LYNCH v. COUNTY CT.,
82 Wis.2d 454 (1978)
262 N.W.2d 773
Lynch, Dane County District Attorney
v.
Dane County Court, Branch III:
Cleveland and Another, Appellants,
v.
Dane County Circuit Court, Rspondent.
Wisconsin Supreme Court # 75-807
Argued 2/6/78 - Decided 3/7/78
APPEAL from a judgment of the circuit
court
for Dane county:
RICHARD W. BARDWELL, Circuit Judge.
Affirmed.
A judgment of absolute prohibition
was
entered by the circuit court pursuant
to
Section 293.12, Stats., to prohibit
enforcement of an order of the
county court.
The order of the county court directed
the
district attorney to permit counsel
for
certain criminal defendants charged
with
delivery of a controlled substance
to review
the files of the state for the
respective
defendants, and to take whatever
notes they
wished before proceeding with a
preliminary
examination.
The defendants appeal from the judgment
of
the circuit court.
For the appellant Ronald S. Sielo
there
was a brief by Donald S. Eisenberg
and
Charles W. Giesen and oral argument
by
Jack M. Priester, all of Madison.
For appellant Gary G. Cleveland
there was a
brief and oral argument by Warren
A. Kenney
and Steven P. Weiss, Wisconsin
Indian Legal
Services of Madison.
For the respondent the cause was
argued by
Wm. L. Gansner, assistant attorney
general,
with whom on the brief was
Bronson C. La Follette, attorney
general.
CONNOR T. HANSEN, J.
The appellants, Gary G. Cleveland
and Ronald
S. Sielo, and five others were
charged with
feloniously delivering cocaine,
a controlled
substance, contrary to Sections
161.41(1)(b),
161.16(4), and 939.05, Stats.
Preliminary examination was commenced
in the
county court of Dane county.
In the course of cross-examination
of the
state's first witness, counsel
for one of the
defendants demanded any exculpatory
material
contained in reports prepared by
the witness,
and counsel for the other defendants
joined
in this motion.
During the ensuing exchange, the
motion
became a general demand for all
exculpatory
material in the possession of the
district
attorney.
In response, the state offered to
have the
county court inspect the state's
files [1] in
camera to determine whether any
exculpatory
evidence was present, an offer
which the
state repeatedly advanced.
The county court ultimately determined
that
the files should be examined by
the
respective attorneys for the defendants
and
in doing so ordered from the bench
that:
". . . The order is
to allow each of
the attorneys
for the defendants to
review their
respective file in your
district attorney's
office.
They can take
whatever notes they
want to out
of that file.
They are not
to have copies of the file,
you know, xerox
[sic] them at this time."
The preliminary examination was
then
adjourned and the district attorney
petitioned the circuit court for
an
alternative writ of prohibition
restraining
the county court and the county
judge from
enforcing the order of the county
court.
A hearing was held before the circuit
court,
and although the county judge did
not appear,
appellants Cleveland and Sielo
were permitted
to intervene.
The appellants' motions to quash
the writ
were denied, and the writ was granted.
Judgment making absolute the writ
of
prohibition was entered and the
appellants appeal.
The issue presented is whether,
on the facts
of the present case, the extraordinary
remedy
of a writ of prohibition was proper.
The writ of prohibition is an
extraordinary remedy.
State ex rel.
Dept. of Pub. Instruction v. ILHR,
68 Wis.2d 677, 684,
229 N.W.2d 591 (1975).
Traditionally employed to restrain
an inferior court from exceeding
its jurisdiction,
State ex rel. Freemon v. Cannon,
40 Wis.2d 489, 491,
162 N.W.2d 32 (1968),
the writ of prohibition has in recent
years
been extended to reach claims of
nonjurisdictional error,
State ex rel. Jefferson v. Roraff,
44 Wis.2d 250, 255,
170 N.W.2d 691 (1969);
State ex rel. Freemon v. Canon,
supra, at 492;
State ex rel. Reynolds v. Circuit
Court,
15 Wis.2d 311, 314, 315,
112 N.W.2d 686 (1961).
Regardless of the nature of the
error
asserted, however, prohibition
remains a
drastic and extraordinary remedy,
State ex rel. Klinkiewicz v. Duffy,
35 Wis.2d 369, 375,
151 N.W.2d 63 (1967);
State ex rel. Niedziejko v. Coffey,
22 Wis.2d 392, 401,
126 N.W.2d 96,
127 N.W.2d 14 (1964),
and its invocation is subject
to stringent prerequisites.
