On Point blog, page 4 of 21
Escalona hurdle overcome, but § 974.06 motion rejected on merits
State v. Casey M. Fisher, 2017AP868, District 1, 3/26/19 (not recommended for publication); case activity (including briefs)
Fisher’s § 974.06 postconviction motion clears the hurdle erected by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), but fails on the merits.
Court of appeals sacks newly-discovered evidence and other claims to affirm homicide conviction
State v. Danny L. Wilber, 2016AP260, 12/26/18, District 1 (not recommend for publication); case activity (including briefs)
“This case involves a dual tragedy: the death of one innocent man and the conviction of another.” (Initial Brief at 1). Not one of the many eyewitnesses to this homicide, which occurred during a large house party, saw Wilber shoot Diaz, the deceased. In fact, Diaz was shot in the back of the head and fell face first toward Wilber, not away from him. The State’s theory was that the shot spun Diaz around causing him to fall toward the shooter. It offered no expert to prove that this was possible.
The postconviction DNA testing statute: hard to understand and harder to satisfy
State v. Jose A. Reas-Mendez, 2017AP2452-CR, 12/11/18, District 1 (not recommended for publication); case activity (including briefs)
In 2017, conservative activists on SCOW overruled a 12-year-old, unanimous opinion in order to overwrite the plain language of §974.07(7), Wisconsin’s postconviction DNA testing statute. They made it virtually impossible for a defendant to get this type of testing. See State v. Denny, 2017 WI 17 and our post about it. This court of appeals decision toes the line. It may be summed as: Let the conviction stand.
Postconviction motion didn’t allege sufficient facts to justify hearing
State v. Howard D. Davis, 2017AP942-CR, District 1, 12/11/18 (not recommended for publication); case activity (including briefs)
Davis claimed trial counsel was ineffective in various ways, and that a juror may have introduced extraneous information into deliberations. The trial court denied his claims without a hearing. The court of appeals affirms.
Ineffective assistance claim fails for lack of prejudice; postconviction discovery motion denied for seeking “inconsequential” Facebook records
State v. Steven L. Buckingham, 2017AP1852-CR, 12/4/18, District 1 (not recommended for publication), case activity (including briefs).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.
Defendant’s out-of-state imprisonment doesn’t overcome Escalona bar
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.
Denial of plea withdrawal, sentence modification and postconviction discovery affirmed
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.
Denial of new trial based on newly discovered evidence affirmed
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.
SCOW: Affidavits that co-conspirators framed defendant don’t support new trial
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.
The awful consequences of placing finality above accuracy in criminal cases
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.