                                                        2019 WI 11

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2015AP1083-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Gary Lee Wayerski,
                                 Defendant-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                         Reported at 378 Wis. 2d 739, 905 N.W.2d 843
                                     (2017 – unpublished)

OPINION FILED:         February 7, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 5, 2018

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Dunn
   JUDGE:              William C. Stewart, Jr., and Maureen D. Boyle

JUSTICES:
   CONCURRED:          ZIEGLER, J. concurs and dissents, joined by
                       ROGGENSACK, C.J. (opinion filed).
                       KELLY, J. concurs and dissents, (opinion filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed by Edward J. Hunt and Hunt Law Group, S.C., Milwaukee.
There was an oral argument by Edward J. Hunt.


       For the plaintiff-respondent, there was a brief filed by
Donald V. Latorraca, assistant attorney general, and Brad D.
Schimel, attorney general.         There was an oral argument by Donald
V. Latorraca.
                                                                   2019 WI 11
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
No.       2015AP1083-CR
(L.C. No.    2011CF186)

STATE OF WISCONSIN                       :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                FILED
      v.                                                    FEB 7, 2019

Gary Lee Wayerski,                                            Sheila T. Reiff
                                                           Clerk of Supreme Court

              Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                   Modified
and, as modified, affirmed.


      ¶1     REBECCA FRANK DALLET, J.    Gary Wayerski seeks review

of the court of appeals'1 decision affirming the circuit court's2
denial of his postconviction motion.




      1State v. Wayerski, No. 2015AP1083-CR, unpublished slip op.
(Wis. Ct. App. Oct. 31, 2017).
      2The Honorable William C. Stewart, Jr., of the Dunn County
Circuit Court presided over the jury trial and entered the
judgment of conviction. The Honorable Maureen D. Boyle presided
over the postconviction hearings and entered the order denying
Wayerski's postconviction motion.
                                                                        No.     2015AP1083-CR



     ¶2     Wayerski was charged with and convicted of 16 felonies
based upon allegations that over several months he had repeated
sexual contact with two juveniles, J.H. and J.P., and exposed
them to pornography.           Wayerski was found guilty by a jury of the
following     crimes:      (1)      two    counts         of    child    enticement         in
violation of Wis. Stat. § 948.07(3)(2015-16);3 (2) two counts of
exposing    genitals      or     pubic     area     in    violation      of     Wis.    Stat.
§ 948.10(1);      (3)    two     counts     of     exposing      a    child     to    harmful
material    in    violation      of    Wis.       Stat.    § 948.11(2)(a);            (4)   two
counts of causing a child over the age of 13 to view/listen to
sexual activity in violation of Wis. Stat. § 948.055(2)(b); and
(5) eight counts of sexual assault of a child by a person who

works or volunteers with children in violation of Wis. Stat.
§ 948.095(3).
     ¶3     Wayerski       filed      a    postconviction             motion,     asserting
claims of ineffective assistance of trial counsel, circuit court
errors,     and    a     claim      that    the     State       violated        its     Brady4

obligations.           Brady   v.     Maryland,      373       U.S.    83 (1963).           The
circuit court denied Wayerski's postconviction motion.



     3 Wayerski committed and was charged with the offenses when
the 2009-10 statutes were in effect.        The portions of the
statutes relevant to this appeal are materially unchanged from
the current 2015-16 version and therefore all subsequent
references to the Wisconsin Statutes are to the 2015-16 version.
     4 Pursuant to Brady v. Maryland, 373 U.S. 83 (1963),
suppression by the State of material evidence favorable to a
defendant violates due process.


                                              2
                                                                        No.     2015AP1083-CR



       ¶4       The     court     of    appeals       affirmed    the   circuit     court's
denial of Wayerski's postconviction motion.5                        Wayerski now seeks
review of the denial of his ineffective assistance of counsel
claim6 and the denial of his Brady claim.

       ¶5       Wayerski claims that his trial counsel was ineffective
for failing to question him about a purported confession that he
gave       to   John     Clark,    a    government       witness    who       testified   on
rebuttal.          We    assume        without       deciding    that   trial      counsel's
performance was deficient, in accordance with the first prong of
the ineffective assistance of counsel analysis.                           However, even
if trial counsel's performance was deficient, we conclude that
there was no prejudice to Wayerski under the second prong of the

analysis.        Thus, we conclude there was no ineffective assistance
of counsel.
       ¶6       Wayerski also alleges that the State violated his due
process         rights     under        Brady     when     it    failed       to    disclose
impeachment evidence about Clark's pending charges in Chippewa
County.         We conclude that there was no Brady violation.                        While
evidence of Clark's pending charges was favorable to Wayerski as
impeachment of Clark's testimony and the State suppressed the

       5
       The court of appeals remanded the matter to the circuit
court solely to correct an error in the judgment of conviction.
Wayerski, No. 2015AP1083-CR, ¶2 n.5.
       6
       At the court of appeals Wayerski's ineffective assistance
of counsel claim had two parts.          Wayerski's ineffective
assistance of counsel claim as it relates to his trial counsel's
failure to seek a mistrial in response to the admission of
pornographic materials is not before us.


                                                 3
                                                                  No.        2015AP1083-CR



evidence,     Wayerski     failed     to       show    that     the     evidence      was
material.        In analyzing whether the State suppressed evidence
under the second component of the Brady analysis, we return to

the principles of Brady and ask only whether the evidence was
suppressed by the State, rather than the revisionary version of
Brady that our court has adopted in the past.                          Therefore, we
modify and, as modified, affirm the decision of the court of
appeals.
            I.    FACTUAL BACKGROUND AND PROCEDURAL POSTURE
     ¶7     In     July    2011,      the        State        filed      a      criminal
complaint against Wayerski,          which      charged nine          felony     counts.
In September 2012, the State was granted leave to file a second

amended information which charged 16 felony counts.
     ¶8     The    allegations      against      Wayerski       are   summarized       as
follows.     In February 2011, Wayerski, who was the police chief
of the Village of Wheeler and a part-time police officer for the
Village of Boyceville, offered to act as a "mentor" to 16-year-
old J.P. after J.P. admitted to breaking into a church.
     ¶9     Wayerski began his "mentorship" with J.P. by taking
him on "ride-alongs" in his squad car and talking to him about
his sexual experiences.          Wayerski invited J.P. to his apartment
where he had J.P. take off his shirt and pants so that Wayerski
could see his "muscle tone" and assist in his physical fitness.
During     subsequent     visits    Wayerski          touched    J.P.'s        genitals,

claiming that it was also for workout purposes.
     ¶10 Between March 2011 and July 16, 2011, J.P. alleged that
Wayerski masturbated him on more than 20 occasions while they
                                           4
                                                                          No.     2015AP1083-CR



watched pornography.                J.P. also claimed that Wayerski made him
perform      other     sexual       activities          based    on     Wayerski's        sexual
interests and fetishes.               One night in particular, Wayerski made
J.P.    ejaculate       onto    an     oval-shaped         turquoise       plate     so    that
Wayerski could "weigh his sperm."
       ¶11    In     March    2011,        Wayerski      issued        17-year-old      J.H.    a
disorderly       conduct       ticket.         Wayerski         told     J.H.    that     if    he
completed his community service and stayed out of trouble for
six months, the incident would be removed from his record.                                 Like
J.P.,     J.H.       recounted        going        on    several         "ride-alongs"          in
Wayerski's         squad      car     before       being        invited     to     Wayerski's
apartment.           Wayerski       also    offered      to     help     J.H.    improve       his

physical      fitness.         J.H.       described      specific        sexual    activities
that    Wayerski       made     him    perform,         based     on    Wayerski's        sexual
interests, including watching                  pornography         with     Wayerski       while
Wayerski masturbated him.
       ¶12    Additionally, the juveniles detailed how, on occasion,
Wayerski would invite both of them to his apartment at the same

time    for    overnight        stays.          During        these      overnight        stays,
Wayerski      would     allow       the    juveniles       to     drink    alcohol.            The
juveniles also claimed that during one of these overnight stays
Wayerski      simultaneously          masturbated         both     of     them    while     they
watched on-demand pornography together.                          Lastly, the juveniles
alleged that Wayerski threatened to send them to "juvie" or jail
if   they     ever    told     anyone      about    the       sexual     contact     or    about
watching pornography at Wayerski's apartment.


                                               5
                                                                       No.    2015AP1083-CR



       ¶13       Early in the morning on July 16, 2011, after staying
overnight at Wayerski's apartment, the juveniles got into an
argument with Wayerski about his cable bill and the amount of
money spent watching on-demand pornography.                       The juveniles left
Wayerski's        apartment     on     foot    and    walked     several      miles   to    a
friend's house.            When J.H.'s father picked the juveniles up from
their friend's house, they told him that some "weird stuff had
been happening for a while" at Wayerski's apartment, and that
Wayerski         had "molested" them.               J.H.'s father       stated    that     he
could tell the juveniles had been drinking alcohol.                            Later that
day,       the   juveniles    went     to     law    enforcement       to    report   their
allegations.

       ¶14       Eau   Claire        County7         Sheriff's      Detective         Kuehn
interviewed J.P. and J.H. separately.                        Detective Kuehn obtained
and    executed        a    search      warrant        for     Wayerski's      apartment.
Detective         Kuehn     recovered       the      following    items:         multiple
computers, alcohol, the oval-shaped turquoise plate that J.P.
referenced, and a cable bill containing charges for on-demand

pornographic films.
       ¶15       Wayerski's     jury     trial       lasted     from    October       8    to
October 12, 2012.           The State called J.H. and J.P. as its primary
witnesses.         In addition, the State called the parents of J.H.
and    J.P.       to   corroborate       the       juveniles'     story      about    their


       7
       To avoid a conflict of interest because of Wayerski's
position as a police officer and police chief in villages in
Dunn County, the case was assigned to Eau Claire County.


                                               6
                                                                   No.     2015AP1083-CR



frequent contact with Wayerski and their overnight stays at his
apartment.       The jury also heard testimony from Sarah Zastrow-
Arkens, a DNA analyst from the Wisconsin State Crime Laboratory.
Arkens testified that semen from the oval-shaped turquoise plate
in    Wayerski's   apartment       showed      a   male   profile    which     matched
J.P.'s    DNA.      Arkens      further     testified      that    the   statistical
likelihood that the sample from the plate belonged to anyone
other than J.P. was one in 28 quintillion.                         Detective Kuehn
testified that he interviewed the juveniles and their demeanor
was     consistent       with     prior        victims     of     sexual      assault.
Additionally, several other law enforcement officers testified
about their involvement in the case.

       ¶16   Wayerski's general defense was that the juveniles had
fabricated the allegations because Wayerski was part of a drug
investigation      involving      people       connected    with    J.P.     and    J.H.
Wayerski disputed the number of "ride-alongs" he had with J.P.
and   J.H.   and   the    number    of    times     the    juveniles     visited     his
apartment.       Wayerski called four witnesses at trial who claimed

that after Wayerski's arrest, J.P. said he was lying and that
the allegations were a "set up" or a joke.
       ¶17   Clark, an inmate who occupied a Chippewa County jail
cell near Wayerski for six to eight weeks, testified for the
State on rebuttal.         Clark testified that Wayerski had admitted
to    masturbating   the     juveniles,        watching    pornography       with    the
juveniles, and allowing the juveniles to drink alcohol.                            Clark
testified that he did not ask for, or receive, any benefit for
testifying against Wayerski.              Instead, Clark testified that he
                                           7
                                                                           No.        2015AP1083-CR



had reported the comments to a sergeant at the jail and to
Detective Kuehn because "[t]hey're kids. I think that says it
all."       On the stand, Clark admitted to the jury that he had been
convicted of 20 crimes, including some felonies.
       ¶18      Wayerski's      trial       counsel      recalled      Wayerski             to    the
stand after Clark's rebuttal testimony.                          However, trial counsel
did not ask Wayerski about the purported confession.                                        Instead,
trial counsel asked several questions that Wayerski insisted he
ask, including the number of inmates in jail that Wayerski had
been       in   contact    with   and       whether      inmates     had    access           to    the
media.8
       ¶19      The     jury    saw     a    substantial         amount          of     evidence,

including        pornographic         photographs         from      Wayerski's          computer,
pornography         searches,     photos      of       J.H.   and    J.P.    that        Wayerski
captured on his phone, and messages from Wayerski's computer and
cellphone.            The pornographic materials on Wayerski's computer
reflected an interest in young males between the ages of 16 and
20     and      included       pictures       arranged        under     titles           labelled

"milking,"        "punish,"       "spanking,"           and   "stances."               At     trial,
Wayerski admitted to these types of sexual interests.                                       In both
their       trial     testimony       and    in       their   initial       interview             with
Detective Kuehn, J.P. and J.H. described contact consistent with
these types of sexual interests.

       8
       The questions asked by Wayerski's trial counsel raised an
implication that Clark had access to various forms of media when
he was in jail, and that the details he knew about Wayerski's
case could have come from those outside sources.


