On Point: 29. Postconv. Motions

State v. Steven L. Buckingham, 2017AP1852-CR, 12/4/18, District 1 (not recommended for publication), case activity (including briefs).

When the court of appeals’ dismisses an appellant’s arguments on the grounds that they are “conclusory,” it’s always wise to check the briefs. In this case,  Buckingham filed a fully-developed, well-organized 42-page brief in chief presenting 5 claims of ineffective assistance of trial counsel and a claim for post-conviction discovery.

State v. Rafael D. Newson, 2018AP551, 9/18/18, District 1 (not recommended for publication); case activity (including briefs)

Newson claims that his trial and postconviction lawyers were ineffective for failing to raise lack of jurisdiction caused by the State’s failure to file its complaint against him before he was extradited to Arizona. He also argued that the Escalona bar should not apply given that he was in Arizona at the time of his direct appeal and his first two postconviction motions. The court of appeals did not bite on either.

State v. Darrick L. Bennett, 2016AP2209-CR, 9/18/18, District 1 (not recommended for publication); case activity (including briefs)

Bennett was charged with 1st degree intentional homicide, but pled guilty to 1st degree reckless homicide. In a decision turning on facts specific to this case, the court of appeals affirmed the trial court’s decision denying (a) plea withdrawal without a hearing, (b) sentence modification based on a new factors, and (c) postconviction discovery of evidence that might have affected his sentence.

State v. Mark G. McCaskill, 2017AP2443-CR, 6/14/18, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Police found McCaskill unconscious, smelling of alcohol, and without a shirt or shoes in the driver’s seat of a car parked by a residence. Blood tests showed a .263 BAC. He was convicted of operating with a PAC, 4th offense. He moved for a new trial based on newly-discovered evidence. Though he recalled nothing, a friend who lived less than a mile from where he was parked would testify that he visited her that night and that he was not intoxicated.

State v. David McAlister, Sr., 2018 WI 34, 4/17/18, affirming an unpublished court of appeals order, 2014AP2561; case activity

A jury convicted McAlister in 2007 of three counts having to do with an attempted and a completed armed robbery. The state’s case was founded on the testimony of two men (Jefferson and Waters) who had committed the crimes: they said McAlister was also involved. At trial, McAlister’s counsel impeached them by showing they had received consideration from the state in exchange for their testimony. But he couldn’t provide any direct evidence they had lied. Now he can, but the SCOW majority says it’s not good enough, even to get a hearing on his motion.

Defense attorneys hear an awful lot about the “importance of finality” in criminal cases–especially at the §974.06 stage of proceedings. What about the victims? What about the waste of additional judicial resources? There must be a stopping point! Do those arguments really make sense if the wrong person was convicted? The latest edition of The Marshall Project highlights data showing that wrongful convictions result in tens to hundreds of thousands of additional felonies and violent crimes per year.

State v. David McAlister, Sr., 2014AP2561, petition granted 9/11/17; affirmed 4/18/18; case activity (including briefs)

Issues (copied from petition for review)

1. The central issue at trial was whether McAlister participated in the charged robberies. The state’s evidence on that point consisted entirely of the allegations of two confessed participants seeking to mitigate the consequences of their own misconduct. The jury knew that the state’s witnesses had a motive to falsely accuse McAlister but those witnesses denied under oath having done so. Under these circumstances, is newly discovered evidence from three separate witnesses swearing that the state’s witnesses admitted prior to trial that they intended to falsely accuse McAlister “cumulative” and “merely tend to impeach the credibility of witnesses” such that it could not support a newly discovered evidence claim?

2. Whether the allegations of McAlister’s §974.06 motion were sufficient to require a new trial and therefore an evidentiary hearing on his claim.

If California and Texas can do it, can Wisconsin do it too? Click here to see Professor Edward Imwinkelried’s new article on revising postconviction relief statutes to cover convictions resting on subsequently invalidated expert testimony. Who can name a type of expert testimony that has been recently invalidated?

State v. Jesse Steven Poehlman, 2016AP1074, 7/5/17, District 1 (not recommended for publication); case activity (including briefs)

The state charged Poehlman with various counts relating to two alleged incidents of sexual assault and battery of his wife–one in December 2014 and one in February 2015. The jury acquitted as to the earlier incident and convicted as to the latter. The court of appeals rejects his arguments that he must receive a new trial.

SCOW’s recent decision in State v. Jeffrey Denny, which restricted the availability of postconviction DNA testing in Wisconsin, was a real heart-breaker. Essentially, SCOW held that to get state-funded DNA testing the defendant has to prove the results would conclusively remove him from the scene of the crime. In a decision the EvidenceProf Blog calls a “landmark,” the Maryland court of appeals has reached the opposite conclusion. Read about it here.