State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Jeffrey C. Denny, Defendant-Appellant.
No. 2015AP202-CR
Supreme Court
Decided February 28, 2017
2017 WI 17; 891 N.W.2d 144
¶ 2. On November 15, 1982, a jury found Denny and his brother Kent guilty of the murder of Christopher Mohr (“Mohr“). Denny was sentenced to life imprisonment. Over three decades later, in 2014, Denny filed a motion claiming innocence and requesting forensic DNA testing of evidence taken from the scene of Mohr‘s murder. Denny asked the circuit court
¶ 3. Whether, and the conditions under which, a court will order such postconviction forensic DNA testing are questions governed by
¶ 4. We conclude that the circuit court did not err in denying Denny‘s postconviction motion for forensic DNA testing of certain evidence. Consequently, we reverse the decision of the court of appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶ 5. On January 26, 1982, police discovered Mohr‘s body in a room on the second floor of a house in Grafton, Wisconsin. On June 25, 1982, a criminal complaint was filed against Denny in Ozaukee County circuit court charging him as party to the crime of the first-degree murder of Mohr, contrary to
¶ 6. From November 9 to November 15, 1982, Denny and Kent were tried jointly before a jury.3 At trial, the State presented its case against Denny and Kent in the following general4 manner.
¶ 8. Later that day, Leatherman received a call from Kent. When asked when he had last spoken to Kent prior to that call, Leatherman replied, “I‘m not sure, maybe a week, I‘m not sure, maybe more.” Kent asked Leatherman if he “knew to [sic] get any pot” and after Leatherman said he did not, Kent “said what about [Mohr],” and Leatherman informed Kent that Mohr had killed himself. Kent asked Leatherman if he wanted to “stop over” later that day, and Leatherman did so. At Kent‘s house, Leatherman had a conversation with Kent and Denny about Leatherman‘s experiences that day.
our evaluation of whether, in the words of the postconviction forensic DNA testing statute, “[i]t is reasonably probable that [Denny] would not have been prosecuted . . . [or] convicted” of his crime “if exculpatory [DNA] testing results had been available before the prosecution . . . [or] conviction.”
This summary is not intended to provide a comprehensive discussion of the testimony given at Denny‘s jury trial or of the cross-examination of the witnesses discussed. The witnesses are not presented in this section in the exact order in which they testified at trial.
¶ 10. Daniel Palkovic (“Officer Palkovic“) of the Grafton Police Department testified that he was dispatched to Mohr‘s residence on January 26, 1982, and that he accompanied Helm to Mohr‘s room. Officer Palkovic described a number of items retrieved from the scene of Mohr‘s murder, from areas nearby, or from Mohr‘s body at the autopsy. These items were introduced as exhibits at trial and included: (1) a jacket found in Mohr‘s room which appeared to have blood on it; (2) a torn shirt removed from Mohr which had blood on it; (3) jeans removed from Mohr which had blood on them; (4) socks removed from Mohr which had blood on them; (5) “under briefs” removed from Mohr which had blood on them; (6) a hat found in Mohr‘s room which had blood on it; (7) gloves found in Mohr‘s room; (8) a yellow towel taken from the hallway directly outside of Mohr‘s room which had blood on it; (9) samples of Mohr‘s head and pubic hair; (10) hair that had been “clenched in . . . Mohr‘s hand“; (11) hair located between the fingers of Mohr‘s right hand, which was “closed somewhat, but . . . not fully clenched“; (12) hair stuck to Mohr‘s chin and neck by dried blood; (13) loose hair “taken from [Mohr‘s] mouth area” which “[a]p-
¶ 12. Samples of the defendants’ head and pubic hair taken directly from the defendants were also introduced.
¶ 13. Ozaukee County Deputy Coroner Ruth Heiser testified that on January 26, 1982, she was dispatched to Mohr‘s house and that she pronounced Mohr dead at 12:05 p.m. that day.
¶ 14. Dr. Hellen Young (“Dr. Young“), who performed an autopsy of Mohr, discussed the nature and extent of the wounds on Mohr‘s body and her opinion of the cause of Mohr‘s death. According to Dr. Young, Mohr‘s death was caused by “massive hemorrhage due to multiple incised wounds.” Dr. Young described over 50 wounds on Mohr‘s body and opined that at least some of these wounds were caused by a knife. One wound in particular was a “good-sized gaping wound”
¶ 15. The “meat and potatoes of the case,” in the State‘s words, were the collection of witnesses called by the State who testified as to numerous statements made by Denny and Kent about Mohr‘s murder.
¶ 16. Trent Denny (“Trent“), Denny and Kent‘s brother, testified that “two, three days” after Trent was released from the Ozaukee County Jail on February 21, 1982, Kent told Trent that Kent had killed Mohr. On a separate occasion (“I think it was the day after I talked to Kent,” according to Trent), Trent asked Kent “if he really did it,” and Kent replied “yes.” Two or three days after that, Trent asked Denny “if it was true.” Denny “asked [Trent] why did Kent tell[?]” After Trent told Denny that “Kent told [Trent] he killed” Mohr, Denny “looked at [Trent] like he was mad.” Trent offered his assistance to Denny. Denny told Trent that Denny and Kent had stabbed Mohr. Specifically, Kent asked Mohr “how he felt,” then stabbed Mohr once in the stomach, then asked Mohr “how he felt now,” then gave the knife to Denny, after which Denny stabbed Mohr. Mohr “was coming after [Denny] while [Denny] was stabbing him.” Kent “hit [Mohr]
¶ 17. “Maybe two, three” weeks after Trent spoke with Denny, Trent had a conversation with Kent and Denny. They told Trent “we had to get rid of the clothes.” That night, Kent, Trent, and Lori Jacque (“Jacque“) drove to a cemetery. Kent got out of the car and went to the cemetery. Five minutes later, he returned carrying a paper bag and the three drove away. Kent “said something that there was blood on the clothes,” and “asked [Trent and Jacque] if [they] could smell it.” At some point while in the car that night, Kent pulled a shirt out of the bag and Trent saw a “stain” on it. On cross-examination, Trent agreed that he did not “really know what was in [the] bag,” and instead “just assumed it was the clothes.” Eventually the three drove to Jacque‘s house, Jacque retrieved a plastic bag, and Kent put the paper bag into the plastic bag. The three then drove to a dump in either “Port or Fredonia,” and Kent “shot the bag into the dump.”
¶ 18. On another date, behind Trent‘s house, Denny showed Trent what Denny said was a knife. Trent saw the handle, but not the blade. Finally, a separate time Trent asked Kent and Denny together “if they did it,” and “[t]hey told [Trent] yes.”
¶ 19. Jacque testified that on February 20, 1982, whilе at a party in “the Denny room” (referred to later as Kent‘s bedroom), Kent “looked very upset” and told Jacque that he had killed Mohr. Later that night, Kent indicated to Jacque that “[h]e wanted to go get the clothing back from the graveyard.” “About a week after that,” Kent again spoke with Jacque about the clothing. A “couple weeks after” the initial conversation,
¶ 20. On another date, Jacque was in a car with Kent and Denny. She heard Kent and Denny have a conversation about how “they forgot the tennis shoes.” On another date, “Kent had said that he wanted to turn himself in” because “[i]t was just getting to be too much.” Kent was crying at the time. On another date, in Kent‘s room, Denny “said something about a scratch on his leg,” namely “[t]hat that was from where [Mohr] had scratched him.” Jacque did not actually see any scratches. Finally, when asked “Were there any other conversations that you remember?” Jacque replied, “Well, several times there was things said about it.” However, Jacque did not “remember any of those in any specifics besides what [she had] already stated.”
