State v. Anthony James Jendusa, 955 N.W.2d 777

Background

The State sought to civilly commit Anthony Jendusa under Wisconsin's Sexually Violent Persons Act (ch. 980); DOC psychologist Dr. Tyre evaluated him using Static-99/Static-99R and SOTIPS and concluded Jendusa is "likely" (more than 50% lifetime risk) to commit future sexual violence.
Dr. Tyre acknowledged a DOC-maintained, Wisconsin-specific de-identified database and preliminary analysis suggesting a substantially lower local recidivism base rate than the norms underlying Static-99/Static-99R.
Jendusa moved under Wis. Stat. § 980.036 (and asserted constitutional Brady arguments) to obtain the DOC database so a defense expert (Dr. Thornton) could analyze it; the State resisted, citing possession issues and health-privacy/process concerns.
The circuit court ordered production of the de-identified DOC data for analysis; the court stayed the order pending the State's petition for interlocutory appeal, which the court of appeals denied without explanation.
The Wisconsin Supreme Court affirmed: it held the court of appeals did not err in denying leave and—on the merits—concluded the DOC database is "raw data" discoverable under Wis. Stat. § 980.036(5) where a party moves for it and intends to introduce an analysis of that data at trial.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Jendusa)	Held
Did the court of appeals err by denying the State's petition for leave to file an interlocutory appeal?	Denial was discretionary and proper.	Court of appeals should have explained its reasoning; review required.	No error: court of appeals has discretion and need not explain denials of leave in interlocutory petitions.
Is the DOC database discoverable under Wis. Stat. § 980.036(5)?	Not discoverable because no party intends to introduce the raw data itself at trial; concerns about possession and privacy; Directive #36 provides alternative access.	The database is raw data; Jendusa seeks it to have an expert analyze and introduce that analysis at trial—so it falls within subsection (5).	Yes. § 980.036(5) authorizes production of "item[s] of evidence or raw data" for "testing or analysis" when a party moves and intends to introduce an analysis of that raw data at trial.
Could the database be compelled under § 980.036(2)(h) or (j) (results/raw data or exculpatory material)?	State: not required—database not in State's possession and unanalyzed data is not per se exculpatory.	Jendusa: database could be exculpatory or impeaching because a Wisconsin base rate may reduce predicted risk below 50%.	Majority: unnecessary to decide given (5) provides relief; court rejected the State's possession argument because DOC is integral to the proceeding.
May a court-appointed expert be compelled to analyze the data (Alt privilege)?	Invokes concern that experts cannot be compelled to perform analyses.	Jendusa: Dr. Thornton consents; Alt privilege doesn’t block production if expert is willing.	Alt does not block order here because the appointed expert agreed to analyze the data; the privilege can only be asserted by the expert.

Key Cases Cited

State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 271 Wis. 2d 633 (Wis. 2004) (statutory interpretation principles; plain meaning/context).
Leavitt v. Beverly Enters., Inc., 326 Wis. 2d 421 (Wis. 2010) (practice of generally not reviewing court of appeals' discretionary denials of interlocutory leave).
State v. Scott, 382 Wis. 2d 476 (Wis. 2018) (discussion of when appellate courts should explain discretionary decisions).
Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (exculpatory/impeachment evidence doctrine)
Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (U.S. 1991) (definition/character of "raw data" as wholly factual information).
Burnett v. Alt, 224 Wis. 2d 72 (Wis. 1999) (expert privilege regarding compelled expert testimony/analysis).
Arneson v. Jezwinski, 206 Wis. 2d 217 (Wis. Ct. App. 1996) (circumstances warranting interlocutory appellate review).