Petition for Writ of Certiorari — Schaefer v. Wisconsin (No. 08-28)
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(1) imi ne 3 U.S.
08-28 JUL 1- 2008
OFF CE OF THE CLERK
No. 08-_____Wttteaa K. Suter, Clerk
IN THE SUPREME COURT
OF THE UNITED STATES OF AMERICA
RONALD SCHAEFER,
Petitioner,
V.
STATE OF WISCONSIN,
Respondent.
On Petition for a Writ of Certiorari
to the Wisconsin Supreme Court
PETITION FOR A WRIT OF CERTIORARI
Jerome F. Buting
Counsel of Record
Kathleen B. Stilling
BUTING & WILLIAMS, S.C.
400 N. Executive Drive, Suite 205
Brookfield, WI 53005
262-821-0999
262-821-5599 (fax)
Attorneys for Petitioner
QUESTIONS PRESENTED
.. Whether a defendant’s Sixth Amendment rights
to compulsory process and the effective assistance of
counsel guarantee him the right to subpoena to court
for review prior to the preliminary hearing police
investigative reports which contain non-privileged
investigative and evidentiary material, to enable
counsel to be an effective advocate for the defendant at
a critical stage of the criminal proceedings, to prepare
to cross-examine witnesses and to present his own
evidence, a question as to which the lower courts are in
conflict?
2. Do the guarantees of the Sixth Amendment
Compulsory Process Clause differ from those of the
Fourteenth Amendment, and, if so, to what extent may
the Sixth Amendment be a source of constitutionally
protected discovery for certain types of pretrial
information in criminal cases?
TABLE OF CONTENTS
QUESTIONS PRESENTED.................-5- ii
PETITION FOR A WRIT OF CERTIORARI....... 1
GRIBIOM BEUIOW..... .. <2... ovens cee cecaeas 1
TE 5 eS tS 2
CONSTITUTIONAL PROVISIONS INVOLVED. .. 2
STATEMENT OF THE CASE, ...........0.0008 2
REASONS FOR GRANTING THE WRIT......... 5
:. This Court should resolve a split of
authority in the state courts on the
question of whether a criminal
defendant’s subpoena, issued prior
to the preliminary hearing,
seeking records of relevant
evidence from third-party police
agencies is constitutionally
a. xx uc oh ace eh ee 5
If. This Court should grant certiorari
to clarify the extent of pretrial
discovery rights embodied in the
Sixth Amendment’s Compulsory
Process Clause, and to return an
equitable balance to our adversary
system of justice as contemplated
il
by the Framer’s of the
RIN Se es ee ae eos Ue gaa 13
6 eis 0s oN ee ee 16
5. The petitioner’s subpoena for
third-party police reports and
evidence is safeguarded by two
constitutional rights working in
tandem - the right to the effective
assistance of counsel and the right -
to compulsory process.............. 16
x Compulsory Process.......... 16
2. Effective Assistance’ of
REINS px Ne ee la ees 19
3. Defense exercise of the right
to compulsory process prior
to the preliminary hearing
is an appropriate means of
ensuring the _ effective
assistance of counsel... ....... 24
Il. The guarantees of the Sixth
Amendment Compulsory Process
Clause should be found by this
Court to be a_= source of
constitutionally protected
discovery for at least some pretrial
information in criminal cases... ..... 29
ed
<
SPE. 5 bina and web e kh eow eee ores 35
ill
APPENDIX OF PETITIONER
WITH WISCONSIN SUPREME COURT
Bo ee er ee eee APP 1-75
TABLE OF AUTHORITIES
CASES CITED: PAGE
Bowman Dairy Co. v. United States,
eg ee). ne 28, 29
Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194,
eR 8k ot Se): a ae 5, 8
Coleman v. Alabama,
399 U.S.1, 90 S.Ct. 1999,
26 L.Ed.2d 387 (1970). . 5,19, 20, 21, 22, 23, 26
Cox Broadcasting v. Cohn,
420 U.S. 469, 95 S.Ct. 1029,
Oe Re SATO. ws ow cc we cee wenes 5
Crawford v. Washington,
541 U.S. 36, 124 S.Ct. 1354,
SO DR SG ye 16, 33
District of Columbia.v. Heller,
__ §.Ct. __, 2008 WL2520816
i arc's Wn kee aca 16
House v. Balkcom.,
735 F.2d 608 (11th Cir. 1984). ........... 24
1V
Pennsylvania v. Ritchie,
480 U.S. 39, 107 S.Ct. 989,
94 L.Ed.2d 40 (1987). ... 2, 3,5,11, 13, 29, 36
People v. Burnette,
612 N.Y.8.2d 774 (Sup. Ct. 1994). ......... 6
People v. Cabon,
BG W.Y.S. 370 (Crim. Ct. 1900). ........... 6
People v. Morrison,
559 N.Y.S.2d 1013 (Crim Ct. 1990)......... 6
People ex rel. Fisher v. Carey,
Sue 2.2 17 Ui, 1979). .......... 6, 22, 27
Powell v. Alabama,
Re BS re 21, 31
Rompiila v. Beard,
545 U.S. 374, 125 S.Ct. 2456 (2005). ...... 25
State of Wisconsin v. Schaefer,
2008 WI 25, __ Wis. 2d _,
146 N.W.2d 457... 1, 7, 8, 10, 19, 29, APP1-75
State of Wisconsin v. Webb,
160 Wis. 2d 622, 467 N.W.2d 108 (1991)..... 5
United States v. Burr,
(C.C.D. Va 1807)
oS F.Case. OD. ........ 6, 10, 11, 16, 17, 18, 19
United States v. Cronic,
466 U.S. 648, 104 S.Ct. 2039,
80 L.Ed.2d 2657 (1984). .......... 20, 31, 35
United States v. Hubbell,
530 U.S. 27, 120 S.Ct. 2037,
Pe ee res 16
United States v. Nixon,
418 U.S. 683, 94 S.Ct. 3090,
41 L.Ed.2d 1039 (1974). ....... 10, 24, 27, 28
United States v. Valenzuela-Bernal,
458 U.S. 858, 102 S.Ct. 3440,
TO ta ee EPO REU. 55 oe ce ecw cee 10
Wardius v. Oregon,
412 U.S. 470, 93 S.Ct. 2208,
ee Te Ean oo 5: | a ae 32, 33
Washington v. Texas,
388 U.S. 14, 87 S.Ct. 1920,
1S UG. ee 20t e186 7).~. .. 6 oe ces i7, m0
Weatherford v. Busey,
429 U.S. 545, 97 S.Ct. 837,
EO Be ae. ¢ : rs 15
Wiggins v. Smith,
539 U.S. 510, 123 S.Ct. 2527, |
EGO Eee 2 OTE CHO. gs i i cece 25
CONSTITUTIONS, RULES and STATUTES
ea rs ea 5 eee ee 2
U.S. CONST.
Sears PIE... ne ek eres passim
Was, Dita BOC. GS AE). oo oss ka Faces 19, 21 :
Wis. Stats. § 971.23 (1)(d) and (g)............... 28
OTHER AUTHORITIES
American Bar Association Standards for
Criminal Justice: Prosecution and
Defense Function,
Standard 4-4.1(a) (3d ed. 1993)........... 22
ABA Committee on Legal Aid &
Indigent Defendants,
Gideon’s Broken Promise, (2004)........ 30-31
Brennan, Wm. J., Jr., Criminal
Prosecutions: Sporting Event or Quest
for Truth?
1963 Wash. Univ. Law Quarterly
Pe cee oe eee 24, 25
Fisher, Stanley Z., Conviction of Innocent
Persons in Massachusetts: An Overview,
12.B.U. Pa. Bet Ee. Ces we ee ee 14
Gershman, Bennett L., The New Prosecutors,
53 U. Pitt. L. Rev. 393 (1992)... ......... 15
vl1l
Gross, Samuel R., Exonerations in the
United States: 1989 Through 2003,
95 J. Crim. L. & Criminology 523 (2005). .. 14
Hoeffel, The Sixth Amendment’s Lost Clause:
Unearthing Compulsory Process,
2002 Wis. L.Rev. 1275 (2002). ... 2,13, 15,17
http://www.abanet.org/crimjust/spring2003/death_pen
alty.htm! (last visited June 30, 2008). ........... 3
http://www.harrisinteractive.com/harris_poll/index.as
p?PID=882 (last viewed June 30, 2008)...... 4, 30-31
Jonakait, The Origins of the Confrontation
Clause: An Alternative Theory,
me ene Gas, 77 GA OOs. .......--. 6000 eee 15, 17
McGee, Criminal Procedure in Alabama,
University of Alabama Press (1954). ...... 20
Montoya, Jean, A Theory of Compulsory
Process Clause Discovery Rights,
70 Ind. L.J. 845 (1995)... ... 13, 14, 15, 16, 30
Note, Prosecutorial Discovery
under Proposed Rule 16,
85 Harv.L.Rev. 994 (1972). ........... 33-34
Prosser, Mary, Reforming Criminal Discovery:
Why Old Objections Must Yield to New Realities,
2006 Wis. L. Rev. 541, 614.......... 8, 13, 14
Roberts, J., Too Little Too Late:Ineffective
Assistance of Counsel, The Duty to Investigate,
and Pretrial Discovery in Criminal Cases,
31 Fordham Univ. L.J. 1097
Res Co ih ag Ok waa 5 e's 24, 26
Sarokin, Lee Hon. & Zuckerman, William E.,
Presumed Innocent? Restrictions on Criminal
Discovery in Federal Court Belie This
Presumption,
43 Rutgers L.Rev. 1089 (1991)............ 14
Uphoff, Rodney, Convicting the Innocent: Aberration
or Systemic Problem?
ep ie a, OD PU. ei eee cwes 30, 34
Westen, Peter, Professor,
The Compulsory Process Clause,
73 Manen. Levey. 71 C1O7T4H).... 2... 0s 2 ees 13, 16
1X
No. 08- ~
IN THE SUPREME COURT
OF THE UNITED STATES OF AMERICA
RONALD SCHAEFER,
Petitioner,
¥e
STATE OF WISCONSIN,
Respondent.
On Petition for a Writ of Certiorari
to the Wisconsin Supreme Court
PETITION FOR A WRIT OF CERTIORARI
Petitioner Ronald Schaefer petitions for a writ of
certiorari to review the judgment of the Wisconsin
Supreme Court in the opinion below.
OPINION BELOW
The opinion of the Wisconsin Supreme Court is
published at State of Wisconsin v. Schaefer, 2008 WI
25, Wis. 2d __, 746 N.W.2d 457, and reprinted in
the accompanying Appendix at APP 1-75.
JURISDICTION
The Wisconsin Supreme Court entered its
decision on April 2, 2008. This Court has jurisdiction
under 28 U.S.C. § 1257(a). The Wisconsin Supreme
Court judgment is final as to the federal constitutional
claims raised. See Pennsylvania v. Ritchie, 480 U.S. 39,
47-50 107 S.Ct. 989, 996-97, 94 L.Ed.2d 40 (1987).
CONSTITUTIONAL PROVISIONS INVOLVED
The Sixth Amendment to the United States
Constitution provides in relevant part:
In all criminal prosecutions, the accused
shall enjoy the right ... to be confronted
with the witnesses against him; to have
compulsory process for obtaining
witnesses in his favor, and to have the
Assistance of Counsel for his defence.
U.S. CONST. amend. VI.
STATEMENT OF THE CASE
In this case, the Petitioner seeks to invoke
certain constitutionally guaranteed rights which were
intended by the Founding Fathers to preserve an
adversary system of criminal justice in which the rights
of the defendant were augmented to provide a check on
the power of the government.’ The Petitioner invites
‘See generally, Hoeffel, The Sixth Amendment's Lost Clause:
(continued...)
this Court to examine the historical underpinnings of
the Sixth Amendment Compulsory Process Clause and
its interaction with the right to the effective assistance
of counsel, and to resolve deeply divided lower courts as
to how those rights must be implemented in the pretrial
setting.
This case also provides the Court with the
opportunity to answer a question explicitly reserved in
Pennsylvania v. Ritchie,480 U.S. 39, 56, 107 S.Ct 989,
1001, 94 L.Ed.2d 40 (1987) — “whether and how the
guarantees of the Compulsory Process Clause differ
from those of the Fourteenth Amendment.” The
Petitioner suggests the answer to that question may
help restore the balance the Framers intended to an
adversary system of criminal justice that the public
increasingly doubts produces reliable outcomes.”
(continued)
Unearthing Compulsory Process, 2002 Wis. L.Rev. 1275, 1284-
88 (2002)
7A 2001 Harris poll found that 93% of Americans believed
innocent people are “sometimes” convicted of murder.
Similarly, in an April 2001 ABC News/The Washington Post
poll, 68 percent either strongly or somewhat agreed that “the
death penalty is unfair because sometimes an innocent person
is executed.” A June 2000 Gallup Poll found that 80 percent of
the respondents believe that within the five previous years a
person “has been executed who was, in fact, innocent of the
crime he or she was charged with.” See
http://www.abanet.org/crimjust/spring2003/death_penalty.ht
ml (last visited June 30, 2008). Public opinion about whether
innocent persons are convicted in this country has remained
steady since 1999, with a recent poll published March 18,
(continued...)
The facts are brief and undisputed. In May of
2006, the State filed a criminal complaint charging the
Petitioner with two counts of second-degree sexual
assault of a child in the City of Brookfield which
allegedly occurred more than sixteen years earlier. (R.
1). Ten days before the preliminary hearing the
Petitioner served a subpoena duces tecum on the
Brookfield Police Department, with notice to the State,
directing certain records in the possession of the police,
which related to the accusation lodged against him, to
be produced before a court commissioner. The court
commissioner quashed the subpoena. The Petitioner
filed a motion for a de novo hearing and the circuit court
again quashed the subpoena. (R.7). The court of appeals
granted leave to appeal (R. 10), and later certified the
case to the Wisconsin Supreme Court. That court
accepted the certification and issued its decision on
April 2, 2008, affirming the order quashing the defense
subpoena.
The Wisconsin Supreme Court ruled that the
Sixth Amendment Compulsory Process Clause and the
right to effective assistance of counsel] do not afford the
Petitioner the right to subpoena the records.”
2(...continued)
2008, showing that 95% of Americans believe innocent people
are “sometimes” convicted of murder. See
http://www.harrisinteractive.com/harris_poll/index.asp?PID
=882 (last viewed June 30, 2008).
*The court also ruled that no statutory authority permitted the
defense subpoena, but those state law issues are not presented
in this petition.
Although the matter was remanded for further
proceedings, the judgment is final as to the federal
constitutional issues raised here. That is because once
the preliminary hearing, which is a “critical stage” of
the proceedings, Coleman v. Alabama, 399 U.S.1, 9, 90
S.Ct. 1999, 2003, 26 L.Ed.2d 387 (1970), is held without
the Petitioner’s exercise of his subpoena, no subsequent
appeal of this issue is permitted. See State v. Webb, 160
Wis.2d 622, 628, 467 N.W.2d 108, 110 (1991)errors at
a preliminary hearing may not be reviewed following a
fair and errorless trial). Certiorari jurisdiction in this
Court is thus appropriate. See Pennsylvania v. Ritchie,
480 U.S. at 47-50, 107 S.Ct. at 996-97; Brady v.
Maryland, 373 U.S. 83, 85,n. 1, 83 S.Ct. 1194, 1195, 10
L.Ed.2d 215 (1963); Cox Broadcasting v. Cohn, 420 U.S.
469, 481, 95 S.Ct. 1029,1039, 43 L.Ed.2d 328 (1975).
REASONS FOR GRANTING THE WRIT
A defendant in a criminal ttrial has a
constitutional right to compel the attendance of
witnesses in his favor, as well as the right to assistance
of counsel. U.S. CON*T. amend. VI. Surprisingly little
has been said by this Court about how the core values
protected by those two constitutional safeguards work
in tandem in a pretrial context. For several reasons,
this case provides an appropriate vehicle for this Court
to clarify important issues of federal law which impact
thousands of cases daily in the courts of this nation.
I. This Court should resolve a split of authority in
the state courts on the question of whether a
criminal defendant’s subpoena, issued prior to
the preliminary hearing, seeking records of
3)
rclevant evidence from third-party police
agencies is constitutionally protected.
There is now a sharp division among the state
courts over whether two federal constitutional rights,
the Compulsory Process Clause and a defendant’s right
to the effective assistance of counsel, guarantee defense
counsel the right to exercise the subpoena power prior
to a preliminary hearing to obtain relevant police
investigative reports and nonprivileged material or
evidence in the possession of the police agency.
Some courts, like the Illinois Supreme Court and
several New York courts, hold that these federal
constitutional rights do permit such a_ defense
subpoena. Indeed, until the Petitioner’s case, in four out
of the five cases where the issue of a defense subpoena
of a third party’s reports prior to a preliminary hearing
was squarely decided, the courts ruled in favor of the
defendant. See, People ex rel. Fisher v. Carey, 396
N.E.2d 17 (Ill. 1979), People v. Burnette, 612 N.Y.S.2d
774 (Sup. Ct. 1994), People v. Cabon, 56 N.Y.S. 370
(Crim Ct. 1990); United States v. Burr, (C.C.D. Va
1807) 25 F. Cas. 30. But ,cf, People v. Morrison, 559
N.Y.S.2d 1013 (Crim Ct. 1990).
The Wisconsin Supreme Court reached the
opposite conclusion in this case, ruling:
[A] criminal defendant does not have a
constitutional right to compel _ the
prouuction of police investigation reports
and nonprivileged materials by subpoena
duces tecum prior to the preliminary
6
examination. A criminal defendant who
employs the subpoena power in this
manner is attempting to engage in
discovery without authority in either civil
or criminal procedure statutes and in
conflict with criminal discovery statutes.
