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State v. Tyler T., 2010AP784, District 2, 12/29/10, review granted 9/13/11

on review of unpublished decision; for Tyler T.: Susan E. Alesia, SPD, Madison Appellate;  case activity

Juvenile Delinquency – Waiver Investigation Hearing

Issue (Composed by On Point): 

Whether, on petition to waive a juvenile into adult court, the State may give ex parte input to a local agency making the waiver recommendation pursuant to the circuit court’s request under § 939.18(2m).

The State filed a waiver petition; the trial court requested a waiver investigation report by the local agency pursuant to § 939.18(2m); the prosecutor appeared at the resultant meeting, but the defense wasn’t invited to, and did not, appear; the prosecutor, having filed the request, recommended waiver (shocking, we know); the agency couldn’t reach consensus and therefore made no recommendation; the trial court waived the juvenile into adult court, overruling the defense argument that the investigation was tainted by the State’s ex parte input. The court of appeals affirmed.

Tyler argued below the following syllogism. Ex parte prosecutorial input into an PSI investigation taints the sentence; a PSI investigation is an event analogous to a waiver investigation; therefore, ex parte prosecutorial input taints the waiver process. The court of appeals rejected the analogy: ordering a waiver investigation is permissive, while a PSI is ordered only after conviction, slip op., ¶8. (This is a non sequitur. Ordering a PSI may occur only after conviction, but that is a mere detail; a PSI is no more or less permissive than a waiver investigation, State v. Suchocki, 208 Wis. 2d 509, 515, 561 N.W.2d 332 (Ct. App. 1997) [“The use of a PSI is a matter within the court’s discretion. The court has discretion to order a PSI and to determine the extent to which it will rely upon the information in the PSI.”].) Moreover, according to the court of appeals, a waiver investigation is filed by the prosecutor, while a PSI is ordered only by the court, slip op., ¶10. (Another non sequitur: a waiver investigation is no less within the exclusive purview of the judiciary than a PSI.) The court of appeals’ reasoning is highly suspect. The idea is that a PSI recommendation is quasi-judicial in nature, so that it is “vital for the author of the report to be independent of either the prosecution or the defense,” State v. Thexton, 2007 WI App 11, ¶5, 298 Wis. 2d 263, 727 N.W.2d 560, emphasis in original. The same is self-evidently true of a waiver recommendation. Given that the prosecution itself requested waiver, how fair is it to say that the State can implore the local agency to make a quasi-judicial ratification of the State’s own request without opportunity for adversarial input? We shall see.

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