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State v. Earnest Jean Jackson, 2009AP1449-CR, District I, 4/27/10

court of  appeals decision (3-judge; not recommended for publication); for Jackson: Mark S. Rosen; BiC: Resp.; Reply

Double Jeopardy – Retrial Following Mistrial
Mistrial on defendant’s motion, occasioned by prosecutorial failure to disclose that witness was cooperating with police in separate investigation of Jackson, didn’t bar retrial: there was no showing that the prosecutor was aware of the undisclosed information, or that failure to disclose was intended to provoke mistrial, ¶¶16-25. State v. Jose M. Jaimes, 2006 WI App 93, followed.

Confrontation – Expert Testimony
Testimony from medical experts based on (lab and autopsy) reports others prepared, didn’t violate Jackson’s right to confrontation, ¶¶26-39.

Nightmare on Elm Street: the Confrontation Clause just refuses to be killed off. Richard Friedman puts it like this:

Sooner or later, the Supreme Court will have to resolve the question of who must testify to the substance of a lab test. Indeed, with Briscoe now safely off the Supreme Court’s docket, this would be a logical next issue for the Court to tackle; the justices were interested in it both in Melendez-Diazand in Briscoe. Jeff Fisher has just filed a cert petition raising this issue in Pendergrass v. Indiana, seeking review of Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009). You can read it by clicking here.

Our courts cling to the view that so long as one expert doesn’t “act as a mere conduit for the opinion of another,” ¶28, then there’s no confrontation problem. We’ll see. In the meantime, make absolutely sure to preserve objection, futile though it may presently be (see ¶28 n. 6).

Counsel – Effective Assistance
“(W)e need not determine the effect of Melendez-Diaz on Jackson’s appeal because Melendez-Diaz was decided after Jackson’s trial and Jackson’s trial counsel cannot be deficient for failing to ‘forecast changes or advances in the law.’  See Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993); see also State v. Maloney, 2005 WI 74, ¶23, 281 Wis. 2d 595, 698 N.W.2d 583,” ¶28 n. 6.

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