State ex rel. Jefferson v. Roraff,
supra.
Prohibition will not lie to
correct every judicial error.
Only where the duty of the court
below is
plain, and where there is a clear
refusal to
meet that duty or a clear intent
to disregard
it, will a writ of prohibition
issue.
State ex rel. Prentice v. County
Court,
70 Wis.2d 230, 235,
234 N.W.2d 283 (1975);
State ex rel. Jefferson v. Roraff,
supra, at 257,
quoting In
Petition of Pierce-Arrow Motor Car
Co.,
143 Wis. 282, 285,
127 N.W. 998 (1910).
Moreover, no matter how meritorious
a claim of error may be, two distinct
showings must be made before a
writ of prohibition will issue.
First, it must be shown that ordinary
remedies, by appeal or otherwise,
are inadequate.
State ex rel.
Dept. of Pub. Instruction v. ILHR,
supra, at 684;
Mohrhusen v. McCann,
62 Wis.2d 509, 512,
215 N.W.2d 560 (1974). [2]
Second, it must be shown that grave
or
extraordinary hardship will result
if the writ does not issue.
State ex rel.
Di Salvo v. Washington County Ct.,
79 Wis.2d 27, 31,
255 N.W.2d 459 (1977);
State ex rel. Prentice v. County
Court,
supra, at 234.
It will not suffice merely to assert
these
prerequisites in a conclusory fashion.
Rather, a party seeking the intervention
of a
supervisory court has the burden
of alleging
facts sufficient to reasonably
demonstrate
both the inadequacy of ordinary
remedies and
the gravity of the hardship if
the writ does
not issue,
State ex rel.
Di Salvo v. Washington County Ct.,
supra, at 31;
State ex rel.
Prentice v. County Court,
supra, at 234;
Mohrhusen v. McCann,
supra, at 512;
unless the harm is
"inherent in the situation,"
Mohrhusen v. McCann, supra, at 509,
512
State ex rel.
Dept. of Pub. Instruction v. ILHR,
supra, at 686, 687.
In the instant case, the petition
for the
writ of prohibition alleged the
inadequacy of
the remedy of appeal, asserting
that appeal
would come too late for effective
redress
because the order of the county
court
directed the state to permit the
defendants
to examine their respective files
before
resuming the preliminary hearing.
On appeal, the state further asserts
that
immediate appeal was not available
to the
state under Section 974.05, Stats.
and that
the issue may evade review altogether,
because of jury verdict favorable
to the
defendants would prevent appeal
by the state.
These arguments are consistent with
the decisions of this court.
The inadequacy of the remedy of
appeal may
arise from the fact that appeal
would
come too late for effective redress.
State ex rel. Jefferson v. Roraff,
supra, at 256,
quoting
Drugsvold v. Small Claims Court,
13 Wis.2d 228, 232,
108 N.W.2d 648 (1961);
see:
State ex rel.
Dept. of Pub. Instruction v. ILHR,
supra, at 687.
This court has indicated that a
writ of
prohibition is a proper remedy
where an
inferior court has improperly compelled
disclosure of evidence.
Thus in
State ex rel. Reynolds v. Circuit
Court,
15 Wis.2d 311, 315,
112 N.W.2d 686 (1961),
prohibition was sought to restrain
enforcement of a trial court order
requiring
two appraisers to give certain
depositions
in a civil action against the state
highway commission.
Although the petitioners did not
prevail on
the merits of their claim, and
the writ was
therefore denied, this court acknowledged
the inadequacy of the remedy of
appeal
in such a situation.
If the appraisers were required
to comply
with the order, this court observed,
any
right which the state had to have
such
testimony withheld would be destroyed,
and an
appeal would be unable to repair
the damage.
The appellants contend that the
state could
have secured adequate relief by
seeking a
protective order covering any privileged
items or material which could not
safely be
disclosed.