¶ 21. On cross-examination, Jacque testified that on separate occasions Kent had told her, with regard to the reason for Mohr‘s murder, that “somebody put a gun to his head” and that “he did it to prove it to his brother.” Jacque was also asked “on another occasion did he do it to say it was because it was either him or [Mohr]?“, and she replied “Yes, I think I heard something like that done.”
¶ 22. Diane Hansen (“Hansen“) testified that “approximately a week after” Mohr‘s death, at the
¶ 23. “[A] long time after that,” Hansen asked Kent “if there was any truth to the rumor that [Mohr‘s] heart was cut out,” and Kent told Hansen “[y]es.” Hansen also testified, in response to the question of whether Kent had, at any time, told Hansen “that he saw anyone walking up the street as he got out of [Mohr‘s] house,” that “[Kent] said he thought he saw . . . Leatherman,” specifically “[o]n a road behind a garbage truck.” On cross-examination, Hansen testified that in her “very first” conversation with Kent about Mohr‘s death, Kent told Hansen that Leatherman “had found [Mohr] and [Mohr] was dead,” and that “it was an accidental death.” On re-direct, Hansen explained that the conversation was the “same day” as Mohr‘s death.
¶ 24. Lori Ann Jastor Commons (“Commons“) testified that, while at a party at Kent‘s house the night before Trent “got out of jail,” she heard Kent say:
[Mohr] was at his fish tank and Kent went up to him and stabbed him and asked him how he felt, and . . . [Mohr] replied that he felt all right and that he proceeded to stab him one more time and he had gotten sick and run into the bathroom and [Denny] had taken over.
¶ 25. Commons also discussed a conversation she heard that occurred “approximately three weeks after the murder” at the “Sundance Bar in Port“:
[Kent] was talking to a friend of mine, . . . Hansen, when I came out of the bathroom, and [Hansen] was crying and I went up to her to see what was wrong and Kent was talking to her and said that he had to do it, otherwise it would have been him.
¶ 26. Robin Doyle (“Doyle“) testified that she asked Kent “how, out of curiosity if he had killed” Mohr. Kent said “[y]es he did.” Kent also told Doyle that “he had told everybody, that he ever told, something different so that the stories wouldn‘t match up.”
¶ 27. Kent‘s coworker, Carl Winker (“Winker“), testified that at the end of April 1982 Kent told him that he “knew the guy” who killed, in the words of the State, “a boy in Grafton.” Kent told Winker that “the guy started stabbin’ him and he just kept doin’ it,” that “the guy” “liked it, got into it,” and that “the guy‘s heart was cut out.” Kent also told Winker that the killing “was for drug money.” Some time later, Kent told Winker that he would not be coming to work anymore. When asked why, Kent stated it was because he was going to jail. When asked why he was going to jail, Kent said “because of that guy that got killed.” Winker asked Kent, “[W]hy, do you know something about it?” Kent reрlied, “[N]o, I‘m the guy that did it.” On another occasion, Kent told Winker “there was a coat and a knife and a dump in Sheboygan and the coat was full of blood.”
Mohr was facing the window when the Denny boys were in the bedroom and Kent pulled a knife out and looked at [Mohr], and looked at . . . Denny and then . . . Denny nodded his head and Kent started stabbing [Mohr] in the stomach[.]]
. . .
Mohr would not fall, but subsequently he did fall to the floor and . . . [Denny] kicked . . . Mohr[.]]
. . .
[Denny] and Kent . . . walked out of the house and they didn‘t think anyone saw them[.]]
. . .
[Either Kent or Denny told Steve H. that] Kent and [Denny] might have seen . . . Leatherman when they were leaving the . . . Mohr residence the day of the murder[.]]5
¶ 29. Patricia Robran (“Robran“) testified that in either March or April 1982 she was present in the basement of her parents’ house with Denny. Denny
¶ 30. Daniel Johansen (“Johansen“), an inmate at the Ozaukee County Jail, testified that Denny told him about Mohr‘s murder. Johansen stated that Denny told him:
[Denny] and Kent went over to . . . Mohr‘s house, and I‘m not sure, but it was either the, that [Mohr] owed Kent money or they were going to pick up some pot, and [Denny] . . . went out of the room and that [Mohr] and Kent were in and he said all of a sudden he heard how does this feel, and he came back in the room and Kent had stabbed him in the stomach.
. . .
[T]hen he said that Kent just started stabbing him and then he went to the bathroom and looked in the mirror at himself because he couldn‘t believe it.
. . .
[Denny] . . . hit [Mohr] over the head with a bong and kicked him a couple times.
[Denny] said the shoes he, he took ‘em over to some sewage plant in here, in Port or some sewage plant around here.
. . .
[H]e . . . threw ‘them in.
¶ 31. Tod Trierweiler (“Trierweiler“) testified that in late March of 1982 he was in the Denny house with Russ Schram (“Schram“), Tammy Whitaker (“Whitaker“), Kent, and Denny. Trierweiler left with Denny in a car.6 They stopped at a gas station in Grafton. Denny asked for and obtained the keys to Trierweiler‘s car and put a brown bag “rolled about half-way” into the trunk of the car. Trierweiler drove Denny to the Sundance Tavern, then went to his girlfriend Cindy Otto‘s (“Otto“) house, where he told Otto “about the keys.” Later, Trierweiler found a bag that “looked like it was half-way down and it was rolled up” in his car and opened it. Inside were a pair of tennis shoes and a pair of brown loafers. Trierweiler wore the tennis shoes for about three months. As to the loafers, Trierweiler testified, “[M]y girlfriend‘s brother came up from Texas with no pairs of shoes . . . and I guess he took ‘em.” Eventually Trierweiler gave the tennis shoes to Sergeant Fred Goetz (“Sergeant Goetz“), who was “looking for the shoes.” Trierweiler stated on cross-examination that when he retrieved the tennis shoes from his car he examined them and there was no blood on them. For his part, Sergeant Goetz testified as to receiving the shoes from Trierweiler, and as to the chain of custody following his receipt of the shoes. Sergeant Goetz agreed that Trierweiler had told him that “he could not state for certain
¶ 32. Otto testified that she and Trierweiler had a conversation about the keys, that she and Trierweiler discovered a “brown grocery bag” which contained two pairs of shoes in the trunk of Trierweiler‘s car, that Trierweiler wore the tennis shoes, and that her brother took the second pair of shoes, which she described as “suede tied shoes.” Otto also discussed an occasion when Denny asked Trierweiler “if he could go back to look at [Trierweiler‘s] house to look in or at [Trierweiler‘s] car.” Trierweiler refused at the time because he was late to drop Otto off at home. Otto also discussed how Trierweiler came to give the tennis shoes to Sergeant Goetz.
¶ 33. Whitaker testified that she was at a party in late March 1982 with Kent, Denny, Schram and Trierweiler at the Denny house. At one point Schram, Trierweiler, and Whitaker went outside. Schram “put the shoes in, on the bag, I should say, into the back seat [sic]” of a car and told Whitaker “those were the murder shoes.” Denny then exited the house and the four went to a gas station. At the gas station, Schram and Denny “put the bag in the trunk.” Whitaker described the bag as a “rolled,” “brown paper bag.”
