State v. Weissinger

BROWN, C.J.

¶ 22. (concurring). I certainly understand where the dissent is coming from. The defendant, Weissinger, was not initially arrested following a bad accident. She voluntarily had her blood tested and she heard nothing for months. During that time, the blood first was tested for alcohol and came back negative. Three weeks later, in August 2009, the blood was screened for drugs and came back positive for THC. The State did nothing with this result at that time. In September and October 2009, and then in January 2010, additional drug screenings were run to detect and measure levels of various prescription drugs. Finally, in February 2010, another test of the sample confirmed the presence of THC. Then, in April 2010, the sample itself, which had undergone six different tests, was *562 destroyed due to lab protocol. In May 2010, after the sample had already been destroyed, charges were filed against Weissinger.

¶ 23. As I read the dissent, it is contending that, if the State was going to test a sample multiple times without Weissinger's knowledge and before deciding to press charges, the sample should have been preserved so that Weissinger could test it once. By not giving her notice of what the State was doing and giving her a chance to test the sample herself, I read the dissent as saying that the State blindsided her.

¶ 24. I agree that what the State did and the way the facts unfolded is troubling. But Weissinger did not raise bad faith as an issue, and the dissent cannot therefore use the term "bad faith" in its separate opinion.

¶ 25. Why is this term important? It is important because Arizona v. Youngblood, 488 U.S. 51 (1988), established a bright-line rule. As the federal cases following Youngblood have confirmed, the defendant must either show that the destroyed sample was "apparently exculpatory" or, if the defendant cannot meet that burden, that it was "potentially useful" and the State acted in bad faith by failing to preserve it. See id. at 57-58 ; State v. Greenwold, 189 Wis. 2d 59, 68-69 , 525 N.W.2d 294 (Ct. App. 1994) (Greenwold II) (discussing Youngblood).

¶ 26. The dissent makes a valiant attempt to distinguish Youngblood on its facts. Of primary importance, the dissent notes that, unlike in other destroyed blood test cases such as State v. Disch, 119 Wis. 2d 461 , 351 N.W.2d 492 (1984) and State v. Ehlen, 119 Wis. 2d 451 , 351 N.W.2d 503 (1984), Weissinger was never informed that she could have an alternative test. The dissent posits that the ability to have an alternative test *563 is an important precondition in showing that the defendant's due process was satisfied even though the sample was destroyed. The problem with that is that Youngblood superseded Disch and Ehlen and all the other cases placing importance on the ability of the defendant to have been offered an alternative test. Nowhere does Youngblood say that having the ability to take an alternative test is a precondition to satisfying due process concerns. I say again: Youngblood established a bright-line rule. The United States Supreme Court all but came out and said so in Illinois v. Fisher, 540 U.S. 544 (2004). No matter how one tries to distinguish Youngblood on its facts, the rule is plain on its face.

¶ 27. The other factor that the dissent claims distinguishes Youngblood is that the blood evidence in this case was so critical to the prosecution. However, as a recent article in the magazine of the National Association of Criminal Defense Lawyers observed, the vast majority of courts reject the view that Youngblood applies differently when evidence is especially critical:

Not surprisingly, when evidence is lost it is usually deemed potentially exculpatory because, as in Youngblood , it is hard to prove that the evidence could help exonerate the accused without possessing the evidence in order to test it. At least one court, however, has looked at how critical the evidence is in determining its materiality. Specifically, in United States v. Belcher, [ 762 F. Supp. 666, 672 (W.D. Va. 1991)], the Western District of Virginia applied the Trombetta materially exculpatory standard to destroyed marijuana plants because they were critical to the government's case and used in its case in chief. But. . . the majority of courts have rejected this approach and would find such evidence only potentially exculpatory and thus subject to the Youngblood bad faith analysis.

*564 Marcia G. Shein, Cover Story: The Government's Use of Lost Evidence, 38 Champion 26, 27 (Jan./Feb. 2014) (footnotes omitted). What is more, the very same court that issued the leading case supporting the dissent's view, Belcher , later retreated from that view, based on Fisher's admonition that "the applicability of the bad faith requirement in Youngblood depended not on the centrality of the contested evidence to the prosecution's case . . . but on the distinction between 'material exculpatory' evidence and 'potentially useful' evidence." Crews v. Johnson, 702 F. Supp. 2d 618, 633 (W.D. Va. 2010) (quoting Fisher, 540 U.S. at 548-49 (2004)) (alteration in Crews). On this ground, the court stated, "notwithstanding Belcher . . . clearly established Federal law after Youngblood does not permit an exception even if the evidence is crucially important to the prosecution's case." Crews, 702 F. Supp. 2d at 633 .

¶ 28. In my view, the dissent is taking the same tack as the court did in Belcher . That is a lonely existence and one that is, in the view of almost every other court, inconsistent with what Youngblood stands for. No matter how much the dissent tries to limit Youngblood to its facts, practically every other court that has faced a Youngblood issue sees the strength of that case for what it is. Many courts do not like it. But they do not try to get around it. They reject it and rely on state constitutional law to arrive at a different test.

¶ 29. I must say that I do not like Youngblood . I simply do not understand how a person can show that the destroyed sample was apparently exculpatory when the sample cannot be tested to determine whether the sample has exculpatory value. It sets up an illusion. It would have been okay if the test was whether the sample could be shown to be "potentially useful." But that test does not have applicability unless the defen *565 dant can also show bad faith. The bad faith component devised by the Supreme Court sets such a high bar, it is virtually impossible to overcome.

¶ 30. I am not alone in my distaste for Young-blood. Several courts and commentators have criticized the case, and a number of states have held that their state constitutions require a balancing test instead. 1 *566 But our court has held that our state constitutional protections are equivalent to the federal protections in this regard, and so we are bound by it. See Greenwold II, 189 Wis. 2d at 71 . I see only two avenues for resolving destroyed blood sample issues in a manner that would be fair. Our supreme court can announce its own standard based on the state constitution as several other states have done. Or, alternatively, the legislature could enact a statute requiring that the sample be kept for an appreciable period of time after the defendant is charged. There are statutes preventing destruction of DNA samples. It would not be difficult to enact a statute prohibiting destruction of a blood sample until after a certain time period following the filing of the charging document.

See, e.g., Commonwealth v. Henderson, 582 N.E.2d 496, 497 (Mass. 1991) (rejecting Youngblood and applying the standard under the Massachusetts state constitution because "[t]he fact that police did not act in had faith when they negligently lost the potentially exculpatory evidence cannot in fairness be dispositive"); State v. Merriman, 410 S.W.3d 779, 784-85 (Tenn. 2013) (explaining that "the due process required under the Tennessee Constitution [is] broader than the due process required under the United States Constitution" and therefore requires a balancing test instead of the "strict 'bad faith' analysis" of Youngblood); Thorne v. Department of Pub. Safety, 774 P.2d 1326 , 1330 n.9 (Alaska 1989) ("Our construction of the Alaska Constitution reflects our agreement with Justice Stevens' belief that there may be cases 'in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair'" (citation omitted)).

See also Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. U. L. Rev. 241 , 247 (2008) (explaining that "the bad faith standard imposes an almost insurmountable burden upon the accused" and that in "two decades, only a handful of courts have found due process violations"); Teresa N. Chen, The Youngblood Success Stories: Overcoming the "Bad Faith" Destruction of Evidence Standard, 109 W. Va. L. Rev. 421 , 422 (2007) (stating that "what was initially hailed as an almost 'impossible' standard by critics has almost proven to be just that," and finding in 2007 that in more than 1500 published cases citing Youngblood , only seven found bad faith); Daniel R. Dinger, Note, Should Lost Evidence Mean a Lost Chance to Prosecute?: State Rejections of the United States Supreme Court Decision in Arizona v. Youngblood, 27 Am. J. Crim. L. 329 , 365 (2000) (quoting criminal law *566 professor Charles H. Whitebread's statement that the Young-blood standard means "it is 'virtually impossible for defendants to prove bad faith'").

As the dissent points out, in view of the defendant Youngblood's ultimate exoneration of the vicious crimes via DNA evidence, and the fact that the real perpetrator was thereafter brought to justice, "[i]ronically, the rule of law established by [Youngblood] was founded upon the conviction of an innocent man." Bay, 86 Wash. U. L. Rev. at 243-44.