By Gretchen Schuldt
The Department of Corrections must turn over a database containing information about sex offenders that a defense lawyer contends could show the state has been overstating how likely sex offenders are to commit future sexual violence, the State Supreme Court ruled, 4-3, this week.
Justice Rebecca Dallet's opinion for the majority recounts how far DOC officials went to block lawyers for Anthony Jendusa from getting the information.
Among other things, the Department of Corrections' legal counsel twice advised its staff not to turn over a database containing information about state sex offenders, despite a subpoena and then a court order requiring the agency to do so, Dallet wrote. A DOC psychologist testified he failed for more than a year to open an email that could potentially undercut his evaluation methods. And a DOC research committee said Jendusa could have the information, but then never provided it.
Dallet was joined in her opinion by Justices Ann Walsh Bradley, Brian Hagedorn, and Jill Karofsky. Justice Annette Ziegler dissented, joined by Justices Rebecca Grassl Bradley and Patience Rogensack.
Ziegler said state statute prohibited Jendusa from having access to the database because "neither the State nor Jendusa claimed they would introduce the raw data at trial."
Jendusa contends the database of Wisconsin offenders is key to demonstrating that Christopher Tyre, a DOC psychologist, used the wrong base from which to calculate the chances of repeated sexual violence.
The lawyers contend that using a base of Wisconsin offenders, rather than Canadian and Danish offenders, in a risk assessment tool used by the state, could significantly reduce the reoffense likelihood scored by his client, Anthony James Jendusa.
In fact, when Tyre finally gave a summary of the data in the email, the "preliminary (Wisconsin) base rate was roughly one-third of the base rate he relied on to predict Jendusa's recidivism risk," Dallet wrote.
(Tyre testified in November 2018 that in addition to his regular DOC job, he had made about $120,000 from the state performing private evaluations for the state in other sex offender commitment cases, Jendusa's appellate lawyer, Assistant State Public Defender Dustin C. Haskell, said in a brief.)
The risk assessments are critical in determining whether sex offenders should remain incarcerated under civil commitments after their prison terms end. A finding that the state has overstated the likelihood of reoffending could have a major impact on civil commitment proceedings for other sex offenders.
Tyre testified in Milwaukee County Circuit Court in March 2017 that Jendusa was more likely than not commit future acts of sexual violence.
"On cross-examination, Dr. Tyre revealed that the DOC maintains a Wisconsin-specific database of individuals that it has evaluated for sexually violent person commitments and that he was in the beginning stages of analyzing this data," Dallet wrote. "Dr. Tyre testified that nearly two years prior, one of his colleagues had emailed him the preliminary results of that analysis, including a Wisconsin-specific base rate, but Dr. Tyre claimed he had not yet reviewed that email."
Jendusa's lawyers then asked the court to order DOC to turn over the database information, contending it could help prove that Jendusa did not meet the criteria for commitment, or could discredit Tyre's evaluation "because a Wisconsin-specific base rate may better capture unique cultural and social features not present in the Canadian and Danish samples," Dallet wrote.
The state objected.
"It first argued that the database is not in the State's 'possession' because it is in the DOC's possession," Dallet wrote. DOC is a state agency.
Tyre testified in November 2018 that in addition to his regular DOC job, he had made about $120,000 from the state performing private evaluations for the state in other sex offender commitment cases,
The state also argued that there was no constitutional or statutory requirement that it disclose the data because the Wisconsin base may be higher or lower than the Canadian-Danish base and thus was not necessarily exculpatory. The state said Jendusa could submit a research request to DOC and get the data that way.
"In fact, Jendusa had requested the data...but to no avail," Dallet wrote. "The DOC's Research Review Committee approved his request, but later communications between Jendusa and the DOC's lead research analyst indicated that the DOC was confused about which database Jendusa had requested. Their correspondence also revealed that the lead research analyst was working with Dr. Tyre to identify the database. Eventually, the DOC told Jendusa that he had to sign a memorandum of understanding before it could transfer any data to him and that it was in the process of drafting that memorandum. The DOC never forwarded that memorandum, and it has yet to transfer the database to him."
Jendusa also ran into problems in court, she wrote. He subpeonaed the Wisconsin-specific database and the preliminary analysis Tyre said he received from a colleague but never opened.
"The State made no attempt to quash the subpoena; yet, on the advice of the DOC's counsel, Dr. Tyre appeared at the motion hearing without the database or the preliminary analysis.," Dallet wrote. "The circuit court then ordered Dr. Tyre to 'personally open and read the spreadsheet containing de-identified recidivism data' 'familiarize himself with the contents of that file and be prepared to testify about said contents,' and 'bring a copy of the aforementioned de-identified file so as to refer to the file if need be.' Dr. Tyre, again on the advice of the DOC's counsel but without objecting to the circuit court's order, did not bring the de-identified database to court."
Tyre, at that hearing, finally provided the information that the Wisconsin base was far lower than the one he used to predict Jendusa's recidivism risk, but also said the figures needed refinement.
Circuit Judge Joseph Wall ordered DOC to turn the full database over for analysis. He stayed the order pending appeal.
"The circuit court permissibly ordered the disclosure of the DOC database for the purpose of testing or analysis because Jendusa moved for such disclosure, he intends to introduce an analysis of that raw data at his...trial, and it is relevant to that trial," Dallet wrote.
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