Although a reasonable argument can be
made for prosecutors to open their files to
defendants at an early point in criminal
prosecutions, this argument does not
translate into an enforceable right to
subpoena police investigation reports and
nonprivileged materials before a
preliminary examination.
Schaefer, {| 95, APP 49-50. See Id. at |] 62-82, APP 31-
42, wherein the court rejected the Petitioner’s
compulsory process rights argument, and 44 88-94,
APP 43-49, the assertion of his right to effective
assistance of counsel.
Thus, in the Wisconsin court’s view, a defendant’s
early access to information to assist counsel’s
preparation for a “critical stage” of the criminal
proceeding depends entirely on the largess of the
government.
Chief Justice Shirley Abrahamson, writing for
the Schaefer concurrence, agreed with the defendant
and amicus curiae that earlier defense access to police
reports, witness statements and evidence would be good
public policy:
The defendant and the amici raise
troubling questions about the reliability
and fairness of preliminary examinations
and trials when a criminal defendant is
not given access to police records and all
non-privileged information early in the
process. The criminal justice system must
be reliable to convict the guilty and to
prevent wrongful conviction of the
innocent. The Innocence Projects across
the country have demonstrated that
wrongful convictions do occur, even in
Wisconsin. The ideal in our legal system is
that “[slociety wins not only when the
guilty are convicted but when criminal
trials are fair.” [citing Brady v. Maryland,
373 U.S. 83, 87 (1963)]. Indeed, “the more
we learn about the incidence of wrongful
convictions, the less it makes sense to
deprive a defendant of access to relevant
evidence” at the earliest possible
opportunity [citing Mary Prosser,
Reforming Criminal Discovery: Why Old
Objections Must Yield to New Realities,
2006 Wis. L. Rev. 541, 614]. The majority
opinion acknowledges the wisdom of law
enforcement and_ district attorneys
adopting the practice proposed by the
defendant.
Schaefer, at 49137, APP 72-73. Nevertheless, the
concurrence did not believe that, under the limited
rulings of this Court, the defendant had a federally
protected constitutional right to the information sought:
Although the records subpoenaed may be
relevant to the probable cause
determination, may enable defense
counsel to fashion a vital impeachment
too) for use in cross-examining the state's
witnesses at trial, may preserve testimony
favorable to the accused, or may allow
preparation of a proper defense at trial, I
am not convinced that the defendant's
inability to obtain the subpoenaed
information before the preliminary
examination in the present case rises to a
federal constitutionally protected claim.
... {T]he United States Supreme Court
has limited the pretrial information
required to be given to the defendant. The
Court has largely limited prosecutors'
constitutional discovery obligations to
exculpatory evidence and has focused on
the adversarial nature of the relationship
between the district attorney and defense
counsel rather than on the question of the
reliability of outcomes in criminal cases.
Id. at | 129, APP 69-70 (citations and footnotes
omitted).* Chief Justice Abrahamson’s observations of
this Court’s jurisprudence on pretrial discovery is
correct, but only insofar as this Court’s rulings on the
‘The concurrence also felt this case was not an appropriate
vehicle for the court to utilize its superintending rule-making
authority, as the Wisconsin Supreme Court rarely invokes its
authority to modify rules of procedure on appeal. Id. at 4 136,
138; APP72, 73-74.
requirements imposed by due process are concerned.
This Court has. stated that the Sixth
Amendment’s Compulsory Process Clause may also
embrace certain pretrial discovery rights. See United
States v. Valenzuela-Bernal, 458 U.S.858, 871, n.8, 102
S.Ct. 3440, 3448, 73 L.Ed.2d 1193 (1982) (citing Burr as
example where pretrial discovery may be required
without showing materiality where defendant could not
reasonably be expected to know the relevance of missing
testimony), and United States v. Nixon, 418 U.S. 683,
709, 711, 94 S.Ct. 3090, 3108, 3109, 41 L.Ed.2d 1039
(1974) (suggesting the clause may require the
production of evidence pretrial). However, this Court
has not articulated a coherent definition of the extent of
pretrial rights encompassed by the Compulsory Process
Clause.
There have been so few rulings from this Court
on the extent of a defendant’s pretrial compulsory
process rights that the issue presented in the
Petitioner’s case has its closest analogy to a case in
which Chief Justice Marshall presided as trial judge
more than 200 years ago. See United States v. Burr,
(C.C.D. Va.1807), 25 Cas. 30. In Burr, Chief Justice
Marshall ruled that Aaron Burr’s compulsory process
rights entitled him to subpoena ane allegedly
incriminating letter from President Thomas Jefferson,
even before he was indicted by the grand jury. Burr, 25
F.Cas. at 35. Similarly, the Petitioner’s subpoena at
issue sought investigative reports and witness
statements alleging the misconduct with which he was
charged in this particular case. Schaefer, J 11, APP 5.
10
Twenty years ago, in Pennsylvania v. Ritchie,
this Court noted:
Despite the implications of the Burr
decision for federal criminal procedure, the
Compulsory Process Clause rarely was a
factor in this Court's decisions during the
next 160 years. More recently, however,
the Court has articulated some of the
specific rights secured by this part of the
Sixth Amendment. Our cases establish, at
a minimum, that criminal defendants
have the right to the government's
assistance in compelling the attendance of
favorable witnesses at trial and the right
to put before a jury evidence that might
influence the determination of guilt.
This Court has never squarely held that
the Compulsory Process Clause
guarantees the right to discover the
identity of witnesses, or to require the
government to produce’ exculpatory
evidence. Because the applicability of the
Sixth Amendment to this type of case is
unsettled, and because our Fourteenth
Amendment precedents addressing the
fundamental fairness of trials establish a
clear framework for review, we adopt a
due process analysis for purposes of this
case. Although we _ conclude that
compulsory process provides no greater
1]
aR
protections in this area than _ those
afforded by due process, we need not
decide today whether and how the
guarantees of the Compulsory Process
Clause differ from those of the Fourteenth
Amendment. It is enough to conclude that
on these facts, Ritchie's claims more
properly are considered by reference to
due process.
Ritchie, 480 U.S. at 55-56, 107 S.Ct. at 1000-01
(emphasis in original, citations and footnotes omitted).°
Perhaps as a result of this “unsettled” state of
law about the Compulsory Process Clause, an
intolerable lack of uniformity now exists in the state
courts about a constitutional right deeply rooted in our
nation’s history. Such divergent results which depend
on the geographic location of the prosecution should not
be tolerated when deeply rooted constitutional
safeguards like compulsory process and the right to
effective assistance of counsel are affected. This Court
should grant certiorari to resolve this split in the state
and local courts of this country.
Moreover, given the split in the states over the
issue left open in Ritchie, there is reason for this Court
°A significant difference between Ritchie’s claims and the
information sought by the Petitioner is that Ritchie sought
access to privileged material, which necessarily requires a
balancing of competing interests for which traditional duc
process analysis is more appropriate. See infra, Argument
section I] at p. 29.
12
to address that question now and to settle an important
question of federal law. The time is ripe for this Court
to re-examine the historical basis and public policies
underpinning this under-appreciated provision of the
Sixth Amendment, and to articulate a workable
standard for the application of such fundamental
constitutional rights.
If. This Court should grant certiorari toclarify the
extent of pretrial discovery rights embodied in
the Sixth Amendment’s Compulsory Process
Clause, and to return an equitable balance to
our adversary system of justice as contemplated
by the Framer’s of the Constitution.
Since Ritchie, many have struggled to determine
what rights the Compulsory Process Clause protects,
especially in the pretrial setting.® In recent years the
DNA exonerations of hundreds of wrongfully convicted
and imprisoned individuals in this country has
prompted scholars to examine the causes of wrongful
convictions. Not surprisingly, important factors include
the lack of access by the defense to important
investigative information early in the case and
prosecutor (or police) failure to disclose exculpatory
*See, generally, Jean Montoya, A_ Theory of Compulsory
Process Clause Discovery Rights, 70 Ind. L .J. 845 (1995);
Mary Prosser, Reforming Criminal Discovery: Why Old
Objections Must Yield to New Realities, 2006 Wis. L. Rev. 541;
Hoeffel, supra, note 1, at 1284-88; Peter Westen, The
Compulsory Process Clause, 73 Mich.L.Rev. 71, 101-108
(1974).
13
evidence.’
Lessons learned from our nation’s experience in
these many exoneration cases demonstrate a need for
this Court to re-examine the astonishing*® inequities
between civil and criminal discovery — where civil
litigants have broad pretrial access to information, but
criminal defendants, risking liberty or even life, have
very limited information and none of the civil tools of
discovery like depositions, interrogatories, or requests
for production of documents. Old justifications for that
differentiation no longer apply,” and the adversary
system intended by the Founders has lost its balance.
‘See Stanley Z. Fisher, Convictions of Innocent Persons in
Massachusetts: An Overview, 12 B.U. Pub. Int. L.J., 62-63, 67-
68 (2002); Samuel R. Gross et al., Exonerations in the United
States: 1989 Through 2003, 95 J. Crim. L. & Criminology 523,
542-43 (2005); Mary Prosser, Reforming Criminal Discovery:
Why Old Objections Must Yield to New Realities, 2006 Wis. L.
Rev. 541, 558, 572.
®See Hon. Lee Sarokin & William E. Zuckerman, Presumed
Innocent? Restrictions on Criminal Discovery in Federal Court
Belie This Presumption, 43 Rutgers L. Rev. 1089, 1089 (1991)
(describing the “astonishing anomaly” of “unrestricted
discovery” in civil cases in contrast to the “severely limited”
discovery in criminal cases).
*See, Montoya, supra note 5, at 857-62 (prior concerns about a
defendant's lack of reciprocity because of the right against self-
incrimination are no longer valid given modern reciprocal
discovery rules, mandatory advance disclosure of certain
defenses, and the routine police interrogation of suspects who
often provide incriminating statements despite Miranda
warnings).
14
Although this Court has in the past been
reluctant to find a general constitutional right to
pretrial discovery in a criminal case,° a more
comprehensive examination of the historical roots of the
Compulsory Process Clause may show that broader
criminal discovery than is presently the norm finds
constitutional protection within that provision."
History suggests that the Compulsory Process Clause
was intended as a check against the prosecution and
was integral to the Founding Fathers’ view of a fair
adversary system.'*® One of the best ways to check a
prosecutor’s behavior and keep the process honest is to
expand the defendant’s access to information prctrial.'®
That can occur by grounding certain pretrial discovery
rights in the Sixth Amendment’s Compulsory Process
Clause."*
See Weatherford v. Busey, 429 U.S. 545, 559,97 S.Ct. 837, 51
L.Ed.2d 30 (1977).
''See Montoya, supra, note 5, at 874-878.
'*See, Jonakait, The Origins of the Confrontation Clause: An
Alternative Theory, 27 Rutgers L.J. 77, 81 (1995); Hoeffel,
supra note 6 at 1281-83 (arguing that the Clause was the
product of the adversary system developed in the American
Colonies and was intended to expand the defendant's right to
submit his own evidence).
See Montoya, supra, note 5, at 855. As one commentator has
observed, “The power to control evidence is the power to
conceal it.” Bennett L.Gershman, The New Prosecutors, 53 U.
Pitt. L. Rev. 393, 451 (1992).
‘This approach was first advocated more than thirty years ago
(continued...)
15
This Court recently re-examined the historical
roots of the Sixth Amendment’s Confrontation Clause,
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,
158 L.Ed.2d 177, and the Second Amendment’s right to
bear arms, District of Columbia v. Heller, S.Ct. __,
2008 WL 2520816 (June 26, 2008). Likewise, a careful,
historical re-examination by this Court of the
Compulsory Process Clause is long overdue, and this
case provides an appropriate opportunity to do so.
ARGUMENT
1. The petitioner’s subpoena for third-party police
reports and evidence is safeguarded by two
constitutional rights working in tandem - the
right to the effective assistance of counsel and
the right to compulsory process.
:. Compulsory Process.
The Petitioner has a constitutional right to
compulsory process founded in the Sixth Amendment of
the United States Constitution. The Sixth Amendment
guarantee of compulsory process includes the
production of documentary evidence by subpoena duces
tecum prior to indictment. United States v. Hubbell,
530 U.S. 27, 54 (2000)(Thomas, J. concurrence), citing
United States v. Burr, (C.C.D. Va. 1807), 25 F. Cas. 30,
'“(_ continued)
by Professor Peter Westen, in The Compulsory Process Clause,
73 Mich. L. Rev. 71 (1974), and modified by Montoya, supra
note 5, at 873-78, who argues Westen’s approach was too
unwieldy to be practical.
16
34-35.
The origin of the Compulsory Process Clause is
murky, because neither it nor its Sixth Amendment
companion, the Confrontation Clause, were much
debated before their adoption. Jonakait, supra, note 11,
at n.4 (1995) (noting the clause was debated a mere five
minutes before its passage). Early commentators felt
the clause originated in reaction to English common law
rules barring defense witnesses in treason or felony
cases. See Washington v. Texas, 388 U.S. 14, 19 (1967),
citing 3 Story, Commentaries on the Constitution of the
United States §§ 1786-1788 (1st ed. 1833). More
recently, some scholars argue that the dual rights were
enshrined in the federal and state constitutions after
the development of an adversary trial process arose in
the colonies in the early 18th century, which included
meaningful defense advocacy and the right to challenge
information relied upon by the government. See,
Jonakait, supra, note 11 at 81; Hoeffel, supra, note 11
at, 1279-83 (2002) (“The Clause was a product of the
development of the adversary system, conceived to
expand the accused's opportunity to submit evidence on
his own behalf”).
Surprisingly, this Court has had little occasion to
describe the meaning and parameters of the Sixth
Amendment Compulsory Process Clause since the Burr
case, more than 200 years ago. Yet, this Court has held
that the clause stands for no less than the “right to
present a defense,” Washington v. Texas, 388 U.S. 14,
19 (1967), and Chief Justice John Marshall in Burr
wrote: “The right given by this article must be deemed
sacred by the courts, and the article should be so
17
construed as to be something more than a dead letter.”
25 F. Cas. at 33.
In the infamous case against Aaron Burr, the
defendant subpoenaed letters from President Jefferson
in order to prepare for the defense of his treason trial.
Burr’s accusers had written the president letters which
Burr asserted were necessary to his defense. The
government argued the defendant was not entitled to
the use of a subpoena to obtain documents because the
grand jury had not yet returned an indictment. Chief
Justice Marshall disagreed and explained the
importance of the use of compulsory process in the early
stages of a case:
What can more effectually elude the right
to a speedy trial than the declaration that
the accused shall be disabled from
preparing for it until an Indictment is
found against him? It is certainly much
more in the true spirit of the provision
which secures to the accused a speedy
trial, that he should have the benefit of
the provision which entitles him to
compulsory process as soon as he is
brought into court.
United States v. Burr, 25 F. Cas. 30 (1807).
Chief Justice Marshall’s contention that a
defendant should not be delayed in his efforts to answer
the accusations against him infers that some element of
pretrial (indeed even pre-indictment) “discovery” was
contemplated in the rights protected by the Compulsory
18
Process Clause. The Schaefer majority opinion found
the Burr case “intriguing,” but ruled it had no
precedential value because it “predated modern
discovery rules” and was not an opinion of the United
States Supreme Court. Schaefer, § 79, APP 42.
However, Chief Justice Marshall’s opinion is
particularly important to an understanding of the
Framer’s intent because he was a contemporary pre-
eminent constitutional jurist. Moreover, modern
discovery rules cannot supplant constitutional
guarantees; they can only supplement such rights. The
modern preliminary hearing is a critical stage in a
seamless process leading toward a potential jury trial.
A defendant’s right to a preliminary hearing would be
illusory if he is denied compulsory process.
z. Effective Assistance of Counsel.
In Wisconsin, as in most states, a citizen’s right
to a preliminary examination during which a court
determines “if there is probable cause to believe a felony
has been committed by the defendant” is safeguarded by
statute. Wis. Stats. § 970.03(1). The fact that the
preliminary hearing is limited to a probable cause
finding does not render it meaningless. In Coleman v.
Alabama, the Supreme Court discussed the purpose of
the preliminary hearing:
A preliminary hearing or examination is
not a trial in its ordinary sense nor is it a
final determination of guilt. It is a
proceeding whereby an accused is
discharged or held to answer, as the facts
19
warrant. It seeks to determine whether
there is probable cause for believing that
a crime has been committed and whether
the accused is probably guilty, in order
that he may be informed of the nature of
such charge and to allow the state to take
the necessary steps to bring him to trial.
Such hearing also serves to perpetuate
evidence and to keep the necessary
witnesses within the control of the state.
It also safeguards the accused against
groundless and vindictive prosecutions,
and avoids for both the accused and the
state the expense and inconvenience of a
public trial.
Coleman v. Alabama, 399 U.S. 1, 11 n. 3, citing McGee,
Criminal Procedure in Alabama, University of Alabama
Press (1954), pg 41.
A preliminary examination is considered a
critical stage of the criminal process during which an
accused has a Sixth Amendment right to the assistance
of counsel. Coleman v. Alabama, 399 U:S. at 9 (19760).
It has long been recognized that the right to counsel is
defined as the right to effective assistance of counsel.
