# Petition for Writ of Certiorari — Schaefer v. Wisconsin (No. 08-28) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1086%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text (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 thi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1086%3A1. Public record. Not legal advice.