                                                  8
                                                        No.   2015AP1083-CR



     ¶20     A jury found Wayerski guilty of all 16 felony counts
and he was subsequently sentenced to a total of 14 years of
initial confinement and 16 years of extended supervision.            After
his trial, Wayerski discovered that Clark had been charged with
three crimes against children in Chippewa County one month prior
to Wayerski's trial:       (1) one count of soliciting a child in
violation of Wis. Stat. § 948.08; and (2) two counts of sexual
intercourse with a child 16 or older in violation of Wis. Stat.
§ 948.09.9     The prosecutor assigned to Wayerski's case admitted
that he had discovered Clark's pending charges a few days prior
to Wayerski's trial through a basic check of          Consolidated Court
Automation Programs (CCAP).10        After discovering these charges,

the prosecutor obtained a copy of the Chippewa County complaint11
and, after reviewing it, decided that Clark's pending charges
did not affect the veracity of his prior statements given to
Detective Kuehn.     Therefore, the prosecutor did not disclose the
pending    charges   or   criminal   complaint   to   Wayerski's     trial
counsel.


     9 Clark was ultimately convicted of:   (1) one count of
causing a child over the age of 13 to view/listen to sexual
activity in violation of Wis. Stat. § 948.055(1); and (2) two
counts of sexual intercourse with a child 16 or older in
violation of Wis. Stat. § 948.09.
     10CCAP is an internet accessible case management system
provided by Wisconsin Circuit Court Access program. State v.
Bonds, 2006 WI 83, ¶6, 292 Wis. 2d 344, 717 N.W.2d 133.
     11The record is unclear as to exactly how the prosecutor
obtained a copy of the complaint.


                                     9
                                                                      No.    2015AP1083-CR



     ¶21    Wayerski          filed     a     postconviction      motion       asserting
claims of ineffective assistance of trial counsel, circuit court
errors,     and     a    claim        that    the     State    violated       its     Brady

obligations       by    not    disclosing       Clark's     pending     charges.       The
circuit court held a hearing on Wayerski's postconviction motion
and heard testimony from Wayerski and his trial counsel.
     ¶22    As to the claim of ineffective assistance of counsel
that is before this court, Wayerski's trial counsel testified
that he could not think of a reason why he did not ask Wayerski
about     Clark's       testimony       regarding       a     purported      confession.
Wayerski's trial counsel admitted that, with "the benefit of
20/20   hindsight,"           he    should     have   asked     Wayerski      about    the

alleged    confession.             However,     Wayerski's     trial    counsel       noted
that Wayerski had been talking into his ear during the entire
trial, and that he had recalled Wayerski to the stand to ask him
several questions that Wayerski directed him to ask.                            Wayerski
testified that, had he been asked at trial, he would have denied
giving a confession to Clark.
     ¶23    While the circuit court acknowledged that Wayerski's
trial     counsel       "probably"           should    have     given       Wayerski     an
opportunity       to    deny       Clark's    allegations,      one   more    denial    by
Wayerski would not have changed the outcome of the trial because
of the overwhelming amount of evidence.                       Therefore, the circuit
court   found that Wayerski              had    an    opportunity      to present his

defense and that his trial counsel "provided the representation
that he was [constitutionally] required to provide."


                                              10
                                                                 No.     2015AP1083-CR



      ¶24   Regarding      Wayerski's         Brady     claim,     trial       counsel

testified that he recalled performing a CCAP search on Clark,
but that he was probably concentrating on Clark's convictions.
Wayerski's trial counsel testified that he could not recall with
"one hundred percent specificity" whether he performed any CCAP
searches of Clark or whether he relied upon information provided
to him by the State.            The circuit court ordered supplemental
briefing on several issues and after two more hearings denied
Wayerski's motion.
      ¶25   The    circuit     court   found     that    the     State    failed    to
disclose Clark's pending charges.               However, citing Randall, the
circuit court found that the failure to inform Wayerski of the

pending charges was harmless error because there was compelling
evidence    of    Wayerski's     guilt    apart       from   Clark's      testimony,
including the juveniles' testimony and the DNA evidence.                        State
v.   Randall,     197   Wis. 2d 29,    539      N.W.2d 708     (Ct.     App.    1995).
Further, the circuit court noted that the jury had been alerted
to Clark's criminal history and that his credibility had been
called into question.
      ¶26   Wayerski filed a notice of appeal on six issues, only
two of which he raises on appeal to this court.                        The court of
appeals     affirmed     the   circuit        court's   denial     of    Wayerski's
postconviction motion. See State v. Wayerski, No. 2015AP1083-CR,
unpublished slip op., ¶2 (Wis. Ct. App. Oct. 31, 2017).                            The
court of appeals determined that "Wayerski failed to demonstrate
that his trial attorney's assistance prejudiced his defense on
the surrebuttal testimony" and that there was no Brady violation
                                         11
                                                                    No.    2015AP1083-CR



because it was not "'an intolerable burden on the defense' to
search CCAP for the State witness's available pending charges."
See Wayerski, No. 2015AP1083-CR, ¶2.

       ¶27     As    to   Wayerski's     ineffective       assistance      of   counsel
claim, the court of appeals declined to address the deficiency
prong     of      the     ineffective     assistance       of    counsel     analysis.
Instead, the court of appeals analyzed the prejudice prong and
concluded that Wayerski failed to show prejudice for several
reasons.       First, Clark's credibility was already questioned when
the jury was alerted to the fact that he was an inmate in jail
and that he had been convicted of 20 crimes, including some
felonies.           Second, the court of appeals noted that there was

never any doubt that Wayerski claimed he was innocent.                          Wayerski
also    called four witnesses            at   trial   who       testified that      they
heard    J.P.       recant   the   allegations.        Finally,       the    court    of
appeals      reasoned      that    the   evidence     of    Wayerski's      guilt    was
"overwhelming," including:               the juveniles' consistent, detailed
testimony,          the   substantial    evidence     recovered       in    Wayerski's
apartment, and the parents' testimony about time the juveniles
spent with Wayerski.
       ¶28     As to Wayerski's Brady claim, the court of appeals,
like the circuit court, looked to the Randall case.                             Randall,
197 Wis. 2d 29.           The court of appeals reasoned that the basis of
Randall was to avoid placing an                  "intolerable burden"            on the
defense      to      extensively    search      for   hard-to-secure         evidence.
Wayerski, No. 2015AP1083-CR, ¶55.


                                           12
                                                                        No.    2015AP1083-CR



       ¶29    However, the court of appeals noted that at the time
Randall was decided, "'comb[ing] the public records' for the

criminal record of every witness disclosed before trial entailed
a     trip    to     a     physical      site,      usually      the    courthouse        (or
courthouses), to sift through potentially vast paper records."
Wayerski, No. 2015AP1083-CR, ¶55 (citing Randall, 197 Wis. 2d at
38).    The court of appeals reasoned that since Randall, CCAP has
"facilitated efficient use of court resources and greater access
to court information by the public," allowing wide access to
those records via the internet.                     Id. (quoting State v. Bonds,
2006 WI 83, ¶47, 292 Wis. 2d 344, 717 N.W.2d 133).                            The court of
appeals held that because it was not an intolerable burden on

Wayerski's         trial    counsel    to    search       CCAP   for    Clark's    pending
criminal      charges,       the   pending       charges      were     not    "suppressed"
under Brady.
       ¶30    In the alternative, the court of appeals held that
even if it assumed that the evidence was suppressed, Wayerski
failed to show a reasonable probability of a different result
had     the    pending       charges        been    disclosed.           Wayerski,       No.
2015AP1083-CR,           ¶57.      The      court    of    appeals      concluded        that
nondisclosure of the record was not prejudicial because Clark
was already impeached and there was "very compelling evidence"
of    guilt even apart from              Clark's testimony.              Therefore, the
charges were not "material" pursuant to Brady.
       ¶31    Wayerski presents two claims to this court for review:
(1)    whether       trial      counsel      was    ineffective        for     failing    to


                                              13
                                                                    No.    2015AP1083-CR



question him about a purported confession that he gave to Clark;
and (2) whether the State violated its Brady obligation.12

                              II.    STANDARD OF REVIEW
       ¶32    "Under    the    Sixth     and     Fourteenth      Amendments       to    the
United States Constitution, a criminal defendant is guaranteed
the    right    to     effective      assistance        of   counsel."          State    v.
Balliette,      2011    WI    79,    ¶21,   336    Wis. 2d 358,      805       N.W.2d 334
(citing Strickland v. Washington, 466 U.S. 668, 686 (1984)).
The same right is guaranteed under Article I, Section 7 of the
Wisconsin       Constitution.            Whether        a    defendant     was     denied
effective assistance of counsel is a mixed question of fact and
law.        State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d 571, 665

N.W.2d 305.          The factual circumstances of the case and trial
counsel's      conduct       and    strategy     are    findings    of    fact,     which
will not be overturned unless clearly erroneous.                         Id.     "Whether
counsel's performance satisfies the constitutional standard for
ineffective assistance of counsel is a question of law, which we
review de novo."         Id.        To demonstrate that counsel's assistance
was    ineffective,      the       defendant     must   establish    that       counsel's


       12
       On appeal, Wayerski also alleged that there was a
violation of the criminal discovery statute, Wis. Stat.
§ 971.23(1).   The court of appeals declined to address this
argument because Wayerski had not properly developed the issue.
Wayerski, No. 2015AP1083-CR, ¶54 n.9.   Wayerski did not raise
this issue in his petition for review to this court and
therefore we will not address it. See Preisler v. General Cas.
Ins. Co., 2014 WI 135, ¶3, 360 Wis. 2d 129, 857 N.W.2d 136
(holding that this court "decline[s] to consider issues not
raised in petitions for review").


                                            14
                                                                         No.    2015AP1083-CR



performance was deficient and that the deficient performance was
prejudicial.           State       v.    Breitzman,         2017    WI   100,     ¶37,        378

Wis. 2d 431, 904 N.W.2d 93 (citing Strickland, 466 U.S. at 687).
If the defendant fails to satisfy either prong, we need not
consider the other.            Id. (citing Strickland, 466 U.S. at 687).
       ¶33     Whether       trial      counsel       performed      deficiently         is     a
question of law we review de novo.                      Breitzman, 378 Wis. 2d 431,
¶38.    To establish that counsel's performance was deficient, the
defendant must show that it fell below "an objective standard of
reasonableness."            See Thiel, 264 Wis. 2d 571, ¶19.
       ¶34     Whether any deficient performance was prejudicial is
also a question of law we review de novo.                          See State v. Domke,

2011 WI 95, ¶33, 337 Wis. 2d 268, 805 N.W.2d 364.                              To establish
that deficient performance was prejudicial, the defendant must
show    that    "there       is    a    reasonable      probability       that,    but        for
counsel's unprofessional errors, the result of the proceeding
would    have       been    different.          A     reasonable     probability         is     a
probability sufficient to undermine confidence in the outcome."
Id., ¶54 (quoting Strickland, 466 U.S. at 694).
       ¶35     With        respect       to     Wayerski's          Brady       claim,         we
independently         review       whether       a    due    process        violation         has
occurred, but we accept the trial court's findings of historical
fact unless clearly erroneous.                   State v. Lock, 2012 WI App 99,
¶94, 344 Wis. 2d 166, 823 N.W.2d 378.                         A defendant has a due
process      right     to    any   favorable         evidence      "material     either        to
guilt   or     to     punishment"        that    is    in   the    State's      possession,
Brady, 373 U.S. at 87, including any evidence which may impeach
                                                15
                                                                          No.     2015AP1083-CR



one of the State's witnesses.                    Giglio v. United States, 405 U.S.