United States v. Cronic, 466 U.S. 648, 654 (1984), yet
the exercise of that right would be futile if counsel is
deprived of the tools required to be effective. Cf.,
Washington v. Texas, 388 U.S. at 23 (‘The Framers of
the Constitution did not intend to commit the futile act
of giving to a defendant the right to secure the
attendance of witnesses whose testimony he had no
20
right to use.”) The Petitioner argues that his right to
the effective assistance of counsel includes his right to
have counsel adequately investigate the state’s case so
that she may effectively represent him at a preliminary
hearing. That includes use of the subpoena power so
counsel can prepare to cross-examine state’s witnesses
or locate and present defense witnesses at a preliminary
hearing, which rights are guaranteed by statute.’°
While acknowledging the limited purpose of the
preliminary hearing, the Coleman court explained why
effective counsel was critical at the preliminary hearing
stage:
First, the lawyer’s skilled examination
and cross-examination of witnesses may
expose fatal weaknesses in the State’s case
that may lead the magistrate to refuse to
bind the accused over. Second, in any
event, the skilled interrogation of
witnesses by an experienced lawyer can
fashion a vital impeachment tool for use in
cross-examination of the State’s witnesses
at the trial, or preserve testimony
favorable to the accused of a witness who
does not appear at the trial. Third, trained
counsel can more effectively discover the
case the State has against his chent and
make possible the preparation of a proper
defense to meet that case at the trial.
Wis. Stats. § 970.03.
Coleman v. Alabama, 399 US. at 7 (1970), citing Powell
v. Alabama, 287 U.S. 45 (1932).
The effective assistance of counsel at a
preliminary hearing requires more than mere
observation. Defense counsel must prepare ahead of
time to conduct the skilled cross-examination and
presentation of evidence contemplated in Coleman. See
People ex rel. Fisher v. Carey, 396 N.E. 2d 17, 21, 32 IIl.
Dec. 904, 908 (1979) The American Bar Association
Standards for Criminal Justice: Prosecution and
Defense Function, Standard 4-4. 1(a) (3d ed. 1993), gives
guidance in determining what is_ effective
representation:
Defense counsel should conduct a prompt
investigation of the circumstances of the
case and explore all avenues leading to
facts relevant to the merits of the case and
the-penalty in the event of conviction. The
investigation should include efforts to
secure information in the possession of the
prosecution and law’ enforcement
authorities ....
The standard does not confine defense
information gathering to that allowed by discovery
statutes. Nor does it suggest that these efforts begin
only after the arraignment. The use of the word
“prompt” suggests otherwise. The standard also
references information in the possession of the
prosecution and that which law enforcement may
possess as an acknowledgment that they each may play
different roles in a criminal prosecution.
Counsel cannot be an effective advocate without
reasonable access to information at what is undeniably
a critical stage in a prosecution. Plainly, the Court in
Coleman, held the opinion that “the guiding hand of
counsel at the preliminary hearing is essential to
protect the indigent accused against an erroneous or
improper prosecution.” Id. at 9. It would not be in
keeping with the Court’s decision on the Sixth
Amendment right to effective assistance of counsel to tie
those “guiding hands” by denying the defense its lawful
use of process to gain the information needed to conduct
the “skilled examination” the Court contemplated would
occur. Especially given the discovery of so many
wrongful convictions in the last decade, it makes no
sense to hamper the defense ability to discover the facts
as soon as he or she is able.
In this case, the Petitioner’s preparation for this
important hearing is hampered by the age of these
alleged acts. The delay of sixteen years puts the
defendant at an unfair disadvantage, because he cannot
be expected to independently remember important
details or even the identity of witnesses in his favor at
that distant date, or perhaps other evidence which may
call into question the plausibility of the allegation.
Without access to the police reports of interviews with
the complaining witness and other witnesses, the
Petitioner has insufficient information to permit him to
effectively exercise his right to cross-examine the
State’s witnesses or to locate favorable witnesses or
other evidence to contest probable cause at the hearing.
23
A defendant’s right to subpoena these reports should be
secured to all defendants, but especially so to the
Petititoner under these unusual circumstances of pre-
accusation delay.
3. Defense exercise of the right to
compulsory process prior to_ the
preliminary hearing is an appropriate
means of ensuring the effective assistance
of counsel.
The need to develop all relevant facts in the
adversary system is’ both fundamental and
comprehensive. United States v. Nixon, 418 U.S. 683,
. 709 (1974). Defense pretrial investigation is recognized
as “perhaps the most critical stage of a lawyer’s
preparation.” House v. Balkcom, 725 F.2d 608, 618
(11th Cir. 1984). Restriction of a defendant’s right to
obtain information at the earliest stage of the criminal
process hurts the overall truth finding process. As
Justice Brennan observed:
What assigned counsel obviously needs to
discharge the heavy responsibility we give
him is at least the opportunity to do what the
state does when the trail is fresh, namely,
seeking corroboration of the accused’s story, or
lack of it, from external facts through avenues
of inquiry opened by what the state has
learned.
Roberts, J. Too Little Too Late: Ineffective Assistance of
Counsel, The Duty to Investigate, and_ Pretrial
Discovery in Criminal Cases, 31 Fordham Univ. L.J
24
1097, 1128 (May 2004), citing Brennan, Wm. J., Jr.,
Criminal Prosecutions: Sporting Event or Quest for
Truth? 1963 Wash. Univ. Law Quarterly 279 (1963).
Recent decisions of this Court, such as Wiggins v.
Smith, 539,U.S. 510, 538, 123 S.Ct. 2527, 156 L.Ed.2d
471 (2003), and Rompilla v. Beard, 545 U.S. 374, 125
S.Ct. 2456, 2465-66, (2005), have found ineffective
assistance of counsel based on defense counsel’s failure
toinvestigate. Wiggins held that an attorney’s strategic
choices made after less than complete investigation
were suspect. Id. at 533. Similarly, defense counsel’s
strategic choice to waive a preliminary hearing or
undertake an important cross examination at this
critical stage with only minimal information must also
be suspect, yet that is what occurs when a defendant is
denied his right to subpoena non-privileged police
reports before making such choices.
Denying counsel access to nonprivileged police
investigation reports hinders her ability to cross-
examine witnesses and allows no time to locate and
present relevant witnesses who may be mentioned in
the reports. Further, the subpoenaed police reports may
reveal the names of otherwise unknown witnesses who
could destroy the plausibility of an alleged victim’s
story, by revealing, for instance, that the defendant had
no possible access to the complainant during the times
of the alleged assault. Permitting the defendant to
obtain police reports by use of subpoena ahead of the
hearing will allow for timely preparation and, in many
cases, may eliminate the need f »r a preliminary hearing
altogether, or result in stipulations which allow the
25
hearing to proceed most efficiently.
It is no answer to say that the Petitioner’s
subpoena requests will be provided later in discovery.
The preliminary hearing is often a defendant’s only
opportunity before trial to fashion by cross-examination
a “vital impeachment tool” for use later at trial.
Coleman, 399 U.S. at 7. Yet, cross examination, one of
the most effective, valuable tools that test the
plausibility of information, is effective only to the
degree that the attorney has access to relevant
information and sufficient time with which to prepare.
See Roberts, 31 Fordham Univ. L. J., supra at 1135.
Thus, preparation for a preliminary hearing with
nothing more than a short criminal complaint that is
vague on dates and other details of the charge, as the
Petitioner faces here, does not achieve the
constitutional requirement of effective assistance of
counsel at every critical stage of the proceedings.
Contrary to the Wisconsin Supreme Court’s
ruling in this case, the Petitioner’s subpoena duces
tecum is not a mere statutory discovery device, but,
rather, a judicial process independent of discovery rules
which is authorized by statutes and the constitutional
right to compulsory process. Indeed, the use of
subpoenas to exercise one’s right to compulsory process
is a constitutional judicial process which may not be
done away with or curtailed by discovery rules. The
point is well made by the Illinois Supreme Court:
The constitutional origin of the subpoena
in the sixth amendment and the antiquity
26
of the use of subpoenas .. . persuade us
that its use is not dependent upon our
discovery rules. The Supreme Court's
comments in United States v. Nixon...
that the subpoena “was not intended to
provide a means of discovery for criminal
cases’ are also persuasive. “To ensure that
justice is done, it is imperative to the
function of courts that compulsory process
be available for the production of evidence
needed either by the prosecution or by the
defense.”
We find nothing in the above authorities
which commands the public defender to
first utilize our discovery rules before
utilizing subpoenas, especially when those
rules apply only after a preliminary
hearing. If that were so, he would be
effectively barred from any formal
recourse to evidence gathering until after
the determination of probable cause.
People ex rel. Fisher v. Carey, 396 N.E.2d at 20-21
(citations omitted).
This Court has recognized that a subpoena duces
tecum is not just an alternative means of discovery for
criminal cases. Discovery rules are intended to provide
limited materials in the possession of the prosecution
for use at the trial.'® In contrast, a subpoena may be
used to obtain documents not in the possession of the
prosecution or subject to discovery rules, and documents
the government does not intend to introduce at trial.
Bowman Dairy Co. v. United States, 341 U.S. 214, 219
71 S.Ct. 675, 95 L.Ed. 879 (1951). As this Court
explained in discussing why even the President of the
United States is not immune from subpoena:
The need to develop all relevant facts in
the adversary system is both fundamental
and comprehensive. The ends of criminal
justice would be defeated if judgments
were to be founded on a partial or
speculative presentation of the facts. The
very integrity of the judicial system and
public confidence in the system depend on
full disclosure of all the facts, within the
framework of the rules of evidence. To
ensure that justice is done, it is imperative
to the function of courts that compulsory
process be available for the production of
evidence needed either by the prosecution
or by the defense.
United States v. Nixon, 418 U.S. 683, 709 (1974) .
The Petitioner’ subpoena sought records not from
the prosecutor’s files, but from a third-party police
agency. The majority opinion below, using state-law
interpretation of discovery statutes, found no significant
‘See, e.g., Wis. Stats. §971.23(1)(d) and (g).
28
distinction between a subpoena issued to the police or
discovery demands to the prosecutor.'’ But, as this
Court noted in Bowman, the subpoena power extends
beyond the limitations of discovery rules, and if based
on the federal constitutional right to compulsory
process, state law statutory limitations must fail.
IT. The guarantees of the Sixth Amendment
Compulsory Process Clause should be found by
this Court to be a source of constitutionally
protected discovery for at least some pretrial
information in criminal cases.
In Pennsylvania v. Ritchie, the Court chose not
decide the question of “whether and how the guarantees
of the Compulsory Process Clause differ from those of
the Fourteenth Amendment.” 480 U.S. at 56, 107 S.Ct.
at 1001. In the twenty years since that case was decided
the urgency of that question has grown. The Petitioner
suggests that a comprehensive review of the historical
underpinnings of the Compulsory Process Clause will
show the Clause was designed to provide the accused
with the ability to obtain and present his own
“The majority found that “although separate entities in fact,
the Brookfield Police Department and the district attorney's
office are related for considerations of the state's duty of
disclosing evidence to criminal defendants [under state
discovery statutes].” Schaefer, at n. 12, APP 28. The
concurrence disagreed with that assessment: “In our system of
government, law enforcement and the district attorney's office
are two separate entities, with separate functions and subject
to different codes of conduct, although the two often work
together.” Id. at § 120, APP 63-64.
29
information in court, whether by witness or document,
and that to do so the Clause guarantees at least some
pretrial discovery for the accused. Unlike due process,
those rights guaranteed by the Compulsory Process
Clause should not be subject to the vagaries of a
balancing test, but rather are categorical guarantees
that cannot be denied by the government.
This Court’s Fourteenth Amendment due process
jurisprudence in the pretrial context has sought to
resolve questions of fairness by balancing competing
interests. As Chief Justice Abrahamson recognized in
the decision below, the Court’s application of due
process in the pretrial setting has been more focused on
the adversary nature of the relationship between the
prosecutor and defense attorney than on the reliability
of outcomes. Schaefer, { 129, APP 70. The adversary
system of criminal justice was the historical model
adopted by the Framer’s, so developing a jurisprudence
which remains faithful to that model is certainly
appropriate. However, the Fourteenth Amendment
approach to pretrial discovery has not worked well
because the adversarial balance that the Framer’s
intended has unfortunately been displaced in our
present day justice system.'®
"See Rodney Uphoff, Convicting the Innocent: Aberration or
Systemic Problem? 2006 Wis. L. Rev 740, 835-38; Montoya,
supra note 5, at 873, 877-78. This is especially true with
regard to chronically underfunded indigent defense systems,
as study after study reports pathetically poor representation
is often afforded to the largest class of criminal defendants.
See generally, ABA Committee on Legal Aid & Indigent
(continued...)
30
The advent of DNA exonerations of hundreds of
wrongfully convicted and imprisoned individuals has
had a profound effect on society’s perception of fairness
and reliability in the outcomes of criminal cases. See,
supra, note 2, at p.3. Respect for the law and our
judicial branch can only deteriorate when 95% of the
American public believes innocent persons are
sometimes wrongfully convicted of the most serious
crimes (murder). Id., at Harris poll, March 18, 2008.
Historically, the Framer’s were less concerned about our
criminal justice system as a truth seeking process than
they were in enshrining an adversary system. However,
truthful outcomes were expected to flow from an
adversary system because of the belief that “partisan
advocacy on both sides of a case will best promote the
ultimate objective that the guilty be convicted and the
innocent go free.” United States v. Cronic, 466 U.S. at
655. Today, when public opinion is so nearly unanimous
that innocent persons are sometimes wrongly convicted,
that objective seems elusive.
The Court in Powell v. Aiabama, 287 U.S. 45, 57
53 S.Ct. 55, 60 (1932), recognized defense counse!’s role
is “vitally important” in pretrial fact investigation, yet
the modern defense attorney is starved of financial
resources and deprived of the fact-finding discovery
tools available to the civil litigators. She is faced with
an adversary armed with the immense resources of a
8 conti. ued)
Defendanis, Gideon’s Broken Promise 9 (2004), available at
http://www.avanet.org/legalservices/sclaid/defender/brokenp
romise/fullreporc.pdf (last visited June 30, 2008)
31
modern organized police force, and suffers all of the
disadvantages noted by the Court in Wardius v. Oregon,
412 U.S. 470, 476, n. 9, 93 S.Ct. 2208, 37 L.Ed.2d 82
(1973), which rejected a discovery rule for the defense
which did not require the state to reciprocate.’®
‘(T]he State's inherent information-gathering advantages
suggest that if there is to be any imbalance in discovery rights,
it should work in the defendant's favor. As one commentator
has noted:
‘Besides greater financial and staff resources
with which to investigate and scientifically
analyze evidence, the prosecutor has a number
of tactical advantages. First, he begins his
invest gation shortly after the crime has been
committed when physical evidence is more
likely to be found and when witnesses are more
apt to remember events. Only after the
prosecutor has gathered sufficient evidence is
the defendant iaformed of the charges against
him; by the time the defendant or his attorney
begins any investigation into the facts of the
case, the trail is not only cold, but a diligent
prosecutor will have removed much of the
evidence from the field. In addition to the
advantage of timing, the prosecutor may
compel people, including the defendant. to
cooperate. The defendant may be questioned
within limits, and if arrested his person may be
searched. He may also be compelled to
participate in various nontestimonial
identification procedures. The prosecutor may
force third persons to cooperate through the use
of grand juries and may issue subpoenas
requiring appearance before’ prosecutorial
(continued...)
32
The Wardius court encouraged more open
discovery as a way to “enhance the fairness of the
adversary system.” 412 U.S. at 474, 93 S.Ct. at 2211.
But Wardius relied on notions of Fourteenth
Amendment Due Process as a check against rules that
upset a fair balance between the defense and
government. Thirty-five years later, the scales have
tipped further away from the side of the accused. Due
process analysis fails to maintain the Framer’s intended
balance” in the adversary system and neglects the
1% continued)
investigatory boards. With probable cause the
police may search private areas and seize
evidence and may tap telephone conversations.
They may use undercover agents and have
access to vast amounts of information in
government files. Finally, respect for
government authority will cause many people
to cooperate with the police or prosecutor
voluntarily when they might not cooperate with
the defendant.’
Note, Prosecutorial Discovery under Proposed Rule 16,
85 Harv.L.Rev. 994, 1018-1019 (1972) (footnotes
omitted).
*°By advocating a return to a “balanced” adversary system the
Petitioner does not suggest that resort to a balancing test can
achieve that objective. In Crawford v. Washington, 541 U.S.
36, 67-68, 124 S.Ct. 1354, this Court resoundingly rejected a
balancing tests for Confrontation Clause analysis because “[bly
replacing categorical constitutional guarantees with open-
(continued...)
33
historical evidence of original intent in the Sixth
Amendment Compulsory Process Clause.
Studies of -vrongful conviction cases”’ reveal that
the government’s virtual monopoly on access to
information pretrial is a_ significant factor that
increases the risk of a miscarriage of justice.”” While
modern discovery statutes provide the defense some
access to information, they still rely upon the prosecutor
to disclose what should be provided.” To protect
balanced adversarial access to pretrial information, the
accused’s rights must be grounded in the constitution,
where they are free from potential government abuse.
At least with respect to nonprivileged relevant
2% .continued)
ended balancing tests, we do violence to their design.” The
same should hold true for the Compulsory Process clause.
“1See, supra, note 6.
*2I1t should be noted that a wrongful conviction not only causes
an innocent person the hardship of imprisonment, but allows
the guilty party tu escape justice for years, if not forever.
Despite statutory or ethical mandates, cases and studies
continue to show that some prosecutors choose to withhold
even exculpatory information. See Uphoff, supra, note 18, at
837. Sometimes the failure to disclose is not the fault of the
prosecutor directly, but rather the police who either
deliberately or negligently fail to provide all the relevant
materials to the prosecutor. Id. In either event, when the
defense must rely on the prosecutor for pretrial access to
information, rather than employing their own constitutionally
protected rights to access, the adversary system remains
unbalanced.
34
materials and evidence of the sort sought by the
Petitioner’s subpoena, the Compulsory Process Clause
may provide the answer.
