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SCOW will review Brady’s “material evidence” requirement

State v. Jeffrey L. Hineman, 202AP226-CR, petition for review of a per curiam opinion granted 4/13/22; case activity (including briefs)

Issues (from the State’s petition for review)

1. In cases involving credibility contests between a complaining witness (here, S.S.) and the defendant (Hineman), to what extent can a reviewing court reweigh the witnesses’ credibility in assessing whether, based on omitted evidence, there was a reasonable likelihood of a different result under the Brady materiality or Strickland prejudice standards?

2. The court of appeals also reached an abandoned Shiffra/Green issue and ordered in camera review of S.S.’s therapy files from his private therapist because the therapist acted as a mandatory reporter.

a. Did the court of appeals have authority to reach this issue, which Hineman did not raise as a direct claim on appeal, and did it have authority to reverse the postconviction court’s ruling on a basis that Hineman never advanced?

b. Was the fact that S.S.’s therapist made a mandatory report, without more, enough to satisfy the Green pleading standard permitting in camera review of S.S.’s therapy files “related to the report”?

Hineman was convicted of 1st-degree child sexual assault based on shaky evidence. The alleged victim, S.J.S., said one thing in his video interview and something entirely different at trial.  Then an investigator testified that S.J.S.’s therapist had filed a report with Child Protective Services stating that S.J.S. told the therapist that Hineman had inappropriately touched him. Guess what? The report contains no such statement. In fact, it says “there has been no disclosure of maltreatment by the child.” Guess what else? The State didn’t give the report to the defense.

Hineman argued that the State failed to turn over exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). On appeal, the State conceded 2 of Brady‘s 3 requirements. The only question was whether the report was “material.” In a per curiam opinion (i.e no precedential value whatsoever) the court of appeals held that the report qualified as “material” under Brady.

The State’s petition argues that review is necessary because sexual assault cases often boil down to witness credibility. When the State violates Brady, courts tend to “reframe the witnesses’ credibility based on their reading of the transcript.” (PFR at 15). According to the State, that’s unfair. It literally argues that there is “a thumb on the scale toward reversal in these hard-fought cases.” (Id). What?! There is no law development issue for SCOW here. Only SCOTUS can modify Brady.

The Shiffra-Green issue is also a non-starter. The State claims that Hineman did not preserve the issue. That is a misstatement of the procedural history of this case, which Hineman clearly explained in his response to the State’s petition for review.  (Response at 9). It gets worse.

This is an egregious instance of SCOW granting review to correct an error–the alleged “error” being that the State lost in the court of appeals.  No need to take On Point’s word for it. The State’s most compelling argument is: “Review is warranted given the seriousness of the conviction and the high unlikelihood that a new trial will occur.” Yes, the State actually gives SCOW information outside the record: “The prosecutors have informed appellate counsel for the State that it is highly unlikely [S.J.S.] will be able to testify at a new trial.” The State tells SCOW: “Denial of the petition will almost certainly mean Hineman’s release and nonprosecution . . .” (PFR at 29).

That’s not a criterion for SCOW review. It’s a flagrant and calculated violation of the rules of appellate procedure.

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{ 1 comment… add one }
  • Wm. Tyroler April 18, 2022, 1:40 pm

    I’m so old I remember when the court of appeals got up on its high horse about counsel making assertions outside the record:

    “We note that attached to the appellant’s reply brief is what is purported to be a letter from appellant’s counsel to the registrar of the Fox Lake Wisconsin Correctional Institution and the response of the registrar of that institution. These documents postdate the notice of appeal and certainly are not part of the record.

    The rule is well established that reviewing courts are limited to the record, and are bound by the record. The record is not to be enlarged by material which neither the trial court, nor the appellate court, acting within their respective jurisdictions, have ordered incorporated in the record.[25]

    The supreme court once stated:

    Defendant-respondent has appended to its brief a copy of a purported sales contract between the parties and has made an argument based thereon. Counsel well knows this is highly improper, since it is no part of the record on demurrer, and any future indulgence in such practice will evoke more than a reprimand from this court.[26]

    Counsel for the appellant here shall consider himself admonished.”

    State v. Aderhold (Ct. App. 1979).

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