Supreme Court of Wisconsin Recalibrates the Brady Doctrine in What Might Be the Most Important Brady Opinion in 17 Years

Last week, the Supreme Court of Wisconsin issued an opinion that might have huge implications for the Brady doctrine. Under that doctrine the prosecution has an affirmative obligation under the Due Process Clause to disclose material exculpatory evidence to the defense. In its opinion in State v. Wayerski, 2019 WL 471276 (Wis. 2019), however, the Supreme Court of Wisconsin held that Wisconsin courts had shifted the focus from the State's misconduct to the defense's due diligence and issued a course correction. And it's a course correction that could apply to courts across the country.

In Wayerski, Gary Wayerski appealed his conviction for various sex crimes, claiming that the State violated the Brady doctrine by failing to disclose pending charges against a jailhouse informant who was a witness for the prosecution. In response, the State claimed that Wayerski's Brady claim failed because the evidence of these charges was not in the "exclusive possession and control" of the State. A majority of the Supreme Court of Wisconsin responded to this argument by noting that

This "exclusive possession and control" limitation is rooted in Justice Fortas' concurrence in [Giles v. Maryland]: "[i]f [the State] has in its exclusive possession specific, concrete evidence which is not merely cumulative or embellishing and which may exonerate the defendant or be of material importance ... the State is obliged to bring it to the attention of the court and the defense."..."Exclusive possession" is not defined in Giles, nor is there any related analysis....It is noteworthy that Justice Fortas never mentions "control" in his concurrence.

Wisconsin courts first applied the concept of exclusive possession to the Brady analysis in Cole. State v. Cole, 50 Wis.2d 449, 184 N.W.2d 75 (1971). The Cole court held that information known to the defense regarding the type of car and gun involved in the defendant's arrest was not within the "exclusive possession" of the State, and therefore the State did not suppress the information....Thereafter, this court limited the State's duty to disclose to include only favorable, material information within the State's "exclusive possession or control." Nelson v. State, 59 Wis.2d 474, 479, 208 N.W.2d 410 (1973). The Nelson court did not further define the new “exclusive possession or control” limitation nor did the court apply it.

Post-Nelson, Wisconsin courts have applied an "exclusive possession and control" limitation to the Brady suppression component. In analyzing whether evidence is in the “exclusive possession and control” of the State, the courts have shifted the focus away from the State's obligation to turn over favorable evidence to whether the defense should have or could have obtained the withheld evidence. See, e.g., Sarinske, 91 Wis.2d 14, 280 N.W.2d 725 (holding that information regarding a car's short circuit was not in the State's exclusive control where a witness with that information was available to the defense, who failed to question the witness); Amundson, 69 Wis.2d 554, 230 N.W.2d 775 (holding that a report withheld by the State was not in its “exclusive possession and control” where the author of the report was called as a defense witness); State v. Calhoun, 67 Wis.2d 204, 226 N.W.2d 504 (1975) (holding that summaries of witnesses' statements to police withheld by the State were not within the State's "exclusive possession and control" because those witnesses were available for questioning by the defense). Wisconsin is the only state to apply this "exclusive possession and control" limitation to the second component of Brady.

The majority then repudiated this line of precedent, finding that

There is no express support in the United States Supreme Court's Brady jurisprudence for the limitation that only favorable, material evidence in the “exclusive possession and control” of the State must be turned over to satisfy the due process obligations enunciated in Brady. This limitation further thwarts the purpose of the State's obligation under Brady: to prevent the State from withholding favorable, material evidence that "helps shape a trial that bears heavily on the defendant” and “casts the prosecutor in the role of an architect of a proceeding that does not comport with the standards of justice."...We hereby overrule the holding set forth in Nelson...and its progeny that favorable, material evidence is only suppressed under Brady where the withheld evidence is in the State's “exclusive possession and control."

Now, the majority's opinion makes it seem like this is a change to an interpretation of the Brady doctrine that is unique and peculiar to Wisconsin. But as Judge Kelly noted in his dissent,

The clear majority of federal court of appeals circuits have been doing the same thing, although with a slightly different diagnostic device. Of this majority, all but one ask whether the defendant, through the application of "reasonable diligence," could obtain the information not produced by the prosecutor. This rubric accomplishes the same thing as our "exclusive possession or control" inquiry.

So, let's break that down by looking at the Calhoun case cited by the majority. In Calhoun, the defendant was charged with murder and claimed self-defense. In later arguing that there was a Brady violation, the defense claimed that the State failed to disclose

[t]hree summaries or notes made by police officers as to statements made to them by two sons of the defendant, John and Ronald, and a niece or cousin or friend of defendant, Rose Wesley, had not been included in information made available by the prosecutor under the demand for discovery. Defense counsel stated that the two sons of the defendant had told police that the victim had reached into his pocket and pulled out a gun immediately before the shooting. Defense counsel stated that the niece or cousin had told police that she had seen the victim reach into his pocket just before the fatal shot was fired. 

So, this is where we now see the divide between the Wayerski majority and the dissent. According to the dissent, the defendant is out of luck under Brady. The exculpatory evidence came from his own relatives, so of course it was not in the exclusive possession and/or control of the state. Ergo, no Brady violation. And the same analysis would apply in the majority of federal circuit courts. Because the exculpatory evidence came from the defendant's relatives, of course he could have obtained it through due diligence. Ergo, no Brady violation.

But the Wayerski majority is now saying...wait a second, Brady is about prosecutorial misconduct, not defense due diligence. If the prosecution collects exculpatory evidence, of course it should turn it over to the defense, even if the defense also has access to that evidence and could discover it through due diligence. 

I agree with the majority because otherwise a defendant is completely reliant on his attorney to collect exculpatory evidence that the prosecution has already obtained. And given that 80% of defendants have public defenders and we currently have a public defender crisis...that reliance might be misplaced. So, will the Wayerski opinion be an outlier or a sign of a sea change in Brady. Time will tell.

-CM