State v. Jessica M. Weissinger, 2014 WI App 73, petition for review granted 10/15/14, affirmed, 2015 WI 42; case activity
Saying it is bound by the rule from Youngblood v. Arizona, 488 U.S. 51 (1988), the court of appeals holds that the state’s destruction of a blood sample before the defendant was notified of her option to test the sample did not violate her due process rights because she has not shown the sample was “apparently exculpatory.” A vigorous dissent says the majority reads Youngblood too broadly, and concludes that because the evidence was inculpatory and necessary to the prosecution, destroying the evidence violated Weissinger’s due process rights even if the state didn’t act in bad faith.
Youngblood says that a defendant’s due process right to the preservation of evidence is violated if the police: 1) fail to preserve evidence that is apparently exculpatory; or 2) act in bad faith by failing to preserve evidence that is potentially exculpatory. 488 U.S. at 57-58. This standard was adopted in Wisconsin by State v. Greenwold, 181 Wis. 2d 881, 512 N.W.2d 237 (Ct. App. 1994) (Greenwold I), and State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 294 (Ct. App. 1994) (Greenwold II). Failure to preserve evidence that is merely potentially useful is not a denial of due process unless the defendant shows bad faith on the part of the police, which requires proof that: 1) the police were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and 2) they acted with official animus or made a conscious effort to suppress exculpatory evidence. Youngblood, 488 U.S. at 58; Greenwold II, 189 Wis. 2d at 69.
Weissinger was driving a car that struck and severely injured a motorcyclist. Though police did not suspect Weissinger was under the influence of an intoxicant, they asked her to provide a blood sample, which she did. (¶2). She wasn’t arrested, so she wasn’t advised of her rights to an additional test. (¶19). Her blood was drawn on July 6, 2009, and the sample was tested on July 13, 2009. It showed no alcohol, so in August it was retested for drugs. That test detected THC, as did a confirmatory test in February 2010. These results weren’t reported to prosecutors till March 2010, and the blood sample was discarded near the end of April 2010 because the crime lab’s six-month retention period had run out. (¶3). A month later, in May 2010, Weissinger was charged with offenses based on the detectable amount of a controlled substance in her blood. The results of the tests were finally given to her until in August 2010. (¶43). After getting the results Weissinger sought retesting, but by then it was too late. (¶4).
The court of appeals rejects Weissinger’s argument that the destruction of the sample violated her due process rights. Citing Illinois v. Fisher, 540 U.S. 544, 548 (2004) (per curiam), the majority concludes that the Youngblood rule applies “even when the defense has made a discovery request for potentially useful, outcome-determinative evidence; there is no due process violation from the destruction of such evidence unless the defendant can show the evidence was destroyed in bad faith.” (¶11).
¶13 Fisher tells us that Youngblood applies to Weissinger’s case even though the destruction of the evidence prevented an independent test and the blood sample test result arguably determined the outcome of the case. Applying the Youngblood analysis, Weissinger has not shown that the blood sample was apparently exculpatory at the time it was destroyed. Indeed, the sample was inculpatory. The sample had tested positive twice for THC, showing both times that Weissinger had controlled substances in her blood at the time of the accident. Weissinger herself admits that the retest could only “hopefully find that the test of the blood was not correct.” Because the evidence Weissinger sought was only “potentially useful” rather than apparently exculpatory, she would have to show that it was destroyed in bad faith. See Youngblood, 488 U.S. at 58. Weissinger makes no such assertion. [Footnotes omitted.]
Weissinger’s reliance on the pre-Youngblood case of State v. Ehlen, 119 Wis. 2d 451, 351 N.W.2d 503 (1984), is misplaced. That case—and its companion State v. Disch, 119 Wis. 2d 461, 351 N.W.2d 492 (1984)—held a defendant’s due process rights were protected by the ability to cross-examine the analysts involved in testing the blood and the opportunity to obtain additional tests at the time of arrest. Weissinger did get to cross-examine lab personnel (including about the destruction of the sample), but she did not have the opportunity to request additional tests—and indeed was never informed of that opportunity before the sample was destroyed—because she was never arrested and read the “Informing the Accused” form. However:
¶19 …. That factual difference does not compel a different result here. Youngblood, Greenwold I, and Greenwold II establish the test we must apply to determine whether there has been a due process violation by the destruction of evidence. Weissinger has not shown that the destroyed test was apparently exculpatory or that the test was destroyed in bad faith.
