Notice of Motion and Motion for Discovery - PDF

							STATE OF WISCONSIN                       CIRCUIT COURT                           DANE COUNTY
                                           BRANCH 3


In the Interest of:

R. L.,                                                 Case No. 09-JV-190

A Person Under the Age of Seventeen.


             NOTICE OF MOTION AND MOTION TO COMPEL DISCOVERY


TO:      Mike Walsh, Deputy District Attorney
         Office of the District Attorney
         215 S. Hamilton, Ste. 3000
         Madison, WI 53703


         PLEASE TAKE NOTICE that, at a date and time to be determined by the Court, likely

on or after the currently scheduled waiver hearing on May 11th at 9:30, the juvenile, by Attorney

Benjamin C. Gonring, will appear and respectfully move the Court for an order compelling the

State to cooperate with the previously-filed discovery demand; specifically, the State should

turn over (a) any exculpatory information resulting from the testing of the DNA sample obtained

from the juvenile last fall, and (b) the specific photo arrays shown to witness Carmen Wagner, as

well as information surrounding the method of display and any specific promises made to

Wagner by Detective Johnson at the time of Wagner’s purported ID of the juvenile, the juvenile

having a particularized need for that information because it relates directly to the reliability of

Wagner’s statements.



         AS GROUNDS THEREFOR, the juvenile asserts:

         1. Section 938.18(3)(a), Stats., lists the rights of a juvenile facing waiver. Among those

            rights is that “[c]ounsel for the juvenile shall have access to the social records and

            other reports under s. 938.293.”



                                                    -1-
2. Section 938.293(1) indicates that “copies of all law enforcement officer reports,

   including the officer’s memorandum and witnesses’ statements, shall be made

   available upon request to counsel … prior to a plea hearing.” Sub (2) indicates that

   “all records relating to a juvenile which are relevant to the subject matter of a

   proceeding under this chapter shall be open to inspection by … counsel for any party,

   upon demand ….”

3. I concede that case law has severely limited the applicability of sec. 938.293 to

   waiver proceedings. Specifically, in finding that the prosecutive merit stage of a

   waiver proceeding is the functional equivalent of a preliminary examination,

   Wisconsin courts have made clear that “we should parallel the discovery rights of a

   juvenile prior to a hearing on prosecutive merit with the discovery rights of an adult

   criminal defendant prior to a preliminary examination.” In the Interest of T.M.J., 110

   Wis 2d 7, 12 (1982).

4. As such, it is instructive, as the court did in T.M.J., to look at case law relating to

   discovery in the area of preliminary examinations.

5. The T.M.J. court looked specifically at State ex rel. Lynch v. County Court, Branch

   III, 82 Wis 2d 454 (1978) for guidance on what is permissible discovery prior to an

   adult preliminary examination.
6. While the Wisconsin Supreme Court in Lynch did make clear that unfettered access
   to the State’s evidence was not appropriate prior to a preliminary examination, that

   decision does point out two important exceptions.

7. First, the Court noted that there were certain principles “not in dispute;” specifically,

   that “the state has an affirmative duty to disclose to a criminal defendant any material

   in its possession or control which tends to negate the guilt of the defendant or which

   would tend to reduce his punishment therefor …. [and that] it is unprofessional

   conduct for a prosecutor to fail to disclose such exculpatory material ‘ … at the

   earliest feasible opportunity.’” Lynch, at 463 (internal cites omitted).


                                            -2-
8. These principles were repeated in the most recent opinion by the Wisconsin Supreme

   Court regarding discovery rights in the context of preliminary examination. Despite

   again limiting a criminal defendant’s right to access information, the Court notes

   “[c]learly, a defendant has a right to obtain evidence in the state’s possession when

   the evidence is material and exculpatory.” State v. Schaefer, 2008 WI 25, ¶22 (citing

   Brady v. Maryland, 373 U.S. 83, 87 (1963)).

9. In this case, according to an article in the Wisconsin State Journal dated October 3rd,

   2008, authored by Ed Treleven, a search warrant was executed in late

   September/early October of 2008 on an unidentified 16 year-old boy in order to

   obtain a DNA sample. The article indicates it was done to compare the suspect’s

   DNA with DNA found in the fingernail scrapings of the victim. See attached.

10. While the results of that testing are unknown to me at this time, and, thus, cannot with

   certainty be claimed to be exculpatory evidence, it did not go unnoticed that the

   delinquency petition which accompanies the waiver petition makes no mention of a

   positive DNA match.

11. That said, if the results of that testing are in the State’s possession, which I believe to

   be the case, and if those results do not indicate a match between the DNA sample

   taken last fall and that found on the victim (who is alleged in the petition to have
   “resisted the attempts by ‘G’ to go through his pockets” (page 4, full para. 2 of the

   petition)), then such evidence “tends to negate the guilt” of my client and should be

   turned over as exculpatory evidence.

12. The second exception to the otherwise “lack” of discovery prior to preliminary

   examinations involves evidence for which it is shown the defendant has a

   “particularized need.”

13. Again, looking at the Lynch opinion, the Court there contrasted the defendant’s claim

   for discovery with a claim recognized by the US Supreme Court in Dennis v. United

   States, 384 U.S. 855 (1966) by indicating that “[i]n Dennis, the defendants had made


                                             -3-
   a showing of ‘particularized need’ to inspect the material, a fact which the Supreme

   Court emphasized.” Lynch, at 467.

14. This rationale for allowing discovery prior to the preliminary examination was also

   noted by the Court in Schaefer, where the Court indicated “[w]e have previously

   implied that a subpoena duces tecum may have to be honored if the defendant shows

   a ‘particularized need’ for information in possession of the State.” Schaefer, ¶59.

15. The particularized need in this case is tied directly to case law regarding challenges to

   prosecutive merit.

