. Hulbert filed his petition in 1995, the court's review is governed by the habeas standards in place prior to passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, which amended the standard of review under 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (holding that the AEDPA will not be retroactively applied to any noncapital habeas petitions that were pending as of April 24, 1996, the date the AEDPA became effective); Barrett v. Acevedo, 169 F.3d 1155, 1161 (8th Cir. 1999) (amended standard under AEDPA for granting habeas relief does not apply to petition pending at enactment).
Accordingly, all citations to, and discussion of, 28 U.S.C. § 2254 refers to the statute and relevant standards as interpreted prior to enactment of AEDPA.
Applying those standards, federal courts are to disregard the state courts' legal conclusions and reach independent judgments on all legal issues presented to them. Brown v. Allen, 344 U.S. 443, 458 (1953). Thus, the state court's legal conclusions are to be reviewed de novo. Sweet v. Delo, 125 F.3d 1144, 1153 (8th Cir. 1997). In contrast, factual determination by the state courts are to be presumed correct unless one of eight statutorily enumerated exceptions is met or the petitioner rebuts the presumption with clear and convincing evidence. See 28 U.S.C. § 2254(d) (1988); Burden v. Zant, 498 U.S. 433, 436-37 (1991) ("A habeas court may not disregard [the § 2254] presumption unless it expressly finds that one of the enumerated exceptions to § 2254(d) is met, and it explains the reasoning in support of that conclusion."); Sumner v. Mata, 449 U.S. 539, 550 (1981) (error for court of appeals to reverse state's factual determination without requiring petitioner to prove by convincing evidence that state determination erroneous). The presumption of correctness applies to the factual determinations of both trial and appellate state courts, whether explicit or implicit. See Sumner, 449 U.S. at 547; Pickens v. Lockhart, 4 F.3d 1446, 1452 (8th Cir. 1993); Crespo v. Armontrout, 818 F.2d 684, 686 (8th Cir.) (factual finding that petitioner never invoked right to counsel was implicit in state court ruling that confession was voluntary), cert. denied, 484 U.S. 978 (1987). The presumption of correctness does not apply to "questions of law" or "mixed questions of law and fact." See Miller v. Fenton, 474 U.S. 104, 110-16 (1985).
As grounds for habeas relief, Mr. Hulbert argues that his Sixth Amendment right to the effective assistance of counsel was violated by numerous acts and omissions of his appellate attorney in preparing and presenting his case on appeal. The Sixth Amendment right to effective assistance of counsel during trial and direct appeal is clearly established. See Strickland v. Washington, 466 U.S. 668 (1984); Blackmon v. White, 825 F.2d 1263, 1265 (8th Cir. 1987) ("We have applied the same [ Strickland standard to questions of attorney effectiveness on appeal.") (citation omitted). In Strickland, the Supreme Court explained that a violation of that right has two components:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687, quoted in Williams, 529 U.S. at 390. Thus, Strickland requires a showing of both deficient performance and prejudice. However, "a court deciding an ineffective assistance claim need not address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697. "If it is easier to dispose of an ineffectiveness claim on grounds of lack of sufficient prejudice, . . . that course should be followed." Id.
To establish unreasonably deficient performance, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. The "reasonableness of counsel's challenged conduct [must be reviewed] on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. There is a strong presumption of competence and reasonable professional judgment. Id. The court must "determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance." Id.
To establish prejudice, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. When reviewing claims of ineffective appellate counsel, the court must determine whether appellate counsel's deficient performance renders the result of the direct appeal unreliable or fundamentally unfair. See Lockhart v. Fretwell, 506 U.S. 364, 368-70 (1993); Blackmon, 825 F.2d at 1265. In answering this question, the court "must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 694.
Ineffectiveness of counsel is a mixed question of law and fact and thus on habeas review a federal court is not bound by a state court's conclusion that counsel was effective. See id. at 698. That said, however, "state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of § 2254(d)." Id.; accord, Nave v. Delo, 22 F.3d 802, 814 (8th Cir. 1994).
III. Factual Background
Mr. Hulbert's appellate ineffectiveness claims are inextricably connected to events that transpired prior to and during trial. To understand his argument, a somewhat detailed summary of the case is necessary.
