State v. Gary Lee Wayerski

2019 WI 11

SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1083-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Gary Lee Wayerski,
Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 378 Wis. 2d 739, 905 N.W.2d 843
(2017 – unpublished)

OPINION FILED: February 7, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 5, 2018

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dunn
JUDGE: William C. Stewart, Jr., and Maureen D. Boyle

JUSTICES:
CONCURRED: ZIEGLER, J. concurs and dissents, joined by
ROGGENSACK, C.J. (opinion filed).
KELLY, J. concurs and dissents, (opinion filed).
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs
filed by Edward J. Hunt and Hunt Law Group, S.C., Milwaukee.
There was an oral argument by Edward J. Hunt.

For the plaintiff-respondent, there was a brief filed by
Donald V. Latorraca, assistant attorney general, and Brad D.
Schimel, attorney general. There was an oral argument by Donald
V. Latorraca.
 2019 WI 11
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1083-CR
(L.C. No. 2011CF186)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v. FEB 7, 2019

Gary Lee Wayerski, Sheila T. Reiff
Clerk of Supreme Court

Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Modified
and, as modified, affirmed.

¶1 REBECCA FRANK DALLET, J. Gary Wayerski seeks review

of the court of appeals'1 decision affirming the circuit court's2
denial of his postconviction motion.

1State v. Wayerski, No. 2015AP1083-CR, unpublished slip op.
(Wis. Ct. App. Oct. 31, 2017).
2The Honorable William C. Stewart, Jr., of the Dunn County
Circuit Court presided over the jury trial and entered the
judgment of conviction. The Honorable Maureen D. Boyle presided
over the postconviction hearings and entered the order denying
Wayerski's postconviction motion.
 No. 2015AP1083-CR

¶2 Wayerski was charged with and convicted of 16 felonies
based upon allegations that over several months he had repeated
sexual contact with two juveniles, J.H. and J.P., and exposed
them to pornography. Wayerski was found guilty by a jury of the
following crimes: (1) two counts of child enticement in
violation of Wis. Stat. § 948.07(3)(2015-16);3 (2) two counts of
exposing genitals or pubic area in violation of Wis. Stat.
§ 948.10(1); (3) two counts of exposing a child to harmful
material in violation of Wis. Stat. § 948.11(2)(a); (4) two
counts of causing a child over the age of 13 to view/listen to
sexual activity in violation of Wis. Stat. § 948.055(2)(b); and
(5) eight counts of sexual assault of a child by a person who

works or volunteers with children in violation of Wis. Stat.
§ 948.095(3).
¶3 Wayerski filed a postconviction motion, asserting
claims of ineffective assistance of trial counsel, circuit court
errors, and a claim that the State violated its Brady4

obligations. Brady v. Maryland, 373 U.S. 83 (1963). The
circuit court denied Wayerski's postconviction motion.

3 Wayerski committed and was charged with the offenses when
the 2009-10 statutes were in effect. The portions of the
statutes relevant to this appeal are materially unchanged from
the current 2015-16 version and therefore all subsequent
references to the Wisconsin Statutes are to the 2015-16 version.
4 Pursuant to Brady v. Maryland, 373 U.S. 83 (1963),
suppression by the State of material evidence favorable to a
defendant violates due process.

2
 No. 2015AP1083-CR

¶4 The court of appeals affirmed the circuit court's
denial of Wayerski's postconviction motion.5 Wayerski now seeks
review of the denial of his ineffective assistance of counsel
claim6 and the denial of his Brady claim.

¶5 Wayerski claims that his trial counsel was ineffective
for failing to question him about a purported confession that he
gave to John Clark, a government witness who testified on
rebuttal. We assume without deciding that trial counsel's
performance was deficient, in accordance with the first prong of
the ineffective assistance of counsel analysis. However, even
if trial counsel's performance was deficient, we conclude that
there was no prejudice to Wayerski under the second prong of the

analysis. Thus, we conclude there was no ineffective assistance
of counsel.
¶6 Wayerski also alleges that the State violated his due
process rights under Brady when it failed to disclose
impeachment evidence about Clark's pending charges in Chippewa
County. We conclude that there was no Brady violation. While
evidence of Clark's pending charges was favorable to Wayerski as
impeachment of Clark's testimony and the State suppressed the

5
The court of appeals remanded the matter to the circuit
court solely to correct an error in the judgment of conviction.
Wayerski, No. 2015AP1083-CR, ¶2 n.5.
6
At the court of appeals Wayerski's ineffective assistance
of counsel claim had two parts. Wayerski's ineffective
assistance of counsel claim as it relates to his trial counsel's
failure to seek a mistrial in response to the admission of
pornographic materials is not before us.

3
 No. 2015AP1083-CR

evidence, Wayerski failed to show that the evidence was
material. In analyzing whether the State suppressed evidence
under the second component of the Brady analysis, we return to

the principles of Brady and ask only whether the evidence was
suppressed by the State, rather than the revisionary version of
Brady that our court has adopted in the past. Therefore, we
modify and, as modified, affirm the decision of the court of
appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶7 In July 2011, the State filed a criminal
complaint against Wayerski, which charged nine felony counts.
In September 2012, the State was granted leave to file a second

amended information which charged 16 felony counts.
¶8 The allegations against Wayerski are summarized as
follows. In February 2011, Wayerski, who was the police chief
of the Village of Wheeler and a part-time police officer for the
Village of Boyceville, offered to act as a "mentor" to 16-year-
old J.P. after J.P. admitted to breaking into a church.
¶9 Wayerski began his "mentorship" with J.P. by taking
him on "ride-alongs" in his squad car and talking to him about
his sexual experiences. Wayerski invited J.P. to his apartment
where he had J.P. take off his shirt and pants so that Wayerski
could see his "muscle tone" and assist in his physical fitness.
During subsequent visits Wayerski touched J.P.'s genitals,

claiming that it was also for workout purposes.
¶10 Between March 2011 and July 16, 2011, J.P. alleged that
Wayerski masturbated him on more than 20 occasions while they
4
 No. 2015AP1083-CR

watched pornography. J.P. also claimed that Wayerski made him
perform other sexual activities based on Wayerski's sexual
interests and fetishes. One night in particular, Wayerski made
J.P. ejaculate onto an oval-shaped turquoise plate so that
Wayerski could "weigh his sperm."
¶11 In March 2011, Wayerski issued 17-year-old J.H. a
disorderly conduct ticket. Wayerski told J.H. that if he
completed his community service and stayed out of trouble for
six months, the incident would be removed from his record. Like
J.P., J.H. recounted going on several "ride-alongs" in
Wayerski's squad car before being invited to Wayerski's
apartment. Wayerski also offered to help J.H. improve his

physical fitness. J.H. described specific sexual activities
that Wayerski made him perform, based on Wayerski's sexual
interests, including watching pornography with Wayerski while
Wayerski masturbated him.
¶12 Additionally, the juveniles detailed how, on occasion,
Wayerski would invite both of them to his apartment at the same

time for overnight stays. During these overnight stays,
Wayerski would allow the juveniles to drink alcohol. The
juveniles also claimed that during one of these overnight stays
Wayerski simultaneously masturbated both of them while they
watched on-demand pornography together. Lastly, the juveniles
alleged that Wayerski threatened to send them to "juvie" or jail
if they ever told anyone about the sexual contact or about
watching pornography at Wayerski's apartment.

5
 No. 2015AP1083-CR

¶13 Early in the morning on July 16, 2011, after staying
overnight at Wayerski's apartment, the juveniles got into an
argument with Wayerski about his cable bill and the amount of
money spent watching on-demand pornography. The juveniles left
Wayerski's apartment on foot and walked several miles to a
friend's house. When J.H.'s father picked the juveniles up from
their friend's house, they told him that some "weird stuff had
been happening for a while" at Wayerski's apartment, and that
Wayerski had "molested" them. J.H.'s father stated that he
could tell the juveniles had been drinking alcohol. Later that
day, the juveniles went to law enforcement to report their
allegations.

¶14 Eau Claire County7 Sheriff's Detective Kuehn
interviewed J.P. and J.H. separately. Detective Kuehn obtained
and executed a search warrant for Wayerski's apartment.
Detective Kuehn recovered the following items: multiple
computers, alcohol, the oval-shaped turquoise plate that J.P.
referenced, and a cable bill containing charges for on-demand

pornographic films.
¶15 Wayerski's jury trial lasted from October 8 to
October 12, 2012. The State called J.H. and J.P. as its primary
witnesses. In addition, the State called the parents of J.H.
and J.P. to corroborate the juveniles' story about their

7
To avoid a conflict of interest because of Wayerski's
position as a police officer and police chief in villages in
Dunn County, the case was assigned to Eau Claire County.

6
 No. 2015AP1083-CR

frequent contact with Wayerski and their overnight stays at his
apartment. The jury also heard testimony from Sarah Zastrow-
Arkens, a DNA analyst from the Wisconsin State Crime Laboratory.
Arkens testified that semen from the oval-shaped turquoise plate
in Wayerski's apartment showed a male profile which matched
J.P.'s DNA. Arkens further testified that the statistical
likelihood that the sample from the plate belonged to anyone
other than J.P. was one in 28 quintillion. Detective Kuehn
testified that he interviewed the juveniles and their demeanor
was consistent with prior victims of sexual assault.
Additionally, several other law enforcement officers testified
about their involvement in the case.

¶16 Wayerski's general defense was that the juveniles had
fabricated the allegations because Wayerski was part of a drug
investigation involving people connected with J.P. and J.H.
Wayerski disputed the number of "ride-alongs" he had with J.P.
and J.H. and the number of times the juveniles visited his
apartment. Wayerski called four witnesses at trial who claimed

that after Wayerski's arrest, J.P. said he was lying and that
the allegations were a "set up" or a joke.
¶17 Clark, an inmate who occupied a Chippewa County jail
cell near Wayerski for six to eight weeks, testified for the
State on rebuttal. Clark testified that Wayerski had admitted
to masturbating the juveniles, watching pornography with the
juveniles, and allowing the juveniles to drink alcohol. Clark
testified that he did not ask for, or receive, any benefit for
testifying against Wayerski. Instead, Clark testified that he
7
 No. 2015AP1083-CR

had reported the comments to a sergeant at the jail and to
Detective Kuehn because "[t]hey're kids. I think that says it
all." On the stand, Clark admitted to the jury that he had been
convicted of 20 crimes, including some felonies.
¶18 Wayerski's trial counsel recalled Wayerski to the
stand after Clark's rebuttal testimony. However, trial counsel
did not ask Wayerski about the purported confession. Instead,
trial counsel asked several questions that Wayerski insisted he
ask, including the number of inmates in jail that Wayerski had
been in contact with and whether inmates had access to the
media.8
¶19 The jury saw a substantial amount of evidence,

including pornographic photographs from Wayerski's computer,
pornography searches, photos of J.H. and J.P. that Wayerski
captured on his phone, and messages from Wayerski's computer and
cellphone. The pornographic materials on Wayerski's computer
reflected an interest in young males between the ages of 16 and
20 and included pictures arranged under titles labelled

"milking," "punish," "spanking," and "stances." At trial,
Wayerski admitted to these types of sexual interests. In both
their trial testimony and in their initial interview with
Detective Kuehn, J.P. and J.H. described contact consistent with
these types of sexual interests.

