Issues (copied from petition for review)
1. The central issue at trial was whether McAlister participated in the charged robberies. The state’s evidence on that point consisted entirely of the allegations of two confessed participants seeking to mitigate the consequences of their own misconduct. The jury knew that the state’s witnesses had a motive to falsely accuse McAlister but those witnesses denied under oath having done so. Under these circumstances, is newly discovered evidence from three separate witnesses swearing that the state’s witnesses admitted prior to trial that they intended to falsely accuse McAlister “cumulative” and “merely tend to impeach the credibility of witnesses” such that it could not support a newly discovered evidence claim?
2. Whether the allegations of McAlister’s §974.06 motion were sufficient to require a new trial and therefore an evidentiary hearing on his claim.
According to McAlister’s petition: “The Court of Appeals’ decision rests on the expansion and misinterpretation of a legal principle that no longer is viable even as originally intended 50 years ago. Compare Greer v. State, 40 Wis.2d 72, 78, 161 N.W.2d 255 (1968) (“mere impeachment” evidence insufficient for newly discovered evidence), with State v. Plude, 2008 WI 58, ¶¶38-41, 310 Wis.2d 28, 750 N.W.2d 42 (granting new trial on newly discovered evidence grounds); 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)). See also United States v. Bagley, 473 U.S. 667 (1985) (prosecutor’s withholding of material impeachment evidence violates due process).”
The lead issue involves important sub-issues, one of which is the proper standard of review for a new trial claim based on newly-discovered evidence. The petition for a review, by Rob Henak, is a “must read” for lawyers working in this area of law.