BRAD D. SCHIMEL ATTORNEY GENERAL Paul W. Council Deputy Attorney General Delanle M. Breuer Chief of Staff STATE OF WISCONSIN DEPARTMENT OF JUSTICE 17 W. Main Street P.0. Box 7857 Madison, WI 53707-7857 Randall Schneider Assistant Attorney General schnelderr@doj.state.wi.us sooner-1339 FAX 608367-2718 October 8, 2018 Attorney Tania M. Bennett Adams County District Attorney Adams County Courthouse Post O?ice Box 258 Friendship, WI 53934 Re: Brady/Giglio Inquiry Regarding Deputy Brent York Dear Attorney Bennett: I write in response to your request that the Wisconsin Department of Justice review. materials and render an opinion regarding your discovery obligations and the existence of Brady/Giglio information. The Department of Justice has a duty to advise and consult with district attorneys on all matters pertaining to the duties of their of?ce on request. Wis. Stat. In regards to this request, I have reviewed the following materials: 1) 2) 3) 4) Adams County Sheriff?s Deputy Brent York?s (hereinafter ?York?) ?ve-page report dated February 11, 2001, regarding the arrest of Steven Vosen (hereinafter ?Vosen?) in Adams County Sheriffs Department case number 20010556. Division of Criminal Investigation (DCI) Agent Freymiller?s eight-page report dated March 29, 2001, DCI case number Correspondence from Adams County of?cials in October 2003 regarding an independent investigation and potential disciplinary action into York?s statementsI regarding his original report of the Vosen incident (among other things). A letter from District Attorney Thibodeau to Sheriff Remer dated June 14, 2007, regarding a meeting he had with York wherein he expressed his concerns regarding potentially exculpatory information regarding York. This letter included attachments, one of which is four pages of email correspondence between District Attorney Thibodeau and Assistant Attorney General Roy Korte regarding Braajw/Giglia. Including York?s testimony before a grand jury in the federal indictment of then-Undersheriff Kenneth Bitsky, in which Bitsky was prosecuted for use of excessive force against Vosen. Attorney Tania M. Bennett October 8, 2018 Page 2 5) An October 14, 2004, transcript excerpt of York?s deposition testimony (72 pages) in relation to a civil lawsuit brought by Vosen against Adams County, Kenneth Bitsky (hereinafter ?Bitsky?) and York. As you explained, on September 5, 2018, you were told that the transcript ?om October 2004 was discovered in York?s personnel ?le, which you then reviewed. The contents of this transcript, which District Attorney Thibodeau did not have when he reviewed the BraajI/Giglr'o issue in 2007, caused you to re-assess the issue and contact us for an opinion. District Attorney Thibodeau was aware that York had testi?ed before a grand jury in Bitsky?s federal prosecution and he attempted to obtain a transcript of that testimony. However, the US. Attorney re?ised to release the transcript. District Attorney Thibodeau asked York whether impeachment evidence existed in the Bitsky federal prosecution, and York re?lsed to directly answer. Bitsky later plead to crimes including ?attempting to persuade a deputy to write a false report.? The civil lawsuit in ?which York was deposed followed the criminal prosecution of Kenneth Bitsky. My review of the reports, documents, and deposition testimony leads me to conclude that you have an ethical obligation to disclose the con?icting information provided by York regarding the incident with Vosen on February 11, 2001.2 The inconsistencies between his statements as to Vosen?s actions prior to Bitsky?s physical contact with Vosen constitute impeachment evidence. I discuss in more detail these factual inconsistencies beginning at page four. Before addressing your speci?c question regarding any potential discovery obligations, I will brie?y summarize the relevant legal principles that guide a prosecutor?s duties to disclose exculpatory evidence. A Prosecutor?s Ethical Obligations to Disclose Exculpatog Evidence The prosecutor?s duty to disclose exculpatory evidence stems from constitutional, statutory, and ethical sources. See Wis. Stat. and SCR In Brady v. Maryland the Supreme Court held that ?suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either 2 To be precise, these statements are captured in York's law enforcement report dated February 1 1, 2001, York?s statements to Agent Freymiller on March 29, 2001, and York?s testimony under oath on October 14, 2004, in his deposition, beginning at page 171, related to the civil lawsuit ?led by Vosen. 