The material facts are drawn largely from the Iowa Court of Appeals' thorough presentation in its post-conviction review of petitioner's claims. See Hulbert, 529 N.W.2d at 633-39. Additional facts will be discussed as relevant to the court's analysis.
1. The initial allegation and investigation
In May, 1989, Mr. Hulbert's ten-year-old daughter, N.H., told Deborah Riehle, her elementary school counselor, that her father had sexually abused her. Ms. Riehle was familiar with N.H. from fairly regular counseling sessions over the school year at which they discussed N.H.'s adjustment to her parents' ongoing divorce proceedings. N.H.'s allegations of sexual abuse arose several months after Ms. Riehle presented a program to N.H.'s fourth-grade class on "good, bad, and confusing touches." Ms. Riehle, a mandatory child abuse reporter, called the Child Abuse section of the Department of Human Services (DHS) in Waterloo, Iowa.
After receiving Ms. Riehle's call, Elizabeth Branstad, a child abuse investigator with DHS, came to the school to interview N.H. Also present at the interview was Lieutenant O'Brien of the Bremer County Sheriff's Department. The interview was tape recorded by Lt. O'Brien; however, the tape was later inadvertently destroyed by law enforcement authorities attempting to make a duplicate. Following the interview, N.H. was taken to the law enforcement center in Waverly and her mother and father were contacted. Ms. Branstad talked to Mrs. Hulbert and participated in the interview of Mr. Hulbert along with Sheriff Westendorf. Mr. Hulbert denied the allegations although towards the end of the interview he conceded that he has occasional "blackouts" after which he cannot recall his actions. The children were released into the care of their mother and Mr. Hulbert was released after further interrogation.
Defense counsel was able to listen to the audiotape at least once prior to its destruction.
Ms. Branstad and Sheriff Westendorf met with Mrs. Hulbert and her family on June 2, 1989, at the DHS office in Waterloo. Ms. Branstad again interviewed N.H., and also interviewed each of the other four Hulbert children, ranging in age from 5 to 12 years old. None of the other children made any allegations of abuse. These interviews were not tape recorded. On June 7, 1989, N.H. was again interviewed, this time by Kathryn Lee, a social worker at the Child Protection Center in Cedar Rapids. The interview with Ms. Lee was recorded on videotape (hereinafter, "the videotape" or "the Lee videotape").
Prior to the abuse allegations, only N.H. and her 9-year-old brother had been living with their father. The other three children had remained in the custody of their mother since the Hulberts' separation the previous summer.
2. Trial proceedings
Prior to trial, Mr. Hulbert filed a motion in limine asking the trial court to preclude testimony by Riehle, Branstad, and Lee as to statements N.H. made to them in interviews, their observations of her, their conclusions about her actions and statements, and their opinions as to her truthfulness. This motion was overruled. The State filed a motion in limine seeking to preclude Mr. Hulbert's expert witness, psychologist Dr. Ralph Underwager, from testifying. The trial court also overruled this motion.
At trial, N.H. testified at length and in relatively significant detail regarding her allegations against her father. Ms. Riehle, Ms. Branstad and Ms. Lee also testified as State witnesses, as did Mr. Hulbert's estranged wife. Mr. Hulbert testified on his own behalf and called numerous witnesses — among them his mother, his stepfather, his brother, and other family friends — to testify as to his character as a good father and to offer opinion testimony as to N.H.'s propensity to lie. Mr. Hulbert's other key witness was Dr. Underwager. Because the medical evidence of sexual abuse was inconclusive, the focal point and only real issue at trial was whether N.H. was telling the truth.
Before Dr. Underwager testified, the State asked the court to clarify its prior ruling concerning his testimony. Specifically, the State argued that Dr. Underwager should not be allowed to testify to things not in evidence, including the videotaped interview with Ms. Lee. Mr. Hulbert contended that the videotape did not have to be in evidence for Dr. Underwager to critique the interview it showed but, if the fact that the videotape was not admitted into evidence was the only thing standing in the way of admitting Underwager's testimony criticizing the interviewing techniques, he would call a witness and introduce the videotape in evidence. The court ruled that Mr. Hulbert could not introduce the videotape and Dr. Underwager could not testify with reference to the videotape or the Lee interview. The trial court based its ruling on the mistaken belief that it had sustained a motion in limine by Mr. Hulbert to keep the videotape out of evidence. Mr. Hulbert told the trial court that he had never sought exclusion of the videotape itself and, even had he, his motion in limine had not been sustained, as the court thought, but in fact had been overruled. The trial court refused to change its ruling on this issue and Dr. Underwager was restricted to general opinion testimony regarding inadequacies in the interview techniques used with N.H.