8
The questions asked by Wayerski's trial counsel raised an
implication that Clark had access to various forms of media when
he was in jail, and that the details he knew about Wayerski's
case could have come from those outside sources.

8
 No. 2015AP1083-CR

¶20 A jury found Wayerski guilty of all 16 felony counts
and he was subsequently sentenced to a total of 14 years of
initial confinement and 16 years of extended supervision. After
his trial, Wayerski discovered that Clark had been charged with
three crimes against children in Chippewa County one month prior
to Wayerski's trial: (1) one count of soliciting a child in
violation of Wis. Stat. § 948.08; and (2) two counts of sexual
intercourse with a child 16 or older in violation of Wis. Stat.
§ 948.09.9 The prosecutor assigned to Wayerski's case admitted
that he had discovered Clark's pending charges a few days prior
to Wayerski's trial through a basic check of Consolidated Court
Automation Programs (CCAP).10 After discovering these charges,

the prosecutor obtained a copy of the Chippewa County complaint11
and, after reviewing it, decided that Clark's pending charges
did not affect the veracity of his prior statements given to
Detective Kuehn. Therefore, the prosecutor did not disclose the
pending charges or criminal complaint to Wayerski's trial
counsel.

9 Clark was ultimately convicted of: (1) one count of
causing a child over the age of 13 to view/listen to sexual
activity in violation of Wis. Stat. § 948.055(1); and (2) two
counts of sexual intercourse with a child 16 or older in
violation of Wis. Stat. § 948.09.
10CCAP is an internet accessible case management system
provided by Wisconsin Circuit Court Access program. State v.
Bonds, 2006 WI 83, ¶6, 292 Wis. 2d 344, 717 N.W.2d 133.
11The record is unclear as to exactly how the prosecutor
obtained a copy of the complaint.

9
 No. 2015AP1083-CR

¶21 Wayerski filed a postconviction motion asserting
claims of ineffective assistance of trial counsel, circuit court
errors, and a claim that the State violated its Brady

obligations by not disclosing Clark's pending charges. The
circuit court held a hearing on Wayerski's postconviction motion
and heard testimony from Wayerski and his trial counsel.
¶22 As to the claim of ineffective assistance of counsel
that is before this court, Wayerski's trial counsel testified
that he could not think of a reason why he did not ask Wayerski
about Clark's testimony regarding a purported confession.
Wayerski's trial counsel admitted that, with "the benefit of
20/20 hindsight," he should have asked Wayerski about the

alleged confession. However, Wayerski's trial counsel noted
that Wayerski had been talking into his ear during the entire
trial, and that he had recalled Wayerski to the stand to ask him
several questions that Wayerski directed him to ask. Wayerski
testified that, had he been asked at trial, he would have denied
giving a confession to Clark.
¶23 While the circuit court acknowledged that Wayerski's
trial counsel "probably" should have given Wayerski an
opportunity to deny Clark's allegations, one more denial by
Wayerski would not have changed the outcome of the trial because
of the overwhelming amount of evidence. Therefore, the circuit
court found that Wayerski had an opportunity to present his

defense and that his trial counsel "provided the representation
that he was [constitutionally] required to provide."

10
 No. 2015AP1083-CR

¶24 Regarding Wayerski's Brady claim, trial counsel

testified that he recalled performing a CCAP search on Clark,
but that he was probably concentrating on Clark's convictions.
Wayerski's trial counsel testified that he could not recall with
"one hundred percent specificity" whether he performed any CCAP
searches of Clark or whether he relied upon information provided
to him by the State. The circuit court ordered supplemental
briefing on several issues and after two more hearings denied
Wayerski's motion.
¶25 The circuit court found that the State failed to
disclose Clark's pending charges. However, citing Randall, the
circuit court found that the failure to inform Wayerski of the

pending charges was harmless error because there was compelling
evidence of Wayerski's guilt apart from Clark's testimony,
including the juveniles' testimony and the DNA evidence. State
v. Randall, 197 Wis. 2d 29, 539 N.W.2d 708 (Ct. App. 1995).
Further, the circuit court noted that the jury had been alerted
to Clark's criminal history and that his credibility had been
called into question.
¶26 Wayerski filed a notice of appeal on six issues, only
two of which he raises on appeal to this court. The court of
appeals affirmed the circuit court's denial of Wayerski's
postconviction motion. See State v. Wayerski, No. 2015AP1083-CR,
unpublished slip op., ¶2 (Wis. Ct. App. Oct. 31, 2017). The
court of appeals determined that "Wayerski failed to demonstrate
that his trial attorney's assistance prejudiced his defense on
the surrebuttal testimony" and that there was no Brady violation
11
 No. 2015AP1083-CR

because it was not "'an intolerable burden on the defense' to
search CCAP for the State witness's available pending charges."
See Wayerski, No. 2015AP1083-CR, ¶2.

¶27 As to Wayerski's ineffective assistance of counsel
claim, the court of appeals declined to address the deficiency
prong of the ineffective assistance of counsel analysis.
Instead, the court of appeals analyzed the prejudice prong and
concluded that Wayerski failed to show prejudice for several
reasons. First, Clark's credibility was already questioned when
the jury was alerted to the fact that he was an inmate in jail
and that he had been convicted of 20 crimes, including some
felonies. Second, the court of appeals noted that there was

never any doubt that Wayerski claimed he was innocent. Wayerski
also called four witnesses at trial who testified that they
heard J.P. recant the allegations. Finally, the court of
appeals reasoned that the evidence of Wayerski's guilt was
"overwhelming," including: the juveniles' consistent, detailed
testimony, the substantial evidence recovered in Wayerski's
apartment, and the parents' testimony about time the juveniles
spent with Wayerski.
¶28 As to Wayerski's Brady claim, the court of appeals,
like the circuit court, looked to the Randall case. Randall,
197 Wis. 2d 29. The court of appeals reasoned that the basis of
Randall was to avoid placing an "intolerable burden" on the
defense to extensively search for hard-to-secure evidence.
Wayerski, No. 2015AP1083-CR, ¶55.

12
 No. 2015AP1083-CR

¶29 However, the court of appeals noted that at the time
Randall was decided, "'comb[ing] the public records' for the

criminal record of every witness disclosed before trial entailed
a trip to a physical site, usually the courthouse (or
courthouses), to sift through potentially vast paper records."
Wayerski, No. 2015AP1083-CR, ¶55 (citing Randall, 197 Wis. 2d at
38). The court of appeals reasoned that since Randall, CCAP has
"facilitated efficient use of court resources and greater access
to court information by the public," allowing wide access to
those records via the internet. Id. (quoting State v. Bonds,
2006 WI 83, ¶47, 292 Wis. 2d 344, 717 N.W.2d 133). The court of
appeals held that because it was not an intolerable burden on

Wayerski's trial counsel to search CCAP for Clark's pending
criminal charges, the pending charges were not "suppressed"
under Brady.
¶30 In the alternative, the court of appeals held that
even if it assumed that the evidence was suppressed, Wayerski
failed to show a reasonable probability of a different result
had the pending charges been disclosed. Wayerski, No.
2015AP1083-CR, ¶57. The court of appeals concluded that
nondisclosure of the record was not prejudicial because Clark
was already impeached and there was "very compelling evidence"
of guilt even apart from Clark's testimony. Therefore, the
charges were not "material" pursuant to Brady.
¶31 Wayerski presents two claims to this court for review:
(1) whether trial counsel was ineffective for failing to

13
 No. 2015AP1083-CR

question him about a purported confession that he gave to Clark;
and (2) whether the State violated its Brady obligation.12

II. STANDARD OF REVIEW
¶32 "Under the Sixth and Fourteenth Amendments to the
United States Constitution, a criminal defendant is guaranteed
the right to effective assistance of counsel." State v.
Balliette, 2011 WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334
(citing Strickland v. Washington, 466 U.S. 668, 686 (1984)).
The same right is guaranteed under Article I, Section 7 of the
Wisconsin Constitution. Whether a defendant was denied
effective assistance of counsel is a mixed question of fact and
law. State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665

N.W.2d 305. The factual circumstances of the case and trial
counsel's conduct and strategy are findings of fact, which
will not be overturned unless clearly erroneous. Id. "Whether
counsel's performance satisfies the constitutional standard for
ineffective assistance of counsel is a question of law, which we
review de novo." Id. To demonstrate that counsel's assistance
was ineffective, the defendant must establish that counsel's

12
On appeal, Wayerski also alleged that there was a
violation of the criminal discovery statute, Wis. Stat.
§ 971.23(1). The court of appeals declined to address this
argument because Wayerski had not properly developed the issue.
Wayerski, No. 2015AP1083-CR, ¶54 n.9. Wayerski did not raise
this issue in his petition for review to this court and
therefore we will not address it. See Preisler v. General Cas.
Ins. Co., 2014 WI 135, ¶3, 360 Wis. 2d 129, 857 N.W.2d 136
(holding that this court "decline[s] to consider issues not
raised in petitions for review").

14
 No. 2015AP1083-CR

performance was deficient and that the deficient performance was
prejudicial. State v. Breitzman, 2017 WI 100, ¶37, 378

Wis. 2d 431, 904 N.W.2d 93 (citing Strickland, 466 U.S. at 687).
If the defendant fails to satisfy either prong, we need not
consider the other. Id. (citing Strickland, 466 U.S. at 687).
¶33 Whether trial counsel performed deficiently is a
question of law we review de novo. Breitzman, 378 Wis. 2d 431,
¶38. To establish that counsel's performance was deficient, the
defendant must show that it fell below "an objective standard of
reasonableness." See Thiel, 264 Wis. 2d 571, ¶19.
¶34 Whether any deficient performance was prejudicial is
also a question of law we review de novo. See State v. Domke,

2011 WI 95, ¶33, 337 Wis. 2d 268, 805 N.W.2d 364. To establish
that deficient performance was prejudicial, the defendant must
show that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Id., ¶54 (quoting Strickland, 466 U.S. at 694).
¶35 With respect to Wayerski's Brady claim, we
independently review whether a due process violation has
occurred, but we accept the trial court's findings of historical
fact unless clearly erroneous. State v. Lock, 2012 WI App 99,
¶94, 344 Wis. 2d 166, 823 N.W.2d 378. A defendant has a due
process right to any favorable evidence "material either to
guilt or to punishment" that is in the State's possession,
Brady, 373 U.S. at 87, including any evidence which may impeach
15
 No. 2015AP1083-CR

one of the State's witnesses. Giglio v. United States, 405 U.S.

