On Point blog, page 1 of 3
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.
Defense win on newly-discovered Denny evidence affirmed on appeal
State v. Daniel G. Scheidell, 2015AP1598-CR, 3/29/17, District 2 (not recommended for publication); case activity (including briefs)
Congrats to the Remington Center for a winning a new trial in the interests of justice based on newly-discovered, 3rd-party perpetrator evidence 19 years after Scheidell was convicted of 1st degree sexual assault and armed robbery. Even better, their win was affirmed on appeal!
Court of appeals rejects defense challenge to shaken baby syndrome; finds old wine in new container
State v. Michael L. Cramer, 2012AP2547; District 1; October 15, 2013 (not recommended for publication); case activity
A jury convicted Cramer of 1st-degree reckless homicide for the death of his 10-week old son. Both the Milwaukee County medical examiner and the attending physician testified for the State at trial. In their opinions, the baby died from blunt force injuries, including trauma to the head and brain. The defendant’s expert testified that the baby’s injuries were caused by “resuscitated Sudden Infant Death Syndrome.”
Newly discovered evidence – reasonable probability jury would have reasonable doubt about guilt; new trial in interest of justice
State v. Brian Avery, 2013 WI 13 (Wis. S. Ct. 1/30/13), reversing 2011 WI App 148; case activity
The supreme court affirms the trial court’s denial of Brian Avery’s Wis. Stat. § 974.06 motion for a new trial based on newly discovered evidence, concluding there isn’t a reasonable probability a jury would have a reasonable doubt about Avery’s guilt. The court also holds Avery was not entitled to a new trial in the interest of justice.
State v. Brian K. Avery, 2011 WI App 148, rev. granted 2/23/12
on review of published opinion; for Avery: Keith A. Findley, Tricia J. Bushnell; case activity; prior post
Newly Discovered Evidence / Interest of Justice – New Forensic Method
Issues (composed by On Point):
1. Whether new scientific photogrammetric analyses by expert witnesses, indicating that the suspect in video surveillance was shorter than Avery, entitles him to a new trial on the ground of newly discovered evidence.
Newly Discovered Evidence – Recantation
State v. Reynold C. Moore, 2010AP377, District 3/4, 1/26/12
court of appeals decision (not recommended for publication); for Moore: Byron C. Lichstein; case activity; prior history: 1997AP1193-CR, habeas relief denied, Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003)
Moore seeks relief on the basis of newly discovered evidence in the form of a purported recantation of State witness James Gilliam’s trial testimony.
TPR – Constitutionality of § 48.415(6); Interest of Justice Review – Jury Instructions, Failure to Assume Parental Responsibility
Langlade County Dept. of Social Services v. Rebecca D., 2010AP2497, District 3, 11/15/11
court of appeals decision (1-judge, not for publication); for Rebecca D.: William E. Schmaal, SPD, Madison Appellate; case activity
¶19 On the facts adduced at trial, Rebecca clearly failed to assume parental responsibility for Anthony, pursuant to the standards set forth in Wis. Stat. § 48.415(6). Anthony was nearly five months old when he was removed from Rebecca’s home.
TPR – Interests of Justice Review; IAC; Dispositional Hearing – GAL
Kathleen N. v. Brenda L. C., 2010AP2737, District 4, 10/27/11
court of appeals decision (1-judge, not for publication); for Brenda l.C.: Eileen A. Hirsch, SPD, Madison Appellate; case activity
Brenda isn’t entitled to a new TPR trial in the interests of justice, notwithstanding a line of inquiry that went to the respective financial capabilities of Brenda and her sister’s family (which sought the termination). “The evidence established that Brenda had last seen Samantha approximately six months prior to the hearing at a family gathering and had only spoken to Samantha at that event for a few minutes,
Interest-of-Justice Review: Post-Trial Revelations Undermining State’s Witnesses
State v. Kenneth M. Davis, 2011 WI App 147 (recommended for publication); for Davis: Robert R. Henak; case activity; reissuance after prior decision withdrawn
Several items of testimony, coming to light after trial, directly contradict the trial testimony of the main State’s witnesses, leading the court to conclude that the real issue in controversy – Davis’s alleged involvement in a drug-house robbery and murder of an occupant –
Newly Discovered Evidence: New Forensic Method, Photogrammetric Analysis; Interest-of-Justice Review
State v. Brian K. Avery, 2011 WI App 148 (recommended for publication), supreme court review granted, 2/23/12; for Avery: Keith A. Findley; case activity; prior 974.06 appeal: 2008AP500-CR; direct appeal: 1997AP317
Newly Discovered Evidence – New Forensic Method – Photogrammetric Analysis
Expert photogrammetric opinion, derived from video enhancement technology (“VISAR”) not commercially available until after Avery’s trial,