Finally, it is worth noting that many of the
adversarial inequities found in our present day system
of justice exist because of the public’s acceptance of
grossly and disproportionately underfunded indigent
defense systems. Hope for reform seems dim when the
solution often depends on much greater expenditures of
public money to benefit a class of citizens with no
constituency amecng those who hold the purse strings.
However, utilizing the Compulsory Process Clause to
enforce pretrial access to information of the type sought
by this Petitioner can be accomplished with little cost,
as most of the records sought are already being supplied
to the prosecutor and will only require a secend copy for
the defendant. Making it easier for defendants to gain
timely access to relevant information can _ be
accomplished with little expense and will goa long way
towards restoring the equitable balance required for our
adversary system of justice to achieve “the ultimate
objective that the guilty be convicted and the innocent
go free.” United States v. Cronic, 466 U.S. at 655.
CONCLUSION
For all of these reasons, this Court should grant
certiorari and hold that the Petitioner's Sixth
Amendment right to compulsory process and the right
to the effective assistance of counsel guarantees his
right to use a subpoena to compel a third party to
produce police investigatory reports and to obtain copies
35
of all non-privileged material prior to the preliminary
hearing.
Further, this Court should answer the question
left open in Ritchie, and determine whether the
guarantees of the Sixth Amendment Compulsory
Process Clause differ from those of the Fourteenth
Amendment, and, if so, whether the Sixth Amendment
may be a source of constitutionally protected discovery
for certain types of pretrial information in criminal
cases.
Dated this Ist day of July, 2008.
Respectfully Submitted,
BUTING & WILLIAMS, S.C.
Jerome F. Buting
Counsel of Record
Kathleen B. Stalling
Address:
400 N. Executive Dr., #205
Brookfield, WI 53005
(262) 821-0999 Fax: (262) 821-5599
Attorneys for Petitioner
36
No. 08-
IN THE SUPREME COURT
OF THE UNITED STATES OF AMERICA
RONALD SCHAEFER,
Petitioner,
v.
STATE OF WISCONSIN,
Respondent.
On Petition for a Writ of Certiorari
to the Wisconsin Supreme Court
APPENDIX
Jerome F. Buting
Counsel of Record
Kathleen B. Stilling
BUTING & WILLIAMS, S.C.
400 N. Executive Drive, Suite 205
Brookfield, WI 53005
262-821-0999
262-821-5599 (fax)
Attorneys for Petitioner
APP 1
2008 WI 25
No. 2006AP1826-CRAC
(L.C. No. 2006CF621)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
Vv.
APR 2, 2008
Ronald Schaefer,
Defendant-Appellant.
APPEAL from a nonfinal order of the Circuit
Court for Waukesha County, Ralph Ramirez, Judge.
Affirmed.
41 DAVID T. PROSSER, J. This case is before
the court on certification by the court of appeals
pursuant to Wis. Stat. § (Rule) 809.61 (2005-06).1 It
relates to an appeal from a nonfinal order of the
Waukesha County Circuit Court, Ralph M. Ramirez,
Judge. Judge Ramirez granted the State's (State)
motion to quash a subpoena duces tecum from
defendant Ronald Schaefer (Schaefer) that sought to
APP2
obtain police’ investigation reports in Schaefer's case
before his preliminary examination.
92 After permitting Schaefer's interlocutory
appeal, the court of appeals certified the following
question to this court: “Does a criminal defendant have
a subpoena right to obtain and copy police
investigation reports and nonprivileged materials prior
to the preliminary hearing?” This question requires
interpretation of several Wisconsin statutes as well as
the constitutional rights to compulsory process and
effective assistance of counsel.
93 We conclude that a criminal defendant does
not have a statutory or constitutional right to compel
production of police investigation reports and other
nonprivileged materials by subpoena duces tecum prior
to the preliminary examination. A criminal defendant
who employs the subpoena power in this manner is
attempting to engage in discovery without authority in
either civil or criminal procedure statutes and in
conflict with the criminal discovery statutes. Although
a reasonable argument can be made for prosecutors to
open their files to defendants at an early point in
criminal prosecutions, this argument does not
translate into an enforceable right to subpoena police
investigation reports and nonprivileged materials
before a preliminary examination. Consequently, we
affirm the order of the circuit court granting the State's
motion to quash Schaefer's subpoena duces tecum.
‘All references to the Wisconsin Statutes are to the 2005-06
version unless otherwise indicated.
APP3
I. FACTS AND PROCEDURAL POSTURE
944 The criminal complaint charged Schaefer
with two counts of second-degree sexual assault of a
child, contrary to Wis. Stat. § 948.02(2), for conduct
that allegedly occurred in 1990. The complaint was
signed by Detective Jennifer Toepfer (Toepfer) of the
Brookfield Police Department who asserted that she
took a statement about the alleged assaults from Kerry
M., DOB: 4/6/76, in March 2006 and then conducted an
investigation into Kerry's claims.
945 The complaint makes the following
allegations: Ronald Schaefer was a teacher and
basketball coach at a parochial school in Menomonee
Falls. Kerry was a student at the school. Schaefer was
Kerry's basketball coach when she was in seventh
grade. During the 1988-89 school year, Schaefer began
to focus attention on Kerry, complimenting her, telling
her that she “looked nice,” and giving her the nickname
“Special K.”
6 The next year, Schaefer became Kerry's
eighth grade teacher. Following his usual practice of
picking an eighth grade student to serve as a
babysitter for his children, Schaefer selected Kerry.
Toward the end of her eighth grade year and
continuing into the summer between March 1990
and August 1990 Kerry had a sexual relationship
with Schaefer.
47 Kerry described both her social and sexual
encounters with Schaefer over this time period. She
reported that Schaefer wrotc her notes and poems,
APP4
which she saved (and subsequently turned over to
Detective Toepfer). Schaefer kissed Kerry and told her
that he loved her. When the two called each other at
their respective homes, Kerry would hang up if
Schaefer's wife answered the telephone, and Schaefer
would hang up if one of Kerry's parents answered.
Kerry considered Schaefer her first boyfriend. Kerry
said that in May 1990 she and Schaefer discussed
running away together to Kentucky or Tennessee
because “it was ok to get married younger there.”
98 Kerry recounted how Schaefer touched her
physically and sexually on several occasions during
this period. His touching included hugging, kissing,
and performing oral sex on her. On one occasion, after
swimming, Kerry and Schaefer had sexual intercourse
on a bed at his parents’ home in Brookfield. On another
occasion, the pair had sexual intercourse in Schaefer’s
bed while Kerry was babysitting his two children.
Kerry had not attained the age of 16 years at the time
of any of these incidents and thus could not legally
consent.
49 In August 1990, the relationship between
Kerry and Schaefer ended when Schaefer told Kerry
that they could not see each other anymore because
Kerry was starting high school. Kerry later told the
detective that she was devastated because she thought
Schaefer was her boyfriend.
410 These allegations led the State to file a
criminal complaint on May 25, 2006, charging Schaefer
with two counts of second-degree sexual assault of a
child. The defendant made his initial appearance on
APPS
June 1. He posted bond and was advised to have no
contact with the victim. He made a second appearance
on June 19. At that time a preliminary hearing was
scheduled for July 20, 2006, before Waukesha County
Court Commissioner Martin O. Binn.
911 On July 10, Schaefer served a subpoena
duces tecum on the “Chief of Brookfield Police
Department or Designee,” commanding the person to
bring the following material before Commissioner Binn
on July 13, 2006: “A complete copy of all reports,
memorandums, witness interviews and any records
related to the investigation and arrest of Ronald
Schaefer on suspected criminal offenses relating to the
alleged sexual assault of Kerry M. DOB 4/6/76 in
1990.” The subpoena duces tecum characterized the
“Type of Proceeding” before Commissioner Binn as a
“Return of Records.”
412 On July 11, the State moved to quash the
subpoena. At a hearing on July 13, Commissioner Binn
granted the State's motion, indicating that after he
reviewed Chapters 805, 885, 970, 971, and 972 of the
Wisconsin Statutes, he considered the defendant's
subpoena a request for the circuit court to “rewrite the
discovery statute, [Wis. Stat. §] 971.23.” He also noted
that the preliminary examination is “not a mini-trial,
and [j not a discovery proceeding.”
"13 The defendant sought de novo review in
circuit court. On July 18 Judge Ramirez conducted a
hearing and concluded that there is no mechanism
under state statute or the Wisconsin or federal
constitutions that specifies that “discovery materials”
APP6
shall be produced before the preliminary hearing.
4/14 On July 19, 2006, Judge Ramirez entered an
order granting the State's motion to quash Schaefer's
subpoena duces tecum.
15 Schaefer filed a timely petition for leave to
appeal, and the court of appeals stayed further
proceedings pending appeal. See Wis. Stat. § 809.52.
4/16 On December 27, 2006, the court of appeals
certified the appeal to this court. We accepted
certification on February 12, 2007.
Il. STANDARD OF REVIEW
917 This case involves questions of statutory
interpretation and constitutional law. Statutory
interpretation presents a question of law that we
review de novo. State v. Floyd, 2000 WI 14, 411, 232
Wis. 2d 767, 606 N.W.2d 155. Similarly, we review
constitutional questions, both state and federal, de
novo. Custodian of Records for the Legislative
Technology Services Bureau v. State, 2004 WI 65, 46,
272 Wis. 2d 208, 680 N.W.2d 792.
Iii. ANALYSIS
4118 This is a discovery case, notwithstanding
the defendant's protestations to the contrary.
Schaefer's appeal asks this court to approve the
subpoena power to effect discovery in a criminal case
prior to the preliminary examination.
APP7
419 Schaefer does not claim to be seeking some
specific piece of information missing from the
complaint so that he can fully respond to the charges.
Rather, he is trying to force the State to disclose the
evidence against him before it has had an opportunity
to present any of that evidence in court. In effect,
Schaefer is asking this court to accommodate all felony
defendants who wish to conduct discovery of the state's
evidence before their preliminary examinations by
vesting these criminal defendants with a new discovery
tool. Schaefer's arguments that the state and federal
constitutions compel this result unreasonably stretch
the boundaries of compulsory process and
misapprehend the requirements of effective assistance
of counsel.
4/20 We acknowledge at the outset that the night
of an accused to present a defense is fundamental.
Washington v. Texas, 388 U.S. 14, 19 (1967). It is
embodied in the due process guarantees of the Fifth
and Fourteenth Amendments and in the Sixth
Amendment's command that the accused shall have
compulsory process for obtaining witnesses in his
favor.” Due process preserves an accused's right to
challenge the prosecution's case by obtaining evidence
tending to establish the accused's innocence or by
casting doubt upon the persuasiveness of the
prosecution's evidence.°*
*Wayne R. LaFave, et al., Criminal Procedure § 24.3(a), at 469
(2d ed. 1999).
"Id. at 470.
APP8
421 There are several ways for a criminal
defendant to gather information and evidence that may
be used in his defense. First, a defendant may request
information from the state and other sources on a
voluntary basis. A criminal defendant will often be
given information voluntarily when the custodian has
no objection to its release. Second, a defendant may
conduct his own investigation of the case through
interviews, record and data collection, and other lawful
investigatory techniques. In some situations, a person's
investigation will begin even before the person is
charged with a crime. Third, a person may use
information-gathering techniques such as open records
requests that are available to non-litigants. A person
is not disqualified from using these familiar procedures
simply because he becomes a criminal defendant.*
Fourth, a defendant may employ the subpoena power
at pretrial hearings to litigate specific issues, such as
“Wisconsin's open records law, see Wis. Stat. §§ 19.31—19.39,
does not preclude access to law enforcement records. However,
the right to access law enforcement records is not unqualified.
See e.g., Wis. Stat. §§ 19.35(1)(am), 19.36(2) and (8), 905.09,
and 905.10. Wisconsin Stat. § 905.09 provides:
Law enforcement records. The federal
government or a state or a subdivision thereof
has aé_e privilege to refuse to disclose
investigatory files, reports and returns for law
enforcement purposes except to the extent
avatlable by law to a person other than the
federal government, a state or subdivision
thereof. The privilege may be claimed by an
appropriate representative of the federal
government, a state or a subdivision thereof.
APP9
the suppression of evidence, and may also use the
subpoena power at trial. Pretrial hearings will have a
narrow focus; thus, the evidence sought must be
relevant to the issue being litigated and is not likely to
be admitted if it fails this test. Finally, a defendant
may exercise his discovery rights under the Wisconsin
Statutes.
422 Our Jegislature has codified specific
discovery rights for criminal defendants. See Wis. Stat.
§ 971.23 (listing mandatory disclosures for both the
district attorney and defendant). In theory, these
criminal discovery rights attempt to level the playing
field between the state and the accused. State v.
Maday, 179 Wis. 2d 346, 353, 507 N.W.2d 365 (Ct.
App. 1993). Clearly, a defendant has a right to obtain
evidence in the state's possession when that evidence
is material and exculpatory. See, e.g., Brady v.
Maryland, 373 U.S. 83, 87 (1963). The state must turn
over material that tends to negate the guilt of the
defendant or tends to reduce the defendant's
punishment. Nelson v. State, 59 Wis. 2d 474, 479, 205
N.W.2d 410 (1973).
423 Traditionally, however, statutory discovery
is designed to assure fairness at a criminal trial.
Discovery anticipates a trial at which a fact-finder
determines guilt. The court of appeals has stated that
“{plretrial discovery is nothing more than the right of
the defendant to obtain access to evidence necessary to
prepare his or her case for trial.” Maday, 179 Wis. 2d
at 354 (citing Britton v. State, 44 Wis. 2d 109, 117, 170
N.W.2d 785, 789 (1969)) (emphasis added). “Providing
a defendant with meaningful pretrial discovery
APP10
underwrites the interest of the state in guaranteeing
that the quest for the truth will happen during a fair
trial.” Maday, 179 Wis. 2d at 354-55 (emphasis added).
924 A preliminary examination is not a trial.
State _ex rel. Lynch v. County Ct., Branch III:
Cleveland, 82 Wis. 2d 454, 465-66, 262 N.W.2d 773
(1978). Its purpose is not to determine guilt beyond a
reasonable doubt. State v. Anderson, 2005 WI 54, 924,
280 Wis. 2d 104, 695 N.W.2d 731. Its purpose is merely
to determine if there is probable cause to believe that
the defendant has committed a felony. Wis. Stat. §
970.03(1). Hence, when a defendant issues a subpoena
with a broad demand for records before the preliminary
examination, he is trying to expand the scope of
statutory discovery and move it to a preliminary stage
of the criminal proceedings. At this early point, the
state has not settled on final charges, may not have
completed its investigation, and may not fully
understand the complexities of its own case. While the
preliminary examination often affords the defendant
new information and detail about the state's evidence,
this new information is a byproduct, not the objective,
of the preliminary examination.”
> 4 Wayne R. LaFave, et al., Criminal Procedure § 14.1(b), at
115 (2d ed. 1999). See also Whitty v. State, 34 Wis. 2d 278,
287, 149 N.W.2d 557 (1967) (recognizing that the preliminary
examination may be helpful to a criminal defendant and
noting its "incidental fringe benefits").
For an excellent discussion of the principle that the
preliminary examination should not be used for purposes of
discovery, see Desper v. State, 318 S.E.2d 437, 441-42 (W.Va.
APP11
4/25 This case presents an opportunity to address
the relationship between pretrial discovery and the
preliminary examination. We begin with a discussion
of the nature and purpose of discovery, as well as the
purpose and scope of the preliminary examination.
A. Discovery and the Preliminary Examination
26 We begin with discovery because of the
character of the information the defendant seeks.
Schaefer's “Subpoena and Certificate of Appearance”
uses Form 126. His document adds the words “Duces
Tecum” under the form's heading. The subpoena is
issued to “Chief of Brookfield Police Department or
Designee.” (Emphasis added.) It demands that the
“witness” bring “[a] complete copy of all reports,
memorandums, witness interviews and any records
related to the investigation and arrest of Ronald
Schaefer on suspected criminal offenses or relating to
his alleged sexual assault of Kerry M. DOB 4/6/76 in
1990.”
4/27 The expansive swath of Schaefer's subpoena
duces tecum and the subpoena's indifference regarding
which person should appear with the requested
information immediately raise questions about the
subpoena's purpose. Because Schaefer makes no
showing of a particularized need of information for the
preliminary examination, his demand to inspect law
enforcement files amounts to generalized, unrestricted
1984).
APP 12
discovery. This court decided in Lynch that giving
defendants the right to compulsory inspection of the
state's files before the preliminary examination will
impede the orderly process of discovery prescribed by
statute, unjustifiably delay the administration of
justice, and needlessly complicate the relatively
informal procedures of the preliminary examination.
Lynch, 82 Wis. 2d at 466.°
*“The facts in Lynch are instructive. Seven persons were
prosecuted in Dane County for feloniously delivering cocaine.
State ex rel. Lynch v. County Ct., Branch III: Cleveland, 82
Wis. 2d 454, 458, 262 N.W.2d 773 (1978). When the State's
first witness was cross-examined at the preliminary
examination, counsel for one of the seven defendants
demanded receipt of any exculpatory material contained in
reports prepared by the witness. Id. This demand came after
defense counsel had been unsuccessful in efforts to persuade
the court to order the witness to produce his reports on the
incident, despite the fact that he had not relied on his notes or
reports to refresh his recollection prior to his testimony. Id.
In response to this demand, the State offered to submit its files
for each of the seven defendants to the county court for in
camera inspection, thereby permitting the court to determine
whether exculpatory evidence was present. Id. The county
court responded that its review of the seven files would take
too Jong and would delay the preliminary examination, and it
ordered the district attorney to submit the files for inspection
by defense counsel. Id. On appeal, the county court's order was
prohibited by the circuit court, and this court upheld the
circuit court. Id.