¶ 34. Whitaker further explained that she was Denny‘s girlfriend of about eight months and testified to two accounts of Mohr‘s murder Denny had related to her, though she prefaced her testimony with the statement that her account was “a rough estimate of what [she] remember[ed].” First, Denny told Whitaker “[t]hat . . . Leatherman and [Denny] went over to . . . Mohr‘s house and [Leatherman] got in a fight with [Mohr] and started stabbing him, and then . . . [Leath-
¶ 35. Schram testified to events that occurred at a party in late March of 1982 at the Denny house. Schram, Trierweiler, Whitaker, Kent, and Denny were at the party. Schram stated, “We were gonna leave” and that Denny “took a bag out of the closet and took it with us.” Schram described the bag as a “[r]egular brown paper bag.” Denny put the bag in the back seat of a car. At some time before Denny placed the bag in the car, he told Schram that the bag contained “[m]urder shoes.” Schram testified that although he did not “exactly” remember who brought the shoes out to the car, he was “pretty sure it was” Denny. Schram continued that he and at least some of the others drove to a gas station, where Denny asked Trierweiler for the keys to the trunk of his car. Trierweiler gave Denny the keys and Denny “put the bag in there.” The bag was “rolled up so you could carry it with a handle like.” The parties eventually “dropped [Denny] off at a bar.” Afterwards, Denny contacted Schram a “couple times, saying to get it out of the car.” Schram told Denny that “he knew where [Trierweiler] lived and that he could get it from him anytime.”
¶ 36. On another occasion, Schram, Kent, Denny, Whitaker, and Jacque were together in Grafton. Denny told Schram, “you‘d be surprised how long it took a person to die.” Another time “between March and April,” according to Schram, Denny “was mad at Trent
¶ 37. The State called Jeffrey Nilsson (“Nilsson“), who previously worked for the Wisconsin State Crime Laboratory and who analyzed blood and hair from the crime scene. Certain of the blood tested came from an individual of the same international blood group to which Mohr belonged. Other testing produced inconclusive results or was not possible. Nilsson also examined “over two hundred hairs” and only two were inconsistent with the samples taken from Mohr when analyzed by “microscopic comparison.” These two hairs were also not consistent with samples taken from Denny and Kent. The hairs were retrieved from a sterile sheet used to wrap Mohr‘s body and from Mohr‘s shirt. These hairs were admitted into evidence.
¶ 38. Arthur Varriale of the State Crime Lab testified that he examined the phone book found in Mohr‘s house and “was able to detect the presence of human blood stains upon” the book. He was not able to detect any blood on the shoes allegedly worn by Trierweiler. Charles Hannah (“Hannah“) of the State Crime Lab, who compared the tread on one of the shoes allegedly recovered from Trierweiler to the impression on the phone book, also testified. Hannah explained that while the pattern on the bottom of the shoe was the same pattern as the incomplete impression on the phone book, he could not determine whether the shoe in fact made the impression.
¶ 39. Neither Kent nor Denny testified at trial. Denny‘s attorney did not call any witnesses to testify.
¶ 40. During closing arguments, the State pointed to, inter alia, the dozens of inculpatory statements allegedly made by Kent and Denny to various of the witnesses who had testified, the evidence relating to the alleged destruction of clothing, the episode in which Denny allegedly showed Trent the knife, and the evidence relating to the shoes allegedly worn by Trierweiler, including Hannah‘s opinion as to the similarity between the impression on the phone book and the pattern on one of those shoes. The attorneys for Kent and Denny, in turn, attacked the State‘s witnesses and the State‘s physical evidence on numerous grounds, arguing that the State had not met its burden of proving their clients guilty beyond a reasonable doubt. To take one example, Denny‘s attorney characterized some of the State‘s evidence as consisting of:
[S]tatements which in my view have been made by unreliable, incredible braggarts, liars, to equal[ly] unreliable persons, who in my view, are drug users, possibly alcoholics, certainly drunkards, people who, themselves admitted on that witness stand to being people who exaggerate, who lie, who make up stories, who had faulty memories, who had to have their recollections refreshed by police.
¶ 41. According to the record, on November 15, 1982, the jury departed the courtroom to deliberate at
¶ 42. On April 14, 1983, Denny filed a motion for postconviction relief. On July 1, 1983, an order was filed denying that motion. On July 8, 1983, Denny filed a notice of appeal. On December 5, 1984, the court of appeals affirmed Denny‘s conviction. State v. Denny, No. 1983AP1311-CR, unpublished slip op. (Wis. Ct. App. Dec. 5, 1984). On February 5, 1985, this court denied review of that appeal.
¶ 43. Since that time, Denny has unsuccessfully attempted to upset his conviction on a number of occasions. See Denny v. Gudmanson, 252 F.3d 896, 898-99 (7th Cir. 2001).
¶ 44. On May 1, 2014, Denny filed a motion for postconviction forensic DNA testing under
¶ 45. On January 2, 2015, the circuit court denied Denny‘s motion. On January 22, 2015, Denny filed a notice of appeal. On March 23, 2016, the court of appeals reversed the circuit court‘s order denying Denny‘s motion and remanded the case for forensic DNA testing at private or public expense. Denny, 368 Wis. 2d 363, ¶¶ 1, 64. The court of appeals concluded that Denny‘s motion met the pertinent requirements of
¶ 46. In this case we interpret and apply
[W]e have repeatedly held that statutory interpretation “begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.” Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.
State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (citations omitted) (quoting Seider v. O‘Connell, 2000 WI 76, ¶ 43, 236 Wis. 2d 211, 612 N.W.2d 659). The standard of review applicable to the circuit court‘s denial of Denny‘s motion will be discussed below.
III. ANALYSIS
¶ 47. Our analysis proceeds in three basic parts. First, we provide an overview of the postconviction forensic DNA testing statute,
A. Wisconsin Stat. § 974.07
¶ 48. We begin with an overview of
¶ 49. The process begins in sub. (2) when one of a few types of persons entitled to do so—here, a person “convicted of a crime“—“make[s] a motion [in the proper court] for an order requiring forensic [DNA] testing of evidence.”
(a) The evidence is relevant to the investigation or prosecution that resulted in the conviction, adjudication, or finding of not guilty by reason of mental disease or defect.
(b) The evidence is in the actual or constructive possession of a government agency.
¶ 50. Next, sub. (6) enables “the movant” to obtain access to certain information and evidence possessed by “the district attorney,” and vice versa.10 Specifically:
(a) Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:
1. Findings based on testing of biological materials.
2. Physical evidence that is in the actual or constructive possession оf a government agency and that contains biological material or on which there is biological material.
(b) Upon demand the movant or his or her attor-
1. Findings based on testing of biological materials.
2. The movant‘s biological specimen.
¶ 51. Subsection (7) governs the circuit court‘s decision on the movant‘s motion. Subsection (7) sets forth two means by which a movant may obtain forensic DNA testing under the statute: first, the court “shall order” testing if the four requirements of
¶ 52. Both avenues to testing require that “[t]he evidence to be tested meets the conditions under sub. (2)(a) to (c)” (set forth above).
