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SCOW overrules 12-year-old precedent, denies postconviction DNA testing

State v. Jeffrey C. Denny, 2017 WI 17, reversing a published court of appeals decision; 2015AP202-CR, 2/28/2017; case activity (including briefs)

In State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, the supreme court unanimously held that Wis. Stat. § 974.07, the postconviction DNA testing statute, provides two routes for a convicted defendant seeking exoneration: a defendant satisfying certain basic criteria may pay for his own testing of physical evidence; one making a stronger showing of potential significance may secure such testing at public expense. The court now closes off the first, self-paid route.

What changed? Not the statute. The legislature hasn’t touched it, despite being urged to do so by both the Moran majority and concurrence. 284 Wis. 2d 24, ¶¶56, 59. The essential provision is § 974.07(6), which requires the state to “make available” certain physical evidence to the defendant. It doesn’t say what the defendant can do with this evidence–it doesn’t say he or she can perform DNA tests on it, and it doesn’t say he or she can’t. Moran held that the defendant could perform such tests, and was required to pay for them.

In essence, this decision adopts the opposite reading, which the Moran court, while acknowledging as “plausible,” nevertheless rejected as contrary to the “plain statutory language.” Id., ¶¶49, 54. The majority submits this new reading is necessary in order to make a coherent whole out of the various provisions of § 974.07 (which, again, were the same back in 2005 as they are now). (¶¶64-68).

The majority gives one other reason for departing from stare decisis, a doctrine it follows “scrupulously because of our abiding respect for the rule of law.” (¶69). This reason is that, “while postconviction forensic DNA testing is important, and … a crime victim assuredly has an interest in seeing that the true criminal offender … is prosecuted, it is not difficult to imagine why such testing might cause significant distress to victims … and prevent [them] from obtaining some amount of closure.” (¶70 n.16).

The majority concludes that Denny has not met the requirements to obtain the the now-exclusive, state-funded testing remedy, because he has not shown that favorable test results would create a reasonable probability of a different result at trial. See § 974.07(7).  It reasons, essentially, that DNA results would not conclusively remove him from the scene of the homicide and various witnesses testified he had confessed to them. (¶¶73-80).

Chief Justice Roggensack concurs with the overruling of Moran, but dissents from the majority’s conclusion that Denny does not meet the standard for state-funded testing. As her opinion explains, the damning testimony of various witnesses against Denny would become markedly less credible if his DNA could not be found on any of the many items closely involved with the murder. (¶¶99-108).

Justice A.W. Bradley’s dissent, joined by Justice Abrahamson, takes serious exception to the majority’s “imagin[ed] … distress to victims” rationale for overruling Moran (while also challenging the majority’s reading on plain-language grounds):

[R]elying on an “imagined” policy reason to limit the availability of DNA testing strays too far from subsection (4)’s victim-notification mandate. There is nothing in the text of the statute that suggests the legislature intended to limit post-conviction DNA testing due to the speculative concerns the majority identifies here.

Contrary to the majority’s assertions, allowing DNA testing does not undermine finality or lead to “the possibility of ‘inequitable results'” due to “open[ing] up cases that have long been thought by everyone, including crime victims, to be final.” 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.

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.

(¶¶153-155) (citations omitted)).

Justice Abrahamson also files a solo dissent, faulting the majority for allowing the state to brief an issue it did not include in its petition for review (without asking the permission of the court). The issue? Whether the court should overrule Moran, as it now does. (¶114). The majority does not comment on its departure from Wis. Stat. Rule 809.62(6), which states that a party “cannot raise or argue issues not set forth in the petition.” We therefore have no explanation for the starkly different treatment afforded the state here and the defendants in State v. Jimmie Lee Smith (defendant waived issues by not raising them in response to state’s petition) State v. Richard J. Sulla (defendant waived issues even though he did raise them in response to state’s petition; should have cross-petitioned).

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{ 2 comments… add one }
  • Robert R. Henak March 2, 2017, 5:52 pm

    Finality Uber Alles strikes again in the SCOW. One must wonder whether victims really would prefer finality if it means that an innocent person remains imprisoned (and a guilty one thus remains at large). Also, Gregory Allen’s subsequent victims after the attempted rape for which Steve Avery was wrongly convicted (leaving Allen at large) might have a different view of “finality” than the Court’s majority does.

  • Andrew M Morgan March 3, 2017, 8:24 pm

    We live in a post-factual world now, in which not only do assertions of fact outweigh fact, but facts are to be shunned unless they support the favored assertions.

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