​Jan. 20, 2023 – A prosecutor’s withholding of a child abuse report from a defendant did not violate the constitutional rule established by the U.S. Supreme Court in Brady v. Maryland, because the report contained the same information as a sheriff’s report that was turned over to the defendant, the Wisconsin Supreme Court has unanimously ruled. ​

​In State v. Hineman,2023 WI 1 (Jan. 10, 2023) the supreme court also held that the identity of the person who was mandated to contact the state agency that wrote the child abuse report was not material for purposes of the analysis required by Brady

Chief Justice Annette Ziegler wrote the majority opinion. Justice Jill Karofsky wrote a concurring opinion, which Justice Rebecca Bradley joined.

Friend of the Family

After Jeffrey Hineman and S.S. ended their romantic relationship in June 2009, Hineman remained in contact with S.J., S.S.’s son. That contact lasted until September 2009, when S.S. and S.J. moved away.

When S.S. lost custody of S.J., the boy moved in with F.S., his biological father. In 2013, Hineman contacted M.S., the mother of F.S. and grandmother of S.J., and asked to re-contact S.J. Hineman told M.S. that he cared for the boy and wanted to be part of his life.

M.S. and F.S. agreed to allow Hineman to re-establish contact with S.J. Hineman began to spend time with S.J. at F.S.’s home.

Reports of Abuse

Wisconsin Child Protect Services (CPS) received a mandatory report in March 2015 from a therapist who was treating S.J.; the boy was six or seven years old at the time. The report said that S.J. was seeing the therapist because he’d been displaying sexualized behavior.

According to the report, S.J. eventually told the therapist that Hineman told him that oral contact with one’s genitals felt good. The report also said the therapist said there was no information that Hineman had touched S.J. or forced S.J. to touch Hineman.

Sexual Assault Charges

After the Racine County Sheriff’s Office received a copy of the March 2015 report, an investigator interviewed S.J. During an interview, S.J. told the investigator that Hineman had touched him inappropriately.

In August 2015, the Racine County District Attorney filed a complaint charging Hineman with first-degree child sexual assault and sexual contact with a person under the age of 13.

Hineman filed a pre-trial demand for discovery, asking the state to disclose all evidence that would tend to negate his guilt. In response, the state disclosed the report written by the sheriff’s investigator but didn’t disclose the March 2015 report.

Post-conviction Relief

The jury found Hineman guilty on both counts. The circuit court sentenced Hineman to 17 years of initial confinement and eight years of extended supervision.

Hineman filed a motion for post-conviction relief.

Hineman argued that the state’s failure to disclose the March 2015 report received by CPS constituted a violation of Brady vs. Maryland, 373 U.S. 83 (1963). Brady requires a prosecutor to turn over exculpatory information to a defendant.

The circuit court denied Hineman’s motion for post-conviction relief. The Wisconsin Court of Appeals reversed.

The state appealed.

2015 Report Not Material

Chief Justice Ziegler began her opinion for the majority by explaining that to establish a Brady violation, a defendant must show that: 1) the suppressed evidence was favorable because it was either exculpatory or impeaching; 2) the evidence was suppressed by the state; and 3) he or she was prejudiced by the suppression.

Hineman argued that the March 2015 report was exculpatory impeachment evidence because it went to: 1) how and when S.J. disclosed Hineman’s alleged abuse; and 2) what the circumstances of that disclosure said about the reliability of the disclosure.

But Ziegler reasoned that the March 2015 report wasn’t material because it didn’t give rise to a reasonable probability of a different result. Ziegler pointed out that the March 2015 report contained the same information as the report written by the sheriff’s investigator, except for the identity of the reporter – information that was not material.

“Both statements make the same point: At the time [the investigator] completed her report, she had no knowledge from any source that there was an allegation of touching,” Chief Justice Ziegler wrote. “The CPS report provided defense counsel everything she needed to impeach [the investigator’s] testimony that there was a prior allegation of touching.”

Argument over Identity of Reporter

Hineman also argued that the March 2015 report was material because:

• S.J.’s therapist was a material-fact witness;

• the patient-provider privilege didn’t apply because the privilege doesn’t apply when a therapist makes a mandatory report under Wis. Stat. section 48.981; and

• anyone trying to determine Hineman’s guilt would want to know how, when, and why the reporter suspected Hineman of abusing S.J.

Ziegler concluded that Hineman’s argument missed the mark, because the only relevant exception to the patient-provider exception was narrower than Hineman claimed. Additionally, she reasoned, Hineman failed to explain how the fact that the mandatory reporter was S.J.’s therapist created a reasonable probability of a different result.

“[Hineman] fails to identify any way the mandatory reporter’s identity is relevant to the determination of guilt or innocence beyond the vague assertion that the jury might ‘want to know more,’” Chief Justice Ziegler wrote. “This does not undermine our confidence in the outcome.”

Concurrence: Appeals Court Opinion Flawed

In her concurrence, Justice Karofsky said the court of appeals opinion was wrong to conclude that the fact S.J. failed to disclose to his therapist that Hineman had abused him impugned his credibility.

“Such reasoning ignores the barriers child sexual assault victims face in reporting sexual abuse and perpetuates the misguided notion that delayed disclosures in these cases are the exception rather than the norm,” Karofsky wrote.