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SCOW approves State’s strategy for shifting burden of proof to defendant

State v. Gerrod R. Bell, 2018WI28, 4/10/18, affirming an unpublished court of appeals opinion, 2015AP2667-2668-CR; case activity (including links)

A defendant is presumed innocent until the State proves him guilty beyond a reasonable doubt. That’s what the Constitution says. Yet, in this child sexual assault case, the State cleverly told jurors that they could not acquit the defendant unless they believed his accusers had lied about the alleged assaults and unless they had evidence of the victims’ motive for lying.  Bell argued that this prosecution strategy impermissibly shifted the burden of proof to him. In a 3-1-1 opinion, SCOW approved the strategy and ruled against him.

The State charged Bell with sexually assaulting T.P. (aged 14) and A.L. (aged 17). Bell did not confess to the crimes, and the State had no DNA or other evidence that he committed them.  This was a case of “she said, he said.” Bell defended himself by arguing that the girls had made up the accusations and by offering evidence to undermine their credibility.  The State countered with the arguments above. That is, to acquit Bell, the jury “must believe”  the girls were lying and there must be evidence of their motives for fabricating the assault allegations.  On appeal, Bell argued that the State “struck a foul blow”–i.e. engaged in prosecutorial misconduct–by shifting the burden of proof to him when he was under no obligation to present any evidence at all. Because the issue was not preserved at the trial level, SCOW reviewed it for plain error. Regarding the State’s “must believe” argument, SCOW held:

¶50 We see support for the propriety of the prosecutor’s trial commentary in the principles described in Amerson and United States v. Sandoval, 347 F.3d 627, 631-32 (7th Cir. 2003).  In Sandoval, the prosecutor said “‘Well, you would have to conclude that the police officers were not telling the truth if you’re going to accept the defendant’s testimony.'”  Id. at 632.  The court said this was in the nature of “ask[ing] the jury to weigh the credibility of the witnesses.”  Id.  Similarly, in Amerson, the prosecutor said the jury couldn’t “‘believe the testimony of these police officers and believe the defendant’s testimony at the same time.'”  185 F.3d at 680.  The Amerson court said this was “a mere statement of fact, which was no different than stating to the jury that they had a chance to determine whether the officers or the defendant was telling the truth and that it was up to the jury to determine who was more credible when applying the . . . jury instructions . . . .”  Id. at 687.

¶51 The key to both Amerson and Sandoval is that when the prosecutor’s statements are fairly characterized as impressing on the jury the importance of assessing the witnesses’ credibility, there is no error.  That is the practical effect of the prosecutor’s commentary in this case.  The parties did not offer competing story lines, nor did the defense advance an alternative version of the events described by T.P. and A.L. There was the truth of the events the victims described, or the lack of truth.  The verdict would necessarily follow the option chosen by the jury.  Therefore, because Mr. Bell is in the category of cases in which the verdict will necessarily follow the jury’s determination of the victims’ credibility, the State’s argument that the jurors should not find Mr. Bell not guilty unless they conclude T.P. and A.L. lied is equivalent to asking the jurors to carefully weigh the victims’ credibility.

The State also argued that the jury could not aquit unless there was evidence of their motive to lie. SCOW approved this strategy too:

¶53 Mr. Bell characterizes the prosecutor’s “motive statements” as instructing the jury that it could not disbelieve the victims unless there was evidence of a motive for them to lie.  We do not believe this fairly characterizes the nature of these statements.  Taken as a whole, the prosecutor was undoubtedly encouraging the jurors not to disbelieve the victims unless they found evidence of a motive to lie.  But such an argument is in an entirely different category from an assertion that they cannot disbelieve the victims without such evidence.  The first category comprises persuasion, while the second relates to purported statements of the law.

Bell also claimed that his trial lawyer was ineffective in failing to redact exhibits that were sent into the jury room. One was T.P.’s taped statement to a sergeant indicating that she had never had sex before Bell assaulted her. The other was the sergeant’s report commenting that T.P. had little knowledge about sex and did not know what ejaculation meant. A doctor had testified at trial that T.P. had no hymenal tissue. So Bell argued that the admission of the un-redacted exhibits unfairly suggested that the destruction of T.P.’s hymen occurred during Bell’s alleged assault. SCOW agreed that trial counsel performed deficiently but found no prejudice because neither the State nor defense counsel drew any connection between the doctor’s testimony and the exhibits for the jury. Opinion. ¶68.

Justice Kelly wrote the majority opinion, which Justices R.G. Bradley and Gableman joined. Justice Ziegler filed an unusual concurring opinion. She did not disagree with anything that Kelly wrote. She simply “concisely highlight[ed] the main holdings of the opinion.” Thank you. We appreciate concision. Justice A.W. Bradley filed a dissent focusing on the State’s argument that in the absence of “motive to lie” evidence the jury could not speculate; it had to believe the accusers. She noted that the defendant had no burden to present any evidence, and yet the State’s comments placed one on him. This was the foul blow. See Berger v. United States, 295 U.S. 78, 88 (1935). It violated due process and shifted the burden of proof to Bell. Dissent ¶¶88-108.

Abrahamson did not participate in this opinion, and she was not at the oral argument. C.J. Roggensack was at the argument, but “withdrew from participation.”

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