State v. A.S.W./State v. J.P.W., 2015AP2119 & 2015AP2120, District 2, 10/5/16 (one-judge decision; ineligible for publication); case activity
Douglas Yanko was convicted of sexually assaulting a child. Postconviction, he sought access to the juvenile court records of the child’s brothers, A.S.W. and J.P.W., who were also charged with sexually assaulting the child. Yanko asserts there may be exculpatory evidence in the records—in particular, evidence the child is untruthful or otherwise incredible—because the delinquency petitions were amended to charge misdemeanor battery and A.S.W. and J.P.W. were given in-home placement. (¶¶2-4). The court of appeals rejects all Yanko’s arguments for getting access to the records.
First, Yanko isn’t entitled to mandatory release under § 938.396(2g)(dm), which provides that “[u]pon request of a defense counsel to review court records for the purpose of preparing his or her client’s defense to an allegation of delinquent or criminal activity, the court shall open for inspection by authorized representatives of the requester the records of the court relating to that client.” The problem is that the records of A.S.W. and J.P.W. don’t “relate” to Yanko, and “[t]he plain reading of this language is that in order for records to ‘relate’ to Yanko, they must at a minimum have something to do with him. This reading is not only correct on its face, but also its limited nature furthers the main aim of the statute—protecting the confidentiality of the records.” (¶12). Yanko wasn’t a subject of the proceedings and was not otherwise involved in them; the only commonality is the the victim. “The juvenile records here may relate to his victim, and—assuming they contain some form of exculpatory evidence— could plausibly relate to his case. But they do not relate to him.” (¶13).
Next, the circuit court didn’t erroneously exercise its discretionary power to order release under § 938.396(2)(a) when it denied Yanko’s request for access without conducting in camera review of the records. Case law mandates an in camera review only after the court has determined it must release records, the purpose of the review being to assure only relevant records are released. (¶¶14-17). Yanko hasn’t provided any basis beyond speculation and conjecture for believing there’s relevant information in the court records, and making the circuit court review the records before it has decided whether there’s a basis for release would “require the circuit court to do [Yanko’s] legwork and confirm if his hunch is correct. This would turn circuit courts into special discovery masters no matter how far-fetched or voluminous the request.” (¶18).
Finally, Yanko’s claim he has a due process right to access founders on the lack of a factual foundation. Applying the framework from State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, the court concludes Yanko hasn’t set forth a specific factual basis showing a reasonable likelihood the records contain relevant information necessary to determine guilt or innocence, and therefore he hasn’t made the preliminary showing required by those cases to merit an in camera review. (¶¶22-29).
