SCOW: State constitution’s due process clause doesn’t provide greater protection against evidence destruction

State v. Michael R. Luedtke/State v. Jessica M. Weissinger, 2015 WI 42, 4/24/15, affirming two published decisions of the court of appeals: Luedtke; Weissinger; majority opinion by Justice Gableman; case activity (including briefs): Luedtke; Weissinger

Brushing aside the argument that the Wisconsin Constitution’s due process clause provides greater protection to its citizens than the federal constituiton, the supreme court affirms the existing Wisconsin rule governing claims that the destruction of evidence by the state violates a defendant’s right to due process.

Both cases under review involve charges that the defendant operated a motor vehicle with a detectable amount of a controlled substance, and in both cases the state destroyed the blood sample taken from the defendant before the defendant had a chance to test the sample. In Luedtke’s case, the sample was destroyed after he was charged but, due to various delays, before he had received notice of the results (and thus of the importance of getting an independent test). (¶¶11-17). Weissinger consented to provide a blood sample even though the police didn’t suspect she was under the influence of an intoxicant. The initial test showed no alcohol, so the sample was retested for drugs. That test detected THC, as did a confirmatory test taken six months later. Those results were reported to prosecutors a few weeks later; the blood sample was destroyed about six weeks after that; and yet another month went by before she was finally charged. (¶¶23-29).

Under Youngblood v. Arizona, 488 U.S. 51 (1988), a defendant’s due process right to the preservation of evidence is violated if the police: 1) fail to preserve evidence that is apparently exculpatory; or 2) act in bad faith by failing to preserve evidence that is potentially exculpatory. 488 U.S. at 57-58. Failure to preserve evidence that is merely potentially exculpatory doesn’t violate due process unless the defendant shows bad faith on the part of the police, which requires proof that: 1) the police were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and 2) they acted with official animus or made a conscious effort to suppress exculpatory evidence. Youngblood, 488 U.S. at 58. Wisconsin adopted the Youngblood standard in State v. Greenwold, 181 Wis. 2d 881, 512 N.W.2d 237 (Ct. App. 1994) (Greenwold I), and State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 294 (Ct. App. 1994) (Greenwold II).

Because the Luedtke’s and Weissinger’s blood samples were potentially, rather than apparently, exculpatory, they would have to show the state destroyed the blood samples in bad faith. Recognizing the impossibility of meeting the Youngblood/Greenwold bad faith standard, Luedtke argued that because of the broader state constitutional due process right recognized since Greenwold, in State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, Wisconsin should recognize a broader protection for a defendant’s due process rights than that afforded by Youngblood and thus should relax the Youngblood bad faith standard. Weissinger did not raise a state constitutional argument in the court of appeals, but was directed to address it in the supreme court. In the court of appeals she relied on pre-Youngblood cases, e.g., State v. Disch, 119 Wis. 2d 461, 351 N.W.2d 492 (1984); State v. Ehlen, 119 Wis. 2d 451, 351 N.W.2d 503 (1984); State v. Walstad, 119 Wis. 2d 483, 351 N.W.2d 469 (1984), which rejected due process claims based on the destruction of breath test ampoules in part because the defendants had the chance to obtain an additional test at the time of arrest, something Weissinger never had because she wasn’t arrested.

The supreme court rejects the state constitution argument, holding that the state constitution’s broader due process protection recognized in Dubose is of limited effect:

¶49 …[P]ost-Dubose, we have held that the decision did not create a precedential sea change with respect to the recognition of a broader due process protection under the Wisconsin Constitution than under the United States Constitution. In State v. Drew, 2007 WI App 213, ¶¶2, 17, 305 Wis. 2d 641, 740 N.W.2d 404, the court of appeals held that Du[b]ose did not alter precedent with respect to lineups and photo arrays, explaining that Dubose recognized those identification procedures are preferable to a showup. In State v. Hibl, 2006 WI 52, ¶56, 290 Wis. 2d 595, 714 N.W.2d 194, we held that Dubose did not directly control spontaneous or accidental identifications of a defendant by a victim lacking police involvement. Finally, in State v. Ziegler, 2012 WI 73, ¶¶81-82, 342 Wis. 2d 256, 816 N.W.2d 238, we distinguished a showup from an identification made in court through the showing of a single mug shot. ¶50 The State correctly notes, even within the specific context of eyewitness identification, post-Dubose jurisprudence confirms the limited reach of its actual holding: that due process under the Wisconsin Constitution provides greater protection in one identification procedure, the showup. Dubose withdrew no language from Ehlen, Disch, Walstad, or [State v.] Pankow[, 144 Wis. 2d 23, 422 N.W.2d 913 (Ct. App. 1988)]. Dubose is therefore not a sea change or even a development sufficient to undermine the rationale behind Ehlen, Disch, Walstad, Pankow, and Greenwold II.

Having rejected any alteration to the Youngblood/Greenwold test, the court has no trouble holding that Luedtke and Weissinger’s due process claims fail because they have not shown the state was aware of the potentially exculpatory nature of the blood sample or that the state destroyed their blood samples in bad faith, given that the destruction in each case was a result of the state’s policy regarding retention of the sample. Further, both defendants received a fair trial, which was the due process touchstone articulated in Ehlen and Disch. (¶¶53-63).

You’d never know from the majority opinion that the Youngblood test has been widely and aptly criticized and is rejected by many states either on state constitutional or policy grounds, as articulated in statutes mandating higher standards for evidence preservation. The concurrence by Chief Justice Abrahamson is aware of the phenomenon (¶¶96-100), however; it notes Judge Brown’s well-phrased criticism in his concurrence in Weissinger, 355 Wis. 2d 546:

¶29 I must say that I do not like Youngblood. I simply do not understand how a person can show that the destroyed sample was apparently exculpatory when the sample cannot be tested to determine whether the sample has exculpatory value. It sets up an illusion. It would have been okay if the test was whether the sample could be shown to be “potentially useful.” But that test does not have applicability unless the defendant can also show bad faith. The bad faith component devised by the Supreme Court sets such a high bar, it is virtually impossible to overcome.

Moreover, the majority appears to be blind to the problems with shoddy or crooked forensic science, given its belief that “[r]equiring bad faith is especially sensible once a blood sample has tested positive for a controlled substance, because at that point the sample is ‘much more likely to provide inculpatory than exculpatory evidence.’ See [California v.] Trombetta, 467 U.S. [479,] 489 [(1984)].” (¶56). Since our so-called law development court can’t seem to recognize, much less undo, the idiocy of the Youngblood/Greenwold approach, we will have to place our hopes on some other avenue of change: Either a statutory mandate to preserve blood samples (and other evidence) for some period until after charging (as suggested by Judge Brown, Weissinger, 355 Wis. 2d 546, ¶30); or an administrative change in the state lab’s protocols for evidence destruction. In the meantime, if you are handling a case like Luedtke’s or Weissinger’s, consider filing a motion to preserve and test the blood sample right away. Maybe you’ll catch it before it’s destroyed.

Note: Luedtke also raised a due process challenge to § 346.63(1)(am), arguing the statute should be construed to have a scienter requirement. As described in this post, the supreme court rejects that due process claim, too.