From our review of the Lynch decision and the Lynch briefs, it
is obvious that defense counsel wanted access to the police
investigation reports contained in the files of the seven
defendants. Assistant Attorney General William Gansner
APP 13
428 The Wisconsin Statutes do not define the
term “discovery.”’ As a result, we must refer to other
authority.
{29 Black's Law Dictionary defines “discovery”
as “[t]he act or process of finding or learning something
that was previously unknown” and “[clompulsory
disclosure, at a party's request, of information that
relates to the litigation.” Black's Law Dictionary 478
(7th ed. 1999) (emphasis added). The first definition is
general; the second relates specifically to legal
proceedings. The California Supreme Court commented
on the difference in Arnett v. Dal Cielo, 923 P.2d 1, 10-
11 (Cal. 1996), in a discussion of civil discovery:
[The word “discover” can be used] in its general sense
of finding something out by search or observation....
argued successfully in his brief that the defendants were not
entitled to obtain the same reports via the county court's order
that they were unable to obtain “by normal evidentiary or
statutory discovery means.”
‘The Wisconsin Statutes describe the types of items subject to
discovery and various methods for effecting discovery. See Wis.
Stat. §§ 804.01(1) ("Discovery methods"), 804.01(2) ("Scope of
discovery"), 971.23 ("Discovery and inspection"). Matcrials
subject to discovery in civil cases are outlined in Wis. Stat. §
804.01(2)(a)-(d).
Similarly, Wis. Stat. §§ 971.2301) and 971.23(2m), respectively,
list disclosures required to be made by the district attorney
and the defendant in a criminal proceeding.
APP 14
[D]iscovery also has a specific legal
meaning, to wit, the formal exchange of
evidentiary information and materials
between parties to a pending action. The
two meanings of the word are well
recognized in the dictionaries. Thus a
leading legal dictionary first defines
“discovery” to mean, “In a general sense,
the ascertainment of that which was
previously unknown; the disclosure or
coming to light of what was previously
hidden.”. . . (Black's Law Dict. (6th ed.
1990) p. 466). But the same work also
defines the word [“discovery’] in its
specifically legal sense, as “[t]he pre-trial
devices that can be used by one.party to
obtain facts and information about the
case from the other party in order to
assist the party's preparation for trial,” .
.. Even nonlegal dictionaries draw this
distinction . . . “3. Law. Data or
documents that a party to a legal action
is compelled to disclose to another party
either prior to or during a proceeding.”
(Am. Heritage Dict. (2d college ed. 1985)
p. 403).
430 Discovery, in the legal sense, is
distinguishable from less formal information-gathering
techniques. Discovery is grounded in statute or court
rule, is designed to avoid unfairness and surprise in
litigation, and may be enforced by judicial orders and
sanctions. As a result, discovery, in the legal sense, is
subject to reasonable terms and limitations as to
APP15
timing, convenience, cost, methodology, privilege, and
purpose. This is especially true of discovery in criminal
cases, for criminal discovery operates on different
principles from civil discovery. In criminal discovery,
the stakes are different, the purposes are different, the
procedures are different, and the disclosure of
information is understandably not reciprocal.
4/31 The essence of “discovery” for purposes of
analysis here is “[clompulsory disclosure, at a party's
request, of information that relates to the litigation.”
Black's Law Dictionary 478 (7th ed. 1999). Schaefer's
subpoena duces tecum seeks to compel a law
enforcement agency to produce information and
material "relateld] to the litigation" before the
preliminary examination. Id. Hence, Schaefer is using
the subpoena duces tecum as a discovery tool.
432 We turn now to the _ preliminary
examination. There is no constitutional right to a
preliminary examination. State v. Williams, 198 Wis.
2d 516, 525, 544 N.W.2d 406 (1996). The right to such
an examination stems purely from statute. State ex rel.
Klinkiewicz v. Duffy, 35 Wis. 2d 369, 373, 151 N.W.2d
63 (1967). As noted above, Wis. Stat. § 970.03 provides
a preliminary examination for the specific purpose of
determining whether there is probable cause to believe
a felony has been committed by the defendant. Wis.
Stat. § 970.03(1).
{33 The independent screening function of the
preliminary examination serves as a check on the
prosecutorial power of the executive branch. An
accused has the option to assure that the hearing is
APP 16
scheduled expeditiously so that he may be discharged
quickly if the government cannot justify its right to go
forward. Klinkiewicz, 35 Wis. 2d at 373.
434 We examined the scope of the preliminary
examination in State v. Dunn, 121 Wis. 2d 389, 359
N.W.2d 151 (1984). We emphasized that a preliminary
hearing as to probable cause is not a preliminary trial
or a full evidentiary trial on the issue of guilt beyond a
reasonable doubt. Id. at 396 (citing State v. Hooper,
101 Wis. 2d 517, 544, 305 N.W.2d 110 (1981)). Rather,
the preliminary examination is “intended to be a
summary proceeding to determine essential or basic
facts as to probability.” Dunn, 121 Wis. 2d at 396-97.
“[A] preliminary hearing is not a proper forum to
choose between conflicting facts or inferences, or to
weigh the state's evidence against evidence favorable
to the defendant.” Id. at 398. The preliminary
examination is not a mini-trial on the facts; its purpose
is merely to determine whether there is sufficient
evidence that charges against a defendant should go
forward. See id.
135 Significantly, a defendant may present
evidence at a preliminary examination. Wis. Stat. §
970.03(5).2 He may call witnesses to rebut the
plausibility of a witness's story and probability that a
felony was committed. See Dunn, 121 Wis. 2d at 396-
“Wisconsin Stat. § 970.03(5) states: “All witnesses shall be
sworn and their testimony reported by a phonographic
reporter. The defendant may cross-examine witnesses against
the defendant, and may call witnesses on the defendant's own
behalf who then are subject to cross-examination.”
APP17
98. In this regard, the defendant must have
compulsory process to assure the appearance of his
witnesses and their relevant evidence.
36 However, a defendant's right to present
evidence at a preliminary examination is not
boundless. In State v. Knudson, 51 Wis. 2d 270, 187
N.W.2d 321 (1971), we held that Knudson's attempt to
call two witnesses the victim’s mother and the chief
of police———was an effort “to expose inconsistencies in
the accounts given by the victim to various people” and
impermissible at the preliminary examination. Id. at
280-81. After the victim testified to the factual basis
for the charge of child enticement, Knudson sought to
impugn the victim's credibility and, in the process,
“gain some valuable information for his defense” by
presenting contradictory testimony. Id. at 281. The
court described this as pretrial discovery beyond the
role of the preliminary examination. Id. See also State
ex rel. Funmaker v. Klamm, 106 Wis. 2d 624, 630, 317
N.W.2d 458 (1982) (observing that “possible
weaknesses in [the witness's] identification are matters
affecting .. . weight and credibility” and not subjects
for the preliminary examination).
937 Because the statutory purpose of the
preliminary examination is narrowly focused upon a
determination of probable cause, Wis. Stat. § 970.03(1),
a defendant's nght to present evidence at the hearing
is limited to “essential facts as to probability” that the
alleged offense occurred. Knudson, 51 Wis. 2d at 280
(citing State ex rel. Evanow v. Seraphim, 40 Wis. 2d
223, 228, 161 N.W.2d 369 (1968)). This means that
although a defendant may subpoena witnesses and
APP 18
evidence for the preliminary examination, see Wis.
Stat. §§ 973.03(5), 972.11(1), and 885.01, his subpoena
may be quashed, a witness may not be allowed to
testify, or evidence may be excluded if the defendant is
unable to show the relevance of the testimony or
evidence to the rebut probable cause.
438 When a defendant's subpoena duces tecum
seeks ali investigatory material in the possession of the
police, and the subpoena is returnable before the
preliminary examination, the subpoena is fishing for
elements of the state's case, see Knudson, 51 Wis. 2d at
280, and is not proper.
439 We do not see how Schaefer's subpoena
duces tecum aimed at securing “[a] complete copy of all
reports, memorandums, witness interviews and any
records related to the investigation and arrest of
Ronald Schaefer” can be viewed as a narrow attempt to
secure essential information to rebut the State's
showing of probable cause. (Emphasis added.) It is
plainly an attempt to effect discovery.
440 Tosummarize, we conclude that the purpose
of a preliminary examination is limited to an
expeditious determination of whether probable cause
exists for the state to proceed with felony charges
against a defendant. The limited purpose of the
preliminary examination does not permit a criminal
defendant to compel discovery in anticipation of the
hearing. Schaefer's subpoena duces tecum in the
instant case is an effort to effect discovery.
APPI19
B. Statutory Rights to Subpoena Evidence and to
Discovery in a Criminal Proceeding
4]41 Schaefer contends that the analysis above is
inconsistent with the broad subpoena power in the
Wisconsin Statutes. We disagree. Schaefer's subpoena
duces tecum is 1) not authorized by our subpoena
statutes, and 2) inconsistent with our criminal
discovery statutes.
442 The subpoena power is set out in multiple
statutes. For instance:
(A) Wisconsin Stat. § 757.01(1) provides that
courts of record shall have power “[t]o issue process of
subpoena, requiring the attendance of any witness, . .
. to testify in any matter or cause pending or triable in
such courts.”
(B) Wisconsin Stat. § 885.01(1) authorizes a
court to “require the attendance of witnesses and their
production of lawful instruments of evidence in any
action, matter or proceeding pending or to be examined
into before any court, magistrate, officer, arbitrator,
board, committee or other person authorized to take
testimony in the state.” This statute provides a court
with general power, at the behest of an attorney, to
subpoena both witnesses and documents. See
Wiseman, et al., 9 Wisconsin Practice: Criminal
Practice and Procedure § 24.11 (1996).
(C) Wisconsin Stat. § 805.07(1) provides that “fal
subpoena may also be issued by any attorney of record
in a civil action or special proceeding to compel
APP20
attendance of witnesses for deposition, hearing or trial
in the action or special proceeding.” (Emphasis added.)
Wisconsin Stat. § 805.07(2)a) states that “[a] subpoena
may command the person to whom it is directed to
produce the books, papers, documents or tangible
things designated therein.”
4143 As a general rule, Wis. Stat. § 972.11(1)
makes civil procedure statutes part of the criminal
code. The subsection provides that the rules of evidence
and practice in civil actions, including Wis. Stat. §
805.07, “shall be applicable in all criminal actions
unless the context of a section or rule manifestly
requires a different construction.” (Emphasis added.)
The subsection then adds: “Chapter[] 885 ... shall
apply in all criminal proceedings.” Wis. Stat. §
972.11(1).
4/44 Considered broadly, courts and attorneys of
record have the power to compel the attendance of
witnesses and the production of evidence by subpoena
in any proceeding. But, unlike present Federal Rule of
Civil Procedure 45, Wis. Stat. § 805.07 appears to link
the production of documentary evidence with the
appearance and testimony of a witness.® This is
"Wisconsin Stat. § 805.07(2)(a) is based on Federal Rule of
Civil Procedure 45(b) as it existed circa 1975. Patricia Graczyk,
The New Wisconsin Rules of Civil Procedure, Chapters 805-
807, 59 Mara. L. Rev. 671, 686 (1976). At that time, Rule 45
wedded the subpoena duces tecum with the subpoena ad
testificandum——the subpoena for witness testimony. David
D. Siegel, Practice Commentaries Fed. Rules Civ. Proc. Rule
45, 28 U.S.C.A at 355 (‘Under Rule 45 as amended in 1991, a
APP21
significant because Wis. Stat. § 805.07(1) authorizes a
subpoena for the attendance of a witness “for
deposition, hearing or trial.” Schaefer is asking this
court to establish an additional proceeding,
denominated by him as a “Return of Records,” that will
help the defendant prepare for his preliminary
examination without requiring any witness to testify.
Our criminal procedure statutes do not contemplate a
court proceeding to receive evidence preliminary to a
preliminary examination, and our civil procedure
statutes neither recognize nor compel such a
proceeding.
945 Wisconsin Stat. § 804.09, entitled
“Production of documents and things and entry upon
land for inspection and other purposes,” is the civil
procedure statute that most closely approximates what
Schaefer is trying to accomplish in this case. However,
§ 804.09(1) involves a “request,” not a “command,” and
subpoena duces tecum seeking the production of documents (or
other materials) from a nonparty may be used independently
of the regular testimonial subpoena; the two are no longer
wedded, as they were under the prior version of Rule 45.”)
(emphasis added).
Wisconsin modified Wis. Stat. § 805.07(2) in 1995 (effective
January 1, 1996) to add third-party subpoenas for discovery
purposes. Supreme Court Order No. 95-09, 195 Wis. 2d xiii
(1996). However, subsection (4) of Wis. Stat. § 805.07, which
creates the form for subpoenas and instructions on how to add
a subpoena duces tecum, was not amended: and we find no
evidence that the amended statute intended to break the
linkage found in the text.
APP22
§ 804.0911) is located in the chapter on “Civil
Procedure——Depositions and Discovery.” (Emphasis
added.) In short, no subpoena statute authorizes
Schaefer's action.
446 Schaefer's attempt to utilize the general
subpoena power for discovery prior to his preliminary
examination also conflicts with Wis. Stat. §§
971.31(5)(b) and 971.23. Wisconsin Stat. § 971.23 is the
criminal discovery statute. Wisconsin Stat. §
971.31(5)(b) provides explicitly that in felony actions,
“motions under s. 971.23 ... shall not be made at a
preliminary examination and not until an information
has been filed.” (Emphasis added.)
947 “[Glenerally where a specific statutory
provision leads in one direction and a general statutory
provision in another, the specific statutory provision
controls.” Marder v. Bd. of Regents of Univ. of Wis.,
2005 WI 159, 923, 286 Wis. 2d 252, 706 N.W.2d 110.
This principle of statutory interpretation aligns with
the important qualification in Wis. Stat. § 972.11(1)
that a civil practice applies to criminal procedure
“unless the context of a section or rule manifestly
requires a different construction.” Wis. Stat. §
972.11(1) (emphasis added).
48 Schaefer's statutory argument is that Wis.
Stat. § 972.11 allows acriminal defendant access to the
civil subpoena duces tecum power embodied in Wis.
Stat. § 805.07(2). He asserts that § 972.11 applies the
general subpoena power in Wis. Stat. § 885.01 to
criminal proceedings. He further contends that the
subpoena duces tecum constitutes a “judicial process
APP23
independent of discovery rules.” In view of this
argument, if we were to conclude that Schaefer was not
attempting to pursue discovery with his subpoena
duces tecum, we might have difficulty concluding that
his subpoena request was inconsistent with the timing
limitation in Wis. Stat. § 971.31(5)(b).°
449 Wisconsin Stat. § 971.23 sets out the state's
discovery obligations. Subsection (1) provides in part:
(1) What a district attorney must
disclose to a defendant. Upon demand,
the district attorney shall, within a
reasonable time before trial, disclose to
the defendant or his or her attorney and
permit the defendant or his or her
attorney to inspect and copy or
photograph all of the following materials
and information, if it is within the
possession, custody or control of the
statel[.]
Wis. Stat. § 971.23(1).
450 Paragraphs (a) through (h) of the statute
then outline the specific disclosures the district
attorney must make:
(a) Any written or recorded
statement concerning the alleged crime
made by the defendant, including the
"Wisconsin Stat. § 805.07(2)(b) refers specifically to
"discovery" with respect to a third party.
APP24
testimony of the defendant in a secret
proceeding under s. 968.26 or before a
grand jury, and the names of witnesses to
the defendant's written statements.
(b) A written summary of all oral
statements of the defendant which the
district attorney plans to use in the
course of the trial and the names of
witnesses to the defendant's oral
statements.
(bm) Evidence obtained in the
manner described under s. 968.31(2)(b), if
the district attorney intends to use the
evidence at trial.
(c) A copy of the defendant's
criminal record.
(d) A list of all witnesses and their
addresses whom the district attorney
intends to call at the trial. This
paragraph does not apply to rebuttal
witnesses or those called for
impeachment only.
(e) Any relevant written or
recorded statements of a witness named
on a list under par. (d), including any
audiovisual recording of an _ oral
statement of a child under s. 908.08, any
reports or statements of experts made in
connection with the case or, if an expert
APP25
does not prepare a report or statement, a
written summary of the expert's findings
or the subject matter of his or her
testimony, and the results of any physical
or mental examination, scientific test,
experiment or comparison that the
district attorney intends to offer in
evidence at trial.
(f) The criminal record of a
prosecution witness which is known to
the district attorney.
(g) Any physical evidence that the
district attorney intends to offer in
evidence at the trial.
(h) Any exculpatory evidence.
Wis. Stat. § 971.23(1)(a)-(h).
451 These mandatory disclosures should be
compared to Schaefer's subpoena demand: “A complete
copy of all reports, memorandums, witness interviews
and any records related to the investigation and arrest
of Ronald Schaefer on suspected criminal offenses or
relating to the alleged sexual assault of Kerry M. DOB
4/6/76 in 1990.” (Emphasis added.)
452 The demands in the defendant's subpoena
duces tecum clearly overlap the discovery materials
outlined in Wis. Stat. § 971.23. In some respects, the
subpoena demands exceed the discovery materials
authorized by the statute. Because the mandatory
APP26
disclosures outlined in § 971.23(1) include information
that iscustomarily found in police investigative reports
or similar records,"' we are hard pressed to distinguish
the defendant's subpoena duces tecum from a discovery
demand under Wis. Stat. § 971.23(1).
953 As noted above, Wis. Stat. § 971.31(5)(b)
provides that “[i]n felony actions, motions... under s.