150, 154 (1972). A Brady violation has three components: (1)
the evidence at issue must be favorable to the accused, either
because it is exculpatory or impeaching; (2) the evidence must
have been suppressed by the State, either willfully or
inadvertently; and (3) the evidence must be material. See State
v. Harris, 2004 WI 64, ¶15, 272 Wis. 2d 80, 680 N.W.2d 737
(citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
¶36 The materiality requirement of Brady is the same as
the prejudice prong of the Strickland analysis. See United
States v. Bagley, 473 U.S. 667, 682 (1985). Evidence is not
material under Brady unless the nondisclosure "was so serious

that there is a reasonable probability that the suppressed
evidence would have produced a different verdict." Strickler,
527 U.S. at 281.
III. ANALYSIS
A. Wayerski's Ineffective Assistance of Counsel Claim
¶37 Wayerski contends that trial counsel performed
deficiently because he failed to question Wayerski about giving
a purported confession to Clark. Wayerski further asserts that
trial counsel's deficient performance was prejudicial because
Wayerski's silence, in the eyes of a jury, was tantamount to an
admission of guilt.
¶38 We assume without deciding that trial counsel's
performance was deficient under the first prong of the
ineffective assistance of counsel analysis. However, pursuant
to the second prong of the ineffective assistance of counsel
16
 No. 2015AP1083-CR

analysis, we conclude that there was no prejudice to Wayerski.
Therefore, we conclude that there was no ineffective assistance
of counsel.
¶39 To establish that his trial counsel's deficient
performance was prejudicial, Wayerski must show that "there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Domke, 337 Wis. 2d 268,

¶54 (quoting Strickland, 466 U.S. at 694). "We examine the
totality of the circumstances to determine whether trial
counsel's errors," in the context of Wayerski's entire case,

deprived him of a fair trial. Id. When we consider whether
Wayerski was prejudiced by his trial counsel's deficient
performance, we examine Wayerski's ability to present his
defense, the other evidence presented that undermined Clark's
credibility, and the overwhelming evidence against Wayerski.
¶40 First, there was never any doubt that Wayerski claimed
that he was innocent. Wayerski denied the juveniles' claims on
direct and cross-examination. Wayerski called four witnesses to
testify in support of his defense that the juveniles set him up
because of his involvement in an ongoing drug investigation.
The jury had an opportunity to fully consider and reject
Wayerski's defense to the allegations.
¶41 Second, Clark's credibility had already been called
into question when he testified. The jury heard that Clark had
been convicted of 20 crimes, including some felonies. Further,
17
 No. 2015AP1083-CR

the questions asked by Wayerski's trial counsel called into
question whether Clark heard the details of the offenses from
Wayerski or from his access to media at the Chippewa County
jail.
¶42 Lastly, as the prior courts acknowledged, the evidence
against Wayerski was overwhelming. There was detailed,
consistent testimony from J.H. and J.P. and testimony from the
juveniles' parents corroborating the amount of time the
juveniles spent with Wayerski doing "ride-alongs" and at
Wayerski's apartment. J.H.'s father also testified about what
occurred when he picked the juveniles up from their friend's
house on the morning of July 16, 2011. The jury heard testimony

from Detective Kuehn who described the juveniles' demeanor as
consistent with that of sexual assault victims in prior cases he
had investigated. Detective Kuehn also testified about the
items recovered from Wayerski's apartment, including the oval-
shaped turquoise plate, the cable bill for on-demand
pornography, vodka, and the contents of Wayerski's computer. In

addition, the jury heard from a DNA analyst who testified that
the semen on the oval-shaped turquoise plate matched J.P.'s DNA
profile and that the likelihood the sample belonged to anyone
other than J.P. was one in 28 quintillion.
¶43 Therefore, we conclude that even if Wayerski's trial
counsel's performance was deficient for failure to question him
about the purported confession he gave to Clark, the deficiency
was not prejudicial, and thus there was no ineffective
assistance of counsel.
18
 No. 2015AP1083-CR

B. Wayerski's Brady Claim

¶44 Wayerski additionally seeks review of the denial of
his Brady claim. We conclude that the evidence was favorable to
Wayerski, satisfying the first component of the Brady analysis.
We conclude that the State suppressed the evidence under the
second component of the Brady analysis. We renounce and reject
judicially created limitations on the second Brady component
that find evidence is suppressed only where: (1) the evidence
was in the State's "exclusive possession and control"; (2) trial
counsel could not have obtained the evidence through the
exercise of "reasonable diligence"; or (3) it was an
"intolerable burden" for trial counsel to obtain the evidence.

Finally, we conclude there was no Brady violation because
Wayerski failed to demonstrate that the evidence was material,
the final component of the Brady analysis.
1. The Evidence Was Favorable to Wayerski
¶45 Applying the first component of the Brady analysis,
the evidence at issue must be favorable to the accused, either
because it is exculpatory or impeaching. See Harris, 272
Wis. 2d 80, ¶15 (citing Strickler, 527 U.S. at 281-82). The
State concedes that evidence of Clark's pending charges was
favorable to Wayerski to impeach Clark. We agree and accept the
State's concession.
2. The Evidence Was Suppressed by the State
¶46 Turning to the application of the second Brady
component, Wayerski must demonstrate that the evidence was
suppressed by the State, either willfully or inadvertently. Id.
19
 No. 2015AP1083-CR

The State argues that it did not suppress evidence of Clark's
pending charges for the following reasons, which we reject in
turn: (1) the evidence was not in the "exclusive possession and
control" of the State; (2) Wayerski's trial counsel could have
exercised "reasonable diligence" to obtain the evidence; and (3)
there was no "intolerable burden" on Wayerski's trial counsel to
obtain the evidence himself. We apply the principles espoused
in Brady and its progeny and conclude that the State suppressed

evidence of Clark's pending charges, including the Chippewa
County criminal complaint.
a. Exclusive Possession and Control
¶47 The State argues that for evidence to be suppressed

under Brady, the evidence must be within the "exclusive
possession and control" of the State. See State v. Sarinske, 91
Wis. 2d 14, 280 N.W.2d 725 (1979); State v. Amundson, 69
Wis. 2d 554, 230 N.W.2d 775 (1975). This "exclusive possession
and control" limitation is rooted in Justice Fortas' concurrence
in Giles: "[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." Giles v. Maryland,
386 U.S. 66, 100-102 (1967) (Fortas, J., concurring).
"Exclusive possession" is not defined in Giles, nor is there any

20
 No. 2015AP1083-CR

related analysis. Id. It is noteworthy that Justice Fortas

never mentions "control" in his concurrence.13 Id.
¶48 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. Id. at 457. 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.14

13For an in-depth discussion on Wisconsin's use of the
exclusive possession and control limitation, see Leslie Thayer,
The Exclusive Control Requirement: Striking Another Blow to the
Brady Doctrine, 2011 Wis. L. Rev. 1027, 1041-2.
14Nelson involved the issue of whether the defendant had an
obligation to request exculpatory evidence for Brady to apply.
Nelson v. State, 59 Wis. 2d 474, 486, 208 N.W.2d 410 (1973). In
Agurs, the Supreme Court expanded Brady to include an obligation
for the State to turn over favorable, material evidence even
absent a defendant's request for information. United States v.
Agurs, 427 U.S. 97, 107 (1976).

21
 No. 2015AP1083-CR

¶49 Post-Nelson, Wisconsin courts have applied an

"exclusive possession and control"15 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 (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 (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.

15
The language of the limitation varies from "exclusive
possession" in Calhoun, "exclusive possession and control" in
Amundson, and "exclusive control" in Sarinske. See State v.
Calhoun, 67 Wis. 2d 204, 226 N.W.2d 504 (1975); State v.
Amundson, 69 Wis. 2d 554, 230 N.W.2d 775 (1975); State v.
Sarinske, 91 Wis. 2d 14, 280 N.W.2d 725 (1979).

22
 No. 2015AP1083-CR

¶50 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.16 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." Brady, 373 U.S. at 87-88. We hereby
overrule the holding set forth in Nelson, 59 Wis. 2d 474, 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."

b. Reasonable Diligence
¶51 The court of appeals and the State also rely upon a
Seventh Circuit case for the proposition that evidence is not
suppressed by the State under the second component of Brady when
it is available to the defendant "through the exercise of

16
A 1986 Wisconsin "Opinion of the Attorney General" states
that "[n]either the Giles plurality nor the Brady majority
mentions the [S]tate's exclusive possession of exculpatory
evidence as the controlling factor. Rather, both Brady and
Giles characterize materiality as the criterion triggering the
duty to disclose exculpatory evidence." 75 Wis. Op. Att'y Gen.
62, 66 (1986).

23
 No. 2015AP1083-CR

reasonable diligence." Carvajal v. Dominguez, 542 F.3d 561, 567

(7th Cir. 2008).17 Federal courts are currently divided as to
whether a defendant's ability to acquire favorable, material
evidence through "reasonable diligence" or "due diligence"
forecloses a Brady claim. Although half of the federal courts
of appeals have affirmed application of the "reasonable
diligence" or "due diligence" limitation,18 the other half of
federal courts of appeals have determined that the "reasonable
diligence" and "due diligence" limitations are not doctrinally
supported and undermine the purpose of Brady.19 The United

17In Carvajal, the Seventh Circuit held that because
several officers were available to be questioned about their
possibly differing accounts of events, the defendant did not
exercise "reasonable diligence," and therefore there was no
suppression under Brady. Carvajal v. Dominguez, 542 F.3d 561,
567 (7th Cir. 2008).
18See, e.g., United States v. Parker, 790 F.3d 550, 561-62
(4th Cir. 2015); United States v. Roy, 781 F.3d 416, 421 (8th
Cir. 2015); United States v. Brown, 650 F.3d 581, 588 (5th Cir.
2011); Ellsworth v. Warden, 333 F.3d 1, 6 (1st Cir. 2003)(en
banc).
19See, e.g., Dennis v. Secretary, Pennsylvania Dep't of
Corr., 834 F.3d 263, 292 (3rd Cir. 2016)(en banc)("[o]nly when
the government is aware that the defense counsel already has the
material in its possession should it be held to not have
'suppressed' it in not turning it over to the defense"); Lewis
v. Connecticut Comm'r of Corr., 790 F.3d 109, 121-22 (2d Cir.
2015)("a due diligence requirement plainly violate[s] clearly
established federal law under Brady and its progeny"); United
States v. Tavera, 719 F.3d 705 (6th Cir. 2013); United States v.
Howell, 231 F.3d 615, 625 (9th Cir. 2000); Banks v. Reynolds, 54
F.3d 1508, 1517 (10th Cir. 1995)("the prosecution's obligation
to turn over the evidence in the first instance stands
independent of the defendant's knowledge. 'If the prosecution
possesses evidence that, in the context of a particular case is
obviously exculpatory, then it has an obligation to disclose it
(continued)
24
 No. 2015AP1083-CR

States Supreme Court has yet to opine whether this limitation on
the suppression component of the Brady analysis is appropriate.

This court has never analyzed a Brady claim through the lens of
"reasonable diligence" and we decline to adopt that requirement
now, due to its lack of grounding in Brady or other United
States Supreme Court precedent.
c. Intolerable Burden
¶52 Lastly, the court of appeals, citing to Randall,
imposed an "intolerable burden" standard: for favorable,
material evidence to be suppressed under Brady it must be an
"intolerable burden" for the defense to obtain the information.
Randall, 197 Wis. 2d 29. In Randall, the court of appeals held

that the defendant's Sixth Amendment rights were violated where
the State failed to disclose a witness's pending charges even
though the charges were "a matter of public record" and
therefore not in the "exclusive control" of the State. Id. at
37-38. The court of appeals explained:

[I]t places an intolerable burden on the defense;
namely, to continually comb the public records to see
if any of the State's witnesses are facing pending
criminal charges. The burden should rightly rest with
the State to provide such updated information,
particularly in light of a specific discovery request
for the criminal records of the State's witnesses, as
was present in this case.

to defense counsel . . . .'" (quoted source omitted)). See also
In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887,
896 (D.C. Cir. 1999)(rejecting the State's argument that there
was no Brady violation because information was available to the
defense through "reasonable pre-trial preparation").