The State had not sought to have the videotape interview admitted, choosing to rely instead on N.H.'s in-court testimony.
At the close of the three week trial, Mr. Hulbert was found guilty of second degree sexual abuse, lascivious acts with a child, and indecent contact with a child.
3. Direct appeal
Mr. Hulbert raised numerous alleged errors on direct appeal. Relevant to this petition are Mr. Hulbert's claims of error regarding the trial court's treatment of his proffered expert testimony, specifically the trial court's ruling that the videotape could not be admitted nor could Dr. Underwager make specific reference to the videotape in his opinion testimony. In appealing those rulings, appellate counsel in her brief repeated the trial court error by representing that the videotape had been excluded from evidence on the basis of Mr. Hulbert's motion in limine. Both the court of appeals and the supreme court ruled against Mr. Hulbert on this issue, relying predominantly on the fact that it had been Mr. Hulbert who first sought exclusion of the videotape. The supreme court stated, in part: "While [Dr. Underwager's] opinion evidence may well have been strengthened by a demonstration of Lee's performance, Hulbert himself moved to exclude the demonstration tool. Under the circumstances, we cannot say the court abused its discretion by restricting its use. No ground for reversal appears." Hulbert, 481 N.W.2d at 334.
In fact, there is no record of a ruling by the trial judge sustaining Mr. Hulbert's motion in limine excluding the videotape from being admitted in evidence. This fact was called to appellate counsel's attention by Mr. Hulbert's trial attorney in a letter dated March 26, 1990. In the letter, trial counsel also agreed to assist appellate counsel in any way. At the postconviction hearing, Mr. Hulbert's trial attorney, again his attorney for purposes of the postconviction relief proceedings, made a professional statement that appellate counsel never contacted him. Mr. Hulbert testified at the postconviction hearing that he told or wrote his appellate counsel several times about the mistake after receiving the court of appeals' decision and prior to further review by the supreme court but she "brushed him off." The trial court in the postconviction proceedings found Hulbert's statements not credible on this issue.
IV. Discussion
At issue in this petition is whether Mr. Hulbert can demonstrate grounds for Strickland relief based on his assertion that his appellate counsel's deficient performance denied him the opportunity to apprise the appellate courts of the factual error which underlay the trial court's exclusion of the videotape and related expert opinion testimony. Mr. Hulbert argues that his appellate counsel would have been successful with the supreme court if the issue had been correctly presented, specifically, if the Iowa Supreme Court had been told that the trial court's ruling was based on a factual error and that the trial court allowed the State's witnesses to testify to the truthfulness and veracity of N.H.
In his petition, Mr. Hulbert also alleges ineffective assistance of appellate counsel on grounds unrelated to the expert testimony issue. See Petition (doc. no. 41), ¶¶ 20(c) and (d). Because those arguments were not briefed by petitioner, they are deemed abandoned and will not be addressed herein.
In denying Mr. Hulbert's petition on State postconviction review, the Iowa Court of Appeals expressed concern with appellate counsel's failure to communicate with trial counsel in this case but ruled that petitioner was not entitled to relief unless he could show that, "but for the errors, the challenged videotape and testimony would have been admitted and, when admitted, the result would have been different." See Hulbert, 529 N.W.2d at 636. The court of appeals found that Mr. Hulbert failed to show the required prejudice:
Lee explained her interviewing techniques. Underwager was able to testify to a number of reasons why the school program and the interviews with N.[H.] were suggestive. Additional challenges to the interview techniques would have been cumulative.Id. at 638.
After careful review of the entire record, this court agrees that Mr. Hulbert has failed to establish prejudice under Strickland. Even assuming that the Iowa Supreme Court, if properly apprised of the record, would have deemed the videotape and related testimony admissible, under the facts of the present case the court is convinced that the Iowa appellate courts would not have reversed the conviction solely on the grounds that the trial court improperly excluded that evidence. This conclusion rests on the court's independent review of the totality of the record and the role that the testimony given, and proffered, by Dr. Underwager played in the trial. See Strickland, 466 U.S. at 694 (in reviewing ineffective assistance claim, court "must consider the totality of the evidence before the judge or jury").