150, 154 (1972).             A Brady violation has three components:                       (1)
the evidence at issue must be favorable to the accused, either
because it is exculpatory or impeaching; (2) the evidence must
have    been      suppressed             by    the     State,    either     willfully       or
inadvertently; and (3) the evidence must be material.                               See State
v.    Harris,     2004       WI    64,    ¶15,       272   Wis. 2d 80,     680     N.W.2d 737
(citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
       ¶36   The materiality requirement of Brady is the same as
the    prejudice prong             of    the    Strickland analysis.              See United
States v. Bagley, 473 U.S. 667, 682 (1985).                               Evidence is not
material under Brady unless the nondisclosure "was so serious

that    there     is     a    reasonable         probability       that    the     suppressed
evidence would have produced a different verdict."                                Strickler,
527 U.S. at 281.
                                         III.    ANALYSIS
       A. Wayerski's Ineffective Assistance of Counsel Claim
       ¶37   Wayerski             contends       that      trial    counsel         performed
deficiently because he failed to question Wayerski about giving
a purported confession to Clark.                        Wayerski further asserts that
trial   counsel's deficient                   performance was prejudicial because
Wayerski's silence, in the eyes of a jury, was tantamount to an
admission of guilt.
       ¶38   We    assume          without       deciding        that     trial     counsel's
performance       was        deficient          under      the   first     prong      of   the
ineffective assistance of counsel analysis.                             However, pursuant
to the second prong of the ineffective assistance of counsel
                                                 16
                                                                         No.     2015AP1083-CR



analysis, we conclude that there was no prejudice to Wayerski.
Therefore, we conclude that there was no ineffective assistance
of counsel.
       ¶39    To     establish       that    his           trial   counsel's       deficient
performance was prejudicial, Wayerski must show that "there is a
reasonable probability           that, but for counsel's                      unprofessional
errors, the result of the proceeding would have been different.
A     reasonable      probability       is        a        probability    sufficient       to
undermine confidence in the outcome."                          Domke, 337 Wis. 2d 268,

¶54 (quoting Strickland, 466 U.S. at 694).                               "We examine the
totality      of     the    circumstances             to     determine    whether        trial
counsel's errors," in the context of Wayerski's entire case,

deprived him of a fair trial.                     Id.        When we consider whether
Wayerski      was     prejudiced       by    his           trial   counsel's       deficient
performance,         we    examine    Wayerski's             ability     to    present    his
defense, the other evidence presented that undermined Clark's
credibility, and the overwhelming evidence against Wayerski.
       ¶40 First, there was never any doubt that Wayerski claimed
that he was innocent.            Wayerski denied the juveniles' claims on
direct and cross-examination.                Wayerski called four witnesses to
testify in support of his defense that the juveniles set him up
because of his involvement in an ongoing drug investigation.
The    jury    had    an    opportunity       to        fully      consider      and   reject
Wayerski's defense to the allegations.
       ¶41    Second,      Clark's    credibility            had already        been   called
into question when he testified.                      The jury heard that Clark had
been convicted of 20 crimes, including some felonies.                               Further,
                                             17
                                                                  No.    2015AP1083-CR



the   questions     asked    by    Wayerski's     trial    counsel       called    into
question whether Clark heard the details of the offenses from
Wayerski or from his access to media at the Chippewa County
jail.
      ¶42      Lastly, as the prior courts acknowledged, the evidence
against       Wayerski     was    overwhelming.           There    was     detailed,
consistent testimony from J.H. and J.P. and testimony from the
juveniles'       parents     corroborating        the    amount     of     time     the
juveniles       spent     with    Wayerski     doing     "ride-alongs"       and    at
Wayerski's apartment.            J.H.'s father also testified about what
occurred when he picked the juveniles up from their friend's
house on the morning of July 16, 2011.                  The jury heard testimony

from Detective Kuehn who described the juveniles' demeanor as
consistent with that of sexual assault victims in prior cases he
had   investigated.         Detective     Kuehn    also    testified      about    the
items recovered from Wayerski's apartment, including the oval-
shaped        turquoise     plate,      the    cable      bill     for     on-demand
pornography, vodka, and the contents of Wayerski's computer.                         In

addition, the jury heard from a DNA analyst who testified that
the semen on the oval-shaped turquoise plate matched J.P.'s DNA
profile and that the likelihood the sample belonged to anyone
other than J.P. was one in 28 quintillion.
      ¶43      Therefore, we conclude that even if Wayerski's trial
counsel's performance was deficient for failure to question him
about the purported confession he gave to Clark, the deficiency
was     not    prejudicial,       and   thus    there      was    no     ineffective
assistance of counsel.
                                         18
                                                                          No.     2015AP1083-CR



                                   B. Wayerski's Brady Claim

     ¶44    Wayerski additionally seeks review of the denial of
his Brady claim.          We conclude that the evidence was favorable to
Wayerski, satisfying the first component of the Brady analysis.
We conclude that the State suppressed the evidence under the
second component of the Brady analysis.                          We renounce and reject
judicially      created        limitations         on    the    second    Brady       component
that find evidence is suppressed only where:                             (1) the evidence
was in the State's "exclusive possession and control"; (2) trial
counsel    could        not        have    obtained      the     evidence        through     the
exercise     of        "reasonable          diligence";          or     (3)      it    was    an
"intolerable burden" for trial counsel to obtain the evidence.

Finally,    we     conclude          there    was       no     Brady    violation        because
Wayerski failed to demonstrate that the evidence was material,
the final component of the Brady analysis.
                   1. The Evidence Was Favorable to Wayerski
     ¶45    Applying the first component of the Brady analysis,
the evidence at issue must be favorable to the accused, either
because    it     is    exculpatory          or    impeaching.           See     Harris,     272
Wis. 2d 80, ¶15 (citing Strickler, 527 U.S. at 281-82).                                      The
State   concedes        that       evidence       of    Clark's       pending    charges     was
favorable to Wayerski to impeach Clark.                         We agree and accept the
State's concession.
                  2. The Evidence Was Suppressed by the State
     ¶46    Turning           to     the    application          of    the      second     Brady
component,      Wayerski           must    demonstrate         that     the     evidence     was
suppressed by the State, either willfully or inadvertently.                                  Id.
                                               19
                                                                    No.       2015AP1083-CR



The State argues that it did not suppress evidence of Clark's
pending charges for the following reasons, which we reject in
turn:    (1) the evidence was not in the "exclusive possession and
control" of the State; (2) Wayerski's trial counsel could have
exercised "reasonable diligence" to obtain the evidence; and (3)
there was no "intolerable burden" on Wayerski's trial counsel to
obtain the evidence himself.                  We apply the principles espoused
in Brady and its progeny and conclude that the State suppressed

evidence       of    Clark's        pending   charges,     including      the    Chippewa
County criminal complaint.
                           a. Exclusive Possession and Control
      ¶47      The State argues that for evidence to be suppressed

under    Brady,           the     evidence    must   be    within      the     "exclusive
possession and control" of the State.                     See State v. Sarinske, 91
Wis. 2d 14,         280         N.W.2d 725    (1979);     State   v.      Amundson,       69
Wis. 2d 554, 230 N.W.2d 775 (1975).                     This "exclusive possession
and control" limitation is rooted in Justice Fortas' concurrence
in Giles:           "[i]f [the State] has in its exclusive possession
specific, concrete evidence which is not merely cumulative or
embellishing and which                may exonerate       the   defendant       or   be   of
material importance . . . the State is obliged to bring it to
the attention of the court and the defense."                      Giles v. Maryland,
386     U.S.        66,     100-102      (1967)      (Fortas,     J.,        concurring).
"Exclusive possession" is not defined in Giles, nor is there any




                                              20
                                                              No.    2015AP1083-CR



related analysis.         Id.    It is noteworthy that Justice Fortas

never mentions "control" in his concurrence.13              Id.
     ¶48     Wisconsin     courts    first       applied    the      concept    of
exclusive possession to the Brady analysis in Cole.                     State v.
Cole, 50 Wis. 2d 449, 184 N.W.2d 75 (1971).                The Cole court held
that information known to the defense regarding the type of car
and gun involved in the defendant's arrest was not within the
"exclusive possession" of the State, and therefore the State did
not suppress the information.              Id. at 457.       Thereafter, this
court     limited   the   State's   duty    to   disclose    to     include    only
favorable, material        information within       the    State's "exclusive
possession or control."          Nelson v. State, 59 Wis. 2d 474, 479,

208 N.W.2d 410 (1973).          The Nelson court did not further define
the new "exclusive possession or control" limitation nor did the
court apply it.14




     13For an in-depth discussion on Wisconsin's use of the
exclusive possession and control limitation, see Leslie Thayer,
The Exclusive Control Requirement: Striking Another Blow to the
Brady Doctrine, 2011 Wis. L. Rev. 1027, 1041-2.
     14Nelson involved the issue of whether the defendant had an
obligation to request exculpatory evidence for Brady to apply.
Nelson v. State, 59 Wis. 2d 474, 486, 208 N.W.2d 410 (1973). In
Agurs, the Supreme Court expanded Brady to include an obligation
for the State to turn over favorable, material evidence even
absent a defendant's request for information. United States v.
Agurs, 427 U.S. 97, 107 (1976).


                                      21
                                                                       No.     2015AP1083-CR



      ¶49    Post-Nelson,        Wisconsin           courts      have        applied     an

"exclusive     possession      and     control"15         limitation     to     the   Brady
suppression component.           In analyzing whether evidence is in the
"exclusive possession and control" of the State, the courts have
shifted the focus away from the State's obligation to turn over
favorable evidence to whether the defense should have or could
have obtained the withheld evidence.                       See, e.g., Sarinske, 91
Wis. 2d 14     (holding   that       information          regarding     a     car's    short
circuit was not in the State's exclusive control where a witness
with that information was available to the defense, who failed
to question the witness); Amundson, 69 Wis. 2d 554 (holding that
a   report    withheld    by     the    State       was    not   in     its     "exclusive

possession     and    control"    where       the       author   of    the     report   was
called as a defense witness); State v. Calhoun, 67 Wis. 2d 204,
226   N.W.2d    504    (1975)(holding             that    summaries      of     witnesses'
statements to police withheld by the State were not within the
State's      "exclusive     possession            and     control"      because        those
witnesses      were   available        for        questioning     by     the     defense).
Wisconsin is the only state to apply this "exclusive possession
and control" limitation to the second component of Brady.




      15
       The language of the limitation varies from "exclusive
possession" in Calhoun, "exclusive possession and control" in
Amundson, and "exclusive control" in Sarinske. See State v.
Calhoun, 67 Wis. 2d 204, 226 N.W.2d 504 (1975); State v.
Amundson, 69 Wis. 2d 554, 230 N.W.2d 775 (1975); State v.
Sarinske, 91 Wis. 2d 14, 280 N.W.2d 725 (1979).


                                             22
                                                                           No.     2015AP1083-CR



      ¶50     There       is    no    express      support      in    the    United     States
Supreme Court's Brady jurisprudence for the limitation that only

favorable, material evidence in the "exclusive possession and
control" of the State must be turned over to satisfy the due
process      obligations         enunciated         in    Brady.16         This    limitation
further     thwarts       the    purpose      of    the     State's        obligation       under
Brady:        to    prevent          the    State    from       withholding        favorable,
material evidence that "helps shape a trial that bears heavily
on the defendant" and "casts the prosecutor in the role of an
architect      of     a    proceeding        that        does   not    comport       with    the
standards of justice."                 Brady, 373 U.S. at 87-88.                    We hereby
overrule the holding set forth in Nelson, 59 Wis. 2d 474, and

its progeny that favorable, material evidence is only suppressed
under      Brady    where       the    withheld      evidence         is   in     the   State's
"exclusive possession and control."


                                     b. Reasonable Diligence
      ¶51     The court of appeals and the State also rely upon a
Seventh Circuit case for the proposition that evidence is not
suppressed by the State under the second component of Brady when
it   is    available       to    the       defendant       "through        the    exercise    of

      16
       A 1986 Wisconsin "Opinion of the Attorney                            General" states
that "[n]either the Giles plurality nor the                                 Brady majority
mentions the [S]tate's exclusive possession                                 of exculpatory
evidence as the controlling factor.     Rather,                             both Brady and
Giles characterize materiality as the criterion                              triggering the
duty to disclose exculpatory evidence." 75 Wis.                              Op. Att'y Gen.
62, 66 (1986).


                                               23
                                                                No.    2015AP1083-CR



reasonable diligence."           Carvajal v. Dominguez, 542 F.3d 561, 567

(7th Cir. 2008).17           Federal courts are currently divided as to
whether    a    defendant's     ability     to   acquire    favorable,    material
evidence       through      "reasonable    diligence"      or   "due    diligence"
forecloses a Brady claim.              Although half of the federal courts
of   appeals         have   affirmed      application      of   the    "reasonable
diligence" or "due diligence" limitation,18 the other half of
federal courts of appeals have determined that the "reasonable
diligence" and "due diligence" limitations are not doctrinally
supported      and    undermine   the     purpose   of   Brady.19      The   United

     17In Carvajal, the Seventh Circuit held that because
several officers were available to be questioned about their
possibly differing accounts of events, the defendant did not
exercise "reasonable diligence," and therefore there was no
suppression under Brady. Carvajal v. Dominguez, 542 F.3d 561,
567 (7th Cir. 2008).
     18See, e.g., United States v. Parker, 790 F.3d 550, 561-62
(4th Cir. 2015); United States v. Roy, 781 F.3d 416, 421 (8th
Cir. 2015); United States v. Brown, 650 F.3d 581, 588 (5th Cir.
2011); Ellsworth v. Warden, 333 F.3d 1, 6 (1st Cir. 2003)(en
banc).
     19See, e.g., Dennis v. Secretary, Pennsylvania Dep't of
Corr., 834 F.3d 263, 292 (3rd Cir. 2016)(en banc)("[o]nly when
the government is aware that the defense counsel already has the
material in its possession should it be held to not have
'suppressed' it in not turning it over to the defense"); Lewis
v. Connecticut Comm'r of Corr., 790 F.3d 109, 121-22 (2d Cir.
2015)("a due diligence requirement plainly violate[s] clearly
established federal law under Brady and its progeny"); United
States v. Tavera, 719 F.3d 705 (6th Cir. 2013); United States v.
Howell, 231 F.3d 615, 625 (9th Cir. 2000); Banks v. Reynolds, 54
F.3d 1508, 1517 (10th Cir. 1995)("the prosecution's obligation
to turn over the evidence in the first instance stands
independent of the defendant's knowledge.    'If the prosecution
possesses evidence that, in the context of a particular case is
obviously exculpatory, then it has an obligation to disclose it
                                                     (continued)
                                          24
                                                             No.     2015AP1083-CR



States Supreme Court has yet to opine whether this limitation on
the suppression component of the Brady analysis is appropriate.

