Additional Info: Brady ViolationsAppealsZellner

Discovery Laws, Brady Violations & Their Application To Steven Avery’s Case

DISCLAIMER: The post below was NOT written by me (Lickity Snickum), it is copied verbatim, and with permission, from poster(s) on Reddit subs Making a Murderer and TickTockManitowoc

This is a post by Reddit poster unisharks that specifically looks the subject of Brady violations committed during Avery’s trial

I’ll be posting more investigational posts from others in the future.

The law of disclosure is clearly defined and according to Sec. 971.23(1)(e) a district attorney must disclose to a defendant:

Any relevant written or recorded statements of a witness named on a list under par. (d), including any audiovisual recording of an oral statement of a child under s. 908.08, any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert’s findings or the subject matter of his or her testimony, and the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial.

What this statute does not state is a district attorney can substitute an expert’s report with another report from a law enforcement investigator that informs the defense of the expert’s report.

According to Brady v. Maryland a “Brady material” or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused–evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness.

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).

Let’ take a closer look at the 2nd component. To determine if “the evidence must have been suppressed by the State, either willfully or inadvertently” there is another 3 component test to determine if the evidence was “suppressed”.

  1. the evidence was not in the “exclusive possession and control” of the State
  2. the defendant’s trial counsel could have exercised “reasonable diligence” to obtain the evidence; and
  3. there was no “intolerable burden” on a defendant’s trial counsel to obtain the evidence themselves.

Thanks to State v. Wayerski (2019 WI 11) the Supreme Court of Wisconsin has altered the test for whether the State “suppressed” evidence under Brady v. Maryland.

¶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.

The Supreme Court of Wisconsin then applied Brady to the Wayerski case and ruled that…

¶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.

When applying Brady to Steven Avery’s case the Court of Appeals will have an easy time overturning the Circuit Court’s ruling which based their ruling on the old “suppression” test of the past.

(1) the evidence at issue must be favorable to the accused, either because it is exculpatory or impeaching;

The CD containing Velie’s Final Report is most certainly evidence that is favorable to Steven Avery because it is both exculpatory and impeaching.

(2) the evidence must have been suppressed by the State, either willfully or inadvertently; and

Under the new ruling in State v. Wayerski (2019 WI 11) it is irrefutable the State suppressed evidence as per Sec. 971.23 (1)(e). The State did not turn over their expert’s forensic report. Whether Buting & Strang was in possession of the DVDs or not they were never in possession of the CD containing Velie’s Final Report in an easy and accessible format. Thus allowing Steven Avery to clear this hurdle of the Brady test.

(3) the evidence must be material.

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.

I don’t think this should need any explaining however, had Steven’s trial counsel been in possession of the CD containing Velie’s Final Report, they would have been able to a) impeach Bobby’s testimony and/or b) successfully argue a motive in heir Denny motion establishing Bobby as a 3rd party suspect. The latter would have been more critical to Steven’s defense than the former and would have led to a reasonable probability of a different outcome of the proceeding/trial.

In conclusion, the suppression of the CD containing Velie’s Final Report should lead the Court of Appeals to overturn the Circuit Court’s ruling thus establishing their was indeed a Brady violation.