However, the record makes plain
that the
state's objection to disclosure
does not
concern specific items which might
properly
be made subject to a protective
order.
Upon direct inquiry by the county
court, the
assistant district attorney stated
that the
seven files did not contain information
which
would reveal the identities of
informants or
undercover agents.
The trial court further inquired
whether the
files contained information regarding
any
other persons which warranted protection,
or
anything which should not be revealed
to the
defendants.
The assistant district attorney
stated that
generally there was nothing of
that nature,
but that he could not be positive
without
examining the files page by page.
Neither the petition for the writ
of
prohibition nor the supporting
brief
indicated that the files contain
specific
items requiring protection.
It is apparent, therefore, that
the writ of
prohibition was sought, not to
prevent
disclosure of any specific item
or items, but
to prevent whatever harm may be
implicit in
ordering that the state make its
file
available to counsel for the defendant
for
examination and the taking of such
notes as
he wishes prior to preliminary
examination.
The question, then, is whether the
order of
the county court was plainly erroneous,
and
whether grave harm would result
if the writ
of prohibition did not issue.
The state maintains that prohibition
was
proper because the harm in the
present case
is "inherent in the situation."
State ex rel.
Dept. of Pub. Instruction v. ILHR,
supra, at 686, 687;
Mohrhusen v. McCann, supra, at 512.
More specifically, the state contends
that
the actions of the county court
will subvert
the orderly processes of disclosure
and
discovery, unjustifiably delay
the case
below, unnecessarily expose the
state's case
against these defendants and create
a
precedent which is likely to hinder
the
efforts of the prosecution in future
cases.
In sum, the state asserts that the
order of
the county court impedes the orderly
administration of justice by infringing
upon
the state's right not to open its
files for
general inspection by criminal
defendants
prior to a preliminary examination.
These contentions are predicated
upon the
view that the actions of the county
court are
utterly without sanction in the
constitution
or legal precedent.
For this reason, it is impossible
to gauge
the alleged harm without determining
whether
the trial court erred; it is therefore
necessary to turn to the merits
of the
state's arguments.
Cf.
State ex rel. Reynolds v. Circuit
Court,
supra, 315.
The parties recognize that the state
has an
affirmative duty to disclose to
a criminal
defendant any material within its
possession
or control which tends to negate
the guilt of
the defendant or which would tend
to reduce
his punishment therefor.
Nelson v. State,
59 Wis.2d 474, 479,
208 N.W.2d 410 (1973).
It is unprofessional conduct for
a prosecutor
to fail to disclose such exculpatory
material
". . .at
the earliest
feasible opportunity . . ,"
American Bar Association Project
on
Standards for Criminal Justice,
The
Prosecution Function and the Defense
Function, Section 3.11(a),
quoted in
Nelson v. State, supra, at 483,
fn. 9.
The state must therefore disclose
such
material as soon as the state recognizes
its exculpatory character.
United States v. Mitchell
(S.D.N.Y. 1973),
372 Fed. Supp. 1239, 1257.
These principles are not in dispute
here.
Rather, the question here is whether
criminal
defendants may determine for themselves
which, if any, of the materials
in the
hands of the state are exculpatory.
The constitutional right to a fair
trial does
not entitle a defendant to inspect
the entire
file of the prosecutor.
In
United States v. Agurs,
427 U.S. 97, 106, 109,
96 Sup. Ct. 2392,
49 L.Ed.2d 342 (1976),
the Supreme Court stated:
. . . There
is, of course, no duty to
provide
defense counsel with unlimited
discovery
of everything known by the
prosecutor,
. . .
and
Whether
or not procedural rules
authorizing
such broad discovery might
be desirable,
the Constitution surely
does not
demand that much.
While expressing
the opinion that
representatives
of the State may not
"suppress
substantial material
evidence,"
former Chief Justice Traynor
of the
California Supreme Court has
pointed
out that "they are under no duty
to report
sua sponte to the defendant
all that
they learn about the case and
about
their witnesses."
In re Imbler,
60 Cal.2d
554, 569,
387 P.2d
6, 14 (1963).
And this
Court recently noted that there
is "no
constitutional requirement that
the prosecution
make a complete and
detailed
accounting to the defense of
all police
investigatory work on a
case."