Because petitioner cannot show prejudice, the court need not reach the issue of whether appellate counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on grounds of lack of sufficient prejudice, . . . that course should be followed."). That said, however, this court shares the Iowa Court of Appeals' concern over appellate counsel's performance in this matter. While "the Constitution does not require appellate counsel to raise every nonfrivolous argument on appeal," Sidebottom v. Delo, 46 F.3d 744, 759 (8th Cir. 1995) (citation omitted), it cannot be disputed that the issue of the videotape and Dr. Underwager's related testimony became a significant issue in this trial, not in small part because of the ongoing dialogue between defense counsel and the trial court as to its admissibility. Moreover, there is credible evidence that appellate counsel's failure to correctly frame the issue arose in large part from her failure to properly review the trial record, which was replete with references to the videotape dispute, and her refusal to take advantage of offers of professional assistance from petitioner's trial counsel. Thus, this is not a situation in which appellate counsel was "exercising sound appellate strategy in the process of winnowing out weaker arguments on appeal . . . ." Id. (quoting Smith v. Murray, 477 U.S. 527, 536 (1986)). See also, e.g., Mason v. Hanks, 97 F.3d 887, 894 (7th Cir. 1996) (counsel's failure to raise obvious and significant issues held objectively unreasonable because it was without a legitimate strategic purpose).
Petitioner's trial lasted three weeks and summarizing the evidence in the light most favorable to the verdict, see Hendricks v. Lock, 238 F.3d 985, 986 (8th Cir. 2001), the jury heard substantial evidence independent of the videotape from which to convict the petitioner. First and foremost was the testimony of N.H. in which she reported numerous instances of sexual abuse dating back several years. Her descriptions were relatively detailed, including explanations of where the abuse occurred, where the other members of the household were, what she and/or her father were wearing at the time, and how the incidents "ended" on various occasions. Her testimony was not shaken on cross-examination nor was defense counsel able to persuasively elicit any other motive for her accusations. In addition, the jury heard testimony that during his initial police interview Mr. Hulbert made comments which could be interpreted as conceding the possibility that during one of his recurrent bouts of memory loss he may have had inappropriate contact with his daughter.
Both sides put on witnesses to testify as to N.H.'s character and propensity for truthfulness in general. The State presented N.H.'s school counselor, principal, and mother; petitioner presented, among others, his mother, his stepfather, his brother, his brother's girlfriend, and neighborhood acquaintances. It was relatively undisputed that N.H. was struggling with her parents' divorce and her separation from her mother and siblings. It was also undisputed that on one occasion when N.H. was around five years old, a babysitter allowed N.H. and all the children to view a pornographic video from the Hulberts' video collection.
Mr. Hulbert, in his defense, sought to demonstrate that N.H.'s allegations stemmed from her anger at him for his attempts at discipline, his growing frustration with her consistent lying, and for what she perceived as his refusal to allow her to see her mother and siblings more often. Building on that foundation, the defense argued that all of N.H.'s allegations, including her in-court testimony, were the result of repeated suggestive interviews in which the interviewers, in effect, "taught" N.H. to accuse her father of sexual abuse.
It is in this context that defense counsel sought to introduce Dr. Underwager's pointed critique of Ms. Lee's interview technique with admission of the videotape if necessary. The existence of the videotape was first brought to the jury's attention when the State called Ms. Lee, who conducted the interview, as a witness. The State did not seek to introduce the videotape into evidence. When called as a witness, Ms. Lee explained her interview technique and philosophy in general and relatively brief terms. Ms. Lee testified that the interviewing protocol she used was designed by various professional groups and developed to obtain as "accurate an assessment as possible" from children. She explained that in order to get an accurate assessment of a child, the child's comfort level needs to be raised and the interviewer needs to avoid suggestive questioning. This can be accomplished in part by sitting at the same level as the child and using body language to convey a message of support. Additionally, the interviewer is to be open to whatever the child might talk about and to avoid strong reactions to what they say while still being supportive of what they say. Ms. Lee testified that during the interview N.H. spoke softly, was difficult to understand, and appeared embarrassed and nervous. She further testified that she brought out anatomically correct drawings and rag dolls during the interview because N.H. was having a difficult time relating the events. Ms. Lee did not testify as to any statements made by N.H. during the interview or to any conclusions drawn by her as to N.H.'s veracity.
