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Newly Discovered Evidence – Reasonable Probability of Different Result: Expert Lied About Credentials

State v. Douglas J. Plude,  2008 WI 58 reversing unpublished decision
For Plude: Stephen D. Willett


¶36 We conclude that in a trial rife with conflicting and inconclusive medical expert testimony about a case the circuit court observed was based on “circumstantial evidence,” there exists a reasonable probability that, had the jury discovered that Shaibani lied about his credentials, it would have had a reasonable doubt as to Plude’s guilt. Our conclusion is based on Shaibani’s testimony as a quasi-medical expert notwithstanding his lack of a medical education and on the link that Shaibani’s testimony provided to other critical testimony that related to the manner of Genell’s death….

¶46 In sum, with the exception of Dr. Kalelkar’s opinion, which wasexculpatory of Plude, the medical expert opinions with regard to Genell’s manner of death were inconclusive. Dr. Kalelkar concluded to a reasonable scientific certainty that Genell drowned from pulmonary edema; Dr. Sullivan concluded that it was likely, but not a reasonable scientific certainty, that Genell drowned from pulmonary edema; Dr. Huntington concluded that it was likely, but not a reasonable scientific certainty, that Genell drowned from inhaling toilet bowl water. Shaibani affirmed Dr. Huntington’s opinion and linked Plude to Genell’s inhalation of toilet bowl water. Therefore, Shaibani’s testimony was a critical link in the State’s case.

¶47 Wisconsin law has long held that impeaching evidence may be enough to warrant a new trial. Birdsall v. Fraenzel, 154 Wis. 48, 142 N.W.2d 274 (1913). In commenting on the discovery that a trial witness could read and write English after he testified to the contrary, we stated: “It may well be that newly discovered evidence impeaching in character might be produced so strong as to constitute ground for a new trial; as for example where it is shown that the verdict is based on perjured evidence.” Id. at 52 (emphasis added).

State v. Sprosty, 2001 WI App 231, distinguished, ¶48:

In Sprosty, the court of appeals concluded that there was no reasonable probability that false testimony by a witness, who misrepresented his credentials, would lead to a different outcome because the witness maintained his expertise in spite of the false testimony and another expert corroborated his substantive testimony. Sprosty, 248 Wis.  2d 480, ¶34. Here, Shaibani’s credentials were not maintained subsequent to his misrepresentation and no expert corroborated his substantive testimony.

Interesting concurrence would reverse in the interest of justice rather than newly discovered evidence, ¶58 (“Shaibani’s reprehensible misrepresentations lead me to conclude that the real controversy was not fully tried, and it is in the interest of justice that the matter be retried. “). Nothing in the majority opinion excludes the possibility of relief on this rationale.


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