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Defense wrestles State into conceding Batson error, but doesn’t get new trial

State v. Patrick D. Zolliecoffer, 2018AP1639-CR, 8/20/19, District 1 (not recommended for publication); case activity (including briefs)

Zolliecoffer challenged two of the State’s peremptory strikes as racially based. On appeal, the State conceded that the circuit court failed to apply the 3-step procedure for analyzing Batson claims, which On Point recently explained here.  Zolliecoffer urged the court of appeals to remand for a new trial. The State sought a remand to apply Batson. Surprise! The State won.

Zolliecoffer cited three cases where an appellate court found a Batson violation and remanded the case for a new trial rather than a Batson hearing. See Snyder v. Louisiana, 552 U.S. 472, 477 (2008); McGahee v. Alabama Dep’t of Corrs., 560 F.3d 1252, 1270 (11th Cir. 2009); and U.S. v. Alanis, 335 F.3d 965, 969 (9th Cir. 2003).

The court of appeals declined to order a new trial because, unlike in the cases above, the record here reflects the circuit court’s complete failure to make any findings of fact.  The court of appeals explained that it cannot make the factual finding that the DA had a racially discriminatory intent or purpose, so it must remand for an evidentiary hearing on that issue. See State v. Lamon, 2003 WI 78, ¶37, 262 Wis. 2d 747, 664 N.W.2d 607. Opinion, ¶¶53-55.

The court of appeals does not explain how the defense is supposed to prove the DA’s discriminatory intent 2.5 years after the jury selection. Presumably Zolliecoffer will make the same legal arguments based on the undisputed circuit court record that he made to the court of appeals.

Zolliecoffer also argued that the circuit court erred in denying his motion to substitute counsel. The court of appeals affirmed. The circuit court had already granted multiple trial adjournments and a prior request for substitution. Plus, the case had already been pending for 8 months, and Zolliecoffer waited until the Friday before trial to make the request. The circuit court suspected that his motion was a delay tactic. Opinion, ¶¶27-32.

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