The State had already called Ms. Riehle, to whom the initial allegations were disclosed, and Ms. Branstad who conducted the two prior interviews with N.H.
To counter Ms. Lee's testimony, the defense called its expert, Dr. Underwager, a licensed consulting psychologist and director of the Institute for Psychological Therapies based in Northfield, Minnesota. Although denied the opportunity to show the videotape or critique its specific contents, Dr. Underwager testified at length regarding the inadequacies in child interview techniques, including the harm of the "good touch, bad touch, confusing touch" program, the use of anatomically correct dolls and diagrams in interviews, and the impact of successive interviews in a short time period on alleged child victims of sexual abuse. Recitation of merely a portion of Dr. Underwager's testimony demonstrates the extent to which, despite the challenged ruling, he was able to apprise the jury of his expert opinion regarding the techniques used by Ms. Lee, Ms. Branstad and Ms. Riehle.
On the issue of "good, bad and confusing" touch programs, such as the one used in N.H.'s classroom, Dr. Underwager testified as follows:
Q. Would you tell us then, Doctor, what your studies and your research has shown about the effectiveness of these programs generally?
A. They are not effective. They do not prevent sex abuse. They do not result in any increase in the ability to children to either detect or respond appropriately. They do generate, for example, the hazard study, 35 percent casualty rate; that is, children who become very anxious, depressed and fearful. The confusion generated by these programs is caused by the reality that children to whom they are presented do not have the abstract capacity. They do not have the ability to think absolutely enough and to make the fine discrimination required. So the effect has been shown to be quite confusing.
The Kolko study in '87 found [in using] two experimental groups [and] one control group — with the 40 children in the experimental groups — that in the month following the presentation fo the program, . . . 20 of the experimental people made reports alleging abuse. None of the control group did. And the researchers didn't report those results as they are mandated to do to the authorities. They just didn't do it. The most recent study of the University of California in Los Angeles Family Life Research Center, which is a major center . . . concluded that they should not be presented any longer because of the very high risk for negative impact upon the children.
. . .
Q. What then is suggested to a child who hears such a program [good touch, bad touch, confusing touch]?
A. The effect of presentation of these programs is to suggest to children that behaviors which they may have thought were essentially innocuous or pleasant or affectionate, may be within the realm of confusing touch or bad touch. And that's the principal effect. It confuses the children about what is proper and acceptable behavior, and they may well then misinterpret, misunderstand normal behavior.
Q. And when you talk about suggestion, Doctor, what are you talking about? What do you mean by suggestion? Could you be a bit more specific?
A. The presentation of the concepts good touch and bad touch suggest that basically there are only those two poles; and the rich, complex human network of touching and how we touch each other, what that means to us, is both ignored and reduced to just these two poles. The research evidence is that before the presentation of such a program on touch[,] 16 percent of the children thought all touch was bad. After the presentation of the program[,] 45 percent thought or said all touching is bad. So it tends to communicate that touch per se is just bad.
Trial Tr., at pp. 548-50.
On the issue of the use of "anatomically correct" dolls, drawings and diagrams (used by both Ms. Branstad and Ms. Lee), Dr. Underwager testified:
Q. [H]ave you also undertaken studies, research and testing about the use of diagrams [and] drawings such as [used with N.H.]? . . . Would you please tell us what studies you have done in that area and what the studies show?
A. Reviewing all of the research literature on the use of drawings on assessment and evaluation of children, 40, 50 years of effort shows that there is no validity and there is no reliability to the use of these drawings. The use of these drawings again is a very clear message to the child: the adult is interested in sexuality. I mean it is not normal that an adult presents a child with a picture of a nude person with genitalia clearly represented. That doesn't happen too often, and it is a pretty powerful message. There is no evidence that the use of these drawings has anything to do with a valid or reliable assessment.