3 In In re Rick, 2013 WI 81, 350 Wis. 2d 684, 834 384, the Wisconsin Supreme Court held that it construed ?the ethical mandate of SCR in a manner consistent with the scope of disclosure required by the United States Constitution, federal or Wisconsin statutes, and court rules of procedure.? Id. 11 36. In other words, the ethical rule requiring the disclosure of exculpatory evidence is coextensive with a prosecutor?s constitutional duty to disclose exculpatory evidence. Attorney Tania M. Bennett October 8, 2018 Page 3 to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.? Brady, 373 U.S. 83, 87 (1963). In addition, this duty to disclose evidence material to either guilt or punishment applies not only to exculpatory information, but also extends to information that could be used to impeach a witness. Giglio v. United States, 405 U.S. 150, 154 (1972). ?When the ?reliability of a given witness may well be determinative of guilt or innocence,? nondisclosure of evidence affecting credibility falls within this general .rule.? 1d. (citation omitted); see also State v. Harris, 2004 WI 64, 1] 13, 272 Wis. 2d 80, 94, 680 737. Impeachment evidence includes any evidence where the ?reliability of a given witness may well be determinative of guilt or innocence.? Giglio, 405 U.S. at 154. To establish a BraW/Gtglio violation, a defendant must show that: (1) the State suppressed evidence within its possession at the time of trial; (2) the evidence was favorable to the defendant; and (3) the evidence was material to a determination of the defendant?s guilt or See Brady, 373 U.S. at 87. Evidence is material ?if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.? United States v. Bagley, 473 U.S. 667, 682 (1985). Said another way, a court asks whether ?the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine con?dence in the verdict.? Kyles v. Whitley, 514 U.S. 419, . 435 (1995). ?Impeachment evidence casting doubt on a witness?s credibility is material and subject to disclosure.? State v. DelReal, 225 Wis. 2d 565, 571, 593 461 (Ct. App. 1999). The Wisconsin Rules of Evidence expressly contemplate examination on issues related to a witness?s credibility. A party may introduce opinion and reputational evidence related to a witness?s truth?il character. Wis. Stat. 906.080). In addition, on cross-examination, a party may attack a witness?s character for truthfulness through speci?c instances of conduct. See Wis. Stat. In deciding whether evidence should be disclosed, I make several other observations. First, if the evidence casts doubt on a witness?s credibility, the prosecutor should disclose it, whether or not it arose in connection with the witness?s employment. A legal determination that a person is untruthful, found guilty of perjury or terminated for lying, is quintessential impeachment evidence subject to disclosure. However, the duty to disclose impeachment evidence is not limited to situations in which a fact?nder has determined that a witness is untruthful. If a prosecutor is aware of circumstances in which a reasonable person could determine that a witness has been untruthful,? a prosecutor has a duty to disclose this information. Historical Background of Your Discoveg: Issue Regarding Depug Brent York. The incident and report which forms the basis of this inquiry occurred on February 11, 2001. Deputy York lawfully arrested Vosen and transported him to the jail for booking. Vosen Attorney Tania M. Bonnett October 8, 2018 Page 4 was intoxicated and while in the booking area was loud and argumentative. Several of?cers were in the room at the time including, Bitsky. Bitsky and Vosen engaged in a physical struggle and with York?s assistance, Vosen was taken to the ground. In the process of this physical encounter, including handcuf?ng Vosen, he sustained a broken left arm. York?s official ?ve-page report of the incident was prepared after the incident in the early moming hours of February 11, 2001. The details of York?s report regarding what prompted Bitsky to physically engage with Vosen, and Vosen?s conduct immediately preceding that engagement became the subject of factual dispute. York reported that Vosen stood up from his chair, moved towards Bitsky, made a ?st, and could have struck of?cers in the room based upon Vosen?s