Full(er) Disclosure: Wisconsin Invigorates the Brady Rule

Posted on Categories Constitutional Law, Criminal Law & Process, Public, Wisconsin Criminal Law & Process, Wisconsin Supreme Court

Rugby player hiding ball under his shirtA Warren Court cornerstone has been “remastered and upgraded,” as they say, by the Wisconsin Supreme Court in a case that has riled the waters nationally. In Brady v. Maryland (1963), the Warren Court held that prosecutors must disclose exculpatory evidence to the defense. No hiding the ball. Over fifty years of case law, however, has occluded the rule with sundry conditions and qualifications that obscure its modest disclosure provision. More time is spent describing the ball than looking for it.

In State v. Wayerski (2019 WI 11), the Wisconsin Supreme Court scraped off Brady’s barnacles, overruled fifty years of precedent, and held that prosecutors must provide the defense with any information that is exculpatory or impeaching  — even if the defense could have found it as easily as the prosecutor. Wayerski, a sex deviant (yep)/ex-chief of police, was charged with numerous felonies for sexually exploiting young teens. In rebuttal, the State called a jailhouse informant who told the jury that the defendant had confessed his crimes while in jail. Although both sides knew of the informant’s lengthy criminal record, the prosecutor did not share his knowledge that the informant also faced pending child sex charges himself, a definite motive to lie.

Writing for the court, Justice Rebecca Dallet, a former trial judge and prosecutor, categorically rejected three different qualifications that had limited Brady’s disclosure rule for decades. Was the evidence within the State’s “exclusive possession and control”? No; the pending charges were a matter of public record. Could the defense have uncovered them with “reasonable diligence”? Absolutely; the defense had only to check the online public records. Would finding the pending charges have been an “intolerable burden” on the defense? Not if defense counsel had a smartphone (or a teenager). In sum, those three condition were besides the point: the information was favorable to the accused and had been withheld by the State. Nothing more mattered. The State was spared reversible error only because its case was overwhelmingly strong.

The Wayerski holding has garnered approval from commentators nationally (e.g., “the most important Brady opinion in 17 years,” per EvidenceProfBlogger [Colin Miller]). While the opinion is a boon to the defense, it stopped short of obligating additional investigation by the State and is in no sense a rebuke to prosecutors. Yes, prosecutors occasionally sit on or, worse, conceal exculpatory evidence. Yet, the larger problem is the quality of defense counsel, who may lack the time, knowledge, or experience to conduct a modest pretrial investigation of even this sort. The lesson for prosecutors is straightforward; if you do look around and find something of value to the defense, turn it over. Don’t spend your time thinking of reasons not to disclose it. The opinion is a small step toward addressing a systemic imbalance.

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