These particular drawings [referring to exhibits] come from a book called Red Flag, Green Flag, and that's a program test. You [get] 14 tries. The child who goes through those 14 tries learns that this is, "Boom. This is what I circle, this is what I draw." So there is no evidence to support the use of these drawings whatsoever.
Q. Does the time during which an interrogation is taking place when such diagrams are produced — is that significant at all, Doctor?
A. Yes, I believe so. . . . I think the earlier an investigation focused upon sexuality and sexual events, these kinds of drawings are introduced, the more impact they will have to focus a child on "This is what this whole thing is about."
Q. [H]ave you also undertaken studies, research and testing about the use of anatomically correct dolls during the course of an interrogation?
A. Yes. . . . We have conducted our own research program involving the attempt to find out if the dolls do what they are supposed to do: provide children an opportunity to show or demonstrate or give information about a prior event. They don't. They are teaching devices. And a child who has no knowledge of sexual behavior, or very little, when the dolls are presented, can be taught about explicit sexual behavior, in addition to our own study on that which shows that interrogators can very quickly lead children to focus behavior with these dolls.
In addition to that, we have reviewed all of the articles from all over the world that deal with the dolls. . . . And there is no research evidence whatsoever to support the belief that a child can act with dolls to provide reliable information about a prior event. It simply isn't there. The research evidence in cognitive development specifically shows that children can't use dolls without adult instruction and guidance — young children up to age six. And that's actually the only age group that they are supposed to be used with by the proponents of it. People who say, "Yes, these are a good thing. We should use them," don't use them with kids over six. They are not necessary. But essentially, it sums up to this: Use of these dolls represents an intrusive and coercive behavior by adults to elicit from children actions that the adults use for their own purposes.
Q. Does the timing in the use of the anatomically correct dolls also have a bearing on the suggestive effect that you have described?
A. Yes, I believe so. . . . Again, the earlier in the process any of these devices that are highly suggestive are used, the earlier the impact, the more time there is for stories to solidify, crystallize, for children to learn what is expected of them.
Q. And, Doctor, would . . . the use of dolls in successive interviews have a similar impact that you have described?
A. Oh, yes.
Trial Tr., at pp. 553-57.
As to the effect of successive interviews, Dr. Underwager testified:
Q. Doctor, have you also undertaken any special studies, testing or research about the impact of successive interviews on an alleged child victim of sexual abuse?
A. Yes. . . . Well, in addition to our own research on repeated interrogations where we have looked at the videotapes and the children who have been repeatedly interrogated, we have reviewed — I have reviewed to the best of my knowledge all of the articles that deal — the research articles that deal in any way with the impact of repeated interrogations, repeated questioning on children.
Q. What do these special studies show, Doctor?
A. Two basic things. People who do interrogations seek to confirm their own hypothesis, their own idea as to what had occurred. So in our analysis reported in our latest book, "The Real World of Child Interrogations," we find that in terms of the key statements of the children, . . . the interrogators in the repeated interviews give information to children. Our study shows [that] 35 percent of the time, the first time that the actual content of a question comes up [is] when the adult questioner provides it, and at most a child will nod their head, maybe say yes, agree, but it is after repeated questions. The second thing is when the interviews are repeated, the children learn. They learn the story. It tends to become a bit more elaborate as they learn what the adults basically want to hear, what they reinforce, what they respond to. And so the stories get more complex and rich under the impact. And children become subjectively certain that its real.
Q. Does the time between the successive interviews have any impact . . .?
A. Yes. . . . The closer the interviews are in time, the more likely the child is going to develop the subjective certainty just by repetition, just by saying it over and over again that this really happened, when in fact it may not [have].
Q. Then what is suggested by the successive interviews?
Again in terms of our analysis, . . . what is suggested is that adults believe — significant, powerful adults believe a child has been abused. That is the single-most important determinant of what comes out of any interview. The prior assumptions, the prior beliefs of the interviewer, [and] the timing . . . ha[ve] the impact of reinforcing and rewarding and teaching a person, whatever the story is that is being repeated.
Trial Tr., at pp. 551-53.