It is reasonably probable that the outcome of the proceedings that resulted in the conviction, the finding of not guilty by reason of mental disease or defect, or the delinquency adjudication for the offense at issue in the motion under sub. (2), or the terms of the sentence, the commitment under
It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under sub. (2), if exculpatory [DNA] testing results had been available beforе the prosecution, conviction, finding of not guilty, or adjudication for the offense.
¶ 54. Second, the mandatory testing scheme includes an additional requirement: “[t]he movant [must] claim[] that he or she is innocent of the offense at issue in the motion under sub. (2).”
¶ 55. Subsections (9) and (10) govern disposition of the case following the circuit court‘s decision under sub. (7) and any testing that occurs.11 Under sub. (9), if
¶ 56. Under sub. (10)(a):
If the results of forensic [DNA] testing ordered under this section support the movant‘s claim, the court shall schedule a hearing to determine the appropriate relief to be granted to the movant. After the hearing, and based on the results of the testing and any evidence or other matter presented at the hearing, the court shall enter any order that serves the interests of justice ....
¶ 57. Finally, sub. (12) pertains to payment of the costs of testing.12 First, “[t]he court may order a movant to pay the costs of any testing ordered by the court under this section if the court determines that the movant is not indigent.”
¶ 58. Having set forth the relevant provisions of
B. State v. Moran
¶ 59. As shown above, whether a movant may obtain postconviction forensic DNA testing of evidence depends on, among other things, whether one of the two “reasonably probable” formulations set forth in
¶ 60. But we must first discuss our decision in Moran because Denny claims that under Moran he is entitled to forensic DNA testing under
¶ 61. The movant in Moran—who had bеen convicted of crimes relating to an incident during which he
In their briefs, the parties focused our attention almost exclusively on
Id., ¶ 25. Proceeding to the interpretation of the statute, we concluded that
¶ 62. We did “acknowledge the plausibility of the position that all motions for testing, as opposed to inspection, should proceed under
¶ 63. Today we conclude that, for several reasons, this interpretation constitutes an error which we must now correct.15
¶ 64. To begin with,
¶ 66. We find it unlikely that the legislature would set forth detailed requirements regarding whether DNA testing may occur (sub. (7)) and who will pay for that testing (sub. (12)), only for a movant to bypass these provisions and obtain testing at private expense using a subsection of the statute that does not say a word about such testing. Further, allowing testing under sub. (6) would require only the barest of showings. See Moran, 284 Wis. 2d 24, ¶ 3. It is equally difficult to believe that the statute is most properly read to permit convicted offenders who are unable to meet the surmountable sub. (7) standard to engage in postconviction fishing expeditions in attempts to cast doubt upon and upset those convictions.
¶ 68. Other subsections of the statute also cast doubt on Moran‘s interpretation of
¶ 69. “This court follows the doctrine of stare decisis scrupulously because of our abiding respect for the rule of law.” State v. Luedtke, 2015 WI 42, ¶ 40, 362 Wis. 2d 1, 863 N.W.2d 592 (quoting Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶ 94, 264 Wis. 2d 60, 665 N.W.2d 257); Hilton v. South Carolina Public Railways Comm‘n, 502 U.S. 197, 202 (1991) (“Time and time again, this Court has recognized that ‘the doctrine of stare decisis is of fundamental importance to the rule of law.’ (quoting Welch v. Texas Dep‘t of Highways and Public Transp., 483 U.S. 468, 494 (1987) (plurality opinion))). “[A]ny departure from the doctrine of stare decisis demands special
¶ 70. For the reasons already explained, Moran‘s interpretation of
While not dispositive in the case at issue, we note that the legislature appears to have had crime victims in mind when enacting
C. Whether the Circuit Court Erred in Denying Denny‘s Postconviction Motion for Forensic DNA Testing of Certain Evidence
¶ 73. We now address the merits of Denny‘s postconviction motion for forensic DNA testing. Although there are a number of conditions that Denny must meet before a court may conclude he is entitled to testing, see, e.g.,
¶ 75. Here, the parties barely addressed the standard of review applicable to
¶ 76. The question before this court is whether “[i]t is reasonably probable that [Denny] would not have been prosecuted [or] convicted” of his crime “if exculpatory [DNA] testing results had been available before the prosecution [or] conviction.”
¶ 77. Like the circuit court, we are convinced that
¶ 79. We note (as did the circuit court) that the jury in Denny‘s case was even presented with a less-sophisticated preview of what Denny now seeks to obtain through DNA testing: two of the hairs tested by Nilsson using “microscopic comparison” were not consistent with samples taken from Mohr, Denny, or Kent.
e.g., Denny v. Gudmanson, 252 F.3d 896, 902-03 (discussing Ohio v. Roberts, 448 U.S. 56 (1980)), with Crawford v. Washington, 541 U.S. 36, 69 (2004) (Rehnquist, C.J., concurring in the judgment) (criticizing “the Court‘s decision to overrule” Roberts). Denny does not now suggest that consideration of certain portions of the testimony presented at the trial against him is improper. Consequently, in our discussion of the background of this case, above, we provided the testimony introduced at Denny‘s trial as it actually occurred, including statements allegedly made by both Kent and Denny. Nevertheless, and without expressing an opinion on any constitutional question, we observe that our decision would be the same even if we did not consider Kent‘s statements. Cf. State v. Denny, 163 Wis. 2d 352, 359, 471 N.W.2d 606 (1991) (“Upon reviewing the record, we conclude there is evidence sufficient to convict [Denny] even without the statements made by Kent.“).
¶ 80. Denny suggests that the witnesses in his case were not credible—because of, for example, grants of immunity or of admitted drug and alcohol use at pertinent times—but of course the jury was not convinced by this line of argument. The idea that the DNA results Denny seeks would tip the scales and cause police or a jury to reject the substantial evidence against Denny is simply conjecture.
¶ 81. In sum,
¶ 82. We conclude that the circuit court did not err in denying Denny‘s postconviction motion for forensic DNA testing of certain evidence. Consequently, we reverse the decision of the court of appeals.
By the Court.—The decision of the court of appeals is reversed.
¶ 83. PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part, dissenting in part). Although the majority opinion correctly overrules Moran‘s interpretation of
I. BACKGROUND
¶ 84. The majority opinion ably sets forth the facts that underlie the dispute before us. I will not repeat them, in full, here. However, I do relate a few facts to turn the reader‘s attention to my discussion that follows.
¶ 85. On January 26, 1982, Christopher Mohr was found dead in his home by Jonathan Leatherman. Police received a tip that Kent Denny was involved in the crime. Eventually, the police pursued Kent‘s brother, Jeffrey Denny (Denny), as a suspect. Both
¶ 86. On May 1, 2014, Denny filed a motion for postconviction forensic DNA testing pursuant to
¶ 87. The circuit court denied Denny‘s motion, but the court of appeals reversed. We granted the State‘s petition for review.
A. Standard of Review
¶ 88. This case requires us to interpret and apply
B. General Wis. Stat. § 974.07 Principles
¶ 89. Denny sought DNA testing pursuant to
¶ 90.
¶ 91. Second, it must be “reasonably probable that the movant would not have been . . . convicted . . . if exculpatory deoxyribonucleic acid testing results had been available before the prosecution, [or] conviction, . . . .”
¶ 92. “Reasonably probable” is an outcome determinative test akin to the test we apply when determining if newly discovered evidence warrants a new trial.
