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County did not commit prosecutorial misconduct during TPR trial

Outagamie County v. J.M.J., 2019AP183, 6/27/19, District 3 (1-judge opinion, ineligible for publication); case activity

The parties to this TPR case agreed that they would not bring up J.M.J.’s lack of rights, or the termination of rights, to her other children. But during the trial on grounds, an expert, responding to questions from the County, referred to her son whom she had given up for adoption.  J.M.J. argued that this amounted to prosecutorial misconduct by the County.

According to the court of appeals, the County didn’t violate the parties’ agreement.

The parties’ agreement concerned J.M.J.’s lack of parental rights to Cory or her prior voluntary termination of parental rights to him, not a blanket prohibition on acknowledging his existence. Doctor Valenti-Hein mentioned only that J.M.J. had an open adoption situation with a son named Cory. The Department did not ask questions concerning J.M.J.’s lack of parental rights to Cory or her prior voluntary termination of parental rights to him.Opinion, ¶12.

The court of appeals also held that even if the County had violated the agreement, the elicited evidence did not infect the trial with unfairness so as to prejudice J.M.J. and deny her due process. See State v. Mayo, 2007 WI 78, 301 Wis. 2d 642, 734 N.W.2d 115.

After what the circuit court found were “brief” references about Cory, it instructed Dr. Valenti-Hein to focus on J.M.J.’s relationship with Alexa. The court found that she complied with its instructions. The court also offered to give a curative instruction to the jury, but neither party, nor the guardian ad litem, accepted the court’s offer. In fact, after J.M.J.’s trial counsel requested the sidebar, it was the Department itself that had raised concerns about Dr. Valenti-Hein’s testimony and sought to give J.M.J. an opportunity to address any potential issues she had with it, but she took no action. To the extent Dr. Valenti-Hein’s statements may have implied that J.M.J. no longer had parental rights to Cory, those brief references— which no party determined were egregious enough to warrant a curative instruction from the court—were not so prejudicial as to infect the jury’s fact-finding with unfairness. Opinion, ¶13.


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