proximity to them. The statements of other of?cers present did not re?ect that Vosen engaged in any aggressively threatening action against anyone in the room. In relevant part, York?s report states the following: 1) Vosen was ?extremely verbally uncooperative,? out of control, and verbally abusive in the booking room; 2) Vosen stood up from his chair, and when told by jail staff to sit down, stated he was not going to sit down; 3) Vosen started to come out from behind the booking area counter; 4) Bitsky told Vosen to sit down and ?at that time STEVEN appeared that he was going to swing at Undersheriff Bitsky? who then grabbed Vosen and put him up against the wall. York?s report makes no mention of a ?popping? sound or suspicion that Vosen had sustained a broken bone. On March 29, 2001, DCI Agent Freymiller and Waushara County Sheriff?s Department?s Sergeant Thurley interviewed York regarding his report and the incident. Agent Freymiller documents York stating the following during this interview: 1) When Vosen stood up ?-om his chair, no jailer directed him to sit back down, asserting a second time in the interview that if the jailers had directed Vosen to sit back down in his chair, the situation would have remained under control. 2) Vosen had taken a step towards Bitsky during the verbal altercation and ?pulled his right arm back? and ?made a and that he believed Vosen was going to ?punch someone,? and believed it was going to be the two jailers who were closest to Vosen; 3) Bitsky then pushed Vosen against the wall, (while demonstrating his observation of how Vosen was standing in relation to York); Attorney Tania M. Bonnett October 8, 2018 Page 5 4) When questioned about how he could see Vosen?s ?st down at his right side if York was standing facing Vosen?s left side, York stated he had a better view of it than the jailers in the room; 5) York felt Bitsky?s reaction was appropriate due to the fact that York had seen Vosen?s ?st. 6) When York was on the ground holding Vosen?s le? arm, he heard a loud ?pop? noise from Vosen?s elbow and remembered thinking he had broken something in Vosen?s arm. York?s deposition testimony on October 14, 2004, contradicts facts he previously asserted. In his testimony, York states the following: 1) A?er Bitsky ordered Vosen to sit down, Vosen sat down in his chair (page 171); 2) Vosen had sat down at which point Bitsky grabbed Vosen by the shirt collar, and ?spun Vosen? into the corner in a compliance hold (page 172); 3) Vosen made no threatening gestures toward Bitsky that York observed prior to Bitsky pinning Vosen against the wall (page 174); 4) Bitsky lifted Vosen out of the chair (page 177); 5) As York gained control of Vosen?s left arm while on the ground, he heard a ?pop? (page 185); 6) When York dictated his report, Bitsky was in the room (page 192); 7) York never actually saw Vosen make a ?st, but rather heard that from Bitsky (page 196); 8) York?s report regarding Vosen having made a ?st to strike Bitsky before Bitsky made physical contact with Vosen was nothing York actually saw, but was what he heard ?-om Bitsky (page 222). 9) York did not reveal this to Sergeant Thurley when interviewed on March 29, 2001, (page 222). Conclusion Based on the totality of these statements, now in light of York?s testimony on October 14, 2004, a reasonable person could conclude that aspects of York?s original report along with some of the information he provided during his interview on March 29, 2001, were untruthful or made with a reckless disregard for the truth. They arguably re?ect on York?s character for truthfulness and would constitute a speci?c instance of conduct that could be used Attorney Tania M. Bonnett October 8, 2018 Page 6 to attack York?s character for truthfulness. See Wis. Stat. 906.08. This is classic Giglio evidence subject to a prosecutor?s duty to disclose exculpatory evidence. A determination that this information constitutes discoverable impeachment evidence subject to disclosure under Giglio does not foreclose you from challenging its admissibility or materiality in court proceedings. The circuit court has considerable latitude when it decides whether to admit evidence. See Wis. Stat. 904.03. Please do not hesitate to contact us should you have any further questions regarding this matter. Sincerely, ., Rak?l? 33f? Randall Schneider Assistant Attorney General Director, Criminal Litigation Unit RS1TLB