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C. Retrial after mistrial

State v. James P. Killian, 2022 WI App 43; case activity (including briefs) The state provoked a mistrial in a case charging Killian with child sexual assault offenses against two complainants. The circuit court later dismissed the case due to the prosecutor’s misconduct. When the state recharged Killian with sexual offenses against the same complainants… Read more

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State v. Mitchell D. Green, 2021AP267-CR, petition for review of an unpublished COA opinion granted 6/22/22; case activity (including briefs) Question presented (from the State’s PFR): Did the circuit court erroneously exercise its discretion when it concluded that there was a manifest necessity for a mistrial after Green introduced unnoticed third-party perpetrator evidence at trial… Read more

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State v. Mitchell D. Green, 2021AP267, 3/22/22, District 1 (not recommended for publication); case activity (including briefs) The state charged Green with crimes including child sex trafficking. The alleged victim testified that another man had trafficked her, but that Green had driven her a particular encounter where a client had spit in her mouth. After… Read more

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State v. Darius Kavonta Smith, 2019AP642 & 643-CR, 8/6/19, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs) During closing arguments, the DA made a sarcastic, belittling reference to public defenders who line up empty chairs to emphasize that the State neglected to call witnesses to prove guilt beyond a reasonable doubt. The… Read more

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State v. Mickey L. Miller, 2017AP2323-CR, 1/29/19, District 1 (not recommended for publication); case activity (including briefs) Midway through Miller’s trial, the State discovered that two photo arrays had been conducted when both parties thought there had been just one. The State did not immediately disclose this fact. It waited until after the victim testified… Read more

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State v. Anthony Alvarado, 2017 WI App 53; case activity (including briefs) In this recommended-for-publication opinion, the court of appeals tackles an issue of first impression in Wisconsin. Alvarado stood trial for second-degree sexual assault, and the jury was instructed both on that count and the lesser included offense of third-degree sexual assault. The jury… Read more

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State v. Russell C. Troka, 2016 WI App 35; case activity (including briefs) Because the record does not reflect an adequate basis for a finding of manifest necessity warranting a mistrial over Troka’s objection, retrying Troka would violate his right against double jeopardy. Troka was charged with attempted homicide, strangulation or suffocation, battery and other… Read more

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State v. Susan M. Thorstad, 2011AP2854-CR, District 4, 5/31/12 court of appeals decision (1-judge, not publishable); for Thorstad: Charles W. Giesen; case activity Mistrial was granted after the arresting officer, in contravention of pretrial order, testified that this was Thorstad’s second OWI. However, the officer was unaware of the order, because the prosecutor had failed… Read more

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