25
 No. 2015AP1083-CR

Id. at 38. The Randall court acknowledged that the State has

"an ongoing duty to disclose to the defense exculpatory and
inculpatory evidence that the State has in its possession,
including evidence that applies only to the credibility of a
witness." Id. at 37.20
¶53 Here, the court of appeals reasoned that "there is
little doubt that it is not 'an intolerable burden' for the
defense to obtain information on a witness's pending criminal
charges" due to the availability of CCAP. Wayerski, No.
2015AP1083-CR, ¶56. Because Clark's pending charges were
available for Wayerski's trial counsel to see on CCAP, the court
of appeals reasoned that the information was not "suppressed"

under Brady.21
¶54 The court of appeals improperly applied the
"intolerable burden" standard from Randall to determine whether
the State had suppressed evidence under the second component of
Brady. As the State conceded in its brief, neither this court
nor the United States Supreme Court has used an "intolerable

20
Notwithstanding, the Randall court concluded that the
failure to disclose the witness's pending prosecution was
harmless error because the evidence of the defendant's guilt was
"very compelling," the witness was arrested and charged after he
offered to testify, and the witness was impeached at trial when
he admitted that he had a criminal record. State v. Randall,
197 Wis. 2d 29, 38-39, 539 N.W.2d 708 (Ct. App. 1995).
21
The court of appeals did not address the issue of
suppression of the Chippewa County criminal complaint, a
document in the State's possession and not available to the
defense on CCAP.

26
 No. 2015AP1083-CR

burden" standard when assessing whether a Brady violation has

occurred. We overrule Randall, 197 Wis. 2d 29, to the extent
that it requires an "intolerable burden" on the defense as a
prerequisite to a Brady violation.
¶55 The United States Supreme Court has underscored the
special responsibility of the prosecutor in the search for truth
in a criminal trial. See, e.g., Banks v. Dretke, 540 U.S. 668,
696 (2004); Kyles v. Whitley, 514 U.S. 419, 439-40 (1995);
Strickler, 527 U.S. at 281. In a more recent case exploring the
scope of both the prosecution and the defense's responsibilities
in locating exculpatory evidence, the United States Supreme
Court stated that: "[a] rule thus declaring 'prosecutor may

hide, defendant must seek' is not tenable in a system
constitutionally bound to accord defendants due process." Banks,
540 U.S. at 696. The "exclusive possession and control,"
"reasonable diligence," and "intolerable burden" limitations
distort the original Brady analysis and the purpose behind the
prosecutorial obligations enunciated in Brady.
d. The Application of Brady
¶56 We return to the original inquiry under Brady:
whether there was "suppression" by the prosecution, irrespective
of good or bad faith. Brady, 373 U.S. at 87. The United States
Supreme Court has not defined the term "suppression" as set
forth in the second component of the Brady analysis. However,
the United States Supreme Court has discussed suppression in
terms of withholding evidence. Id. ("A prosecution that
withholds evidence on demand of an accused which, if made
27
 No. 2015AP1083-CR

available, would tend to exculpate him or reduce the penalty
helps shape a trial that bears heavily on the defendant."); see

also Cone v. Bell, 556 U.S. 449, 469 (2009) ("when the State
withholds from a criminal defendant evidence that is material to
his guilt or punishment, it violates his right to due process");
Kyles, 514 U.S. at 451 ("assessing the significance of the
evidence withheld").
¶57 The United States Supreme Court has also discussed
suppression in terms of the nondisclosure of evidence. See
Cone, 556 U.S. at 470 ("favorable evidence is subject to
constitutionally mandated disclosure"); Banks, 540 U.S. at 693
(referring to "Brady disclosure obligations"); Kyles, 514 U.S.

at 441 ("disclosure of the suppressed evidence to competent
counsel would have made a different result reasonably
probable"); Strickler, 527 U.S. at 281 ("'Brady violation' is
sometimes used to refer to any breach of the broad obligation to
disclose exculpatory evidence"); U.S. v. Agurs, 427 U.S. 97, 108
(1976)(referring to the obligation under Brady as a prosecutor's
"constitutional duty of disclosure").
¶58 Therefore, pursuant to the United States Supreme
Court's Brady jurisprudence, suppression is nondisclosure or the
withholding of evidence from the defense. The prosecutor's
mindset or 'passivity' is irrelevant to this suppression
inquiry. As the United States Supreme Court has reasoned, "the
prudent prosecutor will resolve doubtful questions in favor of
disclosure," Agurs, 427 U.S. at 108, and that "is as it should
be. Such disclosure will serve to justify trust in the
28
 No. 2015AP1083-CR

prosecutor . . . [a]nd it will tend to preserve the criminal
trial, as distinct from the prosecutor's private deliberations,
as the chosen forum for ascertaining the truth about criminal
accusations." Kyles, 514 U.S. at 439-40.

¶59 Applying Brady and its progeny to Wayerski's claim,
the prosecutor suppressed evidence of Clark's pending charges,
including the Chippewa County criminal complaint, when he failed
to disclose the information to Wayerski's trial counsel. The
prosecutor not only withheld information regarding Clark's
pending charges from Wayerski's trial counsel, which he learned
of just days before trial, he also withheld the criminal
complaint, which he was able to quickly obtain prior to

Wayerski's trial.22 While the pending charges were posted on
CCAP at some point within the month prior to Wayerski's trial,
the criminal complaint was not.23 If Wayerski's trial counsel
had discovered the pending charges, he would have had to take
extra steps to promptly secure the complaint from Chippewa
County.
¶60 In this case, the prosecutor's private deliberations
on whether to disclose the evidence of Clark's pending charges

22There is no record as to how the prosecutor obtained the
Chippewa County criminal complaint. However, one thing is
certain, he did not obtain it via a public CCAP search, as the
concurrences seem to allege.
23CCAP does not provide public access to criminal
complaints, party filings, investigatory materials, and other
court documents.

29
 No. 2015AP1083-CR

became the forum for ascertaining the truth, rather than
Wayerski's trial. The State suppressed evidence, in violation
of the second component of Brady, when it withheld or failed to

disclose evidence of Clark's pending charges, including the
Chippewa County criminal complaint.
3. The Evidence Was Not Material
¶61 Lastly, in order for the defendant to prevail on the
third component of the Brady analysis, the suppressed evidence
must be material. See Harris, 272 Wis. 2d 80, ¶15 (citing
Strickler, 527 U.S. at 281-82). "The evidence is material only
if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would

have been different." Bagley, 473 U.S. at 682. Wayerski
alleges that the evidence against him at trial did not reach an
irreparable tipping point until Clark testified about the
purported confession. Wayerski argues that the State gained a
strategic advantage because his trial counsel could not impeach
Clark about Clark's purported reason for testifying and his
potential interest in the outcome of the case.
¶62 We conclude that the suppressed evidence was not
material. There is no reasonable probability that, had evidence
of Clark's pending charges been disclosed, the result of the
proceedings would have been different. As noted above, in its
case-in-chief the State provided compelling evidence of
Wayerski's guilt. The jury heard consistent, detailed testimony
from the juveniles, the juveniles' parents, Detective Kuehn, and
an analyst who testified that a DNA sample taken from the plate
30
 No. 2015AP1083-CR

in Wayerski's apartment showed a one-in-28-quintillion
likelihood of belonging to anyone other than J.P. All of this
evidence was presented prior to Clark's rebuttal testimony about
an alleged jailhouse confession from Wayerski. Further, Clark
was impeached with his 20 prior convictions. Therefore, we
conclude that Wayerski cannot demonstrate that, had evidence of
Clark's pending charges been disclosed, the result of the
proceeding would have been different. Since the evidence was
not material, Wayerski's Brady claim must fail.

IV. CONCLUSION
¶63 On petition to this court, Wayerski sought review of
the denial of his ineffective assistance of counsel claim and

the denial of his Brady claim.
¶64 We assume without deciding that Wayerski's trial
counsel's performance was deficient. Notwithstanding, we
conclude that Wayerski failed to show that his trial counsel's
deficient performance was prejudicial. Thus, Wayerski's
ineffective assistance of counsel claim fails.
¶65 We conclude that although the evidence of Clark's
pending charges was favorable to Wayerski and the State
suppressed the evidence, it was not material and therefore there
was no Brady violation. Furthermore, in analyzing whether the
State suppressed evidence under the second component of the
Brady analysis, we return to the principles of Brady and ask
only whether the evidence was suppressed by the State. We
overrule Nelson, 59 Wis. 2d 474, and its progeny which hold that
the State only suppresses favorable, material evidence when the
31
 No. 2015AP1083-CR

evidence is in the State's "exclusive possession and control."
We also overrule Randall, 197 Wis. 2d 29, to the extent that it

requires an "intolerable burden" on the defense as a
prerequisite to a Brady violation.
By the Court.—The decision of the court of appeals is
modified and, as modified, affirmed.

32
 No. 2015AP1083-CR.akz

¶66 ANNETTE KINGSLAND ZIEGLER, J. (concurring in part,
dissenting in part). I agree with the result the majority
reaches. However, I do not join the majority opinion, but
concur and write separately because the majority opinion chooses
to upend longstanding legal principles that have served to
properly cabin the judicially-created Brady doctrine.1 Because

the majority concludes that there is no prejudice, it need not
go further. But inexplicably, it unnecessarily reaches beyond
the prejudice issue and proceeds to topple over five decades of

Brady law. While the majority claims to "return to the original

inquiry under Brady," majority op., ¶56, it does not, and
instead departs from the large body of case law that developed
the well-rooted doctrine. Brady, a doctrine now 55 years old,
should not be so confused or reinvented.
¶67 First, in its claim to "return to the original inquiry
under Brady," the majority selectively chooses certain language
from Brady and ignores the body of law that has been relied upon

in the 55 years since Brady. A Brady violation occurs where:
(1) evidence is favorable to the defendant because it is either
exculpatory or impeaching; (2) the evidence is suppressed by the
prosecution willfully or inadvertently; and (3) prejudice
resulted. Critically though, courts have consistently concluded
that in a Brady context, the prosecution must exclusively
possess and control the evidence in order for the prosecution to

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

1
 No. 2015AP1083-CR.akz

have "suppressed," or withheld,2 Brady evidence. The prosecution

does not exclusively possess or control that which is in the
public domain. Thus, the prosecution cannot be deemed to have
"suppressed" or withheld such evidence. In eschewing any
requirement that the prosecution be in "exclusive possession and
control" of the subject materials, the majority significantly
departs from Brady and 55 years of precedent.
¶68 The majority also fails to heed any consideration to
the distinction between Brady and other means of discovery, such

as Wis. Stat. § 971.23, which might impose similar production
requirements on the prosecution but which may have different
penalties for failing to comply. The Brady doctrine must not be
conflated with other statutory obligations, open file policies3
or judicial preference. The prosecution, under Brady, is not
required to disclose exculpatory or impeaching evidence that
might somehow later be construed as useful to the defense but
was otherwise available to the defense. While the majority's

preference is that this evidence should have been disclosed, its

2 The word "suppression" used throughout refers to the
prosecution withholding evidence from the defense in a manner
that precludes the defense from having access to the evidence.
It is not to be confused with the judicial remedy of
suppression.
3
While there may be variations to the way prosecutors handle
their offices' respective policies, one definition of an "open
file policy" is as follows: "A case-specific policy in which
prosecutors allow defense counsel to see (but not always to
obtain copies of) all the documents in their file relating to
the defendant." Open-file discovery, Black's Law Dictionary
1263 (10th ed. 2014). The record does not reflect that in this
case an open file policy was in place.