Finally, defense counsel posed the following lengthy hypothetical to which Dr. Underwager responded:
Q. Now, Doctor, I would like you, if you would, to assume that in this particular case we have a ten-year-old female victim — alleged victim — . . . who first alleged some general accusations to a school guidance counselor on May 26, 1989. And the child then told an interviewer approximately one hour later more specific details of that allegation — of those general allegations on the same date, which interview was tape-recorded. That during that interview the guidance counselor to whom it had been reported was present and a Social Services investigator was also present in conducting the interview, and that during the course of the interview the child was presented with the two diagrams that we have previously identified in your testimony. That initially in that interview the child was hesitant. The diagrams were then used, and the interviewer gave affirmation to the child, and encouragement.
I want you to further assume that on June 2, 1989, the child was again interviewed by the same Social Services investigator. Also present for that interview was a county sheriff. And again in that interview the child was initially hesitant, and anatomically correct dolls were then introduced and used in the interrogation of the child. And during the interrogation and at the conclusion of the interrogation the child was again reaffirmed and encouraged.
I want you to further assume that there was another interview on June 7, 1989, of that alleged victim, which interview was then conducted in a location approximately an hour away where she was driven by a deputy sheriff and her mother. During the course of the interview she was interviewed in the privacy of a room that was videotaped. That the child was initially reluctant or hesitant, and at that point anatomically correct dolls were again introduced for the purposes of the interrogation, with the interrogator again reaffirming and encouraging the child.
I want you to further assume that in regard to the two interviews with the Social Services investigator and with the interview that was videotaped, that the child was aware of what the interview was to be about.
And then I want you to further assume that the same child at the age of five or six viewed a Triple X movie which depicted what she claims her dad did to her.
Now, my question, Doctor, is, assuming those factors, could you tell me what the impact or effect of such factors would be on that child?
A. Yes. . . . The impact of the assumptions of the behaviors I have been asked to assume, would be a very powerful learning experience that could provide a young child with the information about sexual abusers, with the reinforcement by adults for making the claims, and the adult behaviors toward the child must be very carefully considered as having an impact to suggest and to teach a child an account of sexual behavior.
Q. And what does it suggest, then, these facts?
A. I believe the facts that you have asked me to assume suggest that this child had been influenced by the behaviors of adults and that those behaviors have to be considered.
. . .
Q. Doctor, assuming those are the facts that we pointed out, would there be any value after the June 2 interview — there is the initial report, initial interview, another interview on June 2 — would there be any value of another interview and another interrogation of that child?
A. Not of the sort that had been done up to this point, no. . . . This kind of procedure would simply reinforce the behavior and would not get any additional information about reality.
Trial Tr., at pp. 557-60.
In light of Dr. Underwager's extensive testimony, admission of the videotape for use as a demonstration tool would have been substantially cumulative. Moreover, as this court reads the testimony, this is not a case in which Dr. Underwager conceded that if conducted properly the interview results would have been valid and accurate. Rather, his testimony made clear that he views the methods used here — the "good, bad, confusing touch" terminology, the anatomical dolls, and the successive interviews — as inherently flawed. Given that, any customized critique of N.H.'s interview would have been no more than repetition of his general testimony and exclusion of that testimony did not result in a fundamentally unfair or unreliable verdict.
The court also rejects petitioner's assertion that Dr. Underwager's critique was necessary because State witnesses commented on N.H.'s truthfulness. As noted above, much of the trial testimony centered on that issue and both the State and petitioner presented opinion witnesses to bolster their positions, the defense in its case-in-chief and the State in rebuttal. The specific statements referenced by petitioner in his brief do not change this court's conclusions as to the nonprejudicial effect of the trial court error in this case. There were no objections made to Ms. Riehle's comments that she found N.H. to be "very trustworthy" and (in rebuttal opinion testimony) that N.H. "never lied that [she] knew of ." As to Ms. Branstad's statement that, early in the investigation, she wanted to remove N.H. from her father's custody based on "[her] belief that there [was] a strong probability that [N.H.] had been sexually abused," the statement was objected to and the jury was instructed to disregard it. Further, Ms. Branstad's testimony related to actions taken prior to the videotaped interview at issue in this petition. Thus, her statement was not made in reaction to the substance of the videotaped interview and does not affect whether admission of the videotape would have been proper.