This court has never analyzed a Brady claim through the lens of
"reasonable diligence" and we decline to adopt that requirement
now, due to its lack of grounding in Brady or other United
States Supreme Court precedent.
                             c. Intolerable Burden
     ¶52    Lastly,   the    court       of   appeals,   citing     to   Randall,
imposed     an   "intolerable      burden"     standard:      for     favorable,
material evidence to be suppressed under Brady it must be an
"intolerable burden" for the defense to obtain the information.
Randall, 197 Wis. 2d 29.           In Randall, the court of appeals held

that the defendant's Sixth Amendment rights were violated where
the State failed to disclose a witness's pending charges even
though     the   charges    were    "a    matter   of    public     record"   and
therefore not in the "exclusive control" of the State.                    Id. at
37-38.     The court of appeals explained:

     [I]t places an intolerable burden on the defense;
     namely, to continually comb the public records to see
     if any of the State's witnesses are facing pending
     criminal charges. The burden should rightly rest with
     the State to provide such updated information,
     particularly in light of a specific discovery request
     for the criminal records of the State's witnesses, as
     was present in this case.


to defense counsel . . . .'" (quoted source omitted)). See also
In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887,
896 (D.C. Cir. 1999)(rejecting the State's argument that there
was no Brady violation because information was available to the
defense through "reasonable pre-trial preparation").


                                         25
                                                                    No.     2015AP1083-CR



Id. at 38.         The Randall court acknowledged that the State has

"an   ongoing duty to disclose to the defense                       exculpatory and
inculpatory     evidence       that   the      State    has   in    its     possession,
including evidence that applies only to the credibility of a
witness."     Id. at 37.20
      ¶53    Here, the court of appeals reasoned that "there is
little doubt that it is not 'an intolerable burden' for the
defense to obtain information on a witness's pending criminal
charges"     due    to   the    availability       of    CCAP.        Wayerski,      No.
2015AP1083-CR,       ¶56.       Because        Clark's    pending         charges   were
available for Wayerski's trial counsel to see on CCAP, the court
of appeals reasoned that the information was not "suppressed"

under Brady.21
      ¶54    The     court      of    appeals          improperly         applied    the
"intolerable burden" standard from Randall to determine whether
the State had suppressed evidence under the second component of
Brady.      As the State conceded in its brief, neither this court
nor the United States Supreme Court has used an "intolerable


      20
       Notwithstanding, the Randall court concluded that the
failure to disclose the witness's pending prosecution was
harmless error because the evidence of the defendant's guilt was
"very compelling," the witness was arrested and charged after he
offered to testify, and the witness was impeached at trial when
he admitted that he had a criminal record.     State v. Randall,
197 Wis. 2d 29, 38-39, 539 N.W.2d 708 (Ct. App. 1995).
      21
       The court of appeals did not address the issue of
suppression of the Chippewa County criminal complaint, a
document in the State's possession and not available to the
defense on CCAP.


                                          26
                                                                           No.     2015AP1083-CR



burden" standard when assessing whether a Brady violation has

occurred.        We overrule Randall, 197 Wis. 2d 29, to the extent
that it requires an "intolerable burden" on the defense as a
prerequisite to a Brady violation.
       ¶55    The United States Supreme Court has underscored the
special responsibility of the prosecutor in the search for truth
in a criminal trial.              See, e.g., Banks v. Dretke, 540 U.S. 668,
696   (2004);      Kyles     v.    Whitley,          514    U.S.    419,    439-40        (1995);
Strickler, 527 U.S. at 281.                   In a more recent case exploring the
scope of both the prosecution and the defense's responsibilities
in    locating     exculpatory          evidence,          the   United     States        Supreme
Court stated that:            "[a] rule thus declaring 'prosecutor may

hide,     defendant        must        seek'     is    not       tenable     in     a     system
constitutionally bound to accord defendants due process." Banks,
540    U.S.   at    696.          The    "exclusive         possession       and     control,"
"reasonable        diligence,"          and     "intolerable        burden"        limitations
distort the original Brady analysis and the purpose behind the
prosecutorial obligations enunciated in Brady.
                             d. The Application of Brady
       ¶56    We    return        to     the     original        inquiry         under    Brady:
whether there was "suppression" by the prosecution, irrespective
of good or bad faith.             Brady, 373 U.S. at 87.                 The United States
Supreme      Court has not             defined the         term "suppression" as              set
forth in the second component of the Brady analysis.                                     However,
the United States Supreme Court has discussed suppression in
terms    of   withholding          evidence.           Id.         ("A   prosecution          that
withholds      evidence      on        demand    of    an    accused       which,        if   made
                                                27
                                                                                No.    2015AP1083-CR



available, would tend to exculpate him or reduce the penalty
helps shape a trial that bears heavily on the defendant."); see

also Cone v. Bell, 556 U.S. 449, 469 (2009) ("when the State
withholds from a criminal defendant evidence that is material to
his guilt or punishment, it violates his right to due process");
Kyles,      514     U.S.   at     451   ("assessing            the    significance            of   the
evidence withheld").
       ¶57     The    United      States      Supreme       Court         has    also      discussed
suppression in            terms of      the    nondisclosure              of    evidence.          See
Cone,       556    U.S.    at     470    ("favorable            evidence         is    subject      to
constitutionally mandated disclosure"); Banks, 540 U.S. at 693
(referring to "Brady disclosure obligations"); Kyles, 514 U.S.

at    441    ("disclosure         of    the    suppressed         evidence            to   competent
counsel       would        have     made       a        different         result           reasonably
probable"); Strickler, 527 U.S. at 281 ("'Brady violation' is
sometimes used to refer to any breach of the broad obligation to
disclose exculpatory evidence"); U.S. v. Agurs, 427 U.S. 97, 108
(1976)(referring to the obligation under Brady as a prosecutor's
"constitutional duty of disclosure").
       ¶58     Therefore,         pursuant         to    the     United         States       Supreme
Court's Brady jurisprudence, suppression is nondisclosure or the
withholding         of    evidence      from       the    defense.             The    prosecutor's
mindset       or     'passivity'        is     irrelevant            to     this       suppression
inquiry.          As the United States Supreme Court has reasoned, "the
prudent prosecutor will resolve doubtful questions in favor of
disclosure," Agurs, 427 U.S. at 108, and that "is as it should
be.         Such    disclosure         will    serve       to    justify          trust      in    the
                                               28
                                                                       No.     2015AP1083-CR



prosecutor . . . [a]nd            it    will    tend       to   preserve     the    criminal
trial, as distinct from the prosecutor's private deliberations,
as the chosen forum for ascertaining the truth about criminal
accusations."       Kyles, 514 U.S. at 439-40.

     ¶59     Applying Brady and its progeny to Wayerski's claim,
the prosecutor suppressed evidence of Clark's pending charges,
including the Chippewa County criminal complaint, when he failed
to disclose the information to Wayerski's trial counsel.                                   The
prosecutor        not     only    withheld          information      regarding       Clark's
pending charges from Wayerski's trial counsel, which he learned
of   just    days       before    trial,       he     also      withheld     the    criminal
complaint,        which    he     was    able       to     quickly   obtain        prior    to

Wayerski's trial.22              While the pending charges were posted on
CCAP at some point within the month prior to Wayerski's trial,
the criminal complaint was not.23                        If Wayerski's trial counsel
had discovered the pending charges, he would have had to take
extra     steps    to     promptly      secure       the     complaint     from     Chippewa
County.
     ¶60     In this case, the prosecutor's private deliberations
on whether to disclose the evidence of Clark's pending charges


     22There is no record as to how the prosecutor obtained the
Chippewa County criminal complaint.     However, one thing is
certain, he did not obtain it via a public CCAP search, as the
concurrences seem to allege.
     23CCAP   does not   provide public  access   to  criminal
complaints, party filings, investigatory materials, and other
court documents.


                                               29
                                                                       No.    2015AP1083-CR



became       the    forum     for       ascertaining       the    truth,     rather      than
Wayerski's trial.             The State suppressed evidence, in violation
of the second component of Brady, when it withheld or failed to

disclose       evidence      of     Clark's   pending       charges,       including      the
Chippewa County criminal complaint.
                             3. The Evidence Was Not Material
       ¶61     Lastly, in order for the defendant to prevail on the
third component of the Brady analysis, the suppressed evidence
must    be    material.           See    Harris,    272    Wis. 2d 80,       ¶15   (citing
Strickler, 527 U.S. at 281-82).                    "The evidence is material only
if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would

have    been       different."          Bagley,     473    U.S.   at   682.        Wayerski
alleges that the evidence against him at trial did not reach an
irreparable         tipping       point    until     Clark       testified     about     the
purported confession.               Wayerski argues that the State gained a
strategic advantage because his trial counsel could not impeach
Clark    about       Clark's      purported       reason    for   testifying       and    his
potential interest in the outcome of the case.
       ¶62     We    conclude       that    the    suppressed       evidence       was    not
material.          There is no reasonable probability that, had evidence
of Clark's pending charges been disclosed, the result of the
proceedings would have been different.                       As noted above, in its
case-in-chief          the     State       provided        compelling        evidence      of
Wayerski's guilt.            The jury heard consistent, detailed testimony
from the juveniles, the juveniles' parents, Detective Kuehn, and
an analyst who testified that a DNA sample taken from the plate
                                              30
                                                                    No.    2015AP1083-CR



in      Wayerski's      apartment         showed       a     one-in-28-quintillion
likelihood of belonging to anyone other than J.P.                          All of this
evidence was presented prior to Clark's rebuttal testimony about
an alleged jailhouse confession from Wayerski.                        Further, Clark
was    impeached with his         20     prior    convictions.        Therefore,        we
conclude that Wayerski cannot demonstrate that, had evidence of
Clark's      pending    charges    been       disclosed,      the    result       of   the
proceeding would have been different.                      Since the evidence was
not material, Wayerski's Brady claim must fail.

                                  IV.    CONCLUSION
       ¶63   On petition to this court, Wayerski sought review of
the denial of his ineffective assistance of counsel claim and

the denial of his Brady claim.
       ¶64   We   assume      without      deciding        that    Wayerski's       trial
counsel's      performance      was      deficient.           Notwithstanding,          we
conclude that Wayerski failed to show that his trial counsel's
deficient      performance        was     prejudicial.             Thus,    Wayerski's
ineffective assistance of counsel claim fails.
       ¶65   We   conclude     that      although      the   evidence      of     Clark's
pending      charges    was    favorable         to    Wayerski      and    the     State
suppressed the evidence, it was not material and therefore there
was no Brady violation.            Furthermore, in analyzing whether the
State    suppressed     evidence        under    the   second      component      of   the
Brady analysis, we return to the principles of Brady and ask
only    whether   the    evidence       was     suppressed    by    the    State.       We
overrule Nelson, 59 Wis. 2d 474, and its progeny which hold that
the State only suppresses favorable, material evidence when the
                                           31
                                                            No.   2015AP1083-CR



evidence is in the State's "exclusive possession and control."
We also overrule Randall, 197 Wis. 2d         29, to the extent that it

requires    an    "intolerable    burden"     on    the     defense     as    a
prerequisite to a Brady violation.
     By    the   Court.—The   decision   of   the   court    of   appeals    is
modified and, as modified, affirmed.




