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Newly discovered evidence about police officer’s misconduct not enough to get new trial

State v. Adrian A. Starks, 2013AP93, District 4, 9/25/14 (not recommended for publication); case activity

New information that one of the officers who testified at Starks’s trial violated department policy on dozens of occasions (three of which occurred in Starks’s case) and ultimately resigned after an internal investigation didn’t entitle Starks to a new trial because there isn’t a reasonable probability that a jury considering the new evidence together with the old evidence would reach a different verdict.

The court essentially assumes the evidence Starks cites meets the first four criteria of the newly-discovered evidence test—namely, 1) it was discovered after conviction; 2) Starks wasn’t negligent in seeking the evidence; 3) the evidence is material to an issue in the case; and 4) the evidence is not merely cumulative, State v. Plude, 2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42—and, in a fact-intensive discussion, holds that his claim fails because there isn’t a reasonable probability that the jury would have had a reasonable doubt as to the defendant’s guilt if it had heard the newly-discovered evidence. The new evidence concerned an officer who disputed a statement Starks made in a recorded telephone call from the jail, and Starks argues the new information undermines her credibility and makes the phone call evidence exculpatory. (¶¶4-7, 15-18). Even if that’s correct, the court concludes the phone call evidence was only a small part of the state’s case, so undermining one statement of one officer wouldn’t have raised a reasonable doubt about Starks’s guilt. (¶¶19-22).

For the same reasons, the court rejects Starks’s alternative claims that the new information justifies a discretionary reversal because it shows the real controversy wasn’t tried (¶¶24-28) and the state violated Brady v. Maryland, 373 U.S. 83 (1963), by not exercising due diligence to discover the information about the officer’s misconduct before his trial (¶¶29-34).

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