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State v. Jeffrey C. Denny, 2015AP202-CR, petition for review granted 6/15/16

Review of a published court of appeals opinion; case activity (including briefs)

Issue (from the State’s Petition for Review)

Did the court of appeals misapply State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, when it held that a defendant seeking postconviction DNA testing of “relevant” evidence under § 974.07(2) need not demonstrate that the physical evidence “contains biological material or on which there is biological material” as provided under § 974.07(6)(a)2.?

In reviewing a motion for DNA testing at State expense under § 974.07(7)(a), must a circuit court always assume that a DNA test result will be exculpatory?

In assessing whether it is “reasonably probable” that a defendant would not have been convicted if exculpatory DNA results had been available, should a circuit court apply a newly discovered evidence standard?

Did the circuit court erroneously exercise its discretion under § 974.07(7)(a) when it found that the jury would have convicted Denny even if exculpatory DNA results were present?

This decision could have profound impact on the efficacy of § 974.07, for the first three issues involve interpretations that, if adopted, would erect significant hurdles to postconviction DNA testing. (The fourth issue doesn’t raise a question of law at all, but is about the state’s dissatisfaction with the result the court of appeals reached in reviewing the circuit court’s decision.) The court of appeals rejected the state’s arguments in favor of those interpretations in a thorough decision (discussed here) that relied on the plain language and goals of the statute.

As to the first issue, the court of appeals’ discussion of the statute (2014 WI App 27, ¶¶35-47) shows the state’s claim is misguided, and nothing in Moran supports a different reading of the statute, either. Moreover, the state’s interpretation leads to absurd results. As the court of appeals observed (2014 WI App 27, ¶44):

Putting the onus on a defendant to prove that an item contains biological material would pose serious impediments, and perhaps insurmountable barriers, to him or her ever obtaining testing since these items are in the possession of the State. And testing is often required simply to determine if microscopic biological material containing DNA is on the evidence.

Thus, requiring the defendant to show the evidence is not just “relevant” but also prove it contains testable biological material is a Catch-22: The defendant probably can’t prove the evidence has biological material without testing it, but the evidence is usually in the state’s hands and unavailable for testing without an order under the very statute the defendant is using to apply for testing.

On the second claim, the court of appeals rejected the state’s claim that a DNA result can only be exculpatory if it is “reasonably probable that the movant would not have been prosecuted or convicted” because that interpretation would alter the commonly understood meaning of “exculpatory” (namely, evidence tending to establish innocence) and render the reasonable probability of a different outcome requirement superfluous. (2014 WI App 27, ¶¶53-54). And again, given the statutory goals of exonerating the wrongly convicted and identifying and apprehending the actual perpetrators, it’s appropriate to assume the most favorable possible test results in light of the evidence at trial. (2014 WI App 27,  ¶57).

The third issue isn’t directly answered by the statutory language, which doesn’t define “reasonably probable,” but the court of appeals carefully explained the logic of the statute supported the conclusion that the phrase means “a probability sufficient to undermine confidence in the outcome.” (2014 WI App 27, ¶¶48-49).

Section 974.07 resulted from the realization that keeping innocent people in prison is both unjust and bad policy, so the statute’s plain language establishes mechanisms for postconviction DNA testing designed to help exonerate the innocent. Because the statutory language and its goals haven’t changed since Moran, it’s difficult to see how the conclusions reached by the court of appeals could be rejected without basically rewriting some of § 974.07’s plain language, backsliding from previous commitments to its obvious (and salutary) purposes, or both. We’ll see what happens next term.

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