Moore v.
Illinois,
408 U.S.
786, 795. . . . . .
In
Ruiz v. State,
75 Wis.2d 230,
249 N.W.2d 277 (1977),
this court considered the holding
of Agurs,
supra, and at pages 241, 242, stated:
"It appears,
therefore, that under the
standard
of Agurs, unless the evidence
not disclosed
is probative of innocence,
no duty
to disclose arises, and only if
the evidence
not disclosed would have
created
a reasonable doubt was
constitutional
error committed by the
non-disclosure."
See also:
Britton v. State,
44 Wis.2d 109,
170 N.W.2d 785 (1969)
(holding that there is no general
right to
inspect the prosecutor's files
after trial).
The defendants in the present appeal
concede
that the constitution confers no
general
right to peruse the prosecutor's
files.
However, the defendants maintain
that
the trial court may, in its discretion,
confer such a right.
It is the conclusion of this court
that
generalized inspection of the prosecution's
files by the defense, at this early
stage of
a criminal prosecution, is inherently
harmful
to the orderly administration of
justice.
It is important to remember that
the
constitutional source of the defendants'
right to exculpatory material is
in the right
to a fair trial guaranteed by the
fifth and
fourteenth amendments to the United
States
Constitution. [3]
United States v. Agurs,
supra, at 107; see:
Brady v. Maryland,
373 U.S. 83, 87, 88,
83 Sup.Ct. 1194,
10 L.Ed.2d 215 (1963).
A preliminary examination is not
a trial.
Tell v. Wolke,
21 Wis.2d 613, 617, 618,
124 N.W.2d 655 (1963).
A preliminary examination is a hearing
before
a court for the purpose of determining
whether there is probable cause
to believe
that a felony has been committed
by the
defendant.
Section 970.03, Stats.
Once such probable cause has been
shown, and
the defendant has been bound over
for trial,
the prosecutor is not bound, in
presenting an
information, to the particular
charges
advanced at the preliminary examination.
Rather, he may advance additional
related
charges and, indeed, may charge
in the
information any crime not wholly
unrelated to
the transactions and facts adduced
at the
preliminary examination.
Wittke v. State ex rel. Smith,
80 Wis.2d 332, 352
259 N.W.2d 515 (1977).
In this sense, the particular charges
alleged
in the complaint at a preliminary
examination
must be considered tentative or
provisional.
Because the ultimate charges have
not been
determined with any certainty,
it is
inevitably difficult, if not impossible,
to
determine at the time of the preliminary
examination which materials, if
any, may
prove exculpatory at the time of
trial.
This determination cannot be made
in any meaningful way until
". . . after the issues and
the
Government's proof
have crystallized. . ."
United States v. King (S.D.N.Y.
1970),
49 F.R.D. 51, 53.
Inspection of the state's files
by the
defense at this early stage, where
there has
been no showing of particularized
need for
inspection, can serve only as an
opportunity
for generalized, unrestricted discovery,
rather than as a device for the
constitutionally mandated disclosure
of
specific exculpatory material.
[4]
Such discovery will impede the orderly
processes of discovery prescribed
by
statute, see:
Sections 971.23 to 971.25, Stats.,
and will circumvent the legislative
determinations reflected in those
statutes;
will unjustifiably delay the administration
of justice; and will needlessly
complicate
the relatively informal procedures
applicable
at this early stage of a prosecution.
This harm is inherent in the
order of the county court.
Further this court has said that
pretrial
discovery procedures should be
determined
by statute or by rule of court
and should
not be decided by the courts on
a
case-by-case basis.
State v. Miller,
35 Wis.2d 454, 478,
151 N.W.2d 157 (1967).
The order of the county court would
operate,
in essence, as a discovery device,
and
would therefore be inconsistent
with this principle.
The defendants rely upon
Dennis v. United States,
384 U.S. 855, 874,
86 Sup.Ct. 1840,
16 L.Ed.2d 973 (1966),
in which criminal defendants were
permitted
to examine the grand jury testimony
of
prosecution witnesses.