                                    32
                                                                    No.    2015AP1083-CR.akz


       ¶66       ANNETTE KINGSLAND ZIEGLER, J.                   (concurring in part,
dissenting           in    part).     I   agree     with   the    result       the   majority
reaches.             However,    I   do   not   join   the   majority          opinion,     but
concur and write separately because the majority opinion chooses
to   upend       longstanding        legal      principles       that     have    served     to
properly cabin the judicially-created Brady doctrine.1                                Because

the majority concludes that there is no prejudice, it need not
go further.               But inexplicably, it unnecessarily reaches beyond
the prejudice issue and proceeds to topple over five decades of

Brady law.           While the majority claims to "return to the original

inquiry         under      Brady,"   majority       op.,   ¶56,    it     does       not,   and
instead departs from the large body of case law that developed
the well-rooted doctrine.                  Brady, a doctrine now 55 years old,
should not be so confused or reinvented.
       ¶67       First, in its claim to "return to the original inquiry
under Brady," the majority selectively chooses certain language
from Brady and ignores the body of law that has been relied upon

in the 55 years since Brady.                      A Brady violation occurs where:
(1) evidence is favorable to the defendant because it is either
exculpatory or impeaching; (2) the evidence is suppressed by the
prosecution            willfully     or    inadvertently;         and      (3)       prejudice
resulted.            Critically though, courts have consistently concluded
that       in    a    Brady     context,     the    prosecution         must     exclusively
possess and control the evidence in order for the prosecution to




       1   Brady v. Maryland, 373 U.S. 83 (1963).


                                                1
                                                           No.   2015AP1083-CR.akz


have "suppressed," or withheld,2 Brady evidence.                 The prosecution

does not exclusively possess or control that which is in the
public domain.       Thus, the prosecution cannot be deemed to have
"suppressed"    or    withheld    such       evidence.     In     eschewing   any
requirement that the prosecution be in "exclusive possession and
control" of the subject materials, the majority significantly
departs from Brady and 55 years of precedent.
     ¶68   The majority also fails to heed any consideration to
the distinction between Brady and other means of discovery, such

as Wis. Stat. § 971.23, which might impose similar production
requirements on the prosecution but which may have different
penalties for failing to comply.             The Brady doctrine must not be
conflated with other statutory obligations, open file policies3
or judicial preference.          The prosecution, under Brady, is not
required   to   disclose   exculpatory        or   impeaching     evidence    that
might somehow later be construed as useful to the defense but
was otherwise available to the defense.                  While the majority's

preference is that this evidence should have been disclosed, its


     2 The word "suppression" used throughout refers to the
prosecution withholding evidence from the defense in a manner
that precludes the defense from having access to the evidence.
It is not to be confused with the judicial remedy of
suppression.
     3
      While there may be variations to the way prosecutors handle
their offices' respective policies, one definition of an "open
file policy" is as follows: "A case-specific policy in which
prosecutors allow defense counsel to see (but not always to
obtain copies of) all the documents in their file relating to
the defendant."    Open-file discovery, Black's Law Dictionary
1263 (10th ed. 2014). The record does not reflect that in this
case an open file policy was in place.

                                         2
                                                                No.    2015AP1083-CR.akz


disclosure        is    simply    not       required    under   Brady     as     it    was

otherwise available to the defense and the public at large.                             In
other words, the defense could have searched CCAP, just as the
prosecution did, to discover the evidence's existence.                            In no
way did the prosecution——nor could the prosecution——"suppress"
this    evidence        from     the    defendant's      acquisition      as     it    was
otherwise available in the public domain.
       ¶69   Second, instead of exercising judicial restraint, the
majority takes this opportunity to engage in a legal analysis

that imparts its unique view of Brady and overrules over 50

years of Wisconsin precedent that interpreted Brady.                           In taking
the liberty to alter Wisconsin's Brady analysis, the majority
stretches well beyond what the opinion should have decided.                            The
majority     could      have   started and ended its Brady analysis                     by
concluding that the defendant was not prejudiced.                        I agree that
there was no prejudice by this nondisclosure.                         An abundance of
evidence clearly supports the jury's guilty verdict regardless

of the inmate's testimony.
       ¶70   In    my     view,     however,      the   majority      opinion     is    an
overreach.         It is a sea change in the application of Brady
unmoored to fundamental limitations that underlie the doctrine.
Brady violations occur only where (1) favorable evidence to the
defense that is exculpatory or impeaching (2) is willfully or
inadvertently          suppressed      by   the   prosecution    (3)    resulting       in
prejudice.        To be a violation, the prosecution must be found to
have suppressed, or withheld, evidence of which it had exclusive
possession and control.             Here, that simply is not the case.

                                              3
                                                               No.    2015AP1083-CR.akz


                                           I
       ¶71    I begin with Brady's judicially created history and

evolution.      The United States Supreme Court first imposed a duty
on    the     prosecution      to   disclose     exculpatory           evidence     to
defendants in Brady v. Maryland, 373 U.S. 83 (1963).                          In Brady
the defendant testified that while he was present when a murder
was committed, another person committed the murder.                       Id. at 84.
Prior to trial, defense counsel requested the prosecution allow
him to examine the accomplice's out-of-court statements, which

had not been disclosed to the defense.                   Id.         The prosecution

provided      several   such    statements,      but    withheld        one    crucial
statement in which the accomplice admitted to being the killer.
Id.    The defendant was later convicted of first-degree murder
and sentenced.        Id.    Following the verdict, the defense learned
of the confession and moved for a new trial based upon the newly
discovered evidence that the prosecution suppressed from their
discovery.      Id.

       ¶72    In Brady the Supreme Court concluded "suppression by
the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or punishment, irrespective of the good faith or bad faith
of    the    prosecution."      Id.   at   87.         Importantly,        the   Court
emphasized principles of fairness to the defendant and justice,
further stating that "[s]ociety wins not only when the guilty
are convicted but when criminal trials are fair," and that the
ultimate end "is not punishment of society for misdeeds of a
prosecutor but avoidance of an unfair trial to the accused."

                                       4
                                                              No.    2015AP1083-CR.akz


Id.     The      Court   also    expressed    its    aversion       for    allowing     a

prosecutor to be an "architect of a proceeding that does not
comport with the standards of justice" by withholding evidence
which   "would      tend    to exculpate" the        defendant or          reduce the
defendant's sentence.           Id. at 88.
      ¶73     The Court in Brady however ultimately concluded that
the confession would not have exculpated the defendant, but that
the confession could have reduced the defendant's sentence.                           Id.
at 88–90.        It thus affirmed the court of appeals' remand on the

limited     issue     of    sentencing.        Id.    at     91.          While   Brady

established that favorable, material evidence that should have
been revealed to the defense but instead is suppressed by the
prosecution could be a due process violation, it left room for
the doctrine to be further refined.             The Court did not expressly
define materiality, establish whether exculpatory evidence was
the only sort of evidence that would be deemed favorable under
the doctrine, or define under what circumstances evidence is

deemed to be suppressed by the prosecution.                  The result was that
case law further developed the parameters of the doctrine.
      ¶74     In the wake of Brady, courts responded to the need to
refine its application and scope.               In Giglio v. United States,
405 U.S. 150, 154-55 (1972), the Supreme Court held that in
addition to exculpatory evidence, the prosecution is required to
disclose      favorable,     material   evidence      that    could       be   used    to
impeach     prosecution         witnesses.      The    Court        concluded     that
impeachment evidence includes an agreement with a prosecution
witness     to    testify    for   favorable    treatment       in    the      criminal

                                          5
                                                         No.    2015AP1083-CR.akz


justice system.      See id.    However, as the Court in Brady, the

Court in Giglio did not define suppression or materiality, or
further    clarify   the    contours    of     the   prosecution's         duty   to
produce evidence under the Brady doctrine.
     ¶75   In Moore v. Illinois, 408 U.S. 786, 795 (1972), the
Court stated that there was "no constitutional requirement that
the prosecution make a complete and detailed accounting to the
defense of all police investigatory work on a case."                   The Court
confirmed this idea in United States v. Agurs, 427 U.S. 97, 110

& n.16 (1976) (quoting Giles v. Maryland, 386 U.S. 66, 98 (1967)
(Fortas, J. concurring) (stating that "convictions ought [not]
be   reversed   on    the    ground     that     information        [is]    merely
repetitious,    cumulative,     or     embellishing     of   facts        otherwise
known to the defense or presented to the court")).4
     ¶76   In United States v. Bagley, 473 U.S. 667 (1985), the
Court refined materiality under a Brady analysis, stating that
evidence is material only "if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different."                Id. at 682.          It
further    defined   "reasonable       probability"     as     "a    probability
sufficient to undermine confidence in the outcome."                 Id.
     ¶77   My interpretation is not novel.               Federal courts in
every circuit have considered whether the prosecution is deemed
to have "suppressed" evidence.              Quite simply, the prosecution


     4 Similarly, in Kyles v. Whitley, 514 U.S. 419, 437 (1995),
the United States Supreme Court declined to use Brady to impose
"an open file policy" on the prosecution.


                                        6
                                                                     No.    2015AP1083-CR.akz


cannot    suppress       something         that   is   available           to    the    public.
Courts    have       repeatedly      rejected      attempts       to    extend         Brady    to

evidence that is available to the defense from sources other
than     the   prosecution.            See,       e.g.,    United       States         v.    Roy,
781 F.3d 416, 421 (8th Cir. 2015) (Brady not violated where the
prosecution withheld information about the victim's lie to law
enforcement       because      the    information         was    a     matter      of       public
record in a published opinion of the Supreme Court of Arkansas);
United States v. Georgiou, 777 F.3d 125, 140–41 (3d Cir. 2015)

(no Brady violation where evidence of witness's mental health
history and treatment was publicly available in transcript of
plea hearing and defendant knew of the witness's guilty plea);
United States v. Catone, 769 F.3d 866, 871-72 (4th Cir. 2014)
(Brady not violated            where       the evidence was            available         to the
public     and       could     have     been       discovered          through         diligent
investigation); United States v. Smith, 749 F.3d 465, 493 (6th
Cir. 2014) (no violation under Brady where prosecution did not

disclose       two     witnesses'      exculpatory         testimony            because        the
testimony      could        have    been    discovered          with    due      diligence);
Cunningham v. Wong, 704 F.3d 1143, 1154 (9th Cir. 2013) (no
Brady     violation         occurred       despite     prosecution's             failure        to
disclose witness's medical records because defense knew that the
witness     had      been    shot     and    could     have      easily         obtained       the
records); Hooks v. Workman, 689 F.3d 1148, 1180 (10th Cir. 2012)
(no Brady violation where prosecution did not fully disclose
witness's      mental       disability      because       the    defense         was    put    on
notice by a prosecutor's memo and the defense could have spoken

                                              7
                                                               No.    2015AP1083-CR.akz


to the witness to obtain further information); Cobb v. Thaler,

682   F.3d    364,   378–79    (5th    Cir.       2012)    (no    Brady     violation
occurred despite the prosecution's failure to disclose evidence
that charges were dropped against witness because defense had
access to the information via a co-defendant's open case file);
United States v. Hsu, 669 F.3d 112, 117 n.2 (2d Cir. 2012)
(noting that exculpatory e-mails and bank records that would
have impeached a prosecution witness would not violate Brady
because if they existed, the defendant would have been aware of

them and could have subpoenaed them); United States v. Celestin,

612 F.3d 14, 22–23 (1st Cir. 2010) (no Brady violation occurred
where a defendant knew of his own time and attendance records
and   had    the     opportunity      to     subpoena      them);       Carvajal    v.
Dominguez, 542 F.3d 561, 567-69 (7th Cir. 2008) (stating that
evidence     is   suppressed    when       "(1)   the     prosecution      failed   to
disclose the evidence in time for the defendant to make use of
it, and (2) the evidence was not otherwise available to the

defendant    through    the    exercise      of   reasonable         diligence,"    and
finding no Brady violation where witnesses were available to the
defense for questioning); LeCroy v. Sec'y, Fla. Dep't of Corr.,
421   F.3d 1237, 1267–68 (11th             Cir.    2005) (no         Brady violation
where prosecution failed to disclose defendant's own medical and
school    records    because    defense       could     have     acquired    them   by
exercising reasonable diligence).5

      5Perhaps providing additional context will further an
understanding of why federal case law does not otherwise lend
support for the majority's interpretation of Brady.     Case law
demonstrates that when information is publicly available or the
                                                     (continued)
                               8
                                              No.   2015AP1083-CR.akz



defense has notice of its existence, no Brady violation occurs.
Of course these cases are dependent on their facts.   To cherry
pick quotes from any such case, without more, does not do
justice to the entirety of the Brady analysis.

     First, in Dennis v. Secretary, Pennsylvania Department of
Corrections, 834 F.3d 263 (3d Cir. 2016) (en banc), the court
concluded that the prosecution violated Brady because it
withheld exculpatory physical evidence to which the defense had
no access or ability to discover.    Id. at 285-96.   While the
court expressed its distaste for placing a "due diligence"
requirement on defendants, the court did not otherwise address
what it might have done had the information been in the public
domain. Id. at 288–93. Dennis is thus distinguishable from the
case we decide today.

     Instructively, the United States Court of Appeals for the
Third Circuit considered Brady a year earlier in United States
v. Georgiou, 777 F.3d 125 (3d Cir. 2015).             There, the
prosecution failed to disclose a bail report regarding the
defendant's co-conspirator, along with the minutes from the co-
conspirator's arraignment and guilty plea.    Id. at 139.    Both
the bail report and the minutes contained information regarding
the co-conspirator's history of mental health issues and
corresponding treatment. Id. The court held that there was no
Brady violation regarding evidence of the co-conspirator's
mental health history and treatment because the bail report and
minutes were equally available to both the prosecution and
defense.   Id. at 140-41.    The court there concluded that the
defense "was in 'a position of parity with the government as far
as access to this material.'" Id. at 140 (quoting United States
v. Jones, 34 F.3d 596, 600 (8th Cir. 1994)).      Since both the
prosecution and defense had the same access to the evidence, the
court held that the bail report and minutes were not suppressed
by the prosecution under Brady. Id. at 140-41. Dennis neither
mentions nor analyzes Georgiou, presumably because in Dennis the
evidence was not in the public domain.