¶ 93. Third, pursuant to
¶ 94. Fourth, “The chain of custody of the evidence to be tested [must] establish [] that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.”
¶ 95. As discussed above,
C. Denny‘s Motion for DNA Testing
¶ 96. In the present case, we must decide whether Denny satisfied the criteria set forth in
¶ 97. Without discussion of the remaining statutory requirements,4 the majority concludes that Denny has not fulfilled the second statutory criteria. In essence,
¶ 98. Consistent with the circuit court‘s analysis, the majority reasons that the State did not present this to the jury as a single-perpetrator crime. The majority‘s analysis can be summed up simply: the State theorized that other individuals were involved in the crime, and some witnesses testified that Denny was minimally involved, so a lack of Denny‘s DNA on the objects retrieved from the scene of the crime is not exculpatory.
¶ 99. However, the majority‘s conclusion is misplaced for two interrelated reasons. First, it understates the importance of the manner in which the State actually tried the case. Specifically, the State presented witness after witness that testified Denny was at the scene of the crime, including specific details about Denny‘s active participation in physically attacking Mohr. Second, if Denny‘s DNA is not found on any of the objects for which DNA testing is sought, the majority‘s analysis undervalues the potential of this lack of DNA evidence. This is so because it would
¶ 100. For example, Trent Denny, Denny‘s brother, testified that Denny admitted he had stabbed Mohr. According to Trent, Mohr “was coming after [Denny] while [Denny] was stabbing him.” Another witness, Lori Ann Jastor Commons, related that Kent stated Denny had stabbed Mohr. Steven Hansen testified at trial that Denny had kicked Mohr. Patricia Robran testified that Denny had informed her that “Kent stabbed [Mohr] first and he handed [Denny] the knife and Kent told him to continue what he was doing until he got back, so [Denny] did, and he didn‘t remember if he did it five or ten or fifteen times.” An inmate at Ozaukee County Jail testified that Denny confessed he “hit [Mohr] over the head with a bong and kicked him a couple times.” Tammy Whitaker testified that Denny told her two versions of how the murder occurred, both of which involved Denny‘s active participation in the murder. Another witness testified that Denny stated he had a scratch on his leg where Mohr had scratched him during their struggle.
¶ 101. Consequently, the State relied on the testimony of numerous witnesses to prove Denny‘s direct involvement in the murder by physically attacking Mohr. DNA testing of the evidence from the scene of the crime may well impact whether this testimony about Denny‘s involvement was true. Stated otherwise, if none of Denny‘s DNA is on any of the articles for which DNA testing is requested, the jury could have a reasonable doubt whether Denny committed the crime.
¶ 102. Additionally, this is not a case in which a dearth of material recovered from the scene of the
¶ 103. A brief description of what the police recovered from the scene of the crime is helpful to understand the import of this evidence. When police arrived at the scene, a bong pipe was shattered around Mohr‘s body. An officer that was at the crime scene testified that there were large amounts of blood on pieces of the bong pipe. Denny seeks testing of this pipe and its broken pieces to determine if it contains DNA. The bong pipe is particularly relevant to Denny‘s claim of innocence because the State presented testimony at trial that Denny struck Mohr in the head with the bong pipe. A lack of Denny‘s DNA on the bong pipe could suggest that Denny had not touched it, and directly undermine this trial testimony.
¶ 104. Moreover, Denny seeks testing of several hairs that an officer found in Mohr‘s left hand. It requires little speculation to surmise that these hairs likely belong to an individual that was actively involved in the crime. And the State presented testimony at trial that Denny was one of these individuals. If the hairs do not belong to Denny, it could lead a juror to doubt testimony about his active involvement.
¶ 105. The same analysis applies to the numerous strands of hair stuck to Mohr‘s body by dried blood.
¶ 106. Accordingly, the articles that Denny seeks to have tested for DNA are not only numerous, but also highly relevant to the testimony the State presented against Denny at trial. Evidence that could show Denny was not at the scene of the crime could affect the credibility of the State‘s witnesses.
¶ 107. Of course, this is not to imply that the testimony against Denny at trial was not substantial. Yet, if the large quantity of evidenсe found at the scene is presumed to be exculpatory, i.e. none of it contains Denny‘s DNA, then the testimony proffered against Denny at his trial would be significantly undercut. And, this is where the majority errs. It does not adequately view the evidence in light of the State‘s trial presentation of the case.
¶ 108. If the DNA testing shows none of Denny‘s DNA, given the State‘s trial presentation of the case, it is reasonably probable that one or more jurors would have had reasonable doubt as to Denny‘s involvement in the crime. Stated more fully, one juror could have concluded that the State‘s theory that Denny actively participated in the murder of Mohr was untenable given the lack of Denny‘s DNA at the scene of the crime, which could suggest that Denny was not there.
¶ 109. Accordingly, I conclude that Denny is entitled to forensic DNA testing in the present case. Finally, I note that Denny is not necessarily entitled to a new trial regardless of the results of the DNA tests.
III. CONCLUSION
¶ 110. In light of the foregoing, although the majority opinion correctly overrules Moran‘s interpretation of
¶ 111. SHIRLEY S. ABRAHAMSON, J. (dissenting). I join Justice Ann Walsh Bradley‘s excellent dissent.
¶ 112. I write separately on the substance of the order the court issued on August 12, 2016. The order denied Jeffrey C. Denny‘s (the defendant‘s) motion to strike Issue III of the State of Wisconsin‘s opening brief. My separate writing at that time stated I would be filing this writing.1
¶ 113. Let me set the background for this separate writing. The State petitioned the court for review,
¶ 114. The State filed its initial brief in this court. The defendant, Jeffrey Denny, moved to strike the third issue of the State‘s initial brief, i.e., whether this court‘s decision in State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, should be overruled. The court denied the motion on August 12, 2016, without explanation. I would have either granted the motion or denied the motion to strike part of the State‘s brief. In either event I would have advised the State it had erred in briefing the issue without seeking the court‘s consent to do so.
¶ 115. The rules of appellate practice support the defendant‘s motion. The rules of appellate practice do not support the court‘s order denying the defendant‘s motion without commenting on the rule of appellate practice involved.
¶ 116. I write because this is not the only case in which the court seems to be ignoring the rules of appellate practice. The litigants ought to know whether the court is adhering to its own rules of appellate practice, so they can determine whether they should adhere to the appellate practice rules.
¶ 117. The rules provide that a petition for review “must contain [a] statement of the issues the petitioner seeks to have reviewed . . . .” See
¶ 118. Strict adherence to the statement of the issues in the petition for review is important for at least two reasons.
¶ 119. First, the statement of the issues in the petition for review gives notice to the other party to enable it to respond to the petition for review.
¶ 120. Second, the statement of the issues in the petition for review and the opposing party‘s response (and sometimes an amicus curiae filing) are the basis for the court‘s determining whether it will grant the petition to decide the issue(s) presented. If the court grants a petition for review, the court might accept all issues for review, might limit review to certain stated issues, or might add one or more issues for review.
¶ 121. With this procedure in mind, I turn to the State‘s petition for review in the instant case. It raised four issues.2 No issue sought the overruling of this court‘s decision in Moran. The petition for review
¶ 122. The State‘s brief in this court now raises three issues, one seeking the overruling of the Moran case.3
¶ 123. The order granting the State‘s petition for review (which was the court‘s standard order granting a petition for review) succinctly limited the issues to be briefed or argued by the State as follows: The State “may not raise or argue issues not set forth in the petition for review unless otherwise ordered by the court.”
