If you thought defending a discretionary reversal in SCOW was tough before, it just got tougher. Kucharski pled “no contest” to killing his parents but claimed he was not guilty by reason of mental illness due to schizophrenia. Voices told him to commit the murders. He had not been diagnosed with schizophrenia, but 3 doctors supported his NGI defense. The State presented no witnesses, yet the circuit court found that Kucharski failed his burden of proof. The court of appeals granted a new trial in the interests of justice. In a split decision, SCOW reversed and changed the “discretionary reversal” standard.
Believe it or not, one of the doctors who evaluated Kucharski was retained by the State itself. So how then did Kucharski fail to meet his burden? By his own conduct. After he turned himself into the police, he invoked his Miranda rights for questions about what he had done, but answered questions about his drug and alcohol use and his mental health struggles, including his experience hearing voices. The fact that he knew he needed a lawyer showed he knew his actions were illegal, held the circuit court. Slip op. ¶20. Furthermore, because voices told him to kill his parents and then to kill himself in a shootout with the police, his failure to kill himself showed that he could conform himself to the law. Seriously. The scale’s “not tipping, even slightly,” toward a finding that he lacked the capacity to comply with the law, said the circuit court. Slip op. ¶21. As for the undisputed testimony of 3 experts, that was “speculative.”
The court of appeals invoked its §752.35 discretionary power of reversal and ordered a new trial on the NGI defense. SCOW reversed because, in a nutshell, the court of appeals engaged in “a bare reweighing of what the evidence means, which is not permitted by the reviewing court.” Slip op. ¶34. The circuit court was free to reject all of the expert testimony and “find” Kucharski responsible under State v. Sarinske, 91 Wis. 2d 14, 280 N.W.2d 725 (1979). Says SCOW, a reviewing court cannot overturn such a finding without first employing the “clearly erroneous” standard of review. Slip op. ¶46.
Really? SCOW is so practiced at “reweighing the evidence” that it could satisfy Daubert and testify as an expert on how to do it. In decision after decision after decision after decision after decision (and there are more) SCOW has affirmed jury verdicts based on “harmless error.” That is, the lower court erred in admitting or excluding evidence, or incorrectly instructed a jury, and yet SCOW–considering just the paper record “as a whole”–discerned that different evidence or correct instructions would not matter. That requires reweighing the evidence. So does any standard of review that requires consideration of “all the circumstances.”
Speaking of Daubert, the circuit judge admitted the opinions of the 3 medical experts, presumably because they were “reliable” and would “assist the trier of fact” (i.e. the judge herself.) But then she rejected all of them as “speculative” because they relied on what Kucharski told them. In federal court, [m]edical professionals reasonably may be expected to rely on self-reported patient histories.” Walker v. Soo Line R. Co., 208 F.3d 581, 586 (7th Cir. 2000). Just a hunch here, but if the circuit court had excluded all expert opinions due to their unreliability, and found Kucharski “responsible” based on no testimony, she would have been overturned.
Anyway, Kucharski didn’t ask the appellate courts to reweigh the evidence and find “no responsibility.” He asked for a new trial. As the dissent explains:
By determining that appellate discretion does not extend to a reassessment of the evidence, the majority erroneously constricts the discretionary power of reviewing courts. It removes a swath of cases from review, opening the door for the potential of an unaddressed and unreviewable miscarriage of justice. The majority’s determination to limit reviewing courts’ discretion runs counter to the broad language of the statute and its expressed purpose “to accomplish the ends of justice.” Wis. Stat. § 752.35. Slip op. ¶58
You have to admire the pluck of Kucharski’s appointed appellate lawyer, Matthew Pinix, who told On Point: “I am happy to have the opportunity to continue the fight for Mr. Kucharski before the court of appeals, which will now decide issues it previously left unconsidered, including the effectiveness of Mr. Kucharski’s counsel and the circuit court’s application of the wrong legal standard in deciding his responsibility.” Keep up the good work!!!