On Point: A. Type pf PCM

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State v. Daniel G. Scheidell, 2015AP1598-CR, 3/29/17, District 2 (not recommended for publication); case activity (including briefs)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!

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.

Review of an unpublished court of appeals decision; case activity (including briefs); petition for review

Issues (composed by On Point)

(1)  May a prosecutor argue that a defendant’s refusal to submit to a breathalyzer test shows consciousness of guilt?

(2)  When a circuit court denies a postconviction motion based on arguably inapplicable case law, must the defendant ask the circuit court to reconsider its ruling in order to preserve for appeal the claim that the case law doesn’t apply?

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.

State v. Jermaine D. Greer, Sr., 2015AP692, District 4, 7/21/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Greer filed a pro se motion for postconviction relief under § 974.06. It is his fourth postconviction motion and—like his third postconviction motion, which he also filed pro se—it argued he is entitled to withdraw his pleas. Greer doesn’t explain why the grounds for plea withdrawal he raises in his fourth motion could not have been raised in his third motion,

State v. Michael R. Hess, 2015AP2423, 7/20/16, District 2 (1-judge opinion; ineligible for publication) case activity

A decade after the circuit court entered a default judgment and revoked Hess’s license due to a drunk-driving event, he filed a motion to vacate per §806.07(1)(h). He claimed that he was not served with the notice of intent to revoke required by §343.05 and due process. On appeal Hess prevails in an opinion reaffirming that there is no deadline for filing a motion to vacate a void judgment.

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.

State v. Royce L. Hawthorne, 2014AP1566/67, 5/12/15, District 1 (not recommended for publication); click here for briefs

Hawthorne filed a pro se appeal from the denial of his §974.06 postconviction motion, which raised 9 claims of ineffective assistance of postconviction counsel and 3 claims of ineffective assistance of appellate counsel. The court of appeals dispensed with on and all in short order. Two aspects of the decision may be of interest.