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Presentence Report — Defense-Prepared — Admissibility, Trial Involving New Charge

State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: ¶¶21-22: Confidentiality of court-ordered presentence reports, State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989) is not a right applicable to defense-prepared PSRs, State v. Thomas A. Greve, 2004 WI 69. Thus, the defendant’s statements in a D-PSR are admissible in a trial involving a new charge. Nor does it matter that the authors of the PSR and D-PSR exchanged information, (court stressing that D-PSR author “acted on his own, based on his professional expertise, and such action was independent of [the PSR author]”).

First, a bit of background. Jimmie lost a sexual assault trial after testifying that he had not committed the offense. But, to make a long story short, he eventually told the D- and PSR authors that he had committed the crime and was remorseful. You might think that the