There, the Supreme Court said that
attorneys
for the defense, rather than the
prosecutor
or the trial court, should be permitted
to
determine what was exculpatory.
The court said:
. . . Trial
judges ought not to be
burdened
with the task or the
responsibility
of examining sometimes
voluminous
grand jury testimony in order
to ascertain
inconsistencies with trial
testimony.
In any
event, "it will be extremely
difficult
for even the most able and
experienced
trial judge under the
pressures
of conducting a trial to pick
out all
of the grand jury testimony that
would
be useful in impeaching a
witness."
Pittsburg
Plate Glass,
360 U.S.,
at 410 (dissenting opinion).
Nor is
it realistic to assume that the
trial
court's judgment as to the utility
of material
for impeachment or other
legitimate
purposes, however,
conscientiously
made, would
exhaust
the possibilities.
In our
adversary system, it is
enough
for judges to judge.
The determination
of what may
be useful
to the defense can
properly
and effectively be
made only
by an advocate . . ."
Dennis v. United States,
supra, at 874, 875.
In Dennis, however, the defendants
had made a
showing of "particularized need"
to inspect
the material, a fact which the
Supreme Court emphasized.
Dennis v. United States, supra,
870-873.
No such showing of "particularized
need" was
made or attempted in the present
case.
Dennis is therefore inapposite and
is not
authority for the proposition that
counsel
for the defendant has a right to
examine
the files of the state before bindover.
Brady v. Maryland, supra, and succeeding
cases necessarily place heavy responsibility
upon the prosecutor.
Particularly at this early stage
of the
proceedings, substantial reliance
must be
placed upon his good faith and
upon his
desire to meet that responsibility
in
accordance with the general presumption
of
regularity and propriety to which
his
official acts are entitled.
At the preliminary hearing stage,
therefore,
and in the absence of a showing
of
particularized need, the identification
of
exculpatory material must be entrusted
to the
good conscience of the prosecution,
subject
to the sanction implicit in Brady,
supra,
that if the prosecution improperly
withholds
disclosure it may later risk the
granting of
a motion for a new trial.
See:
United States v. Wolfson (S.D.N.Y.
1968),
289 Fed. Supp. 903, 915,
judgment affirmed
405 F.2d 779 (1968), cert. den.
394 U.S. 946 (1969);
United States v. Cobb (S.D.N.Y.
1967),
271 Fed. Supp. 159, 163, 164.
For the foregoing reasons, this
court is of
the opinion that under the prevailing
circumstances, the order of the
county court
was without basis in the constitution
or in
sound judicial policy; that the
order
therefore represented a clear breach
of a
plain judicial duty; and that the
harm
involved was inherent in the situation.
The judgment of prohibition
is therefore affirmed.
By the Court. Judgment
affirmed.
[1]
There are seven files, one for each
of the seven defendants.
These files are not included in
the
record in the present proceeding.
[2]
Although this prerequisite has at
times been
stated as requiring only that the
remedy of
appeal be unavailable or ineffective,
see,
e.g., State ex rel. Jefferson v.
Roraff,
supra, at 256; State ex rel. Prentice
v.
County Court, supra, at 234, the
decisions of
this court make clear that a writ
of
prohibition will not issue where
any
available legal remedy would provide
effective redress.
See, e.g.,
State ex rel. Freemon v. Cannon,
supra, at 491 (motion for remand
held
to constitute adequate remedy);
State ex rel. Cullen v. Ceci,
45 Wis.2d 432, 438, 440,
173 N.W.2d 175 (1970)
(writ of habeas corpus held
to be adequate remedy);
In re Weaver,
162 Wis. 499,
156 N.W. 459 (1916)
(plea in abatement held adequate
remedy).
[3]
Disclosure at the present stage
of the
instant prosecution is in no way
essential to
the effective use of any exculatory
material
by the defendants at trial.
It is unnecessary to determine whether
the
right to a fair trial may, under
certain
circumstances, require pretrial
but
post-bindover disclosure
to permit the
effective use of particular evidence
at
trial.
[4]
This court has emphasized that discovery
is
distinct from constitutionally
mandated
disclosure.
State v. O'Connor,
77 Wis.2d 261, 280, fn. 7,
252 N.W.2d 671 (1977).
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