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Guilty Pleas – Post-Sentencing Plea Withdrawal: Suppression of Material Exculpatory Impeachment Evidence – Statutory Basis

State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813
For Harris: Steven A. Koch

Issue/Holding:

¶34 We recognize that in the constitutional context, the Brady requirement of materiality is dependent upon whether the suppressed evidence undermines confidence in the outcome of the trial and that no trial took place here. … The State’s argument requires us to reconstruct how a hypothetical trial would have proceeded and speculate as to how the jury would have viewed the evidence. We decline to do so. The circuit court accepted Harris’s offer of proof that he pled guilty only because of the relative strength of the State’s case and would not have pled guilty had this evidence been disclosed. As Harris demonstrated that he would not have pled guilty but for the nondisclosure of this favorable evidence, we are satisfied that the nondisclosure of the evidence sufficiently undermines our confidence in the outcome of the proceeding. As such, the State was under a statutory obligation to disclose B.M.M.’s allegation after Harris made a statutory demand for “any exculpatory evidence.”

¶39 Finally, we address whether the State’s violation of § 971.23(1)(h) entitles Harris to withdraw his plea. … The common thread among the situations listed in Hatcher is that the defendant was deprived of a right guaranteed by the constitution, statute, or rule, and that deprivation induced the defendant to plead guilty. Here, the State violated the discovery statute by withholding material exculpatory impeachment evidence that, if admitted, would have raised serious questions about the credibility of the victim and the reliability of the State’s expert witnesses. Aside from Harris’s own version of events, this was the only existing material evidence that was “favorable to the accused.” The circuit court accepted Harris’s postconviction offer of proof that he would not have pled guilty had this evidence been available to him. This court has previously determined that a prosecutor’s violation of discovery statute, if prejudicial to the defendant, entitles the defendant to a new trial. DeLao, 252 Wis. 2d 289, ¶59. Here, the State’s violation of the discovery statute prevented Harris from ever having a trial. Harris has demonstrated the State’s discovery statute violation resulted in “‘a serious flaw in the fundamental integrity of the plea.'” State v. Thomas, 2000 WI 13, 16, 232 Wis. 2d 714, 605 N.W.2d 836 (quoting State v. Nawrocke, 193 Wis. 2d 373, 379, 534 N.W.2d 624 (Ct. App. 1995)). Under these circumstances, we believe it necessary to allow Harris to withdraw his guilty plea in order to prevent a manifest injustice.

The logic of the holding extends inexorably to dispensing with the materiality requirement on all pretrial requests for exculpatory information – that is, not where the information has been suppressed but where its disclosure is resisted and thus the subject of pretrial dispute. One such leading example is Pennsylvania v. Ritchie, 480 U.S. 39 (1987), where disclosure of mental health records were resisted and the Court ended up holding after trial that disclosure of such records is tested under the Brady standard, that is, the information must be both “favorable” and “material.” But, as Harris has just recognized, materiality – whether there’s a reasonable probability of a different result on retrial – isn’t meaningful before trial. And so, as one District Court recently held, “This (Ritchie) standard was developed in the context of appellate consideration of the effect of non-disclosure … Specifically, the materiality prong presumes that the trial has already occurred … But a court deciding whether material should be disclosed prior to trial does not have the luxury of reviewing the trial record.” U.S. v. Carter, 2004 U.S. Dist. LEXIS 665 (E.D. Wis. 4/12/04), no non-commercial link available. Consequently, “in the pretrial context, the court should require disclosure of favorable evidence under Brady and Giglio without attempting to analyze its ‘materiality’ at trial.… Therefore, the court should ordinarily require the pretrial disclosure of all exculpatory or impeachment evidence.” Id. Not only is Harris consistent with this approach, it trends very strongly in that direction.See also Ferrara v. U.S., 1st Cir No. 05-1736, 8/10/06 (analysis of other Brady case, Brady v. U.S., triggered by withholding of exculpatory evidence: misapprehension of strength of government’s case resulting from impermissible conduct violates due process; court cautions will be rare instance when this is so); People v. Ramirez, Ca App B186837, 8/14/06 (similar: violation of statutory right to discovery of certain reports — which contained favorable information — rendered plea unknowing and involuntary).

 

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