16. One of the first instances of higher courts examining the proof necessary to support a

   finding of prosecutive merit was in In the Interest of D.H., 76 Wis. 2d 286 (1977).

   There, this state’s Supreme Court indicated “[t]he trial judge should require that the

   information considered by him be trustworthy, and the judge should allow the

   juvenile a reasonable opportunity to demonstrate that information before him is

   inaccurate, unreliable, or the product of bias or animosity on the part of other

   persons.” D.H., at 301. Further, in speaking about the discretion of the juvenile court

   judge, the Court notes “[t]he proper exercise of discretion contemplates an informed

   determination reached by the demonstrated application of reason to facts and

   circumstances appearing in the record.         Those facts and circumstances must be
   developed from reliable sources of information ….” Id., at 303.
17. Later, in In the Interest of T.R.B., 109 Wis. 2d 179 (1982), the Court took up the

   question of whether prosecutive merit could be found by the trial court on the basis of

   the delinquency petition alone. In finding the petitions themselves could be sufficient

   if the issue of prosecutive merit was not contested, the Court cautioned that “[i]n

   order to be used as evidence, the petitions must have guarantees of trustworthiness …

   [and] the petitions themselves must establish the reliability of the information on

   which the petitioner bases his or her belief.” T.R.B., at 193.




                                            -4-
18. The emphasis on reliability at the prosecutive merit stage was repeated in the Court’s

   decisions in In the Interest of P.A.K., 119 Wis. 2d 871 (1984) and In the Interest of
   J.G., 119 Wis. 2d 748 (1984), both decisions released the same day. In its discussion

   of the use of confessions to establish prosecutive merit, the J.G. Court indicated, “[i]t

   should be pointed out that the juvenile court, even without a specific assertion or

   offer of proof by the juvenile of unreliability, must demonstrate the proper exercise of

   discretion by making an evaluation of the state’s evidence in respect to reliability, for

   only reliable evidence will sustain a finding of prosecutive merit.” J.G., at 762.

   Similarly, in its discussion of the method of presenting evidence at the prosecutive

   merit stage, the P.A.K. Court summarized, “[t]hus, in determining whether a matter

   has prosecutive merit, the focus is on the reliability of the evidence presented, not on

   its form.” P.A.K., at 885.

19. Finally, while not in chronological order, a return to the previously-cited decision by

   the Court of Appeals in T.M.J. gives perhaps the clearest language as to what is

   meant by “reliability.” In analogizing the attack of a petition at the prosecutive merit

   stage to an attack of a criminal complaint, the Court notes “[w]hen we speak of a

   reliability determination in the prosecutive merit stage, we mean the very same thing;

   that is, the person ‘who says so’ must be reliable.” T.M.J., at 16.       The Court then
   goes on to look at a test for complaints which involve “citizen witnesses,” noting that

   such a test requires “that a complaint establish: (1) the underlying circumstances

   which show reason to believe the informant is credible, and (2) the underlying

   circumstances which show that the manner in which the informant reached his

   conclusions was reliable.” Id., at 16-17.

20. In this case, I assume that the State, as it has historically done in virtually all waiver

   hearings in this County, will ask the Court to rely upon the petition itself to find

   prosecutive merit. A review of the petition leads to the inevitable conclusion that the

   only evidence contained therein which ties the juvenile to being present at the scene


                                             -5-
   of the offense is the multiple statements of Carmen Wagner. As such, the “who says

   so” of this case begins and ends with Mr. Wagner and it is the reliability of his

   statements which necessarily becomes the crux of a finding of prosecutive merit.

21. The petition itself gives the reader reasons to doubt the reliability of Mr. Wagner.

   First, p.5 full paragraph 4, indicates, without specific dates, that “Carmen Wagner

   was subsequently shown a number of photo arrays. One such array included a picture

   of R. L. Wagner advised that he did not recognize any of the photos as being that of

   subject he knew as ‘G.’” Second, the second citizen spoken to by police indicates

   that “Carmen Wagner likes cocaine and also uses crack.” (p.5, para. 5).          Finally,

   Wagner’s purported ID of R. L. in another photo array at some unknown date

   (presumably after the information gained by the second citizen in August of 2008, or

   at least 9 months after the offense date) only occurs when the Detective tells Wagner

   that “Wagner was not going to be prosecuted.”

22. As the Court is likely aware, much has been written about the potential

   suggestiveness of photo arrays. When the only ID of the juvenile which links him to

   the charged offenses comes under the circumstances noted above, it is inarguable that

   the juvenile has a “particularized need” for information relating to those arrays.

23. In order to adequately argue about the reliability of the only witness in this case, the

   juvenile must be given access to the information surrounding the photo arrays – the

   pictures themselves, what Wagner was told, and what Wagner actually said.

24. While conceding that the holding itself is not on point to this issue, the following

   language from the Court of Appeals decision in In the Interest of S.N., 139 Wis. 2d
   270 (1987) is instructive here: “The juvenile court’s function of protecting the child

   and the public through its decision on waiver, see sec. 48.18(6), Stats. [now

   938.18(6)] is, indeed, best served when the court has access to the fullest information

   possible.”




                                            -6-
25. It is in the spirit of those words, the desire to obtain full information, that the juvenile

   urges this Court to order the State to provide the limited discovery requested by this

   motion.




               Dated at Madison, Wisconsin, this _____ day of May, 2009.



                                       Respectfully submitted,


                                       ____________________________
                                       BENJAMIN C. GONRING
                                       Wisconsin State Bar No. 1026152
                                       Attorney for Juvenile
                                       Office of State Public Defender
                                       17 S. Fairchild St., 2nd Floor, P.O. Box 7884
                                       Madison, WI 53707-7884
                                       (608) 267-1764




                                              -7-