     Second, in United States v. Tavera, 719 F.3d 705 (6th Cir.
2013), the court determined the prosecution violated Brady when
it withheld exculpatory testimony of a potential witness.   Id.
at 710-14. Again, this information was available solely to the
prosecution and withheld from the defense.   Id. at 711–13.  It
was not otherwise publicly available so the court did not weigh
in on that issue. Id. As a result, Tavera is not instructive
as to the issue we now address.

                                                       (continued)
                               9
                                             No.   2015AP1083-CR.akz



     In fact, in United States v. Smith, 749 F.3d 465 (6th Cir.
2014), decided nearly ten months after Tavera, the court
concluded that no Brady violation occurred.       Id. at 491-92.
Evidence that the prosecution acquired by interviewing people
the defense had hired was deemed to be readily available to the
defense. Id. at 493. In other words, the defense had at least
an equal opportunity, if not greater, to interview these
potential witnesses.   Thus, there was no Brady violation when
the prosecution did not turn over the interviews.

     Third, in Amado v. Gonzalez, 758 F.3d 1119 (9th Cir. 2014),
the court concluded that there was a Brady violation because the
prosecution failed to disclose exculpatory impeachment evidence.
Id. at 1134-35.     At issue was an undisclosed probation report
that would have impeached the testimony of a prosecution
witness.    Id. at 1138.     The prosecution had access to the
probation report, and the defense did not.      See id. at 1135,
1138.    There is no indication that the report was otherwise
publicly available to the defense. See id. at 1135. The Ninth
Circuit    addressed   the   prosecution's  burden   to  produce
exculpatory evidence and expressed its aversion towards a
stringent "due diligence" requirement on the defense, but
seemingly, any diligence of the defense would not have resulted
in discovery of this report. See id. at 1136–38; see also Lewis
v. Connecticut Comm'r of Corr., 790 F.3d 109, 121–22 (2d Cir.
2015) (Brady violated because prosecution withheld evidence that
was not publicly available; however, court noted no Brady
violation occurs regarding "facts already within the defendant's
purview"); In re Sealed Case No. 99-3096, 185 F.3d 887, 889–91,
897 (D.C. Cir. 1999) (Brady violated where prosecution admitted
its failure to search for requested impeaching information that
was not otherwise publicly available; Brady not violated
regarding    prior   conviction   records  that   were  publicly
available).

     In Cunningham v. Wong, 704 F.3d 1143 (9th Cir. 2013), the
court determined that no Brady violation occurred even though
the prosecution failed to supply the defense with an autopsy
report of the individual the defendant was alleged to have
killed, along with the medical records of an eyewitness the
defendant was alleged to have shot.    Id. at 1154.    The court
held that no Brady violation occurred because the defense
"possessed the 'salient facts'" that would have enabled it to
access the medical records, and because the defense was
"obviously aware" that the other individual had been killed and
could have easily obtained the autopsy report.   Id.   Thus, the
court held that "[t]here was no suppression of this easily
                                                     (continued)
                               10
                                              No.   2015AP1083-CR.akz



attainable evidence."     Id.   In Cunningham, Brady was not
violated even though the exculpatory evidence was not publicly
available but was nevertheless deemed to be readily obtainable
by the defense. See also United States v. Howell, 231 F.3d 615,
623–27 (9th Cir. 2000) (Brady not violated because defendant not
prejudiced by prosecution's suppression of police         report
errors).

     Fourth, in United States v. Quintanilla, 193 F.3d 1139
(10th Cir. 1999), the court considered whether a Brady violation
occurred where the prosecution failed to disclose exculpatory
testimony obtained in an interview, but where the defense
actually knew about the information before trial. Id. at 1149.
Prior to her trial, the defendant moved to adjourn because she
wanted to obtain exculpatory testimony from a co-defendant whose
separate trial was about to occur. Id. at 1143–44. After the
district court denied the motion, yet before trial, the other
defendant made a statement to law enforcement that was
exculpatory for Quintanilla.     Id. at 1144.    The prosecution
obtained that statement, but it did not release it to the
defense.    Id.    The exculpatory statement was not otherwise
publicly available.    Id.  However, because defense counsel had
become aware of the statement before law enforcement conducted
the interview, the court concluded there was no Brady violation.
Id. at 1149.    Quintanilla does not address the situation where
information is publicly available.

     Similarly, in Hooks v. Workman, 689 F.3d 1148 (10th Cir.
2012), no Brady violation occurred even though the prosecution
had much more detail about the defendant's mental well-being
that was not reflected in the memorandum turned over to the
defense. Id. at 1179-80. No Brady violation occurred, however,
because the evidence was "made known and available to the
defense prior to trial," and "Brady 'does not require the
prosecution to divulge every possible shred of evidence that
could conceivably benefit the defendant.'"          Id.     Also,
"disclosure need not be 'in a specific form or manner.'" Id. at
1180.     The court had no difficulty concluding that the
prosecution fulfilled its Brady obligation because the "memo
disclosed    enough    of    the    conversation . . . to     put
counsel . . . on notice that favorable and possibly material
evidence was available."     Id.   Hooks does not support the
proposition that the prosecution suppresses evidence under Brady
when information is publicly available.      See also Banks v.
Reynolds, 54 F.3d 1508, 1511, 1516–17 (10th Cir. 1995) (Brady
violated where, despite defense counsel's request, prosecution
represented to defense counsel that no exculpatory evidence
                                                      (continued)
                               11
                                                                 No.    2015AP1083-CR.akz


       ¶78    In    line    with    every   federal      circuit,        Wisconsin        has
historically followed Brady and its progeny.                       This court first

applied Brady in State v. Cathey, 32 Wis. 2d 79, 145 N.W.2d 100
(1966).       There, the court held that due process was not denied
where the prosecution failed to disclose a prosecution crime
laboratory report and the report of a doctor who examined a
sexual assault victim report.               Id. at 93.          The court in Cathey
held that the reports would have been merely cumulative, and
that defense counsel was aware of sufficient facts such that he

could have discovered the reports had he requested them.                             Id. at

94.
       ¶79    As    the     majority     correctly        points       out     but       then
inexplicably        dispenses       with,        Wisconsin      courts       have     since
developed      an   "exclusive      possession"        doctrine    as     part      of   the
Brady analysis.            Majority op., ¶¶47–50.              In State v. Cole, 50
Wis. 2d 449, 184 N.W.2d 75 (1971), the court held that Brady was
not violated where the prosecution did not disclose information

regarding the kind of car and gun involved in the defendant's
arrest.       Id. at 455-57.        Citing to Justice Fortas's concurrence
in    Giles    (386   U.S.     at   101),      the     court    concluded      that       the
information was not in the prosecution's exclusive possession,
meaning that the prosecution could not have "suppressed" the
information under Brady.             Cole, 50 Wis. 2d at 457 & n.10.                     This
court   again       referenced      a   need     for    the    prosecution       to      have


existed even though the prosecution possessed significant and
voluminous exculpatory evidence, much of which was not publicly
available).


                                            12
                                                                          No.   2015AP1083-CR.akz


"possession        or   control"        under     Brady          in    Nelson    v.    State,         59

Wis. 2d 474, 479, 208 N.W.2d 410 (1973).
       ¶80     Since Cole this court has applied exclusive possession
and    control     by   the      prosecution          as     a    requirement         in    a    Brady
analysis, echoing federal decisions limiting the definition of
"suppressed" evidence to exclude situations where the defense
has access to evidence from a source other than the prosecution.
See,    e.g.,      State    v.    Armstrong,          110        Wis. 2d 555,        579–80,         329
N.W.2d 386         (1983)        (concluding           no        Brady        violation          where

prosecution        failed        to    disclose        evidence          of     parking         ticket
because defendant knew he had been ticketed and paid it, and
thus prosecution did not have exclusive possession or control of
evidence); State v. Sarinske, 91 Wis. 2d 14, 36, 280 N.W.2d 725
(1979) (holding no Brady violation where the alleged exculpatory
evidence was testimony from two defense witnesses, and thus was
not in the exclusive control of the prosecution); McLemore v.
State,    87      Wis. 2d 739,         751–52,        275    N.W.2d 692         (1979)      (noting

that    Brady     not   violated        where     the        defense      had    access         to    an
undisclosed        transcript          of   an    American             Polygraph      Association
hearing      of    charges       against     a    polygraph             examiner);         State      v.
Amundson, 69 Wis. 2d 554, 573-74, 230 N.W.2d 775 (1975) (holding
that the prosecution did not violate Brady where it did not
furnish a report generated by a witness for the defense because
the prosecution did not have exclusive possession or control of
it).
       ¶81     Thus,    under         Wisconsin        law       and    in    line     with       each
federal circuit, a Brady violation occurs where: (1) favorable

                                                 13
                                                                      No.    2015AP1083-CR.akz


evidence     that    is        material       because      it    is         exculpatory       or
impeaching; (2) is willfully or inadvertently suppressed by the
prosecution;       (3)        resulting      in     prejudice     to        the    defendant.
Evidence is considered suppressed, or withheld, only where the
prosecution    is        in     exclusive         possession     or     control         of   the
evidence in question.                 In the case now before the court, the
prosecution would have no ability to suppress what is available
as publicly accessible information on CCAP.
     ¶82    The parties agree that the evidence of the charges and

criminal complaint against Wayerski's cellmate were favorable to
Wayerski, as the evidence was impeaching.                             Assuming they are
correct, that leaves only the issues of whether the prosecution
suppressed    the    evidence          and    whether    Wayerski           was    prejudiced.
While the majority is correct with respect to prejudice, it errs
significantly when overreaching to conclude that the prosecution
suppressed    the    evidence          in    question.          Although          the   court's
opinion    could    end        with    its    determination        that       no     prejudice

resulted   here,     the        majority      subverts     50    years        of    law.      It
specifically       engages        in       sweeping     change    thereby           overruling
Nelson,    majority       op.     ¶¶48–50,        65;   rejecting       the        "reasonable

diligence"    test       found        in    Carvajal,     majority          op.,    ¶51;     and
distinguishing State v. Randall, 197 Wis. 2d 29, 539 N.W.2d 708
(Ct. App. 1995), majority op. ¶¶52-55, 65.                            The majority does
not actually restore Brady as it claims.                              Rather, it upends
decades of Wisconsin jurisprudence that previously applied Brady
in lockstep with the vast majority of federal courts.                                      In so
doing, it embraces an amorphous analysis, leaves less than clear

                                               14
                                                                No.    2015AP1083-CR.akz


how it reaches for its conclusion, and thus creates confusion
rather than clarity.
     ¶83    In analyzing Brady under its new inquiry, the majority

ignores an abundance of Wisconsin and federal case law which
defines when the prosecution has "suppressed" evidence contrary
to Brady.       Despite precedent to the contrary, it then abruptly
concludes       that     the    prosecution          violated     Brady        when     it
"suppressed"       the      criminal       complaint        despite       information
regarding it being publicly available on CCAP.                         Majority op.,

¶¶46, 59 & n.22.           The majority is notably silent regarding its
choice     to   disregard       longstanding         precedent        regarding       when
"suppression"      occurs      under   a     Brady    analysis.         The    majority

similarly makes no mention of how the prosecution could even
begin to suppress, or withhold, information about charges which
was otherwise publicly available on CCAP.6
     ¶84    This       newly-adopted    definition         of   "suppression"         does
not comport with the majority of cases that have applied Brady.

In   reaching      its    holding,     the      majority    ignores      the    circuit
court's finding that the prosecution here initially learned of
the pending charges against the witness by conducting a CCAP
search.     From there, the prosecution obtained a copy of the


     6 The majority seems to claim that I assert that the
criminal complaint was available on CCAP.     That is incorrect.
Information regarding the pending charges against the inmate was
available electronically on CCAP, not the criminal complaint
itself.    However, had the defense exercised any level of
diligence after searching CCAP, it would have discovered the
pending charges and been able to readily obtain the criminal
complaint, as it was nevertheless a matter of public record.


                                           15
                                                               No.    2015AP1083-CR.akz


criminal complaint against the witness.                     Maybe it would have
been a preferred approach or otherwise required pursuant to an
"open file policy" or discovery requests or obligations, that
the prosecution disclose the impeaching evidence at issue, but
those duties are distinct from any duty to disclose under Brady.

