On Wednesday, September 5, 2018, the Supreme Court of Wisconsin will hear oral argument in State v. Wayerski. This will be the first oral argument of the term, and should be the first oral argument heard by new Justice Rebecca Dallet. The case presents an ineffective assistance of trial counsel issue, as well as issues regarding whether the State violated Brady v. Mayland in failing to disclose material exculpatory and impeachment evidence.
Wayerski was a police officer who came into contact with two boys in the community. Wayerski volunteered to mentor the two boys, and brought them on ridealongs and invited them to his home. At some point the boys accused Wayerski of showing them pornography and sexually assaulting them. Wayerski denied all allegations at trial. The State called John Clark, who occupied a nearby jail cell to Wayerski, as a witness and Clark testified that Wayerski admitted that he had watched pornography with the boys, given the boys alcohol, and sexually assaulted them.
Defense counsel called Wayerski in surrebuttal in response to Clark, but counsel never asked Wayerski whether Clark's claim that Wayerski sexually assaulted the boys was true. A few days prior to trial the prosecutor noticed on Wisconsin Circuit Court Access that Clark had pending charges in another county. The pending charges were not disclosed to defense counsel, and the defense counsel was not aware of the pending charges at the time of trial.
Wayerski was convicted on all sixteen counts, and then appealed. The Court of Appeals concluded that the ineffective assistance of counsel claim did not require a new trial because Wayerski could not demonstrate prejudice because the other evidence against him was overwhelming. The Court of Appeals also held that there was no Brady violation because it was not an intolerable burden on the defense to search CCAP for the State witness's available pending criminal charges.
The evidence presented in the case, as outlined by the Court of Appeals, is substantial, so it may be difficult for Wayerski to demonstrate the prejudice necessary to meet the ineffective assistance of counsel or Brady standards. The Brady issue, however, presents an interesting question regarding how much the State's obligation to provide Brady information is mitigated by the information being available on platforms such as CCAP. The Supreme Court of Wisconsin will have an opportunity to decide whether to adopt the "intolerable burden" standard articulated by the Court of Appeals.
The Wisconsin State Public Defender previously analyzed the Court of Appeals decision in this case. A synopsis of the case can also be found here along with synopses of other cases scheduled for oral argument. The Court of Appeals opinion can be found here.
Live video of oral argument can be streamed at Wisconsin Eye
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