Brady Violation.

Byline: Derek Hawkins

WI Supreme Court

Case Name: State of Wisconsin v. Gary Lee Wayerski

Case No.: 2019 WI 11

Focus: Brady Violation

Gary Wayerski seeks review of the court of appeals' decision affirming the circuit court's denial of his postconviction motion.

Wayerski was charged with and convicted of 16 felonies based upon allegations that over several months he had repeated sexual contact with two juveniles, J.H. and J.P., and exposed them to pornography. Wayerski was found guilty by a jury of the following crimes: (1) two counts of child enticement in violation of Wis. Stat. 948.07(3)(2015-16);3 (2) two counts of exposing genitals or pubic area in violation of Wis. Stat. 948.10(1); (3) two counts of exposing a child to harmful material in violation of Wis. Stat. 948.11(2)(a); (4) two counts of causing a child over the age of 13 to view/listen to sexual activity in violation of Wis. Stat. 948.055(2)(b); and (5) eight counts of sexual assault of a child by a person who works or volunteers with children in violation of Wis. Stat. 948.095(3).

Wayerski filed a postconviction motion, asserting claims of ineffective assistance of trial counsel, circuit court errors, and a claim that the State violated its Brady obligations. Brady v. Maryland, 373 U.S. 83 (1963). The circuit court denied Wayerski's postconviction motion. The court of appeals affirmed the circuit court's denial of Wayerski's postconviction motion. Wayerski now seeks review of the denial of his ineffective assistance of counsel claim and the denial of his Brady claim.

Wayerski claims that his trial counsel was ineffective for failing to question him about a purported confession that he gave to John Clark, a government witness who testified on rebuttal. We assume without deciding that trial counsel's performance was deficient, in accordance with the first prong of the ineffective assistance of counsel analysis. However, even if trial counsel's performance was deficient, we conclude that...

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