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Double jeopardy defense win! No retrial where mistrial was due to defendant putting on admissible evidence

State v. Mitchell D. Green, 2021AP267, 3/22/22, District 1 (not recommended for publication); petition for review granted, 6/22/22, reversed, 2023 WI 57 case activity (including briefs)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 the state rested, the defense called Green’s cousin–his name was Cousin–who said that he’d been the one to drive the girl that night. Cousin said he’d done the driving for a third man, Delmar, who’d asked for a ride in exchange for gas money and then invited the alleged victim and another man along for the ride. Cousin said he remembered the incident because when he picked the alleged victim up after the encounter, she had mentioned the mouth-spitting.

Well, the prosecution didn’t like that evidence. It complained to the court that Green didn’t say beforehand what Cousin would be testifying to. It argued that Green was obligated to do so because Cousin’s testimony was Denny evidence of a third-party perpetrator, and its admissibility should have been addressed by motion in limine. It also argued Cousin should have consulted with counsel before taking the stand and, in the state’s view, incriminating himself. Green responded that Cousin had not admitted to a crime, so there was no Denny issue and no need for Cousin to have a lawyer.

The circuit court sua sponte ordered a mistrial and called for a new trial date. It said any Denny issue should be resolved before the second trial. Green moved to dismiss the case, arguing retrying him would violated double jeopardy. The circuit court denied the dismissal, and Green petitioned the court of appeals for an interlocutory appeal, which it granted.

Because Green didn’t request or consent to the mistrial, the double-jeopardy question is whether there was a “manifest necessity” for one. State v. Mattox, 2006 WI App 110, ¶12, 293 Wis. 2d 840, 718 N.W.2d 281. A manifest necessity should be found “only with the greatest caution, under urgent circumstances, and for very plain and obvious causes.” Id., ¶13.

The court of appeals finds no such circumstances here. First, the circuit court didn’t actually decide whether Cousin’s testimony was admissible; it’s hard to see how the admission of possibly admissible testimony is an “urgent circumstance” requiring mistrial. (¶18). And in fact, the circuit court later determined that it was admissible under Denny. (¶19). So though the court had declared a mistrial on the theory that it could not “unring the bell,” it turned out the bell’s ringing had been entirely proper. And though the state complains that it should have been alerted about the subject of Cousin’s testimony before trial, he was on the witness list, and the state forewent various opportunities to ask why. (¶¶20-22). As to whether Cousin should have consulted a lawyer, that is just a red herring: “By the time this issue was raised, Cousin had already testified. Cousin’s testimony could not be erased by terminating Green’s trial. If Cousin’s right to counsel was violated–and we do not make any conclusions in that regard here—any potential remedy would go to Cousin.” (¶23).

The court of appeals finally says that either the state or the court could have sought to require Green to disclose any Denny evidence before trial, but didn’t do so. Because the lower court found the evidence admissible under Denny, nobody argued to the court of appeals that Cousin’s testimony just wasn’t Denny evidence. Query whether it is: Denny set a standard for the admission of evidence that a “third person could have committed the crime.” Cousin, who in his telling was just giving a ride for gas money and didn’t know the purpose of the trip, doesn’t seem to have admitted a crime; Green’s defense here is thus not that somebody else trafficked the child by driving her, but that this crime just didn’t happen.

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