Judge Brown concurs. He agrees that what happened in this case “is troubling” but stresses Weissinger did not argue the police acted in bad faith. (¶24). That is crucial because despite the dissents “valiant attempt” (¶26) to distinguish Youngblood, its “bright-line rule” applies (¶25). But he goes on to say:
¶29 I must say that I do not like Youngblood. I simply do not understand how a person can show that the destroyed sample was apparently exculpatory when the sample cannot be tested to determine whether the sample has exculpatory value. It sets up an illusion. It would have been okay if the test was whether the sample could be shown to be “potentially useful.” But that test does not have applicability unless the defendant can also show bad faith. The bad faith component devised by the Supreme Court sets such a high bar, it is virtually impossible to overcome.
Judge Reilly dissents, arguing the majority has misapplied Youngblood. That case governs apparently exculpatory evidence (¶34) and potentially useful evidence that is not known to be either exculpatory or inculpatory (¶35), but not the third type of evidence present in this case: Evidence known to be inculpatory (¶36). And it’s not just any inculpatory evidence: Weissinger was charged with a strict liability offense for having any detectable amount of a substance, making the evidence absolutely necessary to convict. (Id.).
¶38 The proper reading of Youngblood and its cohorts is not as permitting the precharging destruction of inculpatory evidence, but as an unwillingness to impose “an undifferentiated” duty on the government to retain and preserve “all material that might be of conceivable evidentiary significance in a particular prosecution.” See Youngblood, 488 U.S. at 58. Read this way, Youngblood’s application to Weissinger is inappropriate as Weissinger’s case does not concern itself with evidence that might be of “conceivable evidentiary significance”; it concerns inculpatory evidence. Nor does requiring the government to preserve evidence until a criminal defendant has an opportunity to inspect or examine it, i.e., postcharging, impose a duty incompatible with Youngblood.
The dissent also explains why, contrary to the majority’s suggestion (¶19), the opportunity for cross-examination is not enough to protect a defendant’s right to due process in this situation, given the errors and outright scandals that have been documented in various crime labs. (¶¶44-45).
The dissent’s reading of Youngblood is intriguing, but it’s hard to sustain in the face of Fisher, which rejected arguments that Youngblood was inapplicable given a pending discovery demand or a situation in which the discarded evidence (like the blood here) is essential to and determinative of the outcome of the case, 540 U.S. at 548-49. Even so, the criticism of Youngblood in this case shows it’s ripe for further challenge, especially in these “any detectable amount” prosecutions. As Judge Brown’s concurrence says, he’s “not alone in my distaste for Youngblood. Several courts and commentators have criticized the case, and a number of states have held that their state constitutions require a balancing test instead.” (¶30).
Judge Brown suggests two possible avenues for changing the rule. (¶30). The first is asking the supreme court to adopt a fairer standard based on the state constitution—though as he points out, the supreme court has held that our state constitutional due process protections are equivalent to the federal protections, see Greenwold II, 189 Wis. 2d at 71; thus, part of the argument must include reasons why that approach must change. This argument was very creatively made (but recently rejected) in State v. Luedtke, 2013AP1737-CR (Wis. Ct. App. June 11, 2014) (recommended for publication). The second is for the legislature to “enact a statute requiring that the sample be kept for an appreciable period of time after the defendant is charged.” (¶30). Perhaps there’s a third avenue: The state could, in the interest of fairness, change its protocol to keep the samples for a certain period of time past charging. While we’re waiting for one or more of these solutions to be effectuated, consider filing a motion to preserve and test the sample as soon as you know a sample was taken.