2. In reviewing a motion for DNA testing at State expense under
3. 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?
4. Did the circuit court erroneously exercise its discretion under
¶ 125. In the instant case it is easy to conclude that the request to overrule Moran is an issue, not an argument or a subsidiary issue. Requesting the court to overturn a prior decision has not been viewed by this court as an argument (when the petition for review seeks interpretation of the decision) and has not been viewed as subsidiary to the issue of interpreting and applying a prior court decision.
¶ 126. The State conceded in its initial brief that it did not raise the issue of overruling Moran in its petition for review. The State‘s brief at 41, n.11 states: “The Court may consider this argument [of overruling Moran] even though it was not expressly raised in the Petition for Review.” In its reply to the defendant‘s motion to strike this argument, the State‘s defense was that the need to raise an issue in the petition for review is only a “general rule,” “not a hard-and-fast rule” that bars briefing in every case. The State cites no case or other authority supporting its contention that the need to raise an issue in the petition for review is only a general rule that does not bar briefing in every case. I could find none.
¶ 127. The State bases its right to brief the issue of overruling Moran on the court‘s discretion to consider issues not raised by the petition for review. The court does have the power to consider issues not raised
¶ 129. Fortunately, the defendant in the instant case had an opportunity to respond to the State‘s challenge to the Moran case. The first issue the defendant addressed in its brief was whether the court should abandon the court‘s unanimous “plain language” reading of
¶ 130. I join Justice Ann Walsh Bradley‘s dissent, and for the reasons set forth I write separately on an issue Justice Ann Walsh Bradley‘s dissent does not address.
¶ 131. ANN WALSH BRADLEY, J. (dissenting). One of the essential tenets of our criminal justice system is that the “administration of justice is and should be a search for the truth.” Garcia v. State, 73 Wis. 2d 651, 655, 245 N.W.2d 654 (1976). It is undisputed that DNA testing is “one of the most significant scientific advancements of our era” and the most powerful technology we have for revealing the truth. Maryland v. King, 133 S. Ct. 1958, 1966 (2013).
¶ 132. Making several missteps along the way, the majority limits the contours of this search. Dedicating almost half of its lengthy opinion to an exposition of the facts, it emphasizes the strong evidence of Denny‘s guilt as a reason to circumscribe his ability to conduct DNA testing. Of course there is strong evidence of guilt. Denny, as well as the multitude of
¶ 133. The question is not whether there is strong evidence of guilt. Rather, the question is whether the legislature has written a statute that gives Denny the opportunity to test evidence that has the potential to exonerate him. More precisely, at issue in this case is whether Wisconsin‘s post-conviction DNA testing statute allows a defendant to test, at his own expense, evidence containing biological material that is relevant to the investigation or prosecution that resulted in his conviction.
¶ 134. This same question was answered eleven years ago, when this court unanimously determined that the plain meaning of the post-conviction DNA testing statute “gives the defendant the right to test the sought-after evidence . . . .” State v. Moran, 2005 WI 115, ¶ 57, 700 N.W.2d 884. Nothing in the DNA testing statute has changed in the decade since this court decided Moran, nor has the State presented any evidence that the statute has been unworkable in practice. The only thing that has changed is the composition of this court.
¶ 135. In reaching its conclusion, the Moran court issued an invitation to the legislature. See id., ¶ 56 (“We encourage the legislature to revisit
¶ 136. The legislature did not respond to the invitation. Throwing caution (аs well as any semblance of judicial restraint) to the wind, the majority steps in to perform the legislature‘s job.
¶ 138. In overruling Moran, not only does the majority apply a test that courts have never before used, it also attempts to justify its action by relying on an “imagine[d]” purpose that the legislature never stated. Garnering a trifecta of “nevers,” it then embarks upon rewriting the plain meaning of Wis. Stat. § 974.07 by inserting a limitation that the legislature never created.
¶ 139. Ultimately, the majority arrives at a determination that pursuant to Wis. Stat. § 974.07(6), all Denny can do is look at evidence with the naked eye when its potential to exonerate him is invisible until it is tested. Id., ¶ 71. Such a useless procedure renders the majority‘s determination absurd.
¶ 140. The majority further missteps when it deprives Denny of the opportunity to test for potentially exculpatory evidence under an alternative statutory procedure. Whether analyzed under Wis. Stat. § 974.07(6) or (7), the majority impedes the search for the truth by erroneously limiting access to post-conviction DNA testing.
¶ 141. Contrary to the majority, I would adhere to this court‘s unanimous decision in Moran. The plain meaning of Wis. Stat. § 974.07(6) gives the defendant the right to test, at his own expense, evidence containing biological material that is relevant to the investigation or prosecution that resulted in his conviction. In
¶ 142. Accordingly, I respectfully dissent.
I
¶ 143. This court follows the doctrine of stare decisis “scrupulously because of our abiding respect for the rule of law.” Johnson Controls Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶ 94, 264 Wis. 2d 60, 665 N.W.2d 257. A court‘s decision to depart from precedent is not to be made casually and we should not depart from precedent without sufficient justification. Id.
¶ 144. In this case “stare decisis carries enhanced force” because this court‘s decision in Moran interpreted a statute. See Kimble v. Marvel Ent., LLC, 135 S. Ct. 2401, 2409 (2015) (without “special justification,” the decision to correct statutory interpretation should be left to the legislature); see also State v. Lynch, 2016 WI 66, ¶¶ 208-209, 371 Wis. 2d 1, 885 N.W.2d 1 (Ziegler, J., dissenting) (“[I]t is not alone sufficient that we would decide a case differently now than we did then. To reverse course, we require as well what we have termed a ‘special justification‘—over and above the belief ‘that the precedent was wrongly decided.‘“) (quoting Kimble, 135 S. Ct. at 2409).
A
¶ 145. By overruling Moran, the majority disregards the fundamental principle of stare decisis and manufactures a heretofore unknown test for overturning precedent.
¶ 146. According to the majority, its decision to overrule Moran is justified because stare decisis is a
¶ 147. In asserting that “sometimes stare decisis must yield to other important principles of policy,” the majority blatantly mischaracterizes the law. Majority op., ¶ 71. It transposes the single stated “principle of policy” underlying stare decisis (that settled law is of the utmost importance), into an unknown and potentially unlimited number of “principles of policy” that could justify overruling precedent. What are these principles? Whose are they? Are they legislative policies or policies that this court develops as the need arises?
¶ 148. Further, the majority fails to meet its newly minted “principles of policy” test because it does not offer a compelling policy reason for overturning Moran. Indeed, the one policy the majority identifies is one it admits is “not dispositive in the case at issue . . . .” Id., ¶ 70 n.16.
¶ 149. Apparently not convinced about the legitimacy of its principle of policy, the majority tucks it away in a footnote—asserting that overruling Moran is “the best way to protect the rights and interests of crime victims in Wisconsin.” Id., ¶ 70 n.16.
