State v. Jendusa

Decision Date10 March 2021
Docket NumberNo. 2018AP2357-LV,2018AP2357-LV
Citation2021 WI 24,396 Wis.2d 34,955 N.W.2d 777
Parties In the matter of the commitment of: STATE of Wisconsin, Petitioner-Petitioner, v. Anthony James JENDUSA, Respondent-Respondent.
CourtWisconsin Supreme Court

For the petitioner-petitioner, there were briefs filed by Lisa E.F. Kumfer, assistant attorney general; with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Lisa E.F. Kumfer.

For the respondent-respondent, there was a brief filed by Dustin C. Haskell assistant state public defender. There was an oral argument by Dustin C. Haskell.

DALLET, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. ZIEGLER, J., filed a dissenting opinion, in which ROGGENSACK, C.J., and REBECCA GRASSL BRADLEY, J., joined.


¶1 Anthony Jendusa seeks discovery of a Wisconsin Department of Corrections (DOC) database in an effort to challenge the sexually violent person commitment proceeding initiated against him over four years ago. Jendusa believes that the DOC's Wisconsin-specific data provide a more relevant basis upon which to calculate his risk of engaging in future acts of sexual violence—a calculation that may result in a lower estimate of his risk than that advanced by the State's expert witness. He argues that the database is discoverable pursuant to both Wis. Stat. § 980.036 (2019-20)1 and the Fourteenth Amendment to the United States Constitution as interpreted in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The State disagrees with Jendusa's interpretation of § 980.036 and the applicability of Brady. It further argues that disclosing the DOC database may violate state and federal health-privacy laws.

¶2 This case comes before us as a review of the court of appeals’ denial of the State's petition for leave to file an interlocutory appeal of the circuit court's discovery order.2 We hold that the court of appeals did not erroneously exercise its discretion in denying that petition. We nevertheless reach the underlying merits of that petition and conclude that the DOC database is discoverable pursuant to Wis. Stat. § 980.036(5). Accordingly, we affirm the court of appeals’ order and further conclude that the circuit court did not err when it granted Jendusa's discovery request. We remand the cause to the circuit court for further proceedings consistent with this opinion.


¶3 In December 2016, the State petitioned to commit Jendusa as a sexually violent person pursuant to Wis. Stat. ch. 980. At the probable cause hearing, Dr. Christopher Tyre, a licensed psychologist employed by the DOC, testified that Jendusa met the statutory definition of a sexually violent person.3 Dr. Tyre stated that he assessed Jendusa's likelihood of engaging in one or more future acts of sexual violence over Jendusa's lifetime using the Static-99 and Static-99R assessments (as informed by the Rapid Risk Assessment for Sex Offense Recidivism (RRASOR) and the Sex Offender Treatment Intervention and Progress Scale (SOTIPS)).4 Dr. Tyre reported his conclusions in his Special Purpose Evaluation, which was received into evidence.5

¶4 According to Dr. Tyre, each assessment is based on the same foundational method. Researchers observed several groups of sex offenders after their release to see whether they recidivated.6 The proportion of those who recidivated provided the researchers with a "base rate," or the general likelihood of re-offense across the studied population. For the Static-99, which studied Canadian and Danish offenders, the researchers observed that a small subset of the studied groups recidivated at a higher rate despite similar risk factor scores as those in the other groups. To account for this variability, the researchers divided the groups into two comparison "norms": "routine" and "high-risk/high-needs." Each norm has its own base rate, with the high-risk/high-needs norm's base rate being the higher of the two.

¶5 In order to assess an individual using one of these instruments, an examiner first determines the norm, and thus the base rate, that is the most apt comparison for the individual. The examiner then numerically scores the individual based on the presence and severity of certain risk factors that have been found to correlate positively with sexual recidivism. The sum of those scores places the individual into a risk category. The examiner then cross-references that risk category with the selected norm's base rate to calculate a range of "absolute" recidivism rates. These "absolute" rates purport to predict the likelihood that the assessed individual will commit another sex offense over future periods of time (e.g., in the next five or ten years).

¶6 Dr. Tyre testified that he assigned Jendusa the high-risk/high-needs norm and that Jendusa's total scores placed him in the high-moderate risk category on the RRASOR assessment and in the above-average risk category on the two Static-99 assessments. Applying those risk categories to the high-risk/high-needs norm's base rate, Dr. Tyre predicted that Jendusa has the following absolute recidivism rates:

• 52 percent over 15 years (according to the Static-99); • 33 to 37 percent over ten years (according to the Static-99R); and
• 17 to 25 percent over five years (according to the Static-99R).

Dr. Tyre stated that Jendusa's score on the SOTIPS, which additionally considered several of Jendusa's dynamic risk factors, indicated that Jendusa's absolute recidivism rate was likely slightly higher than that estimated by the Static-99 and Static-99R. Dr. Tyre also acknowledged that certain mitigating factors, such as Jendusa's age (51 years old) and his participation in sex-offender programming, slightly reduced Jendusa's likelihood to engage in future acts of sexual violence; yet Dr. Tyre ultimately concluded that Jendusa is more likely than not to engage in a future act of sexual violence.

¶7 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. 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.7 Nevertheless, he acknowledged that the Wisconsin-specific base rate could be lower than the base rates in the Static-99 or Static-99R, and that a lower base rate may affect his assessment of Jendusa's likelihood to engage in a future act of sexual violence.

¶8 Based on Dr. Tyre's evaluation, the circuit court found probable cause to believe that Jendusa is a sexually violent person, ordered the DOC to detain him, and bound him over for trial pursuant to Wis. Stat. § 980.04(3).

¶9 Jendusa then moved the circuit court to order the DOC to disclose its database so that he could have an expert analyze the Wisconsin-specific base rate, citing Wis. Stat. § 980.036(2)(h), (2)(j), and (5), as well as the Fifth and Fourteenth Amendments to the United States Constitution. Jendusa argued that the database is potentially exculpatory evidence—it either tends to show he does not meet the commitment criteria or impeaches Dr. Tyre's evaluation—because the Wisconsin-specific base rate may be lower than the base rates Dr. Tyre employed to evaluate him. Application of a lower, Wisconsin-specific base rate, in turn, could result in a predicted lifetime recidivism risk below 50 percent, undermining the State's contention that Jendusa is "likely" to engage in future acts of sexual violence. Jendusa also argued that the database was exculpatory impeachment material because a Wisconsin-specific base rate may better capture unique cultural and social features not present in the Canadian and Danish samples represented in the Static-99.8

¶10 The State opposed disclosure on three grounds. It first argued that the database is not in the State's "possession" because it is in the DOC's possession. Second, the State argued that the database itself cannot be exculpatory since only an analysis of that data could reveal a different base rate, which may or may not be lower than the one used by Dr. Tyre. The State argued that therefore there is no statutory or constitutional requirement to disclose the data itself. Finally, the State claimed that Jendusa has an adequate alternative remedy via a research request pursuant to the DOC's Executive Directive #36 ("Directive #36"), "Human Subject Research Requests Process and Procedure." See The State maintained that because Directive #36 was developed in accordance with state and federal health-privacy laws, it is the exclusive means of accessing such sensitive "medical" data.

¶11 In fact, Jendusa had requested the data under Directive #36, but to no avail. 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.

¶12 Jendusa similarly encountered obstacles in court. After learning that Dr. Tyre had received a preliminary analysis of a Wisconsin-specific base rate, Jendusa requested by subpoena duces tecum that Dr. Tyre produce the database and the preliminary...

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