State v. Gary Lee Wayerski
385 Wis. 2d 344, 922 N.W.2d 468, 2019 WI 11 (2019)
Rule of Law:
The State's due process obligation under Brady v. Maryland requires it to disclose favorable, material evidence to the defense, and this duty is not excused by the evidence's public availability. The failure to disclose such evidence constitutes "suppression," regardless of whether the defense could have discovered it through reasonable diligence.
Facts:
- Gary Wayerski, a police chief, began "mentoring" two teenagers, J.P. (16) and J.H. (17), after they had minor encounters with law enforcement.
- Over several months, Wayerski invited the teens to his apartment, provided them with alcohol, and showed them pornography.
- Wayerski repeatedly engaged in sexual contact with both teens, sometimes individually and sometimes together, including masturbating them.
- On one occasion, Wayerski had J.P. ejaculate onto an oval-shaped turquoise plate.
- Wayerski threatened to send the teens to juvenile detention or jail if they ever told anyone about the sexual activities.
- After an argument with Wayerski on July 16, 2011, the teens left his apartment and later that day disclosed to J.H.'s father and then to police that Wayerski had molested them.
Procedural Posture:
- The State of Wisconsin charged Gary Wayerski with 16 felony counts in the Dunn County Circuit Court, the court of first instance.
- A jury found Wayerski guilty on all charges, and the circuit court entered a judgment of conviction.
- Wayerski filed a postconviction motion in the circuit court, alleging a Brady violation and ineffective assistance of counsel.
- The circuit court denied the postconviction motion.
- Wayerski, as appellant, appealed the denial to the Wisconsin Court of Appeals, an intermediate appellate court, with the State as appellee.
- The Court of Appeals affirmed the circuit court's decision.
- Wayerski, as petitioner, sought review of the Court of Appeals' decision from the Supreme Court of Wisconsin, the state's highest court.
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Issue:
Does the State violate its due process obligation under Brady v. Maryland by failing to disclose impeachment evidence about a government witness when that evidence is publicly available in an online court records database?
Opinions:
Majority - Dallet, J.
Yes, the State's failure to disclose the evidence constitutes suppression under Brady regardless of its public availability, though the claim fails here because the evidence was not material. The State's obligation to disclose favorable evidence is not relieved simply because the information is publicly accessible. Rejecting prior Wisconsin tests like 'exclusive possession and control' and 'intolerable burden,' the court holds that suppression occurs whenever the State withholds or fails to disclose favorable evidence. Here, the prosecutor knew of the witness's pending charges and withheld that information, which constitutes suppression. However, the Brady claim ultimately fails because the suppressed evidence was not material; given the overwhelming evidence of Wayerski's guilt, including DNA evidence and consistent victim testimony, there is no reasonable probability that disclosing the impeachment evidence would have changed the trial's outcome.
Concurring and dissenting - Ziegler, J.
No, the State does not 'suppress' evidence that is in the public domain and equally accessible to both parties. The majority unnecessarily overturns decades of precedent that correctly limited Brady to evidence within the prosecution's exclusive possession and control. The prosecution cannot withhold or suppress information it does not control, such as a publicly available court record on CCAP. Therefore, the defendant's Brady claim should fail on the suppression element, not just on the materiality element. The majority's new rule is a significant and confusing departure from established Brady doctrine.
Concurring and dissenting - Kelly, J.
No, it is a logical impossibility for the State to 'suppress' publicly available information. Suppression requires the State to make evidence unavailable, either actively or passively. Passive suppression is only possible when the State has exclusive control over the information. The majority's holding improperly transforms Brady from a rule against suppressing evidence into a rule against 'differential knowledge' of evidence, which is not supported by the constitution or precedent.
Analysis:
This decision significantly broadens the prosecutor's disclosure duty under Brady in Wisconsin by eliminating the 'public availability' exception. By rejecting the 'exclusive possession,' 'reasonable diligence,' and 'intolerable burden' tests, the court places the onus squarely on the prosecution to disclose all known favorable evidence, regardless of its source or accessibility to the defense. While the ultimate outcome for Wayerski was unchanged due to lack of materiality, this new interpretation of 'suppression' will require prosecutors to be more proactive in their disclosures to avoid future Brady violations, effectively creating a more demanding standard than in many federal circuits. The strong dissents suggest this reinterpretation of a fundamental constitutional doctrine will be a point of future legal contention.