971.23 . .. shall not be made at a preliminary
examination and not until an information has been
filed.” (Emphasis added.)
54 Schaefer's subpoena duces tecum arguably
is governed by the limitation on pretrial discovery
found in Wis. Stat. § 971.31(5)(b). Schaefer is seeking
discovery materials (police records). His subpoena
satisfies some of the criteria of a “motion.” See Wis.
Stat. § 971.30. The police chief's failure to honor the
subpoena would likely lead to “an application for an
‘Professor LaFave has noted that materials contained in
police reports equate with discovery:
Police investigative reports may fall in one or
more of several categories of discoverable
material. Where the report contains a recital of
the comments of a defendant, codefendant or
witness sufficiently complete to constitute a
recorded statement of that person, that portion
of the report may be subject to discovery under
the appropriate provision for recorded
statements.
4 Wayne R. LaFave, et al., Criminal Procedure § 20.3(k), at
879 (2d ed. 1999).
APP27
order” to comply. Wis. Stat. § 971.30(1). Black's Law
Dictionary defines “motion” as “A written or oral
application requesting a court to make a specified
ruling or order.” Black's Law Dictionary 1031 (7th ed.
1999). In effect, Schaefer has requested the circuit
court to order, pursuant to its subpoena power, the
Brookfield Chief of Police or designee to appear in court
with the documents requested. We think it makes little
sense to disregard the timing limitations on discovery
in Wis. Stat. § 971.31(5)(b) simply because Schaefer
does not rely on Wis. Stat. § 971.23, has tried to exceed
the scope of discovery in § 971.23, and has not labeled
his subpoena duces tecum as a “motion.” To say that
Schaefer's subpoena duces tecum is net a “motion”
elevates form over substance.
55 This case requires us to interpret several
statutes. “[T]he purpose of statutory interpretation is
to determine what the statute means so that it may be
given its full, proper and intended effect.” State ex rel.
Kalal v. Cir. Ct. for Dane County, 2004 WI 58, 944, 271
Wis. 2d 633, 681 N.W.2d 110. “[S]tatutory language is
interpreted in the context in which it is used; not in
isolation but as part of a whole; in relation to the
language of surrounding or closcly-related statutes;
and reasonably, to avoid absurd or unreasonable
results.” Id., 46. Statutes involving the same subject
matter “must be construed in a manner that
harmonizes them in order to give each full force and
effect.” Wis. Power & Light Co. v. Pub. Serv. Comm'n
of Wis., 2006 WI App 221, 415, 296 Wis. 2d 705, 725
N.W.2d 423.
APP28
456 The plain truth is that if we permitted the
general subpoena authority to effect discovery in a
criminal case before the preliminary examination,
there would be nothing left of the limiting conditions in
Wis. Stat. §§ 971.23(1) and 971.31(5)(b). This would not
be “harmonizing” the general subpoena statutes with
the criminal discovery statutes.
957 Wisconsin Stat. § 971.23(1) requires a
district attorney to disclose discovery material “within
a reasonable time before trial.” Requiring the state’’ to
Schaefer argues that the Brookfield Police Department and
the district attorney are not a single entity; therefore, the
prohibitions on discovery in Wis. Stat. § 971.31(5)(b) are
inapplicable. This contention is not valid. Although separate
entities in fact, the Brookfield Police Department and the
district attorney's office are related for considerations of the
state's duty of disclosing evidence tocriminal defendants. This
court has stated that “[u]lnder (Wis. Stat.] § 971.23, the State's
discovery obligations may extend to information in the
possession of law enforcement agencies but not personally
known tothe prosecutor.” State v, DeLao, 2002 WI 49, 921, 252
Wis. 2d 289, 643 N.W.2d 480. As a result, we are reluctant to
treat the police department and the district attorney's office as
separate entities before an information is filed if they are
treated as inextricably linked for purposes of discovery after
the information is filed. Id.
The court of appeals came to a similar conclusion. In a case
involving the state's loss ofa tape recording ofa defendant, the
court stated:
We also reject the trial court's reasoning that
the actions of the police authorities in losing
the tape should not be visited upon the state as
APP29
disclose discovery material before the preliminary
the prosecuting entity. For purposes of the
criminal discovery statutes, we view an
investigative police agency which holds
relevant evidence as an arm of the prosecution.
In most criminal cases, the evidence against
the accused is garnered, stored and controlled
by the investigating police agency. Depending
upon local practice, many courts and district
attorneys entrust the custody and control of
such material to the police even after it has
been elevated to formal evidentiary status ina
criminal proceeding.
The trial court's reasoning would apparently
sanction the loss of relevant evidence only if
committed by the district attorney's office, but
not by the principal investigative agency. This
distinction is neither reasonable nor valid.
State v. Martinez, 166 Wis. 2d 250, 260, 479 N.W.2d 224 (Ct.
App. 1991) (footnote omitted).
More important than the link between police and prosecutor
for discovery purposes is the reality that the principal
documents of interest in the district attorney's file are the
police reports. These documents, which constitute a
comprehensive summary of law enforcement's investigation of
the alleged crime, normally serve as the basis for the criminal
complaint. The district attorney has never been required to
disclose the totality of law enforcement reports, only specific
pieces of information, especially exculpatory evidence. Here
the defendant demands the totality of law enforcement
records, putting his subpoena at odds with the criminal
discovery statute.
APP30
examination before the court has even authorized
a trial is plainly at odds with the statutory scheme.
This conclusion about timing is reinforced by the
language in Wis. Stat. § 971.31(5)(b) that discovery
motions “shall not be made at a _ preliminary
examination and not until an information has been
filed.”
458 Equally important, Wis. Stat. § 971.23 does
not require the state to turn over all the information in
its possession. For instance, Wis. Stat. § 971.23(1)(d@)
requires the state to disclose “[a] list of all witnesses
and their addresses whom the district attorney intends
to call at the trial. This paragraph docs not apply to
rebuttal witnesses or those called for impeachment
only.” If Schaefer were entitled to obtain by subpoena
duces tecum the names of all witnesses who have
surfaced in the police reports as well as their
statements, his need and the need of all
defendants for § 971.23 discovery would be
substantially reduced. Section 971.23(1) would then be
used primarily to make sure that the state discloses
any new information that it obtains and reveals its
trial strategy, i.e., what witnesses and physical
evidence the state plans to presert at trial and what
evidence it has decided not to present.
4592 It must be noted that the limitations on the
scope of discovery in Wis. Stat. § 971.23(1) may not
always prevail against a subpoena duces tecum after
an information is filed. We have previously implied
that a subpoena duces tecum may have to be honored
if the defendant shows a “particularized need” for
information in the possession of the state. See Lynch,
APP31
82 Wis. 2d at 466-68. That is not the case here. The
defendant has no statutory subpoena right to obtain
and copy police investigation reports and nonprivileged
materiais prior to his preliminary examination.
C. Constitutional Rights to Compulsory Process and
Effective Assistance of Counsel
"60 Schaefer also raises challenges under the
Sixth Amendment to the United States Constitution
and Article I, Section 7 of the Wisconsin Constitution.
First, he argues that the rights to compulsory process
found in both of these constitutional provisions include
the right to access and copy police investigation reports
and nonprivileged materials prior to a preliminary
hearing. Second, he argues that his Sixth Amendment
right to effective assistance of counsel cannot be
satisfied without his attorney having access to these
materials before the preliminary examination.
"61 We address these challenges in turn and
conclude that Schaefer has no state or federal
constitutional right to obtain and copy police
investigation reports and nonprivileged materials by
subpoena prior to his preliminary hearing.
1. Right to Compulsory Process
62 The Sixth Amendment to the United States
Constitution provides that the accused in a criminal
proceeding shall have the right “to have compulsory
APP32
process for obtaining witnesses in his favor.”’* U.S.
const. amend. VI. Similarly, the Wisconsin
Constitution provides that “liln all criminal
prosecutions the accused shall enjoy the nght.. . to
have compulsory process to compel the attendance of
witnesses in his behalf{.]” Wis. Const. art. 1, § 7.
Although this court has the prerogative to afford
greater protection to a criminal defendant under a
provision of the Wisconsin Constitution than is
mandated by an equivalent provision in the United
States Constitution, State v. Doe, 78 Wis. 2d 161, 171,
254 N.W.2d 210 (1977), the court tends to interpret
and apply equivalent provisions in the same manner.
‘The Sixth Amendment to the United States Constitution
reads as follows:
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by
an impartial jury of the State and district
wherein the crime shall have been committed;
which district shall have been previously
ascertained by law, and to be informed of the
nature and cause of the accusation: to be
confronted with the witnesses against him; to
have compulsory process for obtaining
witnesses in his favor, and to have the
assistance of counsel for his defence.
U.S. Const. amend. VI. The language of the Sixth Amendment
refers to “witnesses,” but the Supreme Court has held that the
Compulsory Process Clause also applies to documentary
materials. See United States v. Nixon, 418 U.S. 683, 711-13
(1974). See also United States v. Hubbell, 530 U.S. 27, 54
(2000) (Thomas, J., concurring).
APP33
See State v. Agnello, 226 Wis. 2d 164, 180-81, 593
N.W.2d 427 (1999) (stating that “[w]here ... the
language of the provision in the state constitution is
‘virtually identical’ to that of the federal provision or
where no difference in intent is discernible, Wisconsin
courts have normally construed the state constitution
consistent with the United States Supreme Court's
construction of the federal constitution”).
63 In Washington v. Texas (1967), the Supreme
Court explained that the right to compulsory process is
plainly “the right to present a defensel.]” Washington,
388 U.S. at 19. The Court reviewed a criminal
defendant's Sixth Amendment challenge to two Texas
statutes that prohibited persons charged or convicted
as co-participants in the same crime from testifying for
one another, even though there was no bar to their
testifying for the state. Id. at 16-17. The Court held
that this statutory scheme violated the defendant's
right to compulsory process for obtaining witnesses at
trial:
The right to offer the testimony of
witnesses, and to compel their
attendance, if necessary, isin plain terms
the right to present a defense, the right to
present the defendant's version of the
facts as well as the prosecution's to the
jury so it may decide where the truth lies.
Just as an accused has the right to
confront the prosecution's witnesses for
the purpose of challenging’ their
testimony, he has the right to present his
own witnesses to establish a defense.
APP34
Id. at 19 (emphasis added). Thus, compulsory process
for securing favorable witnesses is “so fundamental
and essential to a fair trial that it is incorporated in
the Due Process Clause of the Fourteenth
Amendment.” Id. at 17-18. “The right of an accused in
a criminal trial to due process is, in essence, the right
to a fair opportunity to defend against the State's
accusations. The rights to confront and cross-examine
witnesses and to call witnesses in one's own behalf
have long been recognized as essential to due process.”
Chambers v. Mississippi, 410 U.S. 284, 294 (1973).
4/64 Twenty years after Washington, the Court
noted that it has “had little occasion to discuss the
contours of the Compulsory Process Clause.”
Pennsylvania v. Ritchie, 480 U.S. 39, 55 (1987). In
Ritchie, the Court reviewed Sixth Amendment claims
of a criminal defendant convicted of various sexual
offenses against his daughter. Id. at 39. The defendant,
Ritchie, sought pretrial discovery——via
subpoena——of ostensibly confidential records from
Children and Youth Services (CYS), a Pennsylvania
protective agency. Id. at 43. Ritchie claimed he was
entitled to review CYS's file to discover information
that might be useful in contradicting testimony
favorable to the state. Id. at 53. Because it noted that
'*“This paucity of compulsory process rulings is attributable
largely to the Court's decision to address initially under the
Due Process Clause claims that the government failed to assist
in identifying or locating defense witnesses, or improperly
interfered with the defense's use of subpoenas.” 5 Wayne R.
LaFave, et al., Criminal Procedure § 24.3(a), at 470 (2d ed.
1999).
APP35
defense counsel was able to cross-examine all trial
witnesses fully, the Court determined that the
Pennsylvania Supreme Court erred in holding that the
failure to disclose the CYS file violated the
Confrontation Clause. Id. at 54.
65 The Court then turned to the compulsory
process claim. The Court acknowledged that Sixth
Amendment applicability to discovery disputes was
unsettled; hence, it utilized a due process analysis. Id.
at 56. The Court said it had articulated “some of the
specific rights” secured by the Compulsory Process
Clause of the Sixth Amendment. Id. “Our cases
establish, at a minimum, that criminal defendants
have the right to the government's assistance in
compelling the attendance of favorable witnesses at
trial and the right to put before a jury evidence that
might influence the determination of guilt.” Id.
(emphasis added).
466 The Court was reluctant to establish an
unconditional discovery right under the Sixth
Amendment. Thus, it analyzed the case on Fourteenth
Amendment due process grounds. The Court concluded
that the Compulsory Process Clause “provides no
greater protections in this area than those afforded by
due process.” Ritchie, 480 U.S. at 56. Stated another
way, unless due process requires defense access to
specific evidence, the Compulsory Process Clause
cannot provide substitute authority for such access.
467 These comments by the Court point the
compass of the Compulsory Process Clause toward a
defendant's right to the compelled production of
APP36
evidence in anticipation of trial, not in anticipation of
a preliminary examination. Professor LaFave has
observed that “[tl]he Compulsory Process Clause
naturally suggests some constitutional entitlement to
trial evidence.” 5 Wayne R. LaFave, et al., Criminal
Procedure § 24.3(a), at 469 (2d ed. 1999) (emphasis
added).
"68 Thus, our holding in Lynch, founded upon
due process, applies here and circumscribes a criminal
defendant's compulsory process right to access the
state's files prior to his preliminary examination.
469 In Lynch, we held that, under the Due
Process Clause, a criminal defendant has no nght to
inspect the state's files for the existence of exculpatory
evidence prior toa preliminary examination. Lynch, 82
Wis. 2d at 465-68. The constitutional right to such
exculpatory material “is in the right to a fair trial
guaranteed by [due process].” Id. at 465 (citing United
States v. Agurs, 427 U.S. 97, 107 (1976); Brady v.
Maryland, 373 U.S. 83, 87 (1963)). We concluded:
Inspection of the state's files by the
defense at this early stage, where there
has been no showing of particularized
need for inspection, can serve only as an
opportunity for generalized, unrestricted
discovery, rather than as a device for the
constitutionally mandated disclosure of
specific exculpatory material. Such
discovery will impede the _ orderly
processes of discovery prescribed by
statute, see: secs. 971.23 to 971.25, Stats..,
APP37
and will circumvent the legislative
determinations reflected in those
statutes; will unjustifiably delay the
administration of justice; and _ will
needlessly complicate the _ relatively
informal procedures applicable at this
early stage of a prosecution. This harm is
inherent in the order of the county court.
Lynch, 82 Wis. 2d at 466 (footnote omitted).
70 We conclude that Lynch controls the
compulsory process challenge in the instant case.
There is nocompulsory process right to subpoena police
investigation reports and nonprivileged materials
before the preliminary examination.
4171 Schaefer asserts that if Lynch applies, he
has demonstrated a “particularized need” for access to
police records because of a “sixteen year delay in
charging and its consequent effect on memory.” We are
not persuaded. An extended period of time between
commission of the alleged offense and the filing of a
criminal complaint may provide justification for
subpoena access to police investigatory records under
extraordinary circumstances. See Lynch, 82 Wis. 2d at
466. However, in Schaefer's case, the criminal
complaint is sui“ciently detailed to allow him to
identify the complainant’’ and the alleged
'SAt his initial appearance, Schaefer was admonished not to
contact the viciim listed in the complaint. We have no record
evidence that Schaefer claimed inability to comply with this
condition because of uncertainty about the identity of the
APP38
circumstances of the charges and to prepare to rebut
the plausibility of the complainant's accusations and
probable cause. The lengthy span of time since the
alleged offenses will not incapacitate this defendant
from preparing for the preliminary examination, and
it does not justify the unbridled access to police
investigatory materials that the defendant seeks.
4/72 We note that this court has also addressed
compulsory process in the context of a circuit court's
subpoena ordering two newspaper reporters to appear
at a pretrial hearing regarding the identities of their
sources for several stories they wrote about a murder.
State ex rel. Green Bay Newspaper Co. v. Cir. Ct.,
Branch 1, Brown County, 113 Wis. 2d 411, 415- 16, 335
N.W.2d 367 (1983). We concluded that the circuit court
erred when it ordered in camera disclosure of the
reporters’ sources and held the reporters in contempt
for refusing to disclose this information. Id. at 429.
73 Weighing the defendant's rght_ to
compulsory process for witnesses in his favor against
the journalist's qualified nondisclosure privilege, we
recognized that “a criminal defendant does not have an
unqualified right to subpoena witnesses.” Id. at 420.
We observed that “[flor the constitutional right to
compulsory process to be invoked, a defendant must, if
the subpoena is challenged, show there is a reasonable
probability that the subpoenaed witnesses’ testimony
will be competent, relevant, material and favorable to
complainant.
APP39
his defense.” Id. at 420-21."°
4174 We went on to analyze the efficacy of the
circuit court's order requiring in camera disclosure of
reporter sources, concluding that the facts of the case
did not suggest a need for such disclosure. We outlined
a procedure for the circuit court to evaluate compulsory
process rights implicated by desired evidence based
upon whether “the evidence is necessary to the
defense.” Id. at 423. “Information is necessary to the
defense if it tends to support the theory of defense
which the defendant intends to assert at trial.” Id.
(emphasis added).
