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Evidence – Daubert; Discovery – Witness Notes; Briefs – Argumentation and SCRs; Closing Argument – Failure to Object; Ineffective Assistance – Failure to Investigate; Newly Discovered Evidence

State v. Christopher D. Jones, 2010 WI App 133; for Jones: Amelia L. Bizzaro; for Amicus, Innocence Network: Jerome F. Buting; BiC; Resp.; Reply; Amicus Br.

Evidence – Daubert – Bullet Traced to Particular Gun

The court rejects “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun”:

¶22 Unlike in the federal system, where the trial judge is a powerful gatekeeper with respect to the receipt of proffered expert evidence, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), Wisconsin gives to the trial judge a more-limited role:  the trial judge “‘merely require[s] the evidence to be ‘an aid to the jury’ or ‘reliable enough to be probative.’” State v. Walstad, 119 Wis. 2d 483, 519, 351 N.W.2d 469, 487 (1984) (quoted source and one set of quotation marks omitted). Simply stated, this is a “relevancy test.” Ibid. Walstad explained:

In a state such as Wisconsin, where substantially unlimited cross-examination is permitted, the underlying theory or principle on which admissibility is based can be attacked by cross-examination or by other types of impeachment. Whether a scientific witness whose testimony is relevant is believed is a question of credibility for the finder of fact, but it clearly is admissible.

Ibid.[3] This is still our law today. State v. Fischer, 2010 WI 6, ¶36, 322 Wis. 2d 265, 293, 778 N.W.2d 629, 642 (“We, therefore, decline to adopt a Daubert-like approach to expert testimony and make the judge the gatekeeper.”), cert. denied, ___ U.S. ___, 130 S. Ct. 3480 (2010).

True, Wisconsin declines to follow Daubert. Nonetheless, as the court acknowledges (¶23), in at least a couple of instances the supreme court has indeed imposed a blanket rule of exclusion, polygraph results and diminished capacity. The court essentially reads these holdings as outliers (if in more elegant phrasing): “those decisions are essentially islands in the law because the supreme court has declined to use public-policy criteria to truncate a trial court’s discretion in receiving or excluding evidence,” id. Perhaps. But that leaves us with an admissibility regime superficially arbitrary, at least at the margins. As City of  West Bend v. Richard A. Wilkins, 2005 WI App 36, ¶¶23, 24, baldly put it, “Wisconsin, unlike the federal courts, considers the reliability of scientific evidence a question of weight and credibility for the trier of fact to decide. … The reliability of this evidence was totally irrelevant for purposes of its admissibility.” And yet, polygraph testing is off-limits precisely because the court was “not persuaded that the reliability of the polygraph is such as to permit unconditional admission of the evidence,” State v. Dean, 103 Wis. 2d 228, 278­–279, 307 N.W.2d 628 (1981). And the bar on diminished capacity evidence “is premised on Wisconsin’s skepticism about the reliability of psychiatric opinion evidence offered to show a causal link between a defendant’s mental disease and the capacity to form an intent to commit the crime alleged,” Morgan v. Krenke, 232 F.3d 562, 564 (7th Cir. 2000). Reliability isn’t for the gatekeeper — except when it is. No wonder that the author of Jones, also the author of a leading evidence treatise, makes no stab at some grand unifying theory of admissibility. Outliers need only be identified as such, not explained, for they are by their nature ineffable.

The “infirmities of gun-toolmark evidence” is an issue left, therefore, to the trier of fact. Which assumes, of course, that the issue is joined. Jones argues that trial counsel’s failure to do just that amounted to ineffective assistance, but the court finds the evidence of guilt so overwhelming that any deficient performance (something the court doesn’t reach) couldn’t have been prejudicial, ¶26.

Discovery – Witness Notes

¶28 Jones asserts that the prosecutor in his case did not comply with Jones’s pre-trial discovery request for “any and all relevant written or recorded statements” of its witnesses because the State only gave Jones the technician’s final report and not his “notes.” He contends that this violated the State’s obligation under Wis. Stat. § 971.23.  Section 971.23(1)(e), to which Jones apparently refers, requires, consistent with Jones’s pre-trial phrasing of his demand, that the State give the defendant “[a]ny relevant written or recorded statements” by any witness the State intends to call. (Emphasis added.) The key, of course, is, as our added italics indicate, “relevant.” As Jones concedes, he now has those notes. He has not, however, pointed to anything in those notes that he contends was “relevant” to his defense. Thus, Jones has not shown a discovery violation. …

Briefs – Argumentation and SCRs

Unsupported assertions may be considered “beyond the pale of acceptable argument” and violative of various Supreme Court Rules of Professional Conduct, ¶29.

Closing Argument

Failure to object to closing argument waived any potential challenge to the prosecutor’s reference to the victim’s special-needs status, and the challenge must therefore be examined under ineffective-assistance strictures. Given the overwhelming evidence of guilt, any error was non-prejudicial (the court stressing that closing argument must “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process,” ¶¶31-32.

Ineffective Assistance – Failure to Investigate

¶33 Jones’s claim that his lawyer represented him ineffectively also concerns the testimony of Percy Morgan, a person who was in the jail with Jones before Jones’s trial. As we have seen, Morgan testified on cross-examination that Jones “had got a tattoo while he was in jail like with Killer Chris on his arm and like after killing a person.” Jones contends that he does not have a tattoo, and that his lawyer was ineffective for not determining “if Jones had the tattoo Morgan described.” At sentencing, Jones did not have that tattoo. As the State points out, it is questionable whether a jail inmate could get a permanent “tattoo.” Putting that aside, however, Jones was in court when Morgan testified. If Jones did not have the tattoo on that day, he could have easily told his trial lawyer. Thus, Jones’s contention that his lawyer was ineffective for not investigating something that Jones could have revealed to him at the time is wholly without merit. See State v. DeLain, 2004 WI App 79, ¶18, 272 Wis. 2d 356, 368, 679 N.W.2d 562, 568 (lawyer not ineffective for not pursuing something that defendant knew but did not reveal), aff’d, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d 484. …

Separately: counsel’s failure to utilize a pretrial suppression hearing transcript to impeach an eyewitness wasn’t prejudicial, where counsel “fully cross-examined [the witness] on the identification procedure nevertheless,” such that counsel could have done nothing differently even if he had had the transcript, ¶¶35-37.

Newly Discovered Evidence

Newly discovered evidence must support a reasonable probability of juror doubt as to guilt; the evidence of guilt here is so overwhelming that a claim that one of the witnesses admitted he was going to lie to inculpate Jones, even if true, wouldn’t have affected the outcome, ¶40.

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