State v. Ginger M. Breitzman
2017 WI 100
| Wis. | 2017Background
- Ginger Breitzman was convicted by a jury of five counts arising from abuse, neglect, and profane interactions with her son (2011–2012); relevant here are convictions for misdemeanor child neglect (locking her son out in winter) and disorderly conduct (profane conduct tending to cause a disturbance).
- At trial the State’s primary witness was the son, J.K.; testimony included repeated profane name-calling, two incidents of physical strikes, and other contextual episodes (illness, being locked out, an uncharged car incident).
- Defense counsel in opening argued a "reasonable parental discipline" theory and declined to object to other-acts testimony; Breitzman testified and denied striking her son on the two charged occasions but admitted some name‑calling and an uncharged car strike.
- Postconviction, Breitzman moved for acquittal on several counts and claimed ineffective assistance of counsel for (1) not moving to dismiss the disorderly conduct count on First Amendment grounds, (2) pursuing an opening inconsistent with her testimony, and (3) failing to object to other-acts evidence. The circuit court and court of appeals denied relief; the Wisconsin Supreme Court granted review limited to the ineffective-assistance claim.
- The Supreme Court affirmed: it held counsel’s performance was not deficient on any of the three asserted grounds and therefore declined to reach prejudice under Strickland.
Issues
| Issue | Breitzman’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not moving to dismiss the disorderly conduct charge on free-speech grounds | Breitzman: statute criminalizes profane speech in the home; counsel should have raised a First Amendment challenge | State: law unsettled whether profane conduct that tends to disturb is protected; a motion likely would have failed | Not deficient — law unsettled; charge involved more than isolated profanity and longstanding precedent supports regulation in circumstances that tend to cause disturbance |
| Whether counsel was ineffective for arguing a reasonable-parental-discipline theory in opening that conflicted with Breitzman’s plan to deny the charged strikes | Breitzman: inconsistent opening prejudiced her credibility and the jury’s comparison of witness testimony | State: theory was brief, strategic, discussed with Breitzman, and responsive to anticipated other-act evidence | Not deficient — strategy was reasonable, based on consultations with Breitzman, and adjusted during trial; inconsistent defenses are not per se constitutionally infirm |
| Whether counsel was ineffective for failing to object to other-acts testimony | Breitzman: other-acts evidence was inadmissible and invited unfair prejudice; counsel should have litigated admissibility | State: admitting other acts supported the defense strategy to undermine J.K.’s credibility; Breitzman agreed to that approach | Not deficient — decision not to object was tactical and rational; limiting jury instructions addressed potential prejudice |
| Whether the court must reach prejudice under Strickland | Breitzman: (implicit) prejudice should be considered if performance deficient | State: no need because performance was not deficient | Court declined to address prejudice since performance was not deficient |
Key Cases Cited
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (identifies narrow categories of unprotected speech, including "fighting words")
- Terminiello v. Chicago, 337 U.S. 1 (1949) (speech protected unless it produces a clear and present danger of serious substantive evil)
- Cohen v. California, 403 U.S. 15 (1971) (words alone may be protected where no evidence they actually disturbed the peace)
- Brandenburg v. Ohio, 395 U.S. 444 (1969) (speech that incites imminent lawless action is unprotected)
- United States v. Stevens, 559 U.S. 460 (2010) (rejects broad balancing test suggesting historically unprotected categories justify content‑based restrictions)
- State v. Werstein, 60 Wis. 2d 668 (1973) (disorderly conduct depends on combination of conduct and circumstances; context can make demeanor abusive or disturbing)
- State v. Zwicker, 41 Wis. 2d 497 (1969) (upheld Wis. Stat. § 947.01 against free-speech challenges)
- State v. Douglas D., 243 Wis. 2d 204 (2001) (discussion that statutory regulation may target nonspeech elements of conduct)