March 16, 2021 – The Wisconsin Supreme Court has ruled (4-3) that a defendant may seek discovery of Wisconsin-specific data in a Wisconsin Department of Corrections (DOC) database to challenge his status as a sexually violent person.

In 2016, the state petitioned to commit Anthony Jendusa as a sexually violent person, and a licensed psychologist testified that Jendusa was considered a sexually violent person under the statutory definition in Wis. Stat. Chapter 980.

The psychologist assessed Jendusa’s likelihood of engaging in future acts of sexual violence using sex-offender risk assessments, which are based on recidivism data collected on sex offender population groups in Canada and Denmark.

Based on the assessments, the psychologist concluded Jendusa was more likely than not to engage in future acts of sexual violence. On cross-examination, the psychologist revealed that he did not consider Wisconsin-specific data that DOC maintains.

After the circuit court found probable cause to believe Jendusa was a sexually violent person, he was detained pending trial. Jendusa then moved for an order requiring the DOC to disclose data in the Wisconsin-specific database on sexually violent offenders.

His motion cited discovery provisions in Wis. Stat section 980.036, as well as the Fifth and Fourteenth Amendments to the U.S. Constitution in arguing that the Wisconsin-specific database holds potentially exculpatory evidence. That is, the data may show his recidivism risk is lower than the rates determined by the assessment tools used.

The state offered various grounds to oppose disclosure, but the circuit court ordered the psychologist to review the Wisconsin-specific data and be prepared to testify about it.

He ultimately testified that, based on the unverified database incorporating more than 900 Wisconsin sex offenders, Jendusa’s “preliminary base rate” was one-third of the base rate relied on to predict his risk of committing future violent sex acts.

The circuit court ordered DOC to transmit the full database to Jendusa so another court-appointed psychologist could analyze the data. The state appealed.

Majority Upholds Circuit Court Order

The appeals court denied the state’s petition for interlocutory appeal but the Wisconsin Supreme Court granted review of that decision and also ordered the parties to address the substantive issue and arguments on the circuit court’s discovery order.

In State v. Jendusa, 2021 WI 24 (March 10, 2021), a state supreme court majority (4-3) ruled that “the DOC database is discoverable pursuant to Wis. Stat. § 980.036(5).”

Section 980.036(5) states: “On motion of a party, the court may order the production of any item of evidence or raw data that is intended to be introduced at the trial for testing or analysis under such terms and conditions as the court prescribes.”

The majority said this statute affords the circuit court “wide discretion regarding not only whether a requested item should be produced but also the manner and conditions of its production,” wrote Justice Rebecca Dallet for the majority, joined by Justice Brian Hagedorn, Justice Ann Walsh Bradley, and Justice Jill Karofsky.

The majority agreed that the DOC database is raw data intended to be introduced at trial, and it met the relevancy requirement. Thus, it was discoverable.

“Dr. Tyre’s testimony is sufficient to establish that the DOC database is relevant to Jendusa’s defense,” Justice Dallet wrote.

“Therefore, we conclude that the circuit court permissibly granted Jendusa’s motion requiring the DOC to produce the database for Jendusa to analyze.”

The majority also rejected the state’s claim that the state cannot produce the database because it’s not in the state’s possession, concluding the DOC is “so inextricably intertwined with this case that it qualifies as ‘the state.’”

Dissent

Justice Annette Ziegler wrote a dissenting opinion, joined by Chief Justice Patience Roggensack and Justice Rebecca Bradley, rejecting the majority’s conclusions.

“The majority errs when it concludes that the court of appeals does not need to explain why it denies a party's motion for leave to file an interlocutory appeal because of our general deference to the court of appeals in this area,” Justice Ziegler wrote.

“The majority also errs when it concludes that the Department of Corrections' (DOC) database is discoverable in this case under Wis. Stat. § 980.036(5) because raw data has meaning only in the context of analysis.”

Justice Ziegler said “[t]hese errors will impact not only this case, but will detrimentally affect our review of the court of appeals in future cases.”