¶ 150. The majority‘s footnoted justification for overruling Moran is at odds with the rational offered by now-governor Scott Walker who co-authored this legislation. In an interview, then former state repre-
Whether it‘s proving someone‘s guilt or someone‘s innocence, in either case, it keeps us safer because if somebody is innocent, that means somebody who‘s guilty is still out there, and we can use that evidence to get them off the streets.1
¶ 151. Unsurprisingly, there is nothing in the record indicating that victims have suffered any more harm since Moran was decided. Faced with this void in the record, the majority resorts to imagination: “it is not difficult to imagine why such testing might cause significant distress to victims . . . .” Majority op., ¶ 70 n.16.
¶ 152. Based on this speculation, supported and advanced by its collective imagination, the majority divines a “principle of policy” in its attempt to justify overruling Moran. It concludes that upholding Moran “would be purposefully perpetuating a much more expansive postconviction forensic DNA testing regime than the legislature saw fit to enact, to the possible detriment of Wisconsin crime victims.” Id., ¶ 70 n.16.
¶ 153. The rights and interests of crime victims are undeniably important considerations, which the legislature has already addressed through the notice provisions in
¶ 154. Contrary to the majority‘s assertions, allowing DNA testing does not undermine finality or lead to “the possibility of ‘inequitable results‘” due to “opening] up cases that have long been thought by everyone, including crime victims, to be final.” Majority op., ¶ 70 n.16 (citation omitted). Performing DNA testing on relevant evidence is only the first step in a process where the defendant must next demonstrate that the results of the testing support his claim. See Moran, 284 Wis. 2d 24, ¶ 47 (allowing DNA testing does not guarantee a new trial or even an evidentiary hearing).
¶ 155. If the DNA test results do not support a defendant‘s claim, the case is not reopened. And if the DNA testing results do support a defendant‘s claim of innocence, victims will have little interest in finality if the true criminal perpetrator is still at large. See majority op., ¶ 70 n.16.
¶ 156. Likewise, there is no evidence that post-conviction DNA testing has led to “inequitable results.” If the majority intends to speculate that post-conviction DNA testing might lead to the “possibility” of wrongfully exonerating a criminal defendant, it has a very steep hill to climb. The State has introduced no evidence that legitimate convictions have been over-
a hearing on the motion is scheduled, a notice of the hearing shall be sent to the victim.
B
¶ 157. Turning away from the majority‘s newly created “principles of policy” test and instead considering the well-established criteria this court has always applied in determining whether it may overrule precedent, it becomes clear why the majority saw the need to create a new test justifying its decision. This case satisfies none of the well-established criteria that would warrant departing from the doctrine of stare decisis and overruling Moran.
¶ 158. In Johnson Controls, we identified several criteria in Wisconsin for overruling our prior cases: (1) if “changes or developments in the law have undermined the rationale behind a decision“; (2) “there is a need to make a decision correspond to newly ascertained facts“; or (3) “there is a showing that the precedent has become detrimental to coherence and consistency in the law.” 264 Wis. 2d 60, ¶ 98. We explained further that other “relevant considerations in determining whether to depart from stare decisis are whether the prior decision is unsound in principle, whether it is unworkable in practice, and whether reliance interests are implicated.” Id., ¶ 99.
¶ 159. Addressing the first two factors, the majority argues that the Moran court did not consider
¶ 160. The majority‘s analysis suffers from a glaring mistake. Subsection (12) was a part of the statute at the time Moran was decided and has not been changed in the interim. Although the majority may place a different emphasis on subsection (12) than did the Moran court, it would be meaningless to require “changes or developments in the law” if those changes originate from only this decision. Likewise, there are no newly ascertained facts in this case aside from the majority‘s new interpretation of the statute.
¶ 161. Equally flawed are the majority‘s unsubstantiated claims that Moran‘s interpretation of
¶ 162. The sole justification the majority offers here is that “allowing testing under sub. (6) would require only the barest of showings.” Id., ¶ 66. According to the majority, it is “difficult to believe that the statute is most properly read to permit convicted offenders who are unable to meet the surmountable sub. (7) standard to engage in postconviction fishing expeditions in attempts to cast doubt upon and upset those convictions.” Id.
¶ 163. The majority‘s prospective concerns carry little weight when there is no evidence that Moran‘s interpretation of the statute has lead to frivolous requests for testing over the last decade. Indeed, the State has offered no evidence that it has been over-
¶ 164. At oral argument, Denny‘s counsel explained that the Wisconsin Innocence Project “probably does the vast majority, if not almost all of the post-conviction DNA testing in this State.”3 Counsel affirmed that there are very few post-conviction motions for DNA testing filed each year, explaining that “we‘re talking about a handful of cases each year. There‘s no overwhelming burden on the system. It‘s a handful of cases.”
¶ 165. Contrary to the majority‘s assertions, there is no evidence that Moran‘s interpretation of the post-conviction DNA testing statute is incoherent or inconsistent in ways that have become detrimental to the law. In fact, it appears that the current statutory scheme has worked well for both defendants and the State.
¶ 166. Post-conviction DNA testing pursuant to subsection (6) avoids litigation and saves judicial resources because a defendant does not need a court order to test evidence. Additionally, it saves the State the cost of paying for the testing and relieves the State from having to acknowledge that the defendant has met the reasonably probable standard set forth in
II
¶ 168. By rewriting
¶ 169. In Moran, this court determined that if a defendant met the threshold requirements set forth in
(6)(a) Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:
. . .
2. Physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological materials.
A court in which a motion under sub. (2) is filed shall order forensic deoxyribonucleic acid testing if all of the following apply:
1. The movant claims that he or she is innocent of the offense at issue in the motion under sub. (2).
2. It is reasonably probable that the movant would not have been prosecuted [or] convicted ... if exculpatory deoxyribonucleic acid testing results had been available before the prosecution [or] conviction ...
Wis. Stat. § 974.07(7)(b) provides in relevant part:
A court in which a motion under sub. (2) is filed may order forensic deoxyribonucleic acid testing if all of the following apply:
1. It is reasonably probable that the outcome of the proceedings that resulted in the conviction. . . would have been more favorable to the movant if the results of deoxyribonucleic acid testing had been available before he or she was prosecuted [or] convicted .. .
¶ 171. Contrary to Moran, the majority now concludes that all motions for post-conviction DNA testing must proceed by court-order under
¶ 172. Not only are the majority‘s complaints about Moran unpersuasive,8
ordered by the court under this section if the court determines that the movant is not indigent.” Subsеction (12)(c) provides that “[t]he state crime laboratories shall pay for testing ordered under this section... if the court does not order the movant to pay for testing.”
- Subsection (6) says nothing about allowing the movant to conduct forensic testing or sending the evidence away for testing. Majority op., ¶ 64.
- Moran did not discuss subsection (12). Id., ¶ 67.
- Subsection (6) does not reference testing by “court order” like other subsections in the statute. Id., ¶ 68.
Each of these points are easily rebutted:
- Even the majority acknowledges that “sub. (6) does not explicitly prohibit a movant from testing evidence, either.” Id., ¶ 64.
- Moran harmonized subsection (12) with subsections (6) and (7) when it determined that one provided for private payment of costs and the other provided for public payment of costs. See 284 Wis. 2d 24, ¶ 57.
- There is no reason why DNA testing must proceed by court-order unless the court is ordering the State to conduct and pay for the costs of that testing.
