State v. Gary Lee Wayerski, 2015AP1083-CR, petition for review of unpublished court of appeals opinion granted 3/13/18; case activity (including briefs)
Issues (composed by On Point):
Whether trial counsel was ineffective where he did not ask the testifying defendant about the purported confession he gave to a jailhouse snitch, and defendant would have denied the conversation occurred.
Whether the state violated Brady when it did not inform defense that the snitch had pending child-sex charges during the trial.
The court of appeals decision, and hence our prior post, dealt mostly with an entirely separate issue–whether a Wayerski, as a police officer, qualified as a person whose occupation “requires him or her to work directly with children” and could thus be punished for a sexual assault under Wis. Stat. § 948.095(3)(a).
The issues the supreme court will consider both have to do with a witness, called by the prosecution in rebuttal, who testified that Wayerski had confessed to the sexual assaults while the two were in jail together. First, Wayerski argues his lawyer should have asked him, during his testimony, whether the conversation happened–he would have denied it. The court of appeals declined to address whether this was deficient performance, instead relying on what it characterized as “overwhelming” evidence of guilt to find no prejudice. Wayerski disagrees about the strength of that other evidence, as he’ll soon be explaining to SCOW.
Second, Wayerski claims that the state was obligated to inform his lawyer that this witness had recently-filed charges of sexual involvement with children pending at the time of his testimony. These charges were relevant for the obvious reason–that the witness would have reason to curry the favor of the state–but also because they would undermine his stated reasons for coming forward: his deep concern for children. The court of appeals held that because Wayerski could have learned about the charges through CCAP, the fact of their existence was not in the “exclusive possession” of the state. The “exclusive possession” requirement is a doctrine that, though it doesn’t appear in Brady, has been grafted on by many lower courts, including Wisconsin’s. We’ll see if it stays grafted.