Finally, having reviewed the videotape, the court cannot help but note that it appears at least equally likely that its admission would have hurt petitioner more than it helped him. While the interviewing style may arguably be suggestive along the lines testified to by Dr. Underwager, there is no question but that N.H.'s responses were incriminating and very damaging to petitioner. The substance of the interview was fully consistent with N.H.'s in-court testimony and described in relatively significant detail various instances of sexual abuse by petitioner. N.H. described in fairly unsophisticated terms how her father fondled and digitally penetrated her vagina and had her perform fellatio on him which culminated in ejaculation. As to the latter, she also used her hands to show how she had held her father's penis and described how "white stuff" came out of his penis after it had been in her mouth.
In this respect, the court notes that the case law on videotaped interviews in child sexual abuse cases almost universally involves challenges to the trial court's admission of such tapes as unfairly prejudicial and unreliable hearsay. See, e.g., Schaal v. Gammon, 233 F.3d 1103 (8th Cir. 2000) (finding admission of videotape of psychologist's out-of-court interview of seven-year-old rape victim violated defendant's rights under Confrontation Clause); Offor v. Scott, 72 F.3d (5th Cir. 1995) (finding reversible error in admission of videotaped interview between child and police, at which no representative of defendant was present, and at which child accused defendant of sexual molestation); Webb v. Lewis, 44 F.3d 1387 (9th Cir. 1994) (holding videotape of interview, conducted by social worker, of alleged victim did not have sufficient guarantees of trustworthiness to be admissible absent firmly established hearsay exception).
In light of the above and the largely cumulative evidence on interview techniques that was before the jury, It would be rank speculation to suppose that the appellate courts would have held that exclusion of the videotape and related expert testimony required reversal of the conviction. Accordingly, because this court concludes that exclusion of the videotape and expert testimony did not deprive petitioner of a "fair trial, [that is,] a trial whose result is reliable," Strickland, 466 U.S. at 692, it follows that Mr. Hulbert cannot show his appellate counsel's failure to properly present and argue that issue on appeal resulted in Strickland prejudice. See, e.g., Cuoco v. U.S., 208 F.3d 27, 31 (2d Cir. 2000) (counsel's failure to argue that Rule of Criminal Procedure precluded trial in defendant's absence not ineffective assistance because it is unlikely that the argument would have resulted in reversal of defendant's conviction); Holman v. Page, 95 F.3d 481, 488-89 (7th Cir. 1996) (counsel's failure to appeal denial of suppression motion was not ineffective assistance because no prejudice resulted); LaFevers v. Gibson, 182 F.3d 705, 722 (10th Cir. 1999) (appellate counsel's failure to raise DNA testing issue on appeal was not ineffective assistance because DNA testing could not have established that defendant was not at the crime scene); Laaman v. U.S., 973 F.2d 107, 113 (2d Cir. 1992) (no ineffective assistance when counsel failed to litigate Fourth Amendment claim on appeal because evidence would not have been suppressed); Griffin v. West, 791 F.2d 1578, 1582-83 (10th Cir. 1986) (no ineffective assistance when appellate counsel failed to file brief because no prejudice to defendant); Heath v. Jones, 941 F.2d 1126, 1134, 1136-37 (11th Cir. 1991) (no ineffective assistance despite lack of reasonable strategic reason for choosing and poorly briefing only one issue on capital appeal because poor performance not prejudicial when neglected claims had no reasonable probability of success on appeal), cert. denied, 502 U.S. 1077 (1992).
V. Conclusion
Upon careful review of the entire record, the court finds that Mr. Hulbert has failed to demonstrate grounds for habeas relief under 28 U.S.C. § 2254. Mr. Hulbert has not shown that he was prejudiced by his appellate counsel's deficient performance as that term has been defined in and following Strickland. The evidence improperly treated by appellate counsel was not so probative that its mistreatment resulted in an unreliable or fundamentally unfair outcome in the appellate proceedings. As discussed above, Dr. Underwager's testimony fully apprised the jury as to his opinion of child interview techniques and, in light of his essential position that such techniques are inherently flawed, specific reference to the Lee videotape would have been cumulative.
ORDER
In accordance with the opinion filed herewith, it is ORDERED:
Bart A. Hulbert, Sr.'s petition for a writ of habeas corpus is DENIED.
Done and so ordered this 27th day of June, 2001.
________________________________ Michael J. Melloy, Judge UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF IOWA