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SCOW alters test for whether state “suppressed” evidence under Brady v. Maryland

State v. Gary Lee Wayerski, 2019 WI 11, affirming and modifying an unpublished court of appeals decision; case activity (including briefs)

The supreme court overrules Wisconsin’s longstanding test for deciding whether the state has “suppressed” favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), saying the test is unsupported by and contrary to Brady and the U.S. Supreme Court’s decisions applying Brady.

Wayerski was charged with various crimes involving sexual activity with two juveniles, J.H. and J.P. (¶¶7-14). Wayerski testified and denied the allegations, saying the juveniles made them up because Wayerski, a cop, was investigating friends of theirs for drug crimes. (¶16). The state then called a rebuttal witness named Clark, who claimed Wayerski confessed to committing the crimes while they were in jail together. Clark testified he had 20 prior convictions but didn’t get any benefit from testifying against Wayerski, and that he told police about Wayerski’s confession because the victims were kids. (¶17).

It turns out that at the time of Wayerski’s trial Clark had pending charges in another county—for child sex crimes, no less. The prosecutor discovered this before trial, and obtained a copy of the complaint, but didn’t tell Wayerski’s lawyer. (¶20). Wayerski discovered Clark’s charges after his trial, so he filed a postconviction motion for a new trial alleging (among other claims) that the prosecutor violated his duty under Brady to disclose favorable, material evidence.

A Brady claim has three components: (1) the undisclosed evidence must be favorable to the defendant because it is exculpatory or impeaching; (2) the evidence must have been “suppressed” by the State, either willfully or inadvertently; and (3) the evidence must be “material” because there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.  (¶35).

There’s no dispute the evidence of Clark’s pending charges was favorable impeachment evidence. (¶45). But was it “suppressed” by the prosecutor? The state argues it wasn’t under the test developed in a line of Wisconsin cases going back to the 1970s. Under that test a prosecutor has no duty to disclose under Brady unless: the evidence was not in the “exclusive possession and control” of the state; defense counsel could have exercised “reasonable diligence” to obtain the evidence; and there was no “intolerable burden” on defense counsel to obtain the evidence. (¶46). The state claimed (and the court of appeals agreed) the evidence of Clark’s charges wasn’t in the exclusive possession and control of the state, and that Wayerski’s lawyer could have easily found Clark’s pending charges by searching CCAP.

The supreme court now discards this test, holding all three parts of it “distort the original Brady analysis and purpose behind the prosecutorial obligations enunciated in Brady.” (¶55). Instead, the court says, “[w]e return to the original inquiry under Brady: whether there was ‘suppression’ by the prosecution, irrespective of good or bad faith.” (¶56, citing Brady, 373 U.S. at 87). Though the Court hasn’t defined the term “suppression,” its Brady cases have discussed suppression in terms of both “withholding” evidence and the “nondisclosure” of evidence. (¶¶56-57).

¶58  Therefore, pursuant to the United States Supreme Court’s Brady jurisprudence, suppression is nondisclosure or the withholding of evidence from the defense. The prosecutor’s mindset or ‘passivity’ is irrelevant to this suppression inquiry. As the United States Supreme Court has reasoned, “the prudent prosecutor will resolve doubtful questions in favor of disclosure,” [United States v.] Agurs, 427 U.S. [97,] 108 [(1976)], and that “is as it should be. Such disclosure will serve to justify trust in the prosecutor . . . [a]nd it will tend to preserve the criminal trial, as distinct from the prosecutor’s private deliberations, as the chosen forum for ascertaining the truth about criminal accusations.” Kyles [v. Whitley], 514 U.S. [419,] 439-40 [(1995)].

Under this standard, the prosecutor should have disclosed to Wayerski’s trial counsel the information regarding Clark’s pending charges, including the copy of the criminal complaint the prosecutor had obtained. “While the pending charges were posted on CCAP at some point within the month prior to Wayerski’s trial, the criminal complaint was not…. If Wayerski’s trial counsel had discovered the pending charges, he would have had to take extra steps to promptly secure the complaint from Chippewa County.” (¶59). Thus, “the prosecutor’s private deliberations on whether to disclose the evidence of Clark’s pending charge became the forum for ascertaining the truth, rather than Wayerski’s trial,” and that constitutes “suppression” of evidence under Brady. (¶60).

The court’s explanation for jettisoning this three-part test (¶¶46-55) overrules, in whole or part, holdings regarding “exclusive possession and control” in Nelson v. State, 59 Wis. 2d 474, 208 N.W.2d 410 (1973); State v. Calhoun, 67 Wis. 2d 204, 226 N.W.2d 504 (1975); State v. Amundson, 69 Wis. 2d 554, 230 N.W.2d 775 (1975); and State v. Sarinske, 91 Wis. 2d 14, 280 N.W.2d 725 (1979); and holdings regarding the need for an “intolerable burden” on defense counsel from State v. Randall, 197 Wis. 2d 29, 539 N.W.2d 708 (Ct. App. 1995). As to the “reasonable diligence” standard, the court abjures the state’s and court of appeals’ reliance on Carvajal v. Dominguez, 542 F.3d 561 (7th Cir. 2005), for the “reasonable diligence” standard.

This is a significant change that invigorates Brady in Wisconsin, but note the court was not unanimous on the issue. Three justices concurred in the conclusion that Wayerski’s Brady claim failed for lack of materiality, but rejected the majority’s decision to overrule our test for deciding whether the prosecutor suppressed evidence for purposes of Brady. These justices argued it was unnecessary to change the test given the lack of materiality and that the test is consistent with Brady—and in particular, that it makes no sense to speak of “suppressing” publicly available evidence. (¶¶66-92 (Ziegler, joined by Roggensack, concurring and dissenting); ¶¶93-108 (Kelly, concurring and dissenting)).

Despite persuading the court to change the standard and find the state suppressed evidence, Wayerski doesn’t get a new trial because he hasn’t shown the suppressed evidence was material:

¶62  …. There is no reasonable probability that, had evidence of Clark’s pending charges been disclosed, the result of the proceedings would have been different. As noted above, in its case-in-chief the State provided compelling evidence of Wayerski’s guilt. The jury heard consistent, detailed testimony from the juveniles, the juveniles’ parents, Detective Kuehn, and an analyst who testified that a DNA sample taken from the plate in Wayerski’s apartment [onto which J.P. testified he’d been made to ejaculate] showed a one-in-28-quintillion likelihood of belonging to anyone other than J.P. All of this evidence was presented prior to Clark’s rebuttal testimony about an alleged jailhouse confession from Wayerski. Further, Clark was impeached with his 20 prior convictions.

Wayerski also alleged trial counsel was ineffective for failing to ask him, when he re-called to the stand for surrebuttal testimony, whether he “confessed” to Clark. (¶¶18, 22, 37). For the same basic reasons Clark’s pending charges weren’t material, trial counsel’s failure was not prejudicial. (¶¶39-43).

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