2
 No. 2015AP1083-CR.akz

disclosure is simply not required under Brady as it was

otherwise available to the defense and the public at large. In
other words, the defense could have searched CCAP, just as the
prosecution did, to discover the evidence's existence. In no
way did the prosecution——nor could the prosecution——"suppress"
this evidence from the defendant's acquisition as it was
otherwise available in the public domain.
¶69 Second, instead of exercising judicial restraint, the
majority takes this opportunity to engage in a legal analysis

that imparts its unique view of Brady and overrules over 50

years of Wisconsin precedent that interpreted Brady. In taking
the liberty to alter Wisconsin's Brady analysis, the majority
stretches well beyond what the opinion should have decided. The
majority could have started and ended its Brady analysis by
concluding that the defendant was not prejudiced. I agree that
there was no prejudice by this nondisclosure. An abundance of
evidence clearly supports the jury's guilty verdict regardless

of the inmate's testimony.
¶70 In my view, however, the majority opinion is an
overreach. It is a sea change in the application of Brady
unmoored to fundamental limitations that underlie the doctrine.
Brady violations occur only where (1) favorable evidence to the
defense that is exculpatory or impeaching (2) is willfully or
inadvertently suppressed by the prosecution (3) resulting in
prejudice. To be a violation, the prosecution must be found to
have suppressed, or withheld, evidence of which it had exclusive
possession and control. Here, that simply is not the case.

3
 No. 2015AP1083-CR.akz

I
¶71 I begin with Brady's judicially created history and

evolution. The United States Supreme Court first imposed a duty
on the prosecution to disclose exculpatory evidence to
defendants in Brady v. Maryland, 373 U.S. 83 (1963). In Brady
the defendant testified that while he was present when a murder
was committed, another person committed the murder. Id. at 84.
Prior to trial, defense counsel requested the prosecution allow
him to examine the accomplice's out-of-court statements, which

had not been disclosed to the defense. Id. The prosecution

provided several such statements, but withheld one crucial
statement in which the accomplice admitted to being the killer.
Id. The defendant was later convicted of first-degree murder
and sentenced. Id. Following the verdict, the defense learned
of the confession and moved for a new trial based upon the newly
discovered evidence that the prosecution suppressed from their
discovery. Id.

¶72 In Brady the Supreme Court concluded "suppression by
the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or punishment, irrespective of the good faith or bad faith
of the prosecution." Id. at 87. Importantly, the Court
emphasized principles of fairness to the defendant and justice,
further stating that "[s]ociety wins not only when the guilty
are convicted but when criminal trials are fair," and that the
ultimate end "is not punishment of society for misdeeds of a
prosecutor but avoidance of an unfair trial to the accused."

4
 No. 2015AP1083-CR.akz

Id. The Court also expressed its aversion for allowing a

prosecutor to be an "architect of a proceeding that does not
comport with the standards of justice" by withholding evidence
which "would tend to exculpate" the defendant or reduce the
defendant's sentence. Id. at 88.
¶73 The Court in Brady however ultimately concluded that
the confession would not have exculpated the defendant, but that
the confession could have reduced the defendant's sentence. Id.
at 88–90. It thus affirmed the court of appeals' remand on the

limited issue of sentencing. Id. at 91. While Brady

established that favorable, material evidence that should have
been revealed to the defense but instead is suppressed by the
prosecution could be a due process violation, it left room for
the doctrine to be further refined. The Court did not expressly
define materiality, establish whether exculpatory evidence was
the only sort of evidence that would be deemed favorable under
the doctrine, or define under what circumstances evidence is

deemed to be suppressed by the prosecution. The result was that
case law further developed the parameters of the doctrine.
¶74 In the wake of Brady, courts responded to the need to
refine its application and scope. In Giglio v. United States,
405 U.S. 150, 154-55 (1972), the Supreme Court held that in
addition to exculpatory evidence, the prosecution is required to
disclose favorable, material evidence that could be used to
impeach prosecution witnesses. The Court concluded that
impeachment evidence includes an agreement with a prosecution
witness to testify for favorable treatment in the criminal

5
 No. 2015AP1083-CR.akz

justice system. See id. However, as the Court in Brady, the

Court in Giglio did not define suppression or materiality, or
further clarify the contours of the prosecution's duty to
produce evidence under the Brady doctrine.
¶75 In Moore v. Illinois, 408 U.S. 786, 795 (1972), the
Court stated that there was "no constitutional requirement that
the prosecution make a complete and detailed accounting to the
defense of all police investigatory work on a case." The Court
confirmed this idea in United States v. Agurs, 427 U.S. 97, 110

& n.16 (1976) (quoting Giles v. Maryland, 386 U.S. 66, 98 (1967)
(Fortas, J. concurring) (stating that "convictions ought [not]
be reversed on the ground that information [is] merely
repetitious, cumulative, or embellishing of facts otherwise
known to the defense or presented to the court")).4
¶76 In United States v. Bagley, 473 U.S. 667 (1985), the
Court refined materiality under a Brady analysis, stating that
evidence is material only "if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different." Id. at 682. It
further defined "reasonable probability" as "a probability
sufficient to undermine confidence in the outcome." Id.
¶77 My interpretation is not novel. Federal courts in
every circuit have considered whether the prosecution is deemed
to have "suppressed" evidence. Quite simply, the prosecution

4 Similarly, in Kyles v. Whitley, 514 U.S. 419, 437 (1995),
the United States Supreme Court declined to use Brady to impose
"an open file policy" on the prosecution.

6
 No. 2015AP1083-CR.akz

cannot suppress something that is available to the public.
Courts have repeatedly rejected attempts to extend Brady to

evidence that is available to the defense from sources other
than the prosecution. See, e.g., United States v. Roy,
781 F.3d 416, 421 (8th Cir. 2015) (Brady not violated where the
prosecution withheld information about the victim's lie to law
enforcement because the information was a matter of public
record in a published opinion of the Supreme Court of Arkansas);
United States v. Georgiou, 777 F.3d 125, 140–41 (3d Cir. 2015)

(no Brady violation where evidence of witness's mental health
history and treatment was publicly available in transcript of
plea hearing and defendant knew of the witness's guilty plea);
United States v. Catone, 769 F.3d 866, 871-72 (4th Cir. 2014)
(Brady not violated where the evidence was available to the
public and could have been discovered through diligent
investigation); United States v. Smith, 749 F.3d 465, 493 (6th
Cir. 2014) (no violation under Brady where prosecution did not

disclose two witnesses' exculpatory testimony because the
testimony could have been discovered with due diligence);
Cunningham v. Wong, 704 F.3d 1143, 1154 (9th Cir. 2013) (no
Brady violation occurred despite prosecution's failure to
disclose witness's medical records because defense knew that the
witness had been shot and could have easily obtained the
records); Hooks v. Workman, 689 F.3d 1148, 1180 (10th Cir. 2012)
(no Brady violation where prosecution did not fully disclose
witness's mental disability because the defense was put on
notice by a prosecutor's memo and the defense could have spoken

7
 No. 2015AP1083-CR.akz

to the witness to obtain further information); Cobb v. Thaler,

682 F.3d 364, 378–79 (5th Cir. 2012) (no Brady violation
occurred despite the prosecution's failure to disclose evidence
that charges were dropped against witness because defense had
access to the information via a co-defendant's open case file);
United States v. Hsu, 669 F.3d 112, 117 n.2 (2d Cir. 2012)
(noting that exculpatory e-mails and bank records that would
have impeached a prosecution witness would not violate Brady
because if they existed, the defendant would have been aware of

them and could have subpoenaed them); United States v. Celestin,

612 F.3d 14, 22–23 (1st Cir. 2010) (no Brady violation occurred
where a defendant knew of his own time and attendance records
and had the opportunity to subpoena them); Carvajal v.
Dominguez, 542 F.3d 561, 567-69 (7th Cir. 2008) (stating that
evidence is suppressed when "(1) the prosecution failed to
disclose the evidence in time for the defendant to make use of
it, and (2) the evidence was not otherwise available to the

defendant through the exercise of reasonable diligence," and
finding no Brady violation where witnesses were available to the
defense for questioning); LeCroy v. Sec'y, Fla. Dep't of Corr.,
421 F.3d 1237, 1267–68 (11th Cir. 2005) (no Brady violation
where prosecution failed to disclose defendant's own medical and
school records because defense could have acquired them by
exercising reasonable diligence).5

5Perhaps providing additional context will further an
understanding of why federal case law does not otherwise lend
support for the majority's interpretation of Brady. Case law
demonstrates that when information is publicly available or the
(continued)
8
 No. 2015AP1083-CR.akz

defense has notice of its existence, no Brady violation occurs.
Of course these cases are dependent on their facts. To cherry
pick quotes from any such case, without more, does not do
justice to the entirety of the Brady analysis.

First, in Dennis v. Secretary, Pennsylvania Department of
Corrections, 834 F.3d 263 (3d Cir. 2016) (en banc), the court
concluded that the prosecution violated Brady because it
withheld exculpatory physical evidence to which the defense had
no access or ability to discover. Id. at 285-96. While the
court expressed its distaste for placing a "due diligence"
requirement on defendants, the court did not otherwise address
what it might have done had the information been in the public
domain. Id. at 288–93. Dennis is thus distinguishable from the
case we decide today.

Instructively, the United States Court of Appeals for the
Third Circuit considered Brady a year earlier in United States
v. Georgiou, 777 F.3d 125 (3d Cir. 2015). There, the
prosecution failed to disclose a bail report regarding the
defendant's co-conspirator, along with the minutes from the co-
conspirator's arraignment and guilty plea. Id. at 139. Both
the bail report and the minutes contained information regarding
the co-conspirator's history of mental health issues and
corresponding treatment. Id. The court held that there was no
Brady violation regarding evidence of the co-conspirator's
mental health history and treatment because the bail report and
minutes were equally available to both the prosecution and
defense. Id. at 140-41. The court there concluded that the
defense "was in 'a position of parity with the government as far
as access to this material.'" Id. at 140 (quoting United States
v. Jones, 34 F.3d 596, 600 (8th Cir. 1994)). Since both the
prosecution and defense had the same access to the evidence, the
court held that the bail report and minutes were not suppressed
by the prosecution under Brady. Id. at 140-41. Dennis neither
mentions nor analyzes Georgiou, presumably because in Dennis the
evidence was not in the public domain.

Second, in United States v. Tavera, 719 F.3d 705 (6th Cir.
2013), the court determined the prosecution violated Brady when
it withheld exculpatory testimony of a potential witness. Id.
at 710-14. Again, this information was available solely to the
prosecution and withheld from the defense. Id. at 711–13. It
was not otherwise publicly available so the court did not weigh
in on that issue. Id. As a result, Tavera is not instructive
as to the issue we now address.

(continued)
9
 No. 2015AP1083-CR.akz

In fact, in United States v. Smith, 749 F.3d 465 (6th Cir.
2014), decided nearly ten months after Tavera, the court
concluded that no Brady violation occurred. Id. at 491-92.
Evidence that the prosecution acquired by interviewing people
the defense had hired was deemed to be readily available to the
defense. Id. at 493. In other words, the defense had at least
an equal opportunity, if not greater, to interview these
potential witnesses. Thus, there was no Brady violation when
the prosecution did not turn over the interviews.

