Karl W. Nichols v. Lance Wiersma

The Western District of Wisconsin notes that there is both an inter-circuit and intra-circuit split in the interpretation of the failure-to-preserve-exculpatoryevidence cases Trombetta, Youngblood, and Fisher, with the vast majority of circuit courts interpreting them to represent two tests: One for apparently exculpatory evidence and one for potentially exculpatory evidence. The Seventh Circuit, in contrast, interprets them to establish one test in McCarthy, and that was essential to their decision in this case. Is the McCarthy framework incompatible with this Court’s precedent (and other circuit courts’ interpretation of them)? This Court should answer “yes.” Clearly announced precedent of this Court is that when material evidence (evidence which would be expected to play a role in the defense) is at issue, “exculpatory evidence” comes in just two varieties: “Apparently exculpatory” (where the exculpatory value is apparent) and “potentially exculpatory” (evidence that may even be inculpatory). Where the State trial court found a list of corrections by a child-victim to be both apparently exculpatory and also that the State acted in bad faith in failing to preserve it, was the Wisconsin Court of Appeals characterization of the list as “having no exculpatory value whatsoever” an unreasonable application of clearly announced Constitutional Law by this Court? This Court should answer “yes.”