     ¶85    This begins to highlight the inherent problem with the
majority's approach.          Until     today, for a           Brady violation       to
occur,     the    exculpatory       evidence       would   need      to    be   in   the
exclusive    control     of   the    prosecution.          Under     the     majority's

definition       of   "suppress,"      the       prosecution       would     "suppress"
exculpatory evidence when it withholds favorable and material
information the defense does not actually possess, even if that
information is of public record and could be readily discovered
with a simple internet search via CCAP or some other means.                          But
even applying the majority's definition, how can the prosecution
"suppress" something that is equally available to the defense as
it is to the prosecution?            If there is some line of demarcation

that would prevent such an absurd result from occurring, the
majority fails to draw it.            The majority thus rewrites Brady and
relevant discovery statutes not based on the rule of law, but on
judicial preference.          It further fails to set forth how the
prosecution      might   comply      with    its    new    Brady     test.      Is   the
prosecution required to maintain an open file policy in each
jurisdiction statewide?             Must it advertise such an open file
policy to the defense in every case and regularly update the
defense on the status of the prosecution's file?                             Under the
majority's new Brady test, even that may not be enough.                              The

                                            16
                                                                  No.    2015AP1083-CR.akz


majority fails to provide any meaningful guidance as to how the
prosecution must now proceed in order to comply with, and what
defense      counsel       should      now   expect,      given       Wisconsin's        new
variation of Brady.              The majority need not venture into this

uncharted territory, but since it chose to do so, it should
attempt      to    provide      clarity.      It   does    not,         and    instead    it
provides confusion.
       ¶86    The error of the majority's new definition of when the
prosecution suppresses evidence is further highlighted by the

presence     of    other     rules     governing   discovery          and     disclosures,
which likely carry less severe penalties than a Brady violation.

For example, under Wis. Stat. § 971.23, both the prosecution and
defendant     have       discovery     and   inspection     obligations.               Under
§ 971.23(1), upon demand within a reasonable time before trial,
the prosecution is obligated to disclose or allow the defendant
to inspect a variety of materials and information, including a
list   of    all    of    the    prosecution's     witnesses,           any    written    or

recorded      statements        made    by   any      prosecution           witness,     the
criminal record of any prosecution witness, and any exculpatory
evidence.          § 971.23(1)(d)–(f),         (h).        If     a     party    violates
§ 971.23, the statute provides as follows:

            Sanctions for failure to comply.    (a) The court
       shall exclude any witness not listed or evidence not
       presented for inspection or copying required by this
       section, unless good cause is shown for failure to
       comply. The court may in appropriate cases grant the
       opposing party a recess or a continuance.

            (b) In addition to or in lieu of any sanction
       specified in par. (a), a court may, subject to
       sub. (3), advise the jury of any failure or refusal to
       disclose material or information required to be
                                 17
                                                           No.    2015AP1083-CR.akz

     disclosed under sub. (1) or (2m), or of any untimely
     disclosure of material or information required to be
     disclosed under sub. (1) or (2m).

§ 971.23(7m).
     ¶87    As evidenced by Wis. Stat. § 971.23, rules that govern
discovery exist apart from Brady, carrying with them different
standards and different penalties for violations.7                  Of course, a
violation    of    Brady   carries      harsh    penalties,       including    the
judicial remedy of court-ordered suppression if the prosecution
seeks to use the evidence it withheld, or even a new trial.                      A
Brady violation is so serious that a prosecutor may even face

ethical charges for allegedly violating Brady.8                    The majority
thus imposes an unduly harsh burden on the prosecution in a
manner that flies in the face of the Brady line of cases.                       It
further    fails   to   clarify   the    contours    of    its    new    analysis,
leading to potential confusion.               Brady was meant to occupy a
specific and limited sphere.             Brady is a distinct obligation
under the law.       Today the majority rewrites Brady to suit its
personal    preferences    in   order    to     conclude   that    the   criminal
complaint should have been turned over to the defense.                         The
majority creates Brady violations, which once were of a unique



     7 In fact, the defendant here made a written request to the
prosecution for materials and information under Wis. Stat.
§ 971.23.
     8 The Office of Lawyer              Regulation has prosecuted an
assistant district attorney for           alleged ethical violations for
failure to comply with Brady and          Wis. Stat. § 971.23. See In re
Disciplinary Proceedings against         Sharon A. Riek, 2013 WI 81, 350
Wis. 2d 684, 834 N.W.2d 384 (per         curiam).


                                        18
                                                                No.    2015AP1083-CR.akz


and    fairly       specific    nature,      in    circumstances       that    are   now
undefined.
                                                  II
       ¶88       Equally perplexing is the majority's extensive reach
to alter longstanding Wisconsin law where it had no need to so
act.       The majority applies a prejudice analysis under Brady,

concluding         that   the   pending      charges      and   criminal      complaint
against      the     witness    were   not    prejudicial       to    the     defendant.
Majority op., ¶¶61-62.             It acknowledges that though the pending

charges and criminal complaint would have served as impeachment
evidence         regarding   the   prosecution's         witness,     the prosecution
nevertheless "provided compelling evidence of Wayerski's guilt."9
Majority op., ¶62.
       ¶89       Instead, the majority took it upon itself to recreate
the Brady doctrine as it believed it should be.                          It dispenses

with       the    fundamental      requirement         that   the    prosecution     not


       9
       While the majority correctly concludes that there was
sufficient evidence to convict Wayerski regardless of the
inmate's testimony, notably, the impeachment evidence the
prosecution purportedly "suppressed" under Brady would also have
been cumulative to the impeachment evidence that was offered at
trial. For example, the inmate was cross-examined with respect
to his 20 prior convictions for misdemeanors and felonies.    In
addition, the inmate was cross-examined with respect to his
testimony of events being influenced by access to news reports
and thus fabricated.    Thus, there was already evidence in the
record that could have impeached the inmate.       See State v.
Rockette, 2006 WI App 103, ¶41, 294 Wis. 2d 611, 718 N.W.2d 269
(considering Brady and stating that "[i]mpeachment evidence
is not material, and thus a new trial is not required when the
suppressed impeachment evidence merely furnishes an additional
basis on which to impeach a witness whose credibility has
already been shown to be questionable").


                                             19
                                                        No.   2015AP1083-CR.akz


"suppress," or withhold, evidence from the defense and instead,
creates confusion as to when something as serious as a Brady

violation occurs.        As a presumable first in the country, the
majority creates a Brady violation even where the defense and
the prosecution have equal access to evidence available to the
public.     The principle underlying Brady is fairness to both the
defendant    and   the   prosecution.     As    the   Brady   court   stated,
"Society wins not only when the guilty are convicted but when
criminal trials are fair."         Brady, 373 U.S. at 87.             But the

majority's new analysis veers too far from what Brady and its
progeny demand, as the majority now requires the prosecution to
produce any evidence, even if equally accessible to the defense.
     ¶90    This   court   must   keep   in    mind   its   constitutionally
confined role.      I therefore question why, instead of relying on
United States Supreme Court precedent, precedent from federal
circuits, or our own corresponding jurisprudence, the majority
now departs from the vast body of law that properly applies

Brady.     Though the majority expressly overrules Nelson and its
progeny in an attempt to "return to the original inquiry under
Brady," majority op., ¶56, it fails to define the contours of
this new Brady analysis, and thus creates confusion instead of
supplying clarification.      That is not the court's role.
     ¶91    As a result, I respectfully concur in part and dissent
in part.
     ¶92    I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this opinion.



                                    20
                                                                      No.    2015AP1083-CR.dk


      ¶93    DANIEL KELLY, J.             (concurring in part, dissenting in
part).      I join all of the court's opinion except for the piece
that turns a logical impossibility into a potential violation of
our state and federal constitutions.                    I refer, of course, to the
proposition        that    the        State     "suppresses"          publicly-available
evidence if it does not proactively provide the information to
the     defendant.          The        State's        passivity,       however,          cannot
"suppress" information in the public domain, so there can be no
Brady1     violation.           The     court's        contrary       conclusion         allows

defendants to attack the constitutionality of their convictions
with a logical error.                 Because that cannot possibly vindicate
any cognizable right, I do not join that part of the court's
opinion.
      ¶94    Most of the court's opinion, so far as it addresses
the question of suppression, is devoted to dismissing over 40
years     of our opinions         because           they contain      an     analysis        that
Brady     does     not.         Perhaps       the      court     is    right,        and     our

jurisprudence on this subject is not warranted and should be
jettisoned as unfaithful to Brady's conclusion.                                  But there is
another     possibility.              Brady's       holding,     as    is    true       of   all
holdings,     arose       out    of     the     facts    presented          to    the    court.
Subsequent       cases    will    necessarily          present    variations            on   that
fact pattern.         A reviewing court must determine whether those
patterns     are     so    closely        analogous       that        Brady's       reasoning
controls the case's disposition.                     It is quite possible that our


      1   Brady v. Maryland, 373 U.S. 83 (1963).


                                                1
                                                                    No.    2015AP1083-CR.dk


work over the last 40 years has been focused on discerning how
greatly the facts of a case may vary before the Brady analysis

does not apply.          That is to say, we may have been answering a
question anterior to Brady's application.                      And if that is true,
it would be entirely unremarkable that "[t]here is no express
support"    for    those    analyses       in     the    Supreme     Court's      opinion.
Majority    op.,    ¶50.         Actually,       it    would   be   nothing       short    of
astounding if we were to find that Brady endogenously answered
the exogenous question of its applicability.                        Unsurprisingly, it

didn't.
     ¶95    Here    is     the     anterior       question     we    must     ask    before
applying Brady:        Are the circumstances of the case such that the

State's passivity can "suppress" evidence in the prosecutor's
possession?       We must ask that question specifically because of
Brady's     holding,       which     was     that       "the   suppression          by    the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution."             Brady v. Maryland, 373 U.S. 83, 87
(1963).     That holding rests on the unexplored assumption that
the State's failure to produce information in its possession
resulted     in    "suppression       by     the       prosecution."         It     is    the
responsibility        of    every     post-Brady          court     to     explore       that
assumption in light of the circumstances of each individual case
before     deciding      whether     Brady's          prescription        applies.        Our
failure to accept that responsibility in this case pretermitted
our analysis.         And because we did not complete that task, we

                                             2
                                                         No.    2015AP1083-CR.dk


concluded the State suppressed information in the public domain
by the simple expedient of knowing it existed.
     ¶96    The court says its analysis is motivated by a "return
to the original inquiry under Brady," majority op., ¶56, but it

exhibited no curiosity at all about the nature of that inquiry,
to wit, the types of circumstances that could result in the
suppression of evidence.         Broadly speaking, there are two——one
active, the other passive.            The prosecution might take active
measures to make evidence unavailable to the defendant by, for

example,    instructing      a    witness    not   to      divulge     certain
information, or removing evidence to a location to which the
defense    has   no    access,   or   by   affirmatively       misleading    the
defense about the existence of that evidence.               The prosecution
can achieve the same result passively, but only when the State

has exclusive access to the information.           In that circumstance,
the prosecutor suppresses evidence by failing to produce the
information to the defense.           If the evidence is in the public

domain,    however,    the   prosecutor's    passivity     is    incapable   of
suppressing it because its availability is entirely unaffected
by the prosecutor's knowledge of its existence.             In other words,
a prosecutor cannot suppress something he does not control.
     ¶97    A little illustration can go a long way in describing
why passivity cannot suppress information in the public domain.
So let's consider a hypothetical case tried under two different
circumstances.        In the first, the local newspaper published a
story   containing     exculpatory    evidence.    However,       neither    the
defense nor the prosecution read the story prior to trial, and

                                       3
                                                                            No.    2015AP1083-CR.dk


so     neither    was     aware        of        the     evidence.            In     the   second
circumstance, everything is the same except that the prosecutor
did read the story.               In both variants the witnesses are the
same, the evidence is the same, the arguments are the same, and
the verdicts are the same.                      The only difference is a piece of
publicly-available information residing in the prosecutor's mind
in the second scenario that was absent in the first.
       ¶98     After conviction in the first scenario, the defense
would obviously have no basis for a Brady claim because the

prosecution       neither       knew       of,    nor        possessed,      the     exculpatory
evidence.        But the opinion in this case would say the second
variant causes a Brady violation unless the prosecutor sends a
copy of the newspaper to defense counsel.                              However, because the
evidence was equally available to the parties, the prosecutor's
knowledge        of    its      existence              is     neither        practically        nor
metaphysically         capable        of   affecting           the   defense's        ability    to
access it.

