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No new trial despite newly-discovered evidence that cops involved in arrest and trial were “dirty”

State v. Jesse J. Franklin, Jr., 2013AP1447, District 1, 6/17/14 (unpublished); case activity

Milwaukee Police Officers Paul Lough and James Campbell testified against Franklin at his trial for possession of marijuana and cocaine with intent to deliver and possession of a firearm by a felon.  Franklin was convicted and lost his appeal.  A few years later he filed a § 974.06 motion arguing that he should be granted a new trial based on newly-discovered evidence–namely evidence that Officers Campbell and Lough had beaten, planted evidence on, and falsely arrested 6 individuals during the same period in which they arrested Franklin.  Franklin argued that this evidence supported his defense that someone else had placed in his van the drugs and guns that the police found there.

To obtain a new trial based on newly-discovered evidence, Franklin must establish, by clear and convincing evidence:  “‘(1) the evidence was discovered after conviction; (2) [he] was not negligent in seeking evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative.’”  See State v. Edmunds, 2008 WI App 33, ¶13, 308 Wis. 2d 374, 746 N.W.2d 590 (citation omitted).  If those four criteria have been established, we then determine “‘whether a reasonable probability exists that a different result would be reached in a trial.’”  Id. (citation omitted).  Slip op. ¶17

According to the court of appeals, Franklin’s “dirty cop” evidence (and there seems to be no dispute that these cops were dirty) would not prove someone other than himself committed the crimes at issue.  It would only impeach the officer’s credibility.  The court explained:

[E]vidence which merely tends to impeach the credibility of a witness does not warrant a new trial upon the ground of newly-discovered evidence.”  See State v. Debs, 217 Wis. 2164, 166, 258 N.W. 173 (1935); see also Greer v. State, 40 Wis. 2d 72, 78, 161 N.w.2 d 255 (1968).  Therefore, because Franklin’s proffered evidence is not material, we need not consider the other factors regarding whether the evidence is “newly discovered.”  Slip op. ¶21.

Franklin alternatively argued that his trial lawyer was ineffective in failing to discover evidence of the officers’ misconduct in time to use it at his trial.  The court rejected this argument because the evidence was not “material” to Franklin’s case.  Slip op. ¶23.

The law may allow more wiggle room than this decision suggests.  Case after case invokes the refrain: “evidence which merely tends to impeach the credibility of a witness does not warrant a new trial upon the ground of newly-discovered evidence.”  But the same cases omit the context of that statement.  In Greer, the court said:

The new evidence relied upon is the discovery of a piece of paper in deceased’s belongings with the name of Essie Burt upon it. Possibly such notation would impeach Essie Burt’s testimony that she did not know the deceased. It would be material in no other respect. Evidence which merely impeaches the credibility of a witness does not warrant a new trial on this ground alone. The notation on a piece of paper does not lead to a conclusion to a reasonable probability that a different result would be reached on a new trial. There was ample evidence to sustain the finding of guilt without the testimony of Essie Burt.” Greer, 40 Wis. 2d at 78.  

According to Wisconsin Pleading and Practice, §36.32, “. . . Impeaching evidence that is very strong and may reasonably change the result may be the basis for a new trial.”  (Emphasis supplied).  In other words, you have to consider the newly-discovered impeachment evidence in context.  Furthermore, the Wisconsin Supreme court has held that where credibility is at issue, counsel’s failure to present evidence that would impeach a witnesses’ credibility and bolster the defendant’s credibility can satisfy both the “deficient performance” and “prejudice” prongs of the ineffective-assistance-of-counsel test.  State v. Thiel, 264 Wis. 2d 571, 665 N.W.2d 305 (2003); State v. Pitsch, 124 Wis. 2d 628, 369 N.W.2d 711 (1985).  For more on the newly-discovered evidence standard, click here.

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{ 1 comment… add one }
  • Robert R. Henak June 20, 2014, 8:49 am

    The Court of Appeals appears to have overlooked the fact that the United States Supreme Court has long rejected the legal fallacy that “mere impeachment” is insufficient to create a reasonable probability of a different result, e.g., United States v. Bagley, 473 U.S. 667 (1985) (impeaching, as well as exculpatory evidence, may create reasonable probability of different result); Giglio v. United States, 405 U.S. 150 (1972) (prosecutor’s withholding of material impeachment evidence violates due process), as has the Wisconsin Supreme Court, State v. Plude, 2008 WI 58, ¶¶38-41, 310 Wis.2d 28, 750 N.W.2d 42 (newly discovered evidence that state expert misrepresented his credentials “may have been determinative of Plude’s guilt or innocence,” citing Giglio, supra); see id. ¶47 (“Wisconsin law has long held that impeaching evidence may be enough to warrant a new trial”), citing Birdsall v. Fraenzel, 154 Wis. 48, 52, 142 N.W. 274 (1913).

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