¶ 173. In contrast, the Moran court explicitly declined to “add language to the statute in order to justify the State‘s interpretation.” Moran, 284 Wis. 2d 24, ¶ 39. After careful analysis, the Moran court determined that “[w]e are unable to discern from the plain language of § 974.07 a clear legislative intent to block testing demanded by a person willing and able to pay until that person satisfies the requirements for publicly funded DNA testing.” Id., ¶ 54.
¶ 174. Additionally, the majority violates a well-established canon of statutory construction that we interpret statutes “reasonably, to avoid absurd or unreasonable results.” Kalal, 271 Wis. 2d 633, ¶ 46. The majority‘s interpretation of the statute, unlike the interpretation set forth in Moran, leads to an absurd and unreasonable result because without DNA testing, the ability only to look at evidence containing biological material is essentially useless.
¶ 175. Apparently recognizing this fundamental flaw in its reasoning, the majority asserts that “the facts in the case at issue demonstrate why inspection is useful.” Majority op., ¶ 71 n.17. It then explains that in his supplemental motion for post-conviction DNA
¶ 176. Contrary to the majority‘s explanation, the facts of this case demonstrate the futility of examining evidence without being able to test it. Although Denny identified additional relevant items that were overlooked, there is nothing he can do with that evidence.
¶ 177. According to the majority, he can no longer test the evidence at his own expense pursuant to subsection (6) and the majority has denied his claim for court-ordered testing pursuant to subsection (7). All Denny can do is look at the evidence when its potential to exonerate him is invisible until it is tested. This is an absurd and unreasonable result that contravenes the plain language of the statute.
III
¶ 178. Finally, I address the majority‘s conclusion that Denny‘s motion for post-conviction testing does not entitle him to court-ordered testing pursuant to
¶ 179. The majority begins by correctly stating that for the purposes of this analysis, we are to assume that if DNA testing were to occur, the results would be
¶ 180. Rather than analyze the testimony against Denny in the context of exculpatory physical evidence, the majority rests its analysis on the broad assertion that “[t]he evidence incriminating Denny was, to put it mildly, extensive.” Id., ¶ 77; see also id., ¶ 81 (citing State v. Denny, 2016 WI App 27, ¶ 86, 368 Wis. 2d 363 (Hagedorn, J., concurring in part and dissenting in part) (“As put by the separate writing below, ‘[t]he evidence was vast, overwhelming, and damning. It was not even close.‘“)).
¶ 181. Although the majority opinion begins with an expansive exposition of facts, its analysis relies on a brief summary of the conflicting testimony of multiple unreliable witnesses in denying Denny‘s motion for testing. According to the majority, “[t]estimony indicated that Denny confessed, made inculpatory statements to, and took inculpatory actions in front of, multiple witnesses.” Id., ¶ 77.
¶ 182. The majority‘s reliance on the “extensive” and “overwhelming” evidence presented against Denny is misplaced. It ignores the reality thаt by definition his conviction was premised on strong evidence of guilt. Denny, like all convicted persons who have been exonerated after DNA testing, was found guilty beyond a reasonable doubt. Additionally, the majority ignores the ways that witness testimony is undermined by exonerating DNA-evidence.
¶ 183. Denny argues that three types of DNA test results would create a reasonable probability of a different result: (1) DNA that matches a convicted
¶ 184. The majority dispenses with a DNA result that matches a convicted offender or multiple items matching the same unknown third party by agreeing with the circuit court that “Mohr‘s killing has never been presented as a single-perpetrator crime . . . .” Id., ¶ 78. Although this is true, the vast majority of the evidence against Denny was testimony in which Denny and Kent were the only perpetrators. In a handful of accounts, an individual named Leatherman was also implicated.
¶ 185. Contrary to the majority‘s assertion, DNA evidence matching an unknown third party or a convicted offender would undermine every piece of testimony in which Denny and Kent were presented as the only two perpetrators of the crime. The majority does not acknowledge this possibility. Instead it speculates that if more than one person committed the crime, finding a third person‘s DNA could not change the result because any number of people could have committed the crime in addition to Kent and Denny.
¶ 186. Further, the majority contends that the absence of DNA belonging to Denny and Kent would not be “particularly compelling.” Id., ¶ 78. The majority dismisses the effect of exculpatory evidence excluding both Denny and Kent because there was no single account of what transpired in this case and various inconsistencies among the accounts of the witnesses. As discussed above, however, Denny and Kent were implicated in every account of the crime.
¶ 187. Excluding both brothers would undermine all of the testimony introduced against Denny in which both brothers played a role in the crime. Given the
¶ 188. The majority even contends that the “various inconsistencies between the accounts of the witnesses actually serves to insulate Denny‘s conviction.” Id., ¶ 78. This strains credulity, given the fact that the witnesses were unreliable in various ways, admitting to drug and alcohol use at relevant times and given grants of immunity so that they would testify. Rather than weigh the effect of exculpatory DNA evidence against this unreliable testimony, the majority contends that it is not persuaded by this argument because the jury was not. Id., ¶ 80. This ignores the essential fact that the jury, in weighing the testimony of the witnesses, was not presented with exculpatory DNA evidence.
¶ 189. Ultimately, the majority‘s summary of conflicting testimony does not support its conclusion. Given the various inconsistencies in the testimony from unreliable witnesses, it is reasonably probable that exculpatory DNA results would have lead to a different outcome.
IV
¶ 190. In sum, the majority opinion offers no persuasive legal, logical or factual reason for its decision to overrule Moran. Instead it discards the doctrine of stare decisis, unearths a test never before used to justify overruling precedent, “imagine[s]” a statutory purpose, rewrites the statute and ultimately ends with an absurd result. And for what?
¶ 192. Daryl Dwayne Holloway‘s recent exoneration provides a compelling example of how Moran‘s interpretation of the statute worked well in practice for both the State and defendants. On October 5, 2016, three weeks before oral argument in this case, Holloway was exonerated based on new DNA evidence after spending 24 years in prison. At the request of counsel, the State reviewed the evidence against Holloway and agreed to DNA testing pursuant to
¶ 193. The prosecutors were praised for taking on the case and serving as “ministers of justice, not just advocate[s] for convictions.”11 Given the majority‘s approach, no such accolades are deserved here.
¶ 194. If the majority opinion were the law when prior exonerees sought post-conviction DNA testing, who knows if some would still be serving time in prison for crimes they never committed. Rather than retain-
¶ 195. Before a jury begins its deliberations, the circuit judge instructs: “Let your verdict speak the truth, whatever the truth may be.” Such an instruction falls on the deaf ears of the majority. By erroneously limiting access to post-conviction DNA testing, it impedes the criminal justice system‘s search for truth.
¶ 196. Contrary to the majority, I would adhere to this court‘s unanimous decision in Moran. The plain meaning of
¶ 197. Accordingly, I respectfully dissent.
¶ 198. I am authorized to state that SHIRLEY S. ABRAHAMSON joins this dissent.
Notes
Subsection (5) requires the district attorney, upon receipt of the motion or notice from a court of the motion, to “take all actions necessary to ensure that all biological material that was collected in connection with the investigation or prosecution of the case and that remains in the actual or constructive custody of a government agency is preserved pending completion of the proceedings under this section.”
Subsection (11) requires a court to “refer the movant to the state public defender for determination of indigency and appointment of counsel under
Case law pertaining to the Confrontation Clause has developed in the time since these other proceedings. Compare,