On Point blog, page 1 of 2

COA affirms order declaring mistrial when prosecutor learned she had COVID after first day of trial.

State v. Cesar O. Fernandez-Reyes, 2024AP1668-CR, 3/4/25, District III (not recommended for publication); case activity

COA affirms circuit court’s order declaring a mistrial and denying the defendant’s motion to bar a retrial on double jeopardy grounds where prosecutor learned she had COVID after the first day of trial.

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COA affirms and agrees that officer’s violation of sequestration order need not result in new trial

State v. Marqus G. Phillips, 2023AP450, 10/4/23, District 2 (one-judge decision, ineligible for publication); case activity (including briefs)

That the Constitution does not guarantee an “error-free trial” is an unnecessary response to a straw man when a defendant seeks a new trial after it is discovered that the second of two state’s witnesses was found to have violated the circuit court’s witness sequestration order. It’s also an easy out where the circuit court’s lack of prejudice determination in denying a mistrial claim is reviewed under the “clearly erroneous” standard of review.

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SCOW reverses COA and finds that circuit court exercised “sound discretion” when it granted a mistrial based on evidence later found to be admissible

State v. Mitchell D. Green, 2023 WI 57, 6/29/23, review of an unpublished court of appeals decision; habeas granted, No. 24-2980; case activity (including briefs)

In yet another reversal of a defense win, a divided Court upholds the circuit court’s exercise of discretion, despite serious criticisms of the circuit court’s reasoning made by the dissenters.

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SCOW reverses grant of new trial by deferring to circuit court’s exercise of discretion when denying motion for mistrial

State v. Eric J. Debrow, 2023 WI 54, 6/23/23, reversing an unpublished court of appeals decision; case activity (including briefs)

In yet another reversal of a defense win, SCOW defers to the circuit court’s decision denying a motion for mistrial but slightly muddies the waters as to the proper legal analysis when assessing mistrial claims on appeal.

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SCOW to address mistrials and curative instructions

State v. Eric J. Debrow, 2021AP1732-CR, petition for review of an unpublished COA opinion granted 12/15/22, reversed, 2023 WI 54; case activity (including PFR, Response, and COA briefs)

Issue presented (from the State’s petition):

Did the court of appeals apply the proper legal standard to its review of the circuit court’s decision to deny Debrow’s motion for a mistrial when it considered the adequacy of the curative instruction given by the circuit court and, if not, did the circuit court properly exercise its discretion in denying the motion for a mistrial?

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Defense win: Successive prosecution of crimes after mistrial violated double jeopardy

State v. James P. Killian, 2022 WI App 43; review granted 1/20/23; reversed, 2023 WI 52; case activity (including briefs)

The state provoked a mistrial in a case charging Killian with child sexual assault offenses against two complainants. The circuit court later dismissed the case due to the prosecutor’s misconduct. When the state recharged Killian with sexual offenses against the same complainants the circuit court dismissed the new case as a violation of double jeopardy. The court of appeals affirms.

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Defense win: Witness’s reference to defendant’s prior conviction for similar crime requires new trial

State v. Eric J. Debrow, 2021AP1732, 7/21/22, District 4 (not recommended for publication); petition for review granted, 12/15/22, reversed, 2023 WI 54; case activity (including briefs)

The court of appeals holds Debrow is entitled to a new trial because of the unfair prejudice caused by one witness’s testimony that would have led the jury to conclude Debrow had a prior criminal conviction that led the witness to be “on alert” when Debrow went into the bedroom of two children.

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COA: dismissal with prejudice not unreasonable remedy for county’s repeated failure to produce key witness

Fond du Lac County v. John Anthony Hettwer, 2020AP 1422, 7/21/21, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

The county charged Hettwer with OWI- and PAC-first. At the first attempted trial, the jury was sworn, but before opening statements could begin, the county told the court that the phlebotomist it intended to call as a witness was home with a sick child, and asked that she be allowed to testify by telephone. Hettwer objected and ultimately the court declared a mistrial. (No double-jeopardy problem here because an OWI-1 is non-criminal.)

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COA finds no error in denying mistrial or in refusing self-defense instruction

State v. Raymond R. Barton, 2019AP1990, 9/24/20, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Barton was convicted at trial of three counts involving battery of his adult stepson. He argues the trial court should have granted the mistrial he asked for when his daughter testified she was afraid that something had happened because “things had happened before.” He also asserts the court should have instructed the jury on self-defense. The court of appeals rejects both arguments.

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Challenges to TPR rejected

Racine County HSD v. S.M.F., 2019AP2346 & 2019AP2347, District 2, 7/15/20 (one-judge decision; ineligible for publication); case activity

S.M.F.’s challenges the order terminating her parental rights, alleging trial counsel was ineffective and that the circuit court should have granted her mistrial motion. The court of appeals affirms.

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