On Point: 6. 974.07, DNA testing

State v. Antonio L. Simmons, 2018AP591-CR, District 1, 7/21/20 (not recommended for publication); case activity (including briefs)

Twenty years ago Simmons was convicted of three counts of recklessly endangering safety for shooting into a car carrying three people, one of whom Simmons had been fighting with in a bar shortly before the shooting. The court of appeals affirms the circuit court’s denial of Simmons’s request under § 974.07 for DNA testing of physical evidence found in the car he was supposedly in at the time of the shooting.

State v. Jose A. Reas-Mendez, 2017AP2452-CR, 12/11/18, District 1 (not recommended for publication); case activity (including briefs)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.

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.

State v. Jeffrey C. Denny, 2017 WI 17, reversing a published court of appeals decision; 2015AP202-CR, 2/28/2017; case activity (including briefs)

In State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, the supreme court unanimously held that Wis. Stat. § 974.07, the postconviction DNA testing statute, provides two routes for a convicted defendant seeking exoneration: a defendant satisfying certain basic criteria may pay for his own testing of physical evidence; one making a stronger showing of potential significance may secure such testing at public expense. The court now closes off the first, self-paid route.

Making a Murderer fans may be interested to see the Motion for Post-Conviction Scientific Testing that Steven Avery filed in the Manitowoc county Circuit Court on Friday.  His lawyer, Kathleen Zellner, told reporters this comprehensive testing will “get to the bottom of who killed Teresa Halbach.” Click here to read Avery’s motion.

Review of a published court of appeals opinion; case activity (including briefs)

Issue (from the State’s Petition for Review)

Did the court of appeals misapply State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, when it held that a defendant seeking postconviction DNA testing of “relevant” evidence under § 974.07(2) need not demonstrate that the physical evidence “contains biological material or on which there is biological material” as provided under § 974.07(6)(a)2.?

In reviewing a motion for DNA testing at State expense under § 974.07(7)(a), must a circuit court always assume that a DNA test result will be exculpatory?

In assessing whether it is “reasonably probable” that a defendant would not have been convicted if exculpatory DNA results had been available, should a circuit court apply a newly discovered evidence standard?

Did the circuit court erroneously exercise its discretion under § 974.07(7)(a) when it found that the jury would have convicted Denny even if exculpatory DNA results were present?

State v. Jeffrey C. Denny, 2016 WI App 27, petition for review granted 6/15/16, overruled, 2017 WI 17; case activity (including briefs)

If you are thinking about filing a motion under § 974.07 or are in the middle of litigating such a motion, you’ll want to read this decision. The court of appeals holds Denny is entitled to DNA testing of certain evidence because he showed that the items he sought to test are “relevant to the investigation or prosecution that resulted in [his] conviction….” The court also holds he is entitled to testing at public expense because it is reasonably probable he would not have been convicted if exculpatory DNA testing results had been available at the time of his conviction.

Court of Appeals certification; case activity

When deciding a defendant’s motion for postconviction DNA testing under Wis. Stat. § 974.07, must the circuit court presume that the DNA testing results will be exculpatory and then assess whether such presumed exculpatory results would lead to a reasonable probability that he would not have been prosecuted or convicted?

The issue here turns on the meaning of § 974.07(7)(a)2.

State v. Ouati K. Ali, 2011AP2169, District 4, 11/1/12

court of appeals decision (not recommended for publication); case activity

Postconviction Proceedings – Right to Counsel 

A defendant has no constitutional right to counsel outside the direct appeal period, therefore Ali’s argument that failure to appoint counsel counsel to pursue DNA testing deprived him of due process is a non-starter.

¶12      Ali does not claim that the public defender erroneously exercised its discretion in declining to appoint him counsel for the purpose of pursuing his motion for postconviction DNA testing.  

State v. Dwain M. Staten, 2011AP916-CR, District 1, 5/8/12

court of appeals decision (not recommended for publication); for Staten: Michael J. Steinle; case activity

Postconviction DNA Testing, § 974.07 

Postconviction testing at state expense requires, among other things, that the defendant show a reasonable probability he wouldn’t have been prosecuted or convicted with exculpatory test results. Staten, whose defense to sexual assault was consent rather than misidentification,