On Point: 13. Due Process

Juan Smith v. Cain, USSC No. 10-8145, 1/10/12

Statements by the sole eyewitness, who identified Smith at trial as one of the perpetrators, that in fact he couldn’t see the faces of the perpetrators were “material” to determination of Smith’s guilt. Therefore, the state’s failure to disclose these statements before trial violated Smith’s due process right to exculpatory evidence.

Under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment.

Barion Perry v. New Hampshire, USSC No. 10-8974, 1/11/12, affirming State v. Perry (N.H. sup. ct. 11/18/10)

For purposes of due process, a pretrial identification isn’t suppressible unless the product of improper law enforcement activity.

We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.1 Our decisions,

State v. Charles A. Clayton-Jones, 2010AP2239-CR, District 4, 12/15/11

court of appeals decision (not recommended for publication); for Clayton-Jones: Martin E. Kohler, Craig S. Powell; case activity

 Clayton-Jones resolved a 2006 charge (involving sexual assault of a boy) with a plea bargain, in which the state was to recommend 12 years initial confinement. Before sentencing, he allegedly violated bond conditions, and the state sought to be relieved of its bargained-for allocution limit.

State v. Anthony L. Prineas, 2012 WI App 2 (recommended for publication), reissued after initial decision withdrawn; for Prineas: Robert R. Henak; case activity; prior history: State v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 NW.2d 206

Evidence – Prior Inconsistent Statements 

Evidence of complainant KAC’s statements made during an alleged sexual assault were admissible as prior inconsistent statements,

State v. Jeffrey T. Turner, 2011AP413-CR, District 4, 11/3/11

court of appeals decision (1-judge, not for publication); for Turner: Cody Wagner; case activity

The trial court erred in failing to make a sua sponte inquiry into necessity for shackling Turner during his jury trial. Although the court of appeals recently held that a trial court has no such duty to inquire, where the restraints are hidden from view, 

State v. Omark D. Ward, 2011 WI App 151 (recommended for publication); for Ward: Mary Scholle, SPD, Milwaukee Appellate; case activity

Ineffective Assistance of Counsel – DNA Search Warrant 

Court commissioner’s order that Ward provide DNA sample violated “oath or affirmation” requirement for warrants:

¶10      Unless a person consents to giving a sample of his or her DNA, or there are exigent circumstances, or there are other exceptions that are not material here,

seventh circuit court of appeals decision, denying habeas relief in Wis COA No. 2008AP398-CR

Habeas – Duty to Preserve Apparent Exculpatory Evidence 

Pretrial destruction of car driven by McCarthy didn’t violate State’s duty to preserve exculpatory evidence, the court rejecting McCarthy’s argument that the destruction unconstitutionally impaired his affirmative defense of brake failure (against charge of causing great bodily harm by operating vehicle while under the influence,

State v. Jose A. Reas-Mendez, 2010AP1485-CR, District 1, 8/23/11

court of appeals decision (not recommended for publication); for Reas-Mendez: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

The victim’s pretrial lineup identification of Reas-Mendez isn’t suppressible: the lineup was comprised of “four men, all of generally the same build, in the same type of clothing, with dark, shoulder-length hair, approximately of the same age, and wearing bandanas covering their faces from the tops of their noses down,”

Kenosha County DHS v. Amber D., 2011AP562, District 2, 8/10/11

court of appeals decision (1-judge, not for publication); for Amber D.: Thomas K. Voss; case activity

Timothy M.’s appearance by telephone, occasioned by his incarceration, didn’t violate his due process right to meaningfully participate in TPR proceedings, Waukesha Cnty. DHHS v. Teodoro E., 2008 WI App 16, ¶10, 307 Wis. 2d 372,

7th circuit court of appeals decision

Prosecutorial Misconduct – Knowing Use of False Testimony

When the government obtains a conviction through the knowing use of false testimony, it violates a defendant’s due process rights. Napue v. Illinois, 360 U.S. 264, 269 (1959); United States v. Bagley, 473 U.S. 667, 679 n.8 (1984) (discussing the evolution of the rule in Napue).