Third, in Amado v. Gonzalez, 758 F.3d 1119 (9th Cir. 2014),
the court concluded that there was a Brady violation because the
prosecution failed to disclose exculpatory impeachment evidence.
Id. at 1134-35. At issue was an undisclosed probation report
that would have impeached the testimony of a prosecution
witness. Id. at 1138. The prosecution had access to the
probation report, and the defense did not. See id. at 1135,
1138. There is no indication that the report was otherwise
publicly available to the defense. See id. at 1135. The Ninth
Circuit addressed the prosecution's burden to produce
exculpatory evidence and expressed its aversion towards a
stringent "due diligence" requirement on the defense, but
seemingly, any diligence of the defense would not have resulted
in discovery of this report. See id. at 1136–38; see also Lewis
v. Connecticut Comm'r of Corr., 790 F.3d 109, 121–22 (2d Cir.
2015) (Brady violated because prosecution withheld evidence that
was not publicly available; however, court noted no Brady
violation occurs regarding "facts already within the defendant's
purview"); In re Sealed Case No. 99-3096, 185 F.3d 887, 889–91,
897 (D.C. Cir. 1999) (Brady violated where prosecution admitted
its failure to search for requested impeaching information that
was not otherwise publicly available; Brady not violated
regarding prior conviction records that were publicly
available).

In Cunningham v. Wong, 704 F.3d 1143 (9th Cir. 2013), the
court determined that no Brady violation occurred even though
the prosecution failed to supply the defense with an autopsy
report of the individual the defendant was alleged to have
killed, along with the medical records of an eyewitness the
defendant was alleged to have shot. Id. at 1154. The court
held that no Brady violation occurred because the defense
"possessed the 'salient facts'" that would have enabled it to
access the medical records, and because the defense was
"obviously aware" that the other individual had been killed and
could have easily obtained the autopsy report. Id. Thus, the
court held that "[t]here was no suppression of this easily
(continued)
10
 No. 2015AP1083-CR.akz

attainable evidence." Id. In Cunningham, Brady was not
violated even though the exculpatory evidence was not publicly
available but was nevertheless deemed to be readily obtainable
by the defense. See also United States v. Howell, 231 F.3d 615,
623–27 (9th Cir. 2000) (Brady not violated because defendant not
prejudiced by prosecution's suppression of police report
errors).

Fourth, in United States v. Quintanilla, 193 F.3d 1139
(10th Cir. 1999), the court considered whether a Brady violation
occurred where the prosecution failed to disclose exculpatory
testimony obtained in an interview, but where the defense
actually knew about the information before trial. Id. at 1149.
Prior to her trial, the defendant moved to adjourn because she
wanted to obtain exculpatory testimony from a co-defendant whose
separate trial was about to occur. Id. at 1143–44. After the
district court denied the motion, yet before trial, the other
defendant made a statement to law enforcement that was
exculpatory for Quintanilla. Id. at 1144. The prosecution
obtained that statement, but it did not release it to the
defense. Id. The exculpatory statement was not otherwise
publicly available. Id. However, because defense counsel had
become aware of the statement before law enforcement conducted
the interview, the court concluded there was no Brady violation.
Id. at 1149. Quintanilla does not address the situation where
information is publicly available.

Similarly, in Hooks v. Workman, 689 F.3d 1148 (10th Cir.
2012), no Brady violation occurred even though the prosecution
had much more detail about the defendant's mental well-being
that was not reflected in the memorandum turned over to the
defense. Id. at 1179-80. No Brady violation occurred, however,
because the evidence was "made known and available to the
defense prior to trial," and "Brady 'does not require the
prosecution to divulge every possible shred of evidence that
could conceivably benefit the defendant.'" Id. Also,
"disclosure need not be 'in a specific form or manner.'" Id. at
1180. The court had no difficulty concluding that the
prosecution fulfilled its Brady obligation because the "memo
disclosed enough of the conversation . . . to put
counsel . . . on notice that favorable and possibly material
evidence was available." Id. Hooks does not support the
proposition that the prosecution suppresses evidence under Brady
when information is publicly available. See also Banks v.
Reynolds, 54 F.3d 1508, 1511, 1516–17 (10th Cir. 1995) (Brady
violated where, despite defense counsel's request, prosecution
represented to defense counsel that no exculpatory evidence
(continued)
11
 No. 2015AP1083-CR.akz

¶78 In line with every federal circuit, Wisconsin has
historically followed Brady and its progeny. This court first

applied Brady in State v. Cathey, 32 Wis. 2d 79, 145 N.W.2d 100
(1966). There, the court held that due process was not denied
where the prosecution failed to disclose a prosecution crime
laboratory report and the report of a doctor who examined a
sexual assault victim report. Id. at 93. The court in Cathey
held that the reports would have been merely cumulative, and
that defense counsel was aware of sufficient facts such that he

could have discovered the reports had he requested them. Id. at

94.
¶79 As the majority correctly points out but then
inexplicably dispenses with, Wisconsin courts have since
developed an "exclusive possession" doctrine as part of the
Brady analysis. Majority op., ¶¶47–50. In State v. Cole, 50
Wis. 2d 449, 184 N.W.2d 75 (1971), the court held that Brady was
not violated where the prosecution did not disclose information

regarding the kind of car and gun involved in the defendant's
arrest. Id. at 455-57. Citing to Justice Fortas's concurrence
in Giles (386 U.S. at 101), the court concluded that the
information was not in the prosecution's exclusive possession,
meaning that the prosecution could not have "suppressed" the
information under Brady. Cole, 50 Wis. 2d at 457 & n.10. This
court again referenced a need for the prosecution to have

existed even though the prosecution possessed significant and
voluminous exculpatory evidence, much of which was not publicly
available).

12
 No. 2015AP1083-CR.akz

"possession or control" under Brady in Nelson v. State, 59

Wis. 2d 474, 479, 208 N.W.2d 410 (1973).
¶80 Since Cole this court has applied exclusive possession
and control by the prosecution as a requirement in a Brady
analysis, echoing federal decisions limiting the definition of
"suppressed" evidence to exclude situations where the defense
has access to evidence from a source other than the prosecution.
See, e.g., State v. Armstrong, 110 Wis. 2d 555, 579–80, 329
N.W.2d 386 (1983) (concluding no Brady violation where

prosecution failed to disclose evidence of parking ticket
because defendant knew he had been ticketed and paid it, and
thus prosecution did not have exclusive possession or control of
evidence); State v. Sarinske, 91 Wis. 2d 14, 36, 280 N.W.2d 725
(1979) (holding no Brady violation where the alleged exculpatory
evidence was testimony from two defense witnesses, and thus was
not in the exclusive control of the prosecution); McLemore v.
State, 87 Wis. 2d 739, 751–52, 275 N.W.2d 692 (1979) (noting

that Brady not violated where the defense had access to an
undisclosed transcript of an American Polygraph Association
hearing of charges against a polygraph examiner); State v.
Amundson, 69 Wis. 2d 554, 573-74, 230 N.W.2d 775 (1975) (holding
that the prosecution did not violate Brady where it did not
furnish a report generated by a witness for the defense because
the prosecution did not have exclusive possession or control of
it).
¶81 Thus, under Wisconsin law and in line with each
federal circuit, a Brady violation occurs where: (1) favorable

13
 No. 2015AP1083-CR.akz

evidence that is material because it is exculpatory or
impeaching; (2) is willfully or inadvertently suppressed by the
prosecution; (3) resulting in prejudice to the defendant.
Evidence is considered suppressed, or withheld, only where the
prosecution is in exclusive possession or control of the
evidence in question. In the case now before the court, the
prosecution would have no ability to suppress what is available
as publicly accessible information on CCAP.
¶82 The parties agree that the evidence of the charges and

criminal complaint against Wayerski's cellmate were favorable to
Wayerski, as the evidence was impeaching. Assuming they are
correct, that leaves only the issues of whether the prosecution
suppressed the evidence and whether Wayerski was prejudiced.
While the majority is correct with respect to prejudice, it errs
significantly when overreaching to conclude that the prosecution
suppressed the evidence in question. Although the court's
opinion could end with its determination that no prejudice

resulted here, the majority subverts 50 years of law. It
specifically engages in sweeping change thereby overruling
Nelson, majority op. ¶¶48–50, 65; rejecting the "reasonable

diligence" test found in Carvajal, majority op., ¶51; and
distinguishing State v. Randall, 197 Wis. 2d 29, 539 N.W.2d 708
(Ct. App. 1995), majority op. ¶¶52-55, 65. The majority does
not actually restore Brady as it claims. Rather, it upends
decades of Wisconsin jurisprudence that previously applied Brady
in lockstep with the vast majority of federal courts. In so
doing, it embraces an amorphous analysis, leaves less than clear

14
 No. 2015AP1083-CR.akz

how it reaches for its conclusion, and thus creates confusion
rather than clarity.
¶83 In analyzing Brady under its new inquiry, the majority

ignores an abundance of Wisconsin and federal case law which
defines when the prosecution has "suppressed" evidence contrary
to Brady. Despite precedent to the contrary, it then abruptly
concludes that the prosecution violated Brady when it
"suppressed" the criminal complaint despite information
regarding it being publicly available on CCAP. Majority op.,

¶¶46, 59 & n.22. The majority is notably silent regarding its
choice to disregard longstanding precedent regarding when
"suppression" occurs under a Brady analysis. The majority

similarly makes no mention of how the prosecution could even
begin to suppress, or withhold, information about charges which
was otherwise publicly available on CCAP.6
¶84 This newly-adopted definition of "suppression" does
not comport with the majority of cases that have applied Brady.

In reaching its holding, the majority ignores the circuit
court's finding that the prosecution here initially learned of
the pending charges against the witness by conducting a CCAP
search. From there, the prosecution obtained a copy of the

6 The majority seems to claim that I assert that the
criminal complaint was available on CCAP. That is incorrect.
Information regarding the pending charges against the inmate was
available electronically on CCAP, not the criminal complaint
itself. However, had the defense exercised any level of
diligence after searching CCAP, it would have discovered the
pending charges and been able to readily obtain the criminal
complaint, as it was nevertheless a matter of public record.

15
 No. 2015AP1083-CR.akz

criminal complaint against the witness. Maybe it would have
been a preferred approach or otherwise required pursuant to an
"open file policy" or discovery requests or obligations, that
the prosecution disclose the impeaching evidence at issue, but
those duties are distinct from any duty to disclose under Brady.

¶85 This begins to highlight the inherent problem with the
majority's approach. Until today, for a Brady violation to
occur, the exculpatory evidence would need to be in the
exclusive control of the prosecution. Under the majority's

definition of "suppress," the prosecution would "suppress"
exculpatory evidence when it withholds favorable and material
information the defense does not actually possess, even if that
information is of public record and could be readily discovered
with a simple internet search via CCAP or some other means. But
even applying the majority's definition, how can the prosecution
"suppress" something that is equally available to the defense as
it is to the prosecution? If there is some line of demarcation

that would prevent such an absurd result from occurring, the
majority fails to draw it. The majority thus rewrites Brady and
relevant discovery statutes not based on the rule of law, but on
judicial preference. It further fails to set forth how the
prosecution might comply with its new Brady test. Is the
prosecution required to maintain an open file policy in each
jurisdiction statewide? Must it advertise such an open file
policy to the defense in every case and regularly update the
defense on the status of the prosecution's file? Under the
majority's new Brady test, even that may not be enough. The

16
 No. 2015AP1083-CR.akz

majority fails to provide any meaningful guidance as to how the
prosecution must now proceed in order to comply with, and what
defense counsel should now expect, given Wisconsin's new
variation of Brady. The majority need not venture into this

uncharted territory, but since it chose to do so, it should
attempt to provide clarity. It does not, and instead it
provides confusion.
¶86 The error of the majority's new definition of when the
prosecution suppresses evidence is further highlighted by the

presence of other rules governing discovery and disclosures,
which likely carry less severe penalties than a Brady violation.