       ¶99     And that brings the nature of the court's rule into
sharper      focus.      The     court ruled                that    it is    constitutionally
unacceptable for the State to know something that the defendant
does    not.      So     our    conclusion             today       really    isn't     about    the
suppression       of    evidence;          it    is,        instead,    about       differential
knowledge of evidence.                That is to say, the court believes the
differential knowledge of a piece of information in the public
domain "casts the prosecutor in the role of an architect of a
proceeding        that         does        not         comport        with        standards      of
justice . . . ."          Brady, 373 U.S. at 88.                     Who knew that reading

                                                  4
                                                                          No.    2015AP1083-CR.dk


the     newspaper    with        one's      morning        coffee         could     violate       a
defendant's      constitutional          rights?          Or     that the         extent    of    a
prosecutor's ignorance of the world around him and the risk of a
constitutionally-suspect conviction are inversely proportional?
       ¶100 Brady    does      not     require,          nor    even      suggest,     that      we

should    concern    ourselves          with       the    differential            knowledge      of
evidence to the exclusion of its suppression.                             The Supreme Court
based     its     reasoning       on     the        assumption            that,     under     the
circumstances of that case, the prosecution's passivity combined

with     the    parties'       differential          knowledge            to     suppress     the
evidence.       But nothing in its reasoning suggests that passivity
will always have that effect.                  Instead, Brady itself provides a

good, real-life example of a specific type of circumstance in
which passivity can cause suppression.                         Messrs. Brady and Boblit
were    separately       tried    for    murder.           Id.       at    84.       Mr.    Brady
admitted his involvement in the crime, but claimed Mr. Boblit
was the killer.          Id.     Prior to trial, Mr. Brady's counsel asked

to see all of Mr. Boblit's extrajudicial statements.                                  Id.     The
prosecution provided several, but omitted the one in which Mr.
Boblit admitted he killed the victim.                          Id.   The Supreme Court's
opinion does not suggest Mr. Boblit's statement was available
from    any     source    other      than    the     state.            Because       the    state
controlled access to the information, the prosecutor's failure
to fully respond to Mr. Brady's request put the evidence beyond
the defendant's reach.             As a result, the prosecutor's passivity
suppressed the exculpatory evidence.                           Nothing in the Supreme
Court's reasoning suggests the conclusion would be the same if

                                               5
                                                                             No.       2015AP1083-CR.dk


Mr. Boblit's statement had been recounted in a newspaper story
sitting on defense counsel's doorstep.
       ¶101 Our precedents, the ones the court overrules today,
have been asking the anterior question implicitly required by
Brady's holding.            They use an "exclusive possession or control"

diagnostic device to determine whether prosecutorial passivity
could       suppress       evidence.           See,           e.g.,     State          v.        Cole,    50
Wis. 2d 449, 457, 184 N.W.2d 75 (1971) ("Certainly defendant was
aware       of   the     kind    of    car     and       gun    involved          in    her        arrest.

Therefore, this information was not 'in the exclusive possession
of    the    State.'"); State            v.    Sarinske,          91    Wis. 2d 14, 36, 280

N.W.2d 725        (1979)        ("Thus    it    appears          the    'evidence'                was    not
within      the    exclusive       control          of    the     state,      and       consequently
there may have been no duty to disclose the evidence to the
defendant         even    if     the     district         attorney          was     aware          of     the
electrical short circuit.").
       ¶102 The          clear     majority         of        federal       court           of     appeals

circuits         have    been     doing       the       same    thing,       although              with    a
slightly different diagnostic device.                           Of this majority, all but
one    ask       whether    the       defendant,          through       the        application            of
"reasonable         diligence,"          could           obtain       the     information                not
produced by the prosecutor.                    This rubric accomplishes the same
thing as our "exclusive possession or control" inquiry.                                                  They
both     assess         whether       prosecutorial            passivity          could           suppress
evidence.         See, e.g., Carvajal v. Dominguez, 542 F.3d 561, 567
(7th     Cir.      2008)        ("Evidence       is       'suppressed'             when          (1)     the
prosecution failed               to disclose            the    evidence       in time             for the

                                                    6
                                                             No.   2015AP1083-CR.dk


defendant   to   make   use   of    it,   and   (2)   the    evidence    was   not
otherwise available to the defendant through the exercise of
reasonable diligence."); United States v. Parker, 790 F.3d 550,

561–62   (4th    Cir.   2015)      ("We   examine     this   issue     under   the
established principle that when 'exculpatory information is not
only available to the defendant but also lies in a source where
a reasonable defendant would have looked, a defendant is not
entitled to the benefit of the Brady doctrine.'").2


     2 A sampling of opinions from circuits that understand the
state does not suppress publicly-available information by not
producing it to the defense includes:       Lugo v. Munoz, 682
F.2d 7, 10 (1st Cir. 1982) ("Since the information at issue here
was   available  to  the   defense  attorney   through   diligent
discovery, we find that the prosecutor's omission was not 'of
sufficient significance to result in the denial of the
defendant's right to a fair trial.'" (quoting United States v.
Agurs 427 U.S. 97, 108 (1976))); United States v. Catone, 769
F.3d 866, 872 (4th Cir. 2014) ("Accordingly, '[p]ublicly
available information which the defendant could have discovered
through reasonable diligence cannot be the basis for a Brady
violation.'" (quoting United States v. Willis, 277 F.3d 1026,
1034 (8th Cir. 2002))); Reed v. Stephens, 739 F.3d 753, 781 (5th
Cir. 2014) ("A petitioner's Brady claim fails if the suppressed
evidence was discoverable through reasonable due diligence.");
United States v. Shields, 789 F.3d 733, 746–47 (7th Cir. 2015)
("Evidence is suppressed when 'the prosecution fail[s] to
disclose the evidence in time for the defendant to make use of
it' and 'the evidence was not otherwise available to the
defendant through the exercise of reasonable diligence.'"
(quoting Ienco v. Angarone, 429 F.3d 680, 683 (7th Cir. 2005)));
United States v. Coplen, 565 F.3d 1094, 1097 (8th Cir. 2009)
("'The government does not suppress evidence in violation of
Brady by failing to disclose evidence to which the defendant had
access through other channels.'" (quoting United States v.
Zuazo, 243 F.3d 428, 431 (8th Cir. 2001))); Wright v. Sec'y,
Fla. Dep't of Corr., 761 F.3d 1256, 1278 (11th Cir. 2014)
("'When the defendant has equal access to the evidence[,]
disclosure is not required' and 'there is no suppression by the
government.'" (quoting Maharaj v. Sec'y for Dep't of Corr., 432
F.3d 1292, 1315 (11th Cir. 2005))); and United States v. Derr,
                                                      (continued)
                                7
                                                               No.    2015AP1083-CR.dk


        ¶103 The tests we and most of the federal court of appeals
circuits have been using to diagnose the suppressive potential
of prosecutorial passivity may or may not represent the ideal
formulation of the inquiry.              But if we are really interested in
State    suppression       of    evidence,     rather   than   mere     differential
knowledge of evidence, then surely we must engage in some such

diagnosis       before    applying      Brady's   prescription.          Today,    the
court showed no interest in doing so.
        ¶104 Dispensing with that diagnosis makes for a decidedly

odd     rule.       But     the     oddity      does    not    derive     from     our
constitutions, nor is it born of Brady (even though the court

purports to found its rule on Brady's language).                        We own this
idiosyncrasy, an idiosyncrasy that results from our failure to
account for how passive suppression actually works.                      Instead of
exploring        Brady's        unspoken     assumption,       the     court      just
recapitulated its holding, stating that the Supreme Court "has
discussed       suppression        in   terms     of    withholding       evidence."

Majority op., ¶56 (citing Brady, 373 U.S. at 87 ("A prosecution

990 F.2d 1330, 1335 (D.C. Cir. 1993) ("Brady provides no refuge
to defendants who have knowledge of the government's possession
of possibly exculpatory information, but sit on their hands
until after a guilty verdict is returned."). The Second Circuit
has rejected the "reasonable diligence" test in favor of its own
formulation:    "'[E]vidence is not considered to have been
suppressed within the meaning of the Brady doctrine if the
defendant or his attorney either knew, or should have known, of
the essential facts permitting him to take advantage of that
evidence.'"   United States v. Rowland, 826 F.3d 100, 113 (2d
Cir. 2016) (quoting United States v. Paulino, 445 F.3d 211, 225
(2d Cir. 2006)).      Nonetheless, this formulation is not as
sweeping as the "differential knowledge" standard our court
adopts today.


                                           8
                                                                     No.   2015AP1083-CR.dk


that withholds evidence on demand of an accused" violates his
constitutional obligations)).                 Yes, it has.            But that doesn't
advance the analysis because Brady addressed the "withholding"

under circumstances that made the evidence unavailable to the
defendant.        Consequently, our court's analysis simply begs the
question implicit in Brady's holding.
       ¶105 The court also offered a handful of cases that, it
broadly hinted, have something to say about the duty to disclose
publicly-available information.                   They are unhelpful.               One of

them, Cone v. Bell, 556 U.S. 449 (2009), offers us no guidance

here because it examined Brady's "materiality" requirement, not
its "suppression" component.                The same is largely true of Kyles
v. Whitley, 514 U.S. 419 (1995), as well.                      The Kyles Court broke
no    new   ground    with        respect    to     Brady's    suppression         element,
merely rehearsing the cases that have come before.                           Instead, it
concentrated         almost        exclusively        on      what     makes       evidence
"material" within the meaning of Brady and whether the duty to

disclose     covers information             known    to the     police      but    not the
prosecutor.       As for Banks v. Dretke, the Court addressed Brady's
suppression element no further than was necessary to dispose of
the state's improbable argument that "the prosecution can lie
and     conceal       and     the      prisoner        still         has     the     burden
to . . . discover           the    evidence . . . ."             540       U.S. 668,   696
(2004).      But we are addressing passive nondisclosure here, not
active deceit.        The Supreme Court's opinion in United States v.
Agurs addressed Brady's suppression element, but only to hold
that        the    prosecution's             disclosure         obligation           exists

                                              9
                                                                  No.   2015AP1083-CR.dk


independently of a defendant's request for exculpatory evidence.
427   U.S. 97,       110   (1976).        Because       the     circumstances       there
indicated the undisclosed evidence was not publicly available,
its discussion does not touch the question we must answer.                            Id.

at 100-101.3     Likewise for Strickler v. Greene, 527 U.S. 263, 273
(1999).    Therefore, none of these cases tell us anything about
whether    it   is    possible     for    the     State    to    passively    suppress
publicly-available information.
      ¶106 So I find myself agreeing with a clear majority of the

federal court of appeals circuits (specifically, the 1st, 4th,
5th, 7th, 8th, 11th, and D.C.) in concluding that, prior to
applying Brady, we must diagnose whether the information the

prosecutor      did    not    produce     was     otherwise       available     to    the
defense.     Most of the federal opinions I cited post-date all the
Supreme    Court      cases    upon      which    our     court    relies     for     its
conclusion.4     And yet none of the authoring circuits saw in those
cases the portents my colleagues seem to see.                      I may be joining

a fellowship of error in agreeing with these circuits, for the
Supreme Court might actually address this question someday and
give us our comeuppance.                But that's better than being on the
aggressive      vanguard      of   an    effort    to     arm    defendants     with    a

      3The evidence was comparable to that at issue here (i.e., a
criminal record).   However, what one may acquire today with a
few keystrokes was effectively invisible and inaccessible to the
public in 1976.
      4All the cases,          that is, that actually discussed Brady's
suppression element.           I don't count Cone v. Bell, 556 U.S. 449
(2009), because the            opinion discussed only the materiality
component of the Brady         analysis.


                                           10
                                                                    No.   2015AP1083-CR.dk


logical fallacy with which to attack the constitutionality of
their convictions.
     ¶107 Alas,       the       court's    effective        holding        is      that   a
prosecutor suppresses evidence in the public domain simply by
knowing it exists.          But unless we assume his solipsism, the
prosecutor       cannot         suppress        what     he         cannot        control.
Nevertheless,     the     new    rule     in    Wisconsin      is     that    a    logical
impossibility can make a            conviction         constitutionally           suspect.
The only other way to understand the court's decision is that

the parties' differential knowledge of evidence can violate the
Constitution without regard to suppression.                     That, however, is
not Brady's rule, and neither the parties nor the court have

offered    the    slightest        rationale       for     expanding         the     Brady
principle so dramatically.
                                           *
     ¶108 The evidence of pending charges against Mr. Clark was
at   all   material     times      available      on     the   Consolidated          Court

Automated Programs ("CCAP") system, a source of information more
readily available than the local newspaper.                         And upon learning
of the complaint against Mr. Clark, defense counsel could have




                                           11
                                                                   No.    2015AP1083-CR.dk


picked up the phone and asked for a copy.5                      If he had been told
"no," then he would have had a classic Brady claim:                                 "[T]he

suppression       by    the    prosecution      of    evidence     favorable        to   an
accused upon request violates due process where the evidence is
material either to guilt or to punishment . . . ."                           Brady, 373
U.S. at 87 (emphasis added).               But we'll never know because he
never    asked.         And   he   never   asked      because     he     never    looked.6
Perhaps this inaction would be remediable under Strickland v.
Washington,       466    U.S. 668     (1984),    but       it   cannot    say     anything

about    whether       the    State   violated       the   Constitution.           It    was
logically impossible for the prosecutor to suppress any of the
evidence at issue in this case just by looking at it.                            For these
reasons, I respectfully join the court's opinion except for its
discussion of Brady's "suppression" element. On that point, I
respectfully dissent.




     5 The court laments that "[i]f Wayerski's trial counsel had
discovered the pending charges, he would have had to take extra
steps to promptly secure the complaint from Chippewa County."
Majority op., ¶59.   And what of it?    These intolerable "extra
steps" would likely be nothing more than a phone call, something
the prosecutor seems to have accomplished easily enough.      If
something truly would have stood between him and the complaint
(besides a phone call), he should have told us what it was so
that we might evaluate its suppressive potential.        But we
certainly should not suppose defense counsel was a potted plant,
unable to stir himself enough to reach for information at his
fingertips.
     6 If evidence of the complaint were not publicly available,
the State would have been required to proactively offer it (had
the information been material) under the Agurs rationale.


                                           12
    No.   2015AP1083-CR.dk




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