475 The Green Bay Newspaper case evaluated
compulsory process rights in terms of their relationship
to trial evidence. Inasmuch as a criminal defendant
does not have an unqualified right to require the
appearance of any and all persons as witnesses for a
trial, and a defendant's right to compulsory process at
trial must satisfy certain standards, see id. at 420- 21,
we conclude a fortiori that the compulsory process
rights of a criminal defendant at a preliminary stage of
the criminal proceedings also must be subject to
reasonable restrictions. See United States v. Scheffer,
523 U.S. 303, 308, (1998) (“A defendant's right to
present relevant evidence is not unlimited, but rather
is subject to reasonable restrictions.”). We have
‘See also United States v. Valenzuela-Bernal, 458 U.S. 858,
867 (1982) (observing that a violation of the Sixth Amendment
exists where the defendant is deprived of access to favorable
evidence that is "relevant... material... and vital” to his
defense) (citation omitted).
APP40
previously observed that “even though a defendant's
right to present certain evidence is constitutionally
protected, that mght may have to ‘bow to accommodate
other legitimate interests in the criminal trial
process.” State v. Pulizzano, 155 Wis. 2d 633, 653, 456
N.W.2d 325 (1990) (quoting Chambers, 410 U.S. at
295). In our view, there is a legitimate interest in
preserving the statutory scheme that prescribes
pretrial discovery limitations under Wis. Stat. §§
971.31(5)(b) and 971.23. Therefore, we decline to
expand a criminal defendant's compulsory process
rights to encompass a right to subpoena police reports
and other non-privileged investigatory materials ‘or
examination and copying in anticipation of a
preliminary hearing.
4176 Schaefer suggests that we adopt a procedure
in which Wisconsin circuit courts would review
subpoena duces tecum materials prior to the
preliminary examination to resolve disputes regarding
privilege, relevance, and materiality. He notes that
Illinois has adopted such a procedure, see People ex rel.
Fisher v. Carey, 396 N.E.2d 17 (Ill. 1979), and he urges
Wisconsin to follow suit.
477 We respectfully decline this invitation. In
Carey, the Illinois Supreme Court concluded that:
Subpoenaed material should be sent
directly to the court because the subpoena
is a judicial process or court writ,
whereas discovery is_ the parties’
procedure, a distinguishable concept
under our rules. .. . The court then
APP41
determines the relevance and materiality
of the materials, and whether they are
privileged, as well as whether the
subpoena is unreasonable or oppressive.
The State's attorney, of course, must be
fully aware of the records sought from the
investigative agency by the subpoena in
order for him to object.
Carey, 396 N.E.2d at 19-20 (citation omitted)
(emphasis added).’’
478 The underlined language implies that the
Illinois court established a proceeding before the
preliminary hearing
to hear objections and settle
evidentiary disputes, even though Illinois rules at the
time precluded the use of a subpoena to circumvent
formal discovery (which was not scheduled to go into
effect until “following indictment or information.”). Id.
at 19; see 58 Ill. 2d Rule 411, 65 Ill. 2d Rule 412(g).
The Carey court appears to have concluded that its
ruling was constitutionally required.
479 The Illinois Supreme Court's analysis is
clearly supportive of Schaefer's position. On the other
hand, the Illinois Supreme Court's analysis does not
square with subsequent decisions of the United States
Supreme Court, most notably Ritchie. The analysis
also conflicts with our decision in Lynch. The Illinois
In Wisconsin, criminal “discovery” is not entirely the parties’
procedure because the scope of discoverable materials is set
out in statute and compliance with the statute will be enforced
by the court.
APP42
court's heavy reliance on United States v. Burr, 25 Fed.
Cas. 30 (C.C.D. Va. 1807), is intriguing, but that
decision has no precedent’ al value for us because it is
not a decision by the United States Supreme Court,
and it predated modern discovery rules.
480 In United States v. Nixon, one of only a
handful of Supreme Court cases to discuss and apply
Burr, the Court commented that the subpoena duces
tecum “was not intended to provide a means of
discovery for criminal cases[.]” United States v. Nixon,
418 U.S. 683, 698 (1974). The Court construed the
federal subpoena duces tecum provision, Federal Rule
of Criminal Procedure Rule 17(c), as requiring, among
other things, that “the application [be] made in good
faith and [ ] not intended as a general ‘fishing
expedition.” Id. at 699.
{81 As an additional matter of public policy,
Schaefer notes that at least one county in Wisconsin,
Washington County, conducts a pretrial status hearing
where discovery material is customarily exchanged
prior to the preliminary examination. We acknowledge
the benefits that such an “open file” policy may produce
in terms of an increased number of defense waivers of
the preliminary examination as well as eventual guilty
pleas.'® As one commentator has observed, however,
‘The preliminary examination sometimes serves as a valuable
“educational process” for a defendant who is not persuaded by
his counsel's opinion that the prosecution has a strong case
and that, therefore, a negotiated plea is in the defendant's best
interest. 4 Wayne R. LaFave, et al., Criminal Procedure §
14.1(e), at 123 (2d ed. 1999). An “open file” may serve the same
APP43
“[tIhough some prosecutors maintain an ‘open file’
policy, granting defenders access to the prosecution's
case files, this is purely a policy choice on the
prosecutor's part, not a legal mght of defendants.”
David Luban, Are Criminal Defenders Different?, 91
Mich. L. Rev. 1729, 1738 (1993). No existing state
statute or compulsory process provision of either the
United States Constitution or the Wisconsin
Constitution commands the state to divulge the
entirety of police investigatory files to an accused
before an information has been filed against him.
82 Accordingly, we hold that Schaefer has no
right to subpoena police reports and other non-
privileged investigatory materials prior to his
preliminary hearing under either the Compulsory
Process Clause of the Sixth Amendment to the United
States Constitution or Article 1, Section 7 of the
Wisconsin Constitution.
2. Right to Effective Assistance of Counsel
{83 Finally, Schaefer contends that he is
entitled to subpoena police reports and other
investigatory materials to safeguard his right to
effective assistance of counsel, which also is
guaranteed by the Sixth Amendment to the United
purpose, provided the state's investigation is relatively
complete and persuasive. Requiring the state to expose proof
problems in its case is not the same as requiring it to turn over
exculpatory evidence.
APP44
States Constitution.’®
4/84 A defendant is entitled to the assistance of
counsel at all critical stages of prosecution. United
States v. Wade, 388 U.S. 218, 224 (1967). In State v.
Wolverton, 193 Wis. 2d 234, 533 N.W.2d 167 (1995), we
adopted the view of the Supreme Court that a
preliminary hearing is a critical stage in the criminal
process. Wolverton, 193 Wis. 2d at 252 (citing Coleman
v. Alabama, 399 U.S. 1, 9 (1970)). Consequently, every
defendant charged with a felony in Wisconsin is
constitutionally entitled to the assistance of counsel at
a preliminary hearing. Wolverton, 193 Wis. 2d at 253.
We also observed, however, that “[a]lthough the right
to counsel at a preliminary hearing is constitutionally
guaranteed, the right to a preliminary hearing is
purely statutory.” Id. at 253 n.11 (citing State _v.
Moats, 156 Wis. 2d 74, 83, 457 N.W.2d 299 (1990)).
This factor influences our analysis.
485 In considering Schaefer's right to effective
assistance of counsel at a preliminary examination, we
must keep in mind the narrow purpose of the hearing.
“(T]he limited scope of the preliminary hearing
"The Sixth Amendment to the United States Constitution
provides in pertinent part: “In all criminal prosecutions, the
accused shall enjoy the right to... have the assistance of
counsel for his defence.” This right to counsel has been applied
to the States through the Due Process Clause of the
Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335
(1963). The right to counsel has been defined by the United
States Supreme Court as the right to effective assistance of
counsel. See United States v. Cronic, 466 U.S. 648, 654 (1984).
APP45
compresses the contours of the sixth amendment.”
Wiseman, et al., 9 Wisconsin Practice: Criminal
Practice and Procedure § 8.12 (1996). “In particular,
the defendant's right to present evidence and cross-
examine the state's witnesses is severely limited by the
summary nature of the preliminary hearing.” Id.
486 Schaefer's argument is somewhat unusual
because he poses a prospective challenge to effective
assistance of counsel. Schaefer argues that his defense
counsel cannot be effective at a future preliminary
examination without access to police reports and other
similar materials, not that his counsel was ineffective
in the past for lack of access to such evidence. To
address Schaefer's position on the merits would require
this court to hypothesize, in the abstract, what actions
by defense counsel are necessary to preserve a criminal
defendant's right to effective assistance of counsel at a
preliminary examination. To adopt Schaefer's position
would require us to create a per se rule that defense
counsel is ineffective when counsel fails to subpoena
police reports and other similar materials prior to a
preliminary examination.
487 This court operates under the principles
adopted by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). To establish a claim
of ineffective assistance of counsel under Strickland,
the defendant must demonstrate that: (1) defense
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed to the
defendant by the Sixth Amendment; and (2) this
deficient performance prejudiced the defense so
seriously as to deprive the defendant of a fair trial, a
APP46
trial whose result is reliable. Strickland, 466 U.S. at
687.
4]88 The primary consideration on the first prong
is whether a reasonable basis existed for the lawyer's
conduct. State v. Rock, 92 Wis. 2d 554, 560, 285
N.W.2d 739 (1979). On the second prong, counsel] will
not be deemed ineffective unless the defendant is
prejudiced by the lawyer's action or failure to act. State
v. Felton, 110 Wis. 2d 485, 503, 329 N.W.2d 161 (1983).
Since Schaefer's Sixth Amendment challenge is
prospective, he must demonstrate that he would be
prejudiced per se by defense counsel's inability to
subpoena police reports prior to the preliminary
hearing. See, e.g., United States v. Cronic, 466 U.S.
648, 659-60 (1984) (noting that prejudice is presumed
where there is no “likelihood that any lawyer, even a
fully competent one, could provide effective assistance”
under a particular set of facts).
189 Schaefer cites State v. Harper, 57 Wis. 2d
543, 557, 205 N.W.2d 1 (1973), in which we said that
effective counsel “must be equal to that which the
ordinarily prudent lawyer, skilled and versed in
criminal law, would give to clients who had privately
retained his services.” In so holding, we expressly
approved of the 1971 American Bar Association Project
on Standards For Criminal Justice, Standards Relating
to The Prosecution Function and The Defense
Function, as a means of evaluating counsel's
performance. See Harper, 57 Wis. 2d at 557 n.8.
Schaefer places emphasis on ABA Standard 4.1:
4.1 Duty to investigate. It is the
APP47
duty of the lawyer to conduct a prompt
investigation of the circumstances of the
case and explore all avenues leading to
facts relevant to guilt and degree of guilt
or penalty. The investigation should
always include efforts to secure
information in the possession of the
prosecution and law’ enforcement
authorities. The duty to investigate exists
regardless of the accused's admissions or
statements to the lawyer of facts
constituting guilt or his stated desire to
plead guilty.
Harper, 57 Wis. 2d at 553 n.3 (emphasis added). He
argues that the Standard's use of the word “prompt,”
coupled with our comment that “[t]he lawyer who is
ignorant of the facts of the case incapacitates himself
to serve his client effectively,” id. at 553, should
persuade us to hold that police records must be
provided to defense counsel before the preliminary
examination to preserve the defendant's Sixth
Amendment rights.
{90 We cannot adopt Schaefer's argument.
Harper can be distinguished by the fact the case
concerned defense counscl's performance at trial, not
his investigatory acumen prior to the preliminary
examination. Id. at 551. ABA Standard 4.1, although
calling for defense counsel to “explore all avenues” and
“include efforts to secure information in the possession
of the prosecution and law enforcement authorities,”
does not compe! us to conclude that Schaefer's attorney
would be ineffective if he failed to procure police
APP48
investigative materials (including police reports) prior
to Schaefer's preliminary examination.
§91 An attorney's performance at the
preliminary examination does not define the level of
performance expected of defense counsel at later stages
of the proceeding. A “preliminary hearing is not a full
evidentiary trial and [] the purpose of a preliminary
examination is only to determine whether further
criminal proceedings are justified.” State v. Akins, 198
Wis. 2d 495, 512, 544 N.W.2d 392 (1996) (citing Taylor
v. State, 55 Wis. 2d 168, 172-73, 197 N.W.2d 805
(1972)). Given the limited scope and purpose of the
preliminary examination, a defendant's counsel may
waive the hearing entirely, or deliberately decline to
ask certain questions that would be relevant. We
cannot say that Schaefer's counsel would be hand-
cuffed and rendered ineffective by failing to procure
police reports prior to Schaefer's preliminary
examination.
492 Defense counsel is not barred from
conducting significant investigation into the case
before the preliminary examination to rebut the
plausibility of a witness's story and probable cause.
This investigation would likely be based on the details
in the compiaint and information supplied by the
defendant. In this case, nothing prevents counsel from
identifying and seeking to interview the complainant's
classmates and teammates, as well as Schaefer's co-
workers and family. We note that the failure of
classmates to corroborate the complainant's claim of
sexual assaults would not undermine the plausibility
of her story at the preliminary examination. Witness
APP49
statements that do corroborate the complainant's
claims are likely to be disclosed to the defendant before
trial.
193 Schaefer cannot reasonably argue that
information contained in March 2006 police reports
would offer indispensable information about the
complainant's story that is not stated or implied in the
May 2006 criminal complaint. The principal benefits to
be gained from review of the police investigation file
would be to determine the names of additional persons
whom the police interviewed and whether the police
had uncovered corroborating evidence. We cannot say
that Schaefer's defense counsel will be ineffective at
the preliminary examination without this information.
9494 Therefore, we hold that Schaefer has no
Sixth Amendment right, based on effective assistance
of counsel, to subpoena police reports and other non-
privileged materials prior to his’ preliminary
examination.
IV. CONCLUSION
495 We conclude that a criminal defendant does
not have a statutory or constitutional right to compel
the production of police investigation reports and
nonprivileged materials by subpoena duces tecum prior
to the preliminary examination. A criminal defendant
who employs the subpoena power in this manner is
attempting to engage in discovery without authority in
either civil or criminal procedure statutes and in
conflict with criminal discovery statutes. Although a
reasonable argument can be made for prosecutors to
APPSO
open their files to defendants at an early point in
criminal prosecutions, this argument does not
translate into an enforceable right to subpoena police
investigation reports and nonprivileged materials
before a preliminary examination.
196 Accordingly, we affirm the order of the
circuit court granting the State's motion to quash
Schaefer's subpoena duces tecum.
By the Court.—The order of the circuit court is
affirmed.
997 SHIRLEY S. ABRAHAMSON, Cu.
(concurring). The question presented is whether a
criminal defendant has a subpoena right to obtain and
copy police investigation reports prior to the
preliminary hearing.’
498 My answer to the question is “no,” and I
affirm the order of the circuit court. My answer is the
‘Pursuant to Wis. Stat. § 970.03(5), the defendant has a
statutory right to subpoena witnesses to appear and to produce
relevant evidence at his preliminary examination. This right
to subpoena a witness at the preliminary examination is not
the right the defendant is attempting to exercise in the instant
case. The defendant is using the subpoena power in the instant
case to obtain evidence before the preliminary examination,
not at the preliminary examination.
APPS51
same as that reached by the majority opinion. I reach
this answer, however, by a shorter, more direct route
than that taken by the majority opinion. My route
avoids the majority opinion's case-stretching, law-
making, and almost entirely dicta-laden detour
through the fields of discovery and preliminary
examination in criminal cases.
499 The majority opinion appears to be more
interested in developing law about preliminary
examinations and discovery (both before and after an
information is filed) than in answering the question of
law posed by the instant case. | therefore do not join
the majority opinion.
{100 I reason as follows:
(A) No statute gives the defendant a
subpoena right to obtain and copy police
investigation reports prior to the preliminary
hearing.
(B) The defendant's’ claimed
constitutional rights of compulsory process and
effective assistance of counsel do not support the
defendant's right to a subpoena for police files
under the circumstances of the instant case.
(C) Although the defendant and the third-
party brief of amici curiae (the Office of State
Public Defender and the Innocence Project) raise
serious questions about the reliability and
fairness of preliminary examinations and trials
when a criminal defendant is not given access to
APP52
police records prior to the preliminary hearing,
I am reluctant to conclude that this case is an
appropriate one in which to rule, as a matter of
the inherent or superintending powers of this
court, that unless good cause exists, law
enforcement should give an accused access to
police reports before the preliminary
examination. The policy arguments of the
defendant and the amici do, however, deserve
further and serious attention, as the State's
brief suggests, from this court in its rule making
authority or from the legislature.
4/101 I do not address the question whether the
defendant may obtain the documents at issue by other
means such as a request made under Wisconsin's open
records law. The open records law is not raised in the
present case. We should not pre-judge issues that are
neither raised nor briefed and that may be pending in
other cases.” Unfortunately, in footnote 4, the majority
*The responsibility of law enforcement under the public
records law is not settled. See, e.g., Portage Daily Register v.
Columbia Co. Sheriff's Dep't, 2008 WI App 30,__—s- Wis. 2d ___,
___ N.W.2d ___ ‘no petition for review filed).
I do not cite this case for its holding or as precedent but as an
example showing that the responsibility of law enforcement
under the public record law is subject to dispute. In Portage
Daily Register, the court ofappeals concluded thatthe sheriff's
department had responsibility under the public records law
.ndependent of the responsibility of the district attorney. The
court of appeals further concluded that the _ sheriff's
department's denia! of a request to release a report on the
ground that a copy of the report had been forwarded to the
APP53
opinion weighs in on this unbriefed and unraised issue,
suggesting that the provisions of Wisconsin's open
records law are qualified by several provisions,
including Wis. Stat. § (Rule) 905.09.2 The majority
opinion misreads § (Rule) 905.09. Although § (Rule)
905.09 creates an evidentiary privilege regarding law
enforcement records, the rule explicitly states that this
district attorney's office and was part of an open investigation
did not state a sufficient legally specific policy under Wis. Stat.
§ 19.27 (2005-06).
