Department of Corrections battles with Division of Hearings and Appeals in Supreme Court argument

By Alexandria Staubach
 
A Wisconsin Department of Corrections lawsuit that could change evidentiary requirements in probation revocation hearings landed in the Supreme Court for oral arguments in late March. Whether and to what extent probationers maintain minimal rights to confrontation is at stake.
 
The case concerns the overturning by the Division of Hearings and Appeals (DHA) of an administrative law judge’s decision to revoke Keyo Sellers’ probation.
 
Attorney Clayton Kawski represented the DOC at oral arguments before the Supreme Court. Attorney Elizabeth Pierson appeared on behalf of the DHA at the hearing. Attorney Daniel Drigot appeared on behalf of Sellers.
 
The DHA is a quasi-judicial, independent entity within the Department of Administration that oversees a panel of administrative law judges, including those who preside over probation revocation hearings.
 
In the DHA’s opinion, the judge had revoked Sellers’ probation on scant, inadmissible evidence.
 
In June 2019, Sellers was placed on probation for a drug conviction. Almost three years later, the DOC initiated revocation proceedings after Sellers was charged with sexual assault and other violations.
 
According to the allegations described in court filings, Sellers, while masked, sexually assaulted an unnamed victim, stole $30 from her, and returned to her home a week later as shown on home security footage. The victim could not identify him definitively, but both his probation officer and ex-wife identified him in the home security footage and made out-of-court statements.

Sellers denied the sexual assault and trespass on the victim’s property.
 
At the probation revocation proceedings, the ALJ considered Y-STR DNA evidence. Y-STR DNA evidence is inherently less specific that usual DNA evidence, as it compares DNA location on the Y chromosome exclusively.
 
DNA collected from the victim after the sexual assault indicated that one out of 278 African American males would have a consistent profile, meaning that in Milwaukee, based on census data, 389 African American males would match the profile.
 
According to Kawski, the DOC declined to call the victim to testify at the revocation proceeding, and did not even ask her to testify, out of concern that testifying would “re-traumatize” her and because she could not definitively identify Sellers as her assailant.
 
The ALJ presiding over the hearing believed that the Y-STR DNA evidence coupled with the out-of-court, “hearsay” statements of the probation officer and ex-wife were sufficient to find it more likely than not that Sellers committed the crimes and therefore revoked Sellers' probation.
 
Sellers appealed the ALJ’s decision to DHA, which found that without testimony from the victim, the only credible evidence of nonconsent to the trespass and sexual assault was inadmissible hearsay, which deprived Sellers of his constitutional right to confrontation.
 
The DHA believed that the DOC’s decision not to call the victim as a witness was not due to any “difficulty, expense, or other barrier to obtaining live testimony,” as required under the legal standard of “good cause” for not calling her. The good-cause standard protects an individual’s limited right to confrontation in probation revocation cases.
 
The revocation proceedings before the administrative law judge occurred separately from proceedings on the merits of the charges in court. Ultimately, Sellers was convicted at trial and sentenced to more than 30 years in prison.
 
“So why are we here?” asked Justice Jill Karofsky about the appeal on the revocation matter.
 
“He owes the state more time,” said Kawski. He added that the case in front of the Supreme Court was the only thing maintaining the DOC’s supervision of Sellers on the old drug case. Kawski also argued that the Supreme Court had not opined about the standard governing evidence at probation revocation hearings in more than a decade.
 
“Without relying on the hearsay evidence of the victim, which (the administrative law judge) couldn’t do without violating Mr. Sellers’ constitutional rights, the rest of the allegations did not prove DOC’s allegations,” Pierson argued in response.
 
“To show good cause . . . they have to show that there is a difficulty, expense, or other barrier and then that gets balanced against the constitutional rights of the accused,” said Pierson.
 
Oral arguments focused heavily on the sufficiency of the evidence and whether the DOC had good cause for not calling the victim to testify at the revocation hearing.
 
Chief Justice Ziegler and Justices Rebecca Dallet, Janet Protasiewicz and Jill Karofsky are all former prosecutors. Dallet and Karofsky said the “unfamiliar” DNA evidence probably cut against DOC.
 
“You’re putting a lot of weight in the reliability of the proffered evidence,” Karofsky said to Kawski. However, she also remarked that avoiding re-traumatization of the victim “feels like that fits the exception” for good cause.

Kawski repeatedly insisted on the sufficiency of the DNA evidence and said “the more reliable the evidence is, the less is necessary for the state to show.”

Pierson said the DHA relied on the fact that the victim was never even asked to testify. “There was nothing to suggest that she was asked and declined,” Pierson said. “We need something more than DOC’s word,” she said.

Pierson insisted that however the court applies the standard governing good cause, “it cannot be that low.”  
 
Drigot insisted at oral argument that the DOC was asking the court to create an exception for out-of-court statement use at probation revocation hearings that does not currently exist. A finding that good cause excused the DOC from calling or even asking the victim to testify would be “an opinion on whether that’s what the law should be, but not the rule right now,” said Drigot.
 
The justices gave no hints on where they will land, though Justice Brian Hagedorn said he was “not convinced we need to change (the standard) in any way.”