For example, under Wis. Stat. § 971.23, both the prosecution and
defendant have discovery and inspection obligations. Under
§ 971.23(1), upon demand within a reasonable time before trial,
the prosecution is obligated to disclose or allow the defendant
to inspect a variety of materials and information, including a
list of all of the prosecution's witnesses, any written or

recorded statements made by any prosecution witness, the
criminal record of any prosecution witness, and any exculpatory
evidence. § 971.23(1)(d)–(f), (h). If a party violates
§ 971.23, the statute provides as follows:

Sanctions for failure to comply. (a) The court
shall exclude any witness not listed or evidence not
presented for inspection or copying required by this
section, unless good cause is shown for failure to
comply. The court may in appropriate cases grant the
opposing party a recess or a continuance.

(b) In addition to or in lieu of any sanction
specified in par. (a), a court may, subject to
sub. (3), advise the jury of any failure or refusal to
disclose material or information required to be
17
 No. 2015AP1083-CR.akz

disclosed under sub. (1) or (2m), or of any untimely
disclosure of material or information required to be
disclosed under sub. (1) or (2m).

§ 971.23(7m).
¶87 As evidenced by Wis. Stat. § 971.23, rules that govern
discovery exist apart from Brady, carrying with them different
standards and different penalties for violations.7 Of course, a
violation of Brady carries harsh penalties, including the
judicial remedy of court-ordered suppression if the prosecution
seeks to use the evidence it withheld, or even a new trial. A
Brady violation is so serious that a prosecutor may even face

ethical charges for allegedly violating Brady.8 The majority
thus imposes an unduly harsh burden on the prosecution in a
manner that flies in the face of the Brady line of cases. It
further fails to clarify the contours of its new analysis,
leading to potential confusion. Brady was meant to occupy a
specific and limited sphere. Brady is a distinct obligation
under the law. Today the majority rewrites Brady to suit its
personal preferences in order to conclude that the criminal
complaint should have been turned over to the defense. The
majority creates Brady violations, which once were of a unique

7 In fact, the defendant here made a written request to the
prosecution for materials and information under Wis. Stat.
§ 971.23.
8 The Office of Lawyer Regulation has prosecuted an
assistant district attorney for alleged ethical violations for
failure to comply with Brady and Wis. Stat. § 971.23. See In re
Disciplinary Proceedings against Sharon A. Riek, 2013 WI 81, 350
Wis. 2d 684, 834 N.W.2d 384 (per curiam).

18
 No. 2015AP1083-CR.akz

and fairly specific nature, in circumstances that are now
undefined.
II
¶88 Equally perplexing is the majority's extensive reach
to alter longstanding Wisconsin law where it had no need to so
act. The majority applies a prejudice analysis under Brady,

concluding that the pending charges and criminal complaint
against the witness were not prejudicial to the defendant.
Majority op., ¶¶61-62. It acknowledges that though the pending

charges and criminal complaint would have served as impeachment
evidence regarding the prosecution's witness, the prosecution
nevertheless "provided compelling evidence of Wayerski's guilt."9
Majority op., ¶62.
¶89 Instead, the majority took it upon itself to recreate
the Brady doctrine as it believed it should be. It dispenses

with the fundamental requirement that the prosecution not

9
While the majority correctly concludes that there was
sufficient evidence to convict Wayerski regardless of the
inmate's testimony, notably, the impeachment evidence the
prosecution purportedly "suppressed" under Brady would also have
been cumulative to the impeachment evidence that was offered at
trial. For example, the inmate was cross-examined with respect
to his 20 prior convictions for misdemeanors and felonies. In
addition, the inmate was cross-examined with respect to his
testimony of events being influenced by access to news reports
and thus fabricated. Thus, there was already evidence in the
record that could have impeached the inmate. See State v.
Rockette, 2006 WI App 103, ¶41, 294 Wis. 2d 611, 718 N.W.2d 269
(considering Brady and stating that "[i]mpeachment evidence
is not material, and thus a new trial is not required when the
suppressed impeachment evidence merely furnishes an additional
basis on which to impeach a witness whose credibility has
already been shown to be questionable").

19
 No. 2015AP1083-CR.akz

"suppress," or withhold, evidence from the defense and instead,
creates confusion as to when something as serious as a Brady

violation occurs. As a presumable first in the country, the
majority creates a Brady violation even where the defense and
the prosecution have equal access to evidence available to the
public. The principle underlying Brady is fairness to both the
defendant and the prosecution. As the Brady court stated,
"Society wins not only when the guilty are convicted but when
criminal trials are fair." Brady, 373 U.S. at 87. But the

majority's new analysis veers too far from what Brady and its
progeny demand, as the majority now requires the prosecution to
produce any evidence, even if equally accessible to the defense.
¶90 This court must keep in mind its constitutionally
confined role. I therefore question why, instead of relying on
United States Supreme Court precedent, precedent from federal
circuits, or our own corresponding jurisprudence, the majority
now departs from the vast body of law that properly applies

Brady. Though the majority expressly overrules Nelson and its
progeny in an attempt to "return to the original inquiry under
Brady," majority op., ¶56, it fails to define the contours of
this new Brady analysis, and thus creates confusion instead of
supplying clarification. That is not the court's role.
¶91 As a result, I respectfully concur in part and dissent
in part.
¶92 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this opinion.

20
 No. 2015AP1083-CR.dk

¶93 DANIEL KELLY, J. (concurring in part, dissenting in
part). I join all of the court's opinion except for the piece
that turns a logical impossibility into a potential violation of
our state and federal constitutions. I refer, of course, to the
proposition that the State "suppresses" publicly-available
evidence if it does not proactively provide the information to
the defendant. The State's passivity, however, cannot
"suppress" information in the public domain, so there can be no
Brady1 violation. The court's contrary conclusion allows

defendants to attack the constitutionality of their convictions
with a logical error. Because that cannot possibly vindicate
any cognizable right, I do not join that part of the court's
opinion.
¶94 Most of the court's opinion, so far as it addresses
the question of suppression, is devoted to dismissing over 40
years of our opinions because they contain an analysis that
Brady does not. Perhaps the court is right, and our

jurisprudence on this subject is not warranted and should be
jettisoned as unfaithful to Brady's conclusion. But there is
another possibility. Brady's holding, as is true of all
holdings, arose out of the facts presented to the court.
Subsequent cases will necessarily present variations on that
fact pattern. A reviewing court must determine whether those
patterns are so closely analogous that Brady's reasoning
controls the case's disposition. It is quite possible that our

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

1
 No. 2015AP1083-CR.dk

work over the last 40 years has been focused on discerning how
greatly the facts of a case may vary before the Brady analysis

does not apply. That is to say, we may have been answering a
question anterior to Brady's application. And if that is true,
it would be entirely unremarkable that "[t]here is no express
support" for those analyses in the Supreme Court's opinion.
Majority op., ¶50. Actually, it would be nothing short of
astounding if we were to find that Brady endogenously answered
the exogenous question of its applicability. Unsurprisingly, it

didn't.
¶95 Here is the anterior question we must ask before
applying Brady: Are the circumstances of the case such that the

State's passivity can "suppress" evidence in the prosecutor's
possession? We must ask that question specifically because of
Brady's holding, which was that "the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87
(1963). That holding rests on the unexplored assumption that
the State's failure to produce information in its possession
resulted in "suppression by the prosecution." It is the
responsibility of every post-Brady court to explore that
assumption in light of the circumstances of each individual case
before deciding whether Brady's prescription applies. Our
failure to accept that responsibility in this case pretermitted
our analysis. And because we did not complete that task, we

2
 No. 2015AP1083-CR.dk

concluded the State suppressed information in the public domain
by the simple expedient of knowing it existed.
¶96 The court says its analysis is motivated by a "return
to the original inquiry under Brady," majority op., ¶56, but it

exhibited no curiosity at all about the nature of that inquiry,
to wit, the types of circumstances that could result in the
suppression of evidence. Broadly speaking, there are two——one
active, the other passive. The prosecution might take active
measures to make evidence unavailable to the defendant by, for

example, instructing a witness not to divulge certain
information, or removing evidence to a location to which the
defense has no access, or by affirmatively misleading the
defense about the existence of that evidence. The prosecution
can achieve the same result passively, but only when the State

has exclusive access to the information. In that circumstance,
the prosecutor suppresses evidence by failing to produce the
information to the defense. If the evidence is in the public

domain, however, the prosecutor's passivity is incapable of
suppressing it because its availability is entirely unaffected
by the prosecutor's knowledge of its existence. In other words,
a prosecutor cannot suppress something he does not control.
¶97 A little illustration can go a long way in describing
why passivity cannot suppress information in the public domain.
So let's consider a hypothetical case tried under two different
circumstances. In the first, the local newspaper published a
story containing exculpatory evidence. However, neither the
defense nor the prosecution read the story prior to trial, and

3
 No. 2015AP1083-CR.dk

so neither was aware of the evidence. In the second
circumstance, everything is the same except that the prosecutor
did read the story. In both variants the witnesses are the
same, the evidence is the same, the arguments are the same, and
the verdicts are the same. The only difference is a piece of
publicly-available information residing in the prosecutor's mind
in the second scenario that was absent in the first.
¶98 After conviction in the first scenario, the defense
would obviously have no basis for a Brady claim because the

prosecution neither knew of, nor possessed, the exculpatory
evidence. But the opinion in this case would say the second
variant causes a Brady violation unless the prosecutor sends a
copy of the newspaper to defense counsel. However, because the
evidence was equally available to the parties, the prosecutor's
knowledge of its existence is neither practically nor
metaphysically capable of affecting the defense's ability to
access it.

¶99 And that brings the nature of the court's rule into
sharper focus. The court ruled that it is constitutionally
unacceptable for the State to know something that the defendant
does not. So our conclusion today really isn't about the
suppression of evidence; it is, instead, about differential
knowledge of evidence. That is to say, the court believes the
differential knowledge of a piece of information in the public
domain "casts the prosecutor in the role of an architect of a
proceeding that does not comport with standards of
justice . . . ." Brady, 373 U.S. at 88. Who knew that reading

4
 No. 2015AP1083-CR.dk

the newspaper with one's morning coffee could violate a
defendant's constitutional rights? Or that the extent of a
prosecutor's ignorance of the world around him and the risk of a
constitutionally-suspect conviction are inversely proportional?
¶100 Brady does not require, nor even suggest, that we

should concern ourselves with the differential knowledge of
evidence to the exclusion of its suppression. The Supreme Court
based its reasoning on the assumption that, under the
circumstances of that case, the prosecution's passivity combined

with the parties' differential knowledge to suppress the
evidence. But nothing in its reasoning suggests that passivity
will always have that effect. Instead, Brady itself provides a

good, real-life example of a specific type of circumstance in
which passivity can cause suppression. Messrs. Brady and Boblit
were separately tried for murder. Id. at 84. Mr. Brady
admitted his involvement in the crime, but claimed Mr. Boblit
was the killer. Id. Prior to trial, Mr. Brady's counsel asked

to see all of Mr. Boblit's extrajudicial statements. Id. The
prosecution provided several, but omitted the one in which Mr.
Boblit admitted he killed the victim. Id. The Supreme Court's
opinion does not suggest Mr. Boblit's statement was available
from any source other than the state. Because the state
controlled access to the information, the prosecutor's failure
to fully respond to Mr. Brady's request put the evidence beyond
the defendant's reach. As a result, the prosecutor's passivity
suppressed the exculpatory evidence. Nothing in the Supreme
Court's reasoning suggests the conclusion would be the same if

5
 No. 2015AP1083-CR.dk

Mr. Boblit's statement had been recounted in a newspaper story
sitting on defense counsel's doorstep.
¶101 Our precedents, the ones the court overrules today,
have been asking the anterior question implicitly required by
Brady's holding. They use an "exclusive possession or control"

diagnostic device to determine whether prosecutorial passivity
could suppress evidence. See, e.g., State v. Cole, 50
Wis. 2d 449, 457, 184 N.W.2d 75 (1971) ("Certainly defendant was
aware of the kind of car and gun involved in her arrest.

Therefore, this information was not 'in the exclusive possession
of the State.'"); State v. Sarinske, 91 Wis. 2d 14, 36, 280

N.W.2d 725 (1979) ("Thus it appears the 'evidence' was not
within the exclusive control of the state, and consequently
there may have been no duty to disclose the evidence to the
defendant even if the district attorney was aware of the
electrical short circuit.").
¶102 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. They
both assess whether prosecutorial passivity could suppress
evidence. See, e.g., Carvajal v. Dominguez, 542 F.3d 561, 567
(7th Cir. 2008) ("Evidence is 'suppressed' when (1) the
prosecution failed to disclose the evidence in time for the

6
 No. 2015AP1083-CR.dk

defendant to make use of it, and (2) the evidence was not
otherwise available to the defendant through the exercise of
reasonable diligence."); United States v. Parker, 790 F.3d 550,

561–62 (4th Cir. 2015) ("We examine this issue under the
established principle that when 'exculpatory information is not
only available to the defendant but also lies in a source where
a reasonable defendant would have looked, a defendant is not
entitled to the benefit of the Brady doctrine.'").2

2 A sampling of opinions from circuits that understand the
state does not suppress publicly-available information by not
producing it to the defense includes: Lugo v. Munoz, 682
F.2d 7, 10 (1st Cir. 1982) ("Since the information at issue here
was available to the defense attorney through diligent
discovery, we find that the prosecutor's omission was not 'of
sufficient significance to result in the denial of the
defendant's right to a fair trial.'" (quoting United States v.
Agurs 427 U.S. 97, 108 (1976))); United States v. Catone, 769
F.3d 866, 872 (4th Cir. 2014) ("Accordingly, '[p]ublicly
available information which the defendant could have discovered
through reasonable diligence cannot be the basis for a Brady
violation.'" (quoting United States v. Willis, 277 F.3d 1026,
1034 (8th Cir. 2002))); Reed v. Stephens, 739 F.3d 753, 781 (5th
Cir. 2014) ("A petitioner's Brady claim fails if the suppressed
evidence was discoverable through reasonable due diligence.");
United States v. Shields, 789 F.3d 733, 746–47 (7th Cir. 2015)
("Evidence is suppressed when 'the prosecution fail[s] to
disclose the evidence in time for the defendant to make use of
it' and 'the evidence was not otherwise available to the
defendant through the exercise of reasonable diligence.'"
(quoting Ienco v. Angarone, 429 F.3d 680, 683 (7th Cir. 2005)));
United States v. Coplen, 565 F.3d 1094, 1097 (8th Cir. 2009)
("'The government does not suppress evidence in violation of
Brady by failing to disclose evidence to which the defendant had
access through other channels.'" (quoting United States v.
Zuazo, 243 F.3d 428, 431 (8th Cir. 2001))); Wright v. Sec'y,
Fla. Dep't of Corr., 761 F.3d 1256, 1278 (11th Cir. 2014)
("'When the defendant has equal access to the evidence[,]
disclosure is not required' and 'there is no suppression by the
government.'" (quoting Maharaj v. Sec'y for Dep't of Corr., 432
F.3d 1292, 1315 (11th Cir. 2005))); and United States v. Derr,
(continued)
7
 No. 2015AP1083-CR.dk

¶103 The tests we and most of the federal court of appeals
circuits have been using to diagnose the suppressive potential
of prosecutorial passivity may or may not represent the ideal
formulation of the inquiry. But if we are really interested in
State suppression of evidence, rather than mere differential
knowledge of evidence, then surely we must engage in some such

diagnosis before applying Brady's prescription. Today, the
court showed no interest in doing so.
¶104 Dispensing with that diagnosis makes for a decidedly

odd rule. But the oddity does not derive from our
constitutions, nor is it born of Brady (even though the court

purports to found its rule on Brady's language). We own this
idiosyncrasy, an idiosyncrasy that results from our failure to
account for how passive suppression actually works. Instead of
exploring Brady's unspoken assumption, the court just
recapitulated its holding, stating that the Supreme Court "has
discussed suppression in terms of withholding evidence."

Majority op., ¶56 (citing Brady, 373 U.S. at 87 ("A prosecution

990 F.2d 1330, 1335 (D.C. Cir. 1993) ("Brady provides no refuge
to defendants who have knowledge of the government's possession
of possibly exculpatory information, but sit on their hands
until after a guilty verdict is returned."). The Second Circuit
has rejected the "reasonable diligence" test in favor of its own
formulation: "'[E]vidence is not considered to have been
suppressed within the meaning of the Brady doctrine if the
defendant or his attorney either knew, or should have known, of
the essential facts permitting him to take advantage of that
evidence.'" United States v. Rowland, 826 F.3d 100, 113 (2d
Cir. 2016) (quoting United States v. Paulino, 445 F.3d 211, 225
(2d Cir. 2006)). Nonetheless, this formulation is not as
sweeping as the "differential knowledge" standard our court
adopts today.

8
 No. 2015AP1083-CR.dk

that withholds evidence on demand of an accused" violates his
constitutional obligations)). Yes, it has. But that doesn't
advance the analysis because Brady addressed the "withholding"

under circumstances that made the evidence unavailable to the
defendant. Consequently, our court's analysis simply begs the
question implicit in Brady's holding.
¶105 The court also offered a handful of cases that, it
broadly hinted, have something to say about the duty to disclose
publicly-available information. They are unhelpful. One of

them, Cone v. Bell, 556 U.S. 449 (2009), offers us no guidance

here because it examined Brady's "materiality" requirement, not
its "suppression" component. The same is largely true of Kyles
v. Whitley, 514 U.S. 419 (1995), as well. The Kyles Court broke
no new ground with respect to Brady's suppression element,
merely rehearsing the cases that have come before. Instead, it
concentrated almost exclusively on what makes evidence
"material" within the meaning of Brady and whether the duty to

disclose covers information known to the police but not the
prosecutor. As for Banks v. Dretke, the Court addressed Brady's
suppression element no further than was necessary to dispose of
the state's improbable argument that "the prosecution can lie
and conceal and the prisoner still has the burden
to . . . discover the evidence . . . ." 540 U.S. 668, 696
(2004). But we are addressing passive nondisclosure here, not
active deceit. The Supreme Court's opinion in United States v.
Agurs addressed Brady's suppression element, but only to hold
that the prosecution's disclosure obligation exists

9
 No. 2015AP1083-CR.dk

independently of a defendant's request for exculpatory evidence.
427 U.S. 97, 110 (1976). Because the circumstances there
indicated the undisclosed evidence was not publicly available,
its discussion does not touch the question we must answer. Id.

at 100-101.3 Likewise for Strickler v. Greene, 527 U.S. 263, 273
(1999). Therefore, none of these cases tell us anything about
whether it is possible for the State to passively suppress
publicly-available information.
¶106 So I find myself agreeing with a clear majority of the

federal court of appeals circuits (specifically, the 1st, 4th,
5th, 7th, 8th, 11th, and D.C.) in concluding that, prior to
applying Brady, we must diagnose whether the information the

prosecutor did not produce was otherwise available to the
defense. Most of the federal opinions I cited post-date all the
Supreme Court cases upon which our court relies for its
conclusion.4 And yet none of the authoring circuits saw in those
cases the portents my colleagues seem to see. I may be joining

a fellowship of error in agreeing with these circuits, for the
Supreme Court might actually address this question someday and
give us our comeuppance. But that's better than being on the
aggressive vanguard of an effort to arm defendants with a

3The evidence was comparable to that at issue here (i.e., a
criminal record). However, what one may acquire today with a
few keystrokes was effectively invisible and inaccessible to the
public in 1976.
4All the cases, that is, that actually discussed Brady's
suppression element. I don't count Cone v. Bell, 556 U.S. 449
(2009), because the opinion discussed only the materiality
component of the Brady analysis.

10
 No. 2015AP1083-CR.dk

logical fallacy with which to attack the constitutionality of
their convictions.
¶107 Alas, the court's effective holding is that a
prosecutor suppresses evidence in the public domain simply by
knowing it exists. But unless we assume his solipsism, the
prosecutor cannot suppress what he cannot control.
Nevertheless, the new rule in Wisconsin is that a logical
impossibility can make a conviction constitutionally suspect.
The only other way to understand the court's decision is that

the parties' differential knowledge of evidence can violate the
Constitution without regard to suppression. That, however, is
not Brady's rule, and neither the parties nor the court have

offered the slightest rationale for expanding the Brady
principle so dramatically.
*
¶108 The evidence of pending charges against Mr. Clark was
at all material times available on the Consolidated Court

Automated Programs ("CCAP") system, a source of information more
readily available than the local newspaper. And upon learning
of the complaint against Mr. Clark, defense counsel could have

11
 No. 2015AP1083-CR.dk

picked up the phone and asked for a copy.5 If he had been told
"no," then he would have had a classic Brady claim: "[T]he

suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment . . . ." Brady, 373
U.S. at 87 (emphasis added). But we'll never know because he
never asked. And he never asked because he never looked.6
Perhaps this inaction would be remediable under Strickland v.
Washington, 466 U.S. 668 (1984), but it cannot say anything

about whether the State violated the Constitution. It was
logically impossible for the prosecutor to suppress any of the
evidence at issue in this case just by looking at it. For these
reasons, I respectfully join the court's opinion except for its
discussion of Brady's "suppression" element. On that point, I
respectfully dissent.

5 The court laments that "[i]f Wayerski's trial counsel had
discovered the pending charges, he would have had to take extra
steps to promptly secure the complaint from Chippewa County."
Majority op., ¶59. And what of it? These intolerable "extra
steps" would likely be nothing more than a phone call, something
the prosecutor seems to have accomplished easily enough. If
something truly would have stood between him and the complaint
(besides a phone call), he should have told us what it was so
that we might evaluate its suppressive potential. But we
certainly should not suppose defense counsel was a potted plant,
unable to stir himself enough to reach for information at his
fingertips.
6 If evidence of the complaint were not publicly available,
the State would have been required to proactively offer it (had
the information been material) under the Agurs rationale.

12
 No. 2015AP1083-CR.dk

1