In State ex rel. Richards v. Foust, 165 Wis. 2d 429,477 N.W.2d
608 (1991), this court held that although there is a
presumption that the public has a right to inspect public
records unless an exception is found, “the common law
provides an exception which protects the district attorney's
files from being open to public inspection.” Foust, 165 Wis. 2d
at 433-34. The decision in Foust did not address any question
pertaining to records in the possession of law enforcement
agencies.
Recently. Assistant Attorney General Mary E. Burke advised
the Brookfield Assistant Police Chief that the _ police
department's policy of refusing to release any police files that
have been forwarded to a prosecuting attorney is not permitted
under Wisconsin's public records law. The Brookfield Police
Department has apparently rejected this advice. See Amy
Rinard, Police Files Get Limited Protection, State Says,
Milwaukee Journal Sentinel Online, Nov. 23, 2007, at
http://www.jsonline.com/story/index.aspx?id=689460 (last
visited March 20, 2008); Amy Rinard, Police Ignore Open
Records Advice, Milwaukee Journal Sentinel Online, Dec. 7,
2007, at http://www.jsonline.com/story/index.aspx?7id=694473
(last visited March 20, 2008).
“Majority op., 21 n.4.
APP54
privilege does not apply “to the extent” that law
enforcement records are “available by law to a person
- other than the federal government, a state or
subdivision thereof.”* The Judicial Council Committee's
Note to the Supreme Court order establishing § (Rule)
905.09 explains that the evidentiary privilege for law
enforcement records “is qualified by the phrase ‘to the
extent available by law' to preserve the supremacy of
s. 19.21 permitting examination of public records and
documents.”° See 59 Wis. 2d R1, R142-43 (1973). It is
‘Wisconsin Stat. § (Rule) 905.09 provides in full:
The federal government or a state or a
subdivision thereof has a privilege to refuse to
disclose investigatory files, reports and returns
for law enforcement purposes except to the
extent available by law to a person other than
the federal government, a state or subdivision
thereof. The privilege may be claimed by an
appropriate representative of the federal
government, a state or a subdivision thereof.
°*The Judicial Council Committee's Note reads as follows:
This section has no direct parallel in the
proposed Federal Rule 509. A privilege for law
enforcement files and records is established by
this section. However, the privilege is qualified
by the phrase “to the extent available by law” to
preserve the supremacy of s. 19.21 permitting
examination of public records and documents.
The burden is upon the person claiming the
privilege to establish in a_ judicial
determination that the public. interest
jutweighs the right of a member of the public
APPS55
the open records law that qualifies § (Rule) 905.09, not
the converse as the majority opinion implies.
A
4102 The defendant relies upon Wis. Stat. §
885.01, a civil statute, to argue that his subpoena is a
judicial process authorized by statute. According to the
defendant, the civil subpoena statute applies to his
criminal proceeding under Wis. Stat. § 972.11(1).
Section 972.11(1) provides that the rules of evidence
and practice in civil actions shall be applicable in
criminal proceedings “unless the context of a section or
rule manifestly requires a different construction”
Furthermore, § 972.11(1) explicitly states, without any
qualification about the context of a section or rule, that
chapter 885 “shall apply in all criminal proceedings.”®
to have access toclaimed privileged material in
the fashion prescribed in State ex rel. Youmans
v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470, 139
N.W.2d 241 (1965), and Beckon v. Emery, 36
Wis. 2d 510, 153 N.W.2d 501 (1967). Normally,
the “appropriate representative” to make the
claim will be counsel, however, it is possible
that disclosure of the privileged material will
be sought in proceedings to which the
government, state or subdivision, as the case
may be, is not a party. Under these
circumstances, effective implementation of the
privilege requires that other representatives be
considered “appropriate.”
*Section 972.11(1) provides in relevant part as follows:
APPS6
The subpoena statute, § 885.01, is part of chapter 885.
Even if one reads § 972.11(1) as applying chapter 885
“unless the context of a section or rule manifestly
requires a different construction,” the context of §
885.01 does not “manifestly require” a different
construction” in the instant case. J therefore turn to §
885.01.
4103 Statutory interpretation in the present
case begins with the text of Wis. Stat. § 885.01.
Unfortunately, the majority opinion is fairly well along
before it cursorily examines the subpoena statute at
9941-44,
4]104 Wisconsin Stat. § 885.01(1) provides that
a subpoena may be issued to require the attendance of
witnesses and their production of lawful instruments
of evidence in “any action, matter or proceeding or to
be examined into before [enumerated persons] or other
person authorized to take testimony in the state.”
Section 885.01(1) provides in full as follows:
885.01. The subpoena need not be sealed,
and may be signed and issued as follows:
Except as provided in subs. (2) to (4) fon which
no one relies in the present casel, the rules of
evidence and practice in civil actions shall be
applicable in all criminal proceedings unless
the context of a section or rule manifestly
requires a different construction. ... Chapters
8&5 to 895 and 995, except ss. 804.02 to 804.07
and 887.23 to 887.26, shall apply in all criminal
proceedings.
APP57
(1) By any judge or clerk of a court or
court commissioner or municipal judge,
within the territory in which the officer or
the court of which he or she is the officer
has jurisdiction, to require the attendance
of witnesses and their production of
lawful instruments of evidence in any
action, matter or proceeding pending or to
be examined into before any court,
magistrate, officer, arbitrator, board,
committee or other person authorized to
take testimony in the state.’
4105 Section 885.02 prescribes the form of the
subpoena, including a subpoena requiring the
production of evidence.
{106 The defendant used the standard court
form for subpoenas adopted pursuant to Wis. Stat. §
(Rule) 971.025 by the Judicial Conference under §
(Rule) 758.18(1). The standard court form for
subpoenas is substantially the same as the form for
subpoenas prescribed in § 885.02.
4107 The subpoena was issued by the clerk of
circuit court of Waukesha County.® The subpocna
*See also Wis. Stat. § 757.01(1) empowering courts of record of
this state to issue “process of subpoena, requiring the
attendance of any witness... .”
®Clerks of court may sign subpoenas in blank and deliver them
to attorneys for completion. Such a subpoena has the same
force and effect as if perfected by the clerk. Wis. Stat. § 757.35.
APP58
requires the witness named (here the chief of police) to
appear and give evidence at the type of proceeding
described in the subpoena (here the proceeding was
simply denominated a “Return of Records”).’ A copy of
the subpoena is attached.
4108 The defendant's subpoena does not satisfy
the applicable statutes because the subpoena did not
require the Brookfield police chief, in the words of Wis.
Stat. § 885.01(1), to attend an "action, matter or
proceeding pending or to be examined into before" the
court. The Return of Records proceeding set forth in
the subpoena is not a proceeding known in this state
and is not described in the subpoena or briefs. Defense
counsel explained in the circuit court that rather than
have the subpoenaed records delivered to her office (a
procedure for which she cites no authority), she used
the subpoena to raise before the circuit court the legal
issue of whether she could obtain the records by
subpoena and expected the State to move to quash the
subpoena.
4109 The defendant does not cite any statute
providing for any court proceeding in which a criminal
defendant or his or her attorney receives a witness's
testimony or documents in or out of court prior to the
°A box on the subpoena describing the subpoena as a third
party subpoena under Wis. Stat. § 805.07(2) was not checked.
Nevertheless, throughout his brief the defendant refers to the
subpoena as a third-party subpoena to compel the production
of police investigatory reports and to obtain copies of all
nonprivileged material prior to the preliminary examination.
APPS9
preliminary examination. The defendant nevertheless
argues that a witness or evidence may be subpoenaed
for the sole purpose of producing documents prior to
the preliminary examination. I disagree with the
defendant under the circumstances of the present case.
110 The defendant's subpoena in the present
case seeking documents from a potential witness does
not command the witness “to attend an action, matter
or proceeding pending or to be examined into before”
the commissioner or court under Wis. Stat. § 885.01(1)
to be held on July 13, 2006. No hearing was to take
place on July 13, 2006. Defense counsel obtained a
return date for purposes of completing the subpoena
form, but no hearing at which the witness was to
appear and testify was scheduled. The circuit court
recognized this flaw in the subpoena demand,
observing, “I am asked here today .. . to in essence
create some type of new beast, some new creature not
provided by the statute ... whether we call it a return
of records or a review of records or production of
records.”’°
{111 No _ witness's testimony or lawful
instrument of evidence, whether provided by the police
chief or any other witness, was required in the Return
of Records proceeding. The court commissioner was not
The majority opinion explains the “Return of Records”
proceeding similarly as follows: “Schaefer is asking this court
to establish an additional proceeding, denominated by him as
a ‘Return of Records,’ that will help the defendant prepare for
his preliminary examination without requiring any witness to
testify.” Majority op., 444.
APP60
to consider any matter in respect to which the
Brookfield police chief might have supplied relevant
testimony or produced relevant evidence. The sole
apparent purpose of the Return of Records proceeding,
according to the defendant, was to determine the
validity of the defendant's demand that there be a
transfer of information and documents from the
Brookfield police chief to the defendant and to transfer
the information and documents to the defendant if the
court determined that the defendant's demand was
valid.
9112 The majority opinion interprets the
subpoena statutes as J de and concludes as I do: “In
short, no subpoena statute authorizes Schaefer's
action.” Majority op., 945."
4/113 Nevertheless the majority opinion marches
onward. Not satisfied with its holding that the
‘Furthermore, Wis. Stat. § (Rule) 805.07(1) does not
authorize the defendant's subpoena in the present case.
Section (Rule) 805.07(1) provides that “[a] subpoena may also
be issued by any attorney of record in a civil action or special]
proceeding to compel attendance of witnesses for deposition,
hearing or trial in the action or special proceeding... .” The
subpoena in the present case was not issued by an attorney of
record. It was issued by the clerk of the circuit court.
In any event, the subpoena in the present case did not direct
the police chief to appear to testify at a deposition, hearing, or
trial. The Return of Records was not a deposition, hearing, or
trial at which the police chief's testimony was to be given.
APP61
defendant has no statutory authority for the subpoena,
the majority opinion embarks upon a confusing and
ultimately fruitless discussion of the criminal discovery
statutes, §§ 971.23 and 971.35(5)(b), declaring that the
defendant's subpoena is “inconsistent with our criminal
discovery statutes.” See majority op., 441.
4/114 Interestingly, the defendant lays no claim
to a discovery right under either the criminal discovery
statute, § 971.23, or the civil statutes, Wis. Stat. §§
804.01(2) and 804.09, to obtain the materials
demanded in his subpoena. I agree with the defendant
that neither the civil discovery statutes nor § 971.23,
entitled “Discovery and inspection,” applies in the
present case to authorize the subpoena.
91115 Nevertheless the majority devotes almost
one-half of its opinion to analyzing our criminal
discovery statutes and the nature and purpose of
discovery in general. See majority op., /118-40, 46°59.
The majority opinion’s lengthy liscussion of the
criminal discovery statute, Wis. Stat. § 971.23, in
relation to the present case, ignores the text of § 971.23
and related statutes and will likely confuse the law.
9116 The text of Wis. Stat. § 971.23 is cleariy
not applicable to the instant case. The defendant is
clearly correct in not trying to rely on § 971.23, and the
majority opinion clearly errs in reaching out to apply
the criminal discovery statutes to the present case.
4/117 First, motions for discovery under § 971.23
may be made only after the information is filed. See §
971.31(5)(b). The subpoena in the present case is not a
APP62
motion (although the majority opinion at 954 nearly
declares the subpoena a motion).’* Moreover, no
information has been filed in the present case.
9118 Second, Wis. Stat. § 971.23 governs
discovery and the district attorney. It governs what a
district attorney shall disclose to a criminal
defendant.'® The present case involves disclosure by a
?<~Miotion” means an application for an order.” Wis. Stat. §
(Rule) 971.30(1). The defendant's subpoena is not an
application for an order. The subpoena made direct demands
of the Brookfield police chief, ostensibly pursuant to statutory
authority. The subpoena did not request that a court make
demands of the police chief.
The majority opinion concedes that the defendant's subpoena
satisfies only “some of the criteria of a ‘motion.” Majority op.,
54. Yet even this weak assertion is plainly incorrect. The
majority opinion does not actually identify any “criteria ofa
‘motion” satisfied by-the defendant's subpoena but instead
notes only that “[t]he police chief's failure to honor the
subpoena would likely lead to” a motion from the defendant.
Majority op., 454.
With the significant qualification that the holding applies
only “where there has been no showing of particularized need
for inspection,” this court held in State ex rel. Lynch v. County
Court, 82 Wis. 2d 454, 464-66, 262 N.W.2d 773 (1978), that a
defendant does not have a “general right to peruse the
prosecutor's files” at the preliminary examination.
During a preliminary examination for seven different
defendants, defense attorneys in the Lynch case made a
general demand for all exculpatory material in the possession
of the district attorney. Lynch, 82 Wis. 2d at 458. The circuit
court responded by permitting each defendant's attorney to
APP63
police chief to the defendant. Nothing in the text of §
971.23 governs disclosure by law enforcement agencies
to a criminal defendant.
4119 The majority opinion ignores the plain
language of Wis. Stat. § 971.23 governing district
attorneys and toys with the idea of adding the words
“law enforcement officers” to § 971.23, asserting in a
footnote that this court is “reluctant to treat the police
department and the district attorney's office as
separate entities” for purposes of § 971.23(1) because
the police and the district attorney are “related” for
purposes of this statute.'"* The majority does not
explain why the relationship between the two separate
entities for purposes of a statutory provision does not
mean simply that the two entities should be treated as
separate but related entities for purposes of the
statute.
41120 The majority opinion errs in musing that
law enforcement and the district attorney perhaps may
be treated as one. In our system of government, law
enforcement and the district attorney's office are two
separate entities, with separate functions and subject
to different codes of conduct, although the two often
review the district attorney's entire file regarding his or her
chent. Lynch, 82 Wis. 2d at 458. The facts of Lynch did not
involve, and the Lynch court did not address, the question of
a defendant's right to obtain records from a law enforcement
agency.
'SMajority op., 957 n.12.
)
APP64
work together.’° TV's Law & Order gets it right: “In the
criminal justice system, the people are represented by
two separate yet equally important groups: the police,
who investigate crime, and the district attorneys, who
prosecute the offenders.” The legislature has treated
these separate entities differently in the criminal
discovery statutes, using Wis. Stat. § 971.23 to govern
defendants' rights against district attorneys. Section
971.23 does not govern the question of defendants'
similar rights against law enforcement agencies. This
court should not, as the majority opinion appears to do,
disturb the relationship of law enforcement and district
attorneys in the Wisconsin criminal justice system.*®
Law enforcement's task is to objectively gather all the
evidence in pursuit of the truth, rather than to attempt to hone
in early on a suspect and build a case against him or her.
Tunnel vision by law enforcement, that is, incomplete
investigation and premature concentration on one suspect, has
been shown to lead to wrongful convictions. See Keith A.
Findley & Michael S. Scott, The Multiple Dimensions of
Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291.
For a chilling non-fiction description of non-objective police
investigation resulting in an innocent person being convicted
and sentenced to death, see John Grisham, The Innocent Man
(2006).
‘As a result of the majority opinion, are police departments as
well as district attorneys obliged to turn over, upon a
defendant's request after the information is filed, all the
materials and information set forth in Wis. Stat. § 971.23?
The majority opinion cites State v. DeLao, 2002 WI 49, 421,
252 Wis. 2d 289, 643 N.W.2d 480, for the undisputed
proposition that under Wis. Stat. § 971.23, “the State's
(we «et =
‘
discovery obligations may extend to information in the
possession of law enforcement agencies but not personally
known to the prosecutor.” See majority op., 457 n.12. The fact
that § 971.23(1) imposes upon the district attorney an
obligation to disclose information in the possession of law
enforcement agencies plainly does not mean that § 971.23(1)
governs what law enforcement agencies must disclose to a
defendant. The DeLao court explained its decision as follows:
“Put another way, under certain circumstances, the knowledge
of law enforcement officers may be imputed to the prosecutor.
... The test ... [is] whether by the exercise of due diligence
[the prosecutor] should have discovered it.” State v. DeLao,
2002 WI 49, $9 21-22, 252 Wis. 2d 289, 643 N.W.2d 480 (quoted
source omitted). DeLao does not support the position that in
referring to the “district attorney” in § 971.23, the legislature
intended to refer to both the “district attorney” and “the
police.”
State v. Martinez, 166 Wis. 2d 250, 260, 479 N.W.2d 224 (Ct.
App. 1991), cited in DeLao and in n.12 in the majority opinion,
does not support the position that the reference in Wis. Stat.
§ 971.23 is a reference to bo’ the district attorney and the
police. Martinez is a “good -ause” case under the discovery
statute. In Martinez, the law enforcement agency, not the
prosecutor, had control over a tape. The court of appeals noted
that many courts and district attorneys entrust the custody
and control of evidence to the police even after it has been
elevated to formal evidentiary status in acriminal proceeding.
The State had no explanation of how the tape that was
requested by the prosecutor (in response to defense counsel's
request for discovery) was lost after it was deposited at the
front desk of the sheriff's department. The State admitted that
it had failed to advise defense counsel that the tape was
awaiting him at the front desk. Martinez stands for the
proposition that when the State concedes that the requested
information was lost, it has the burden under the criminal
discovery statute to show that the State had good cause for its
ADnNnNZs
4121 The majority opinion twists and bends to
avoid the plain language of the discovery statute as the
text of the statutes proves inconvenient to the
majority's unclear theses about discovery in criminal
cases. Because the majority opinion's analysis is so
badly at odds with the plain language of the criminal
discovery statutes, the majority cannot bring itself to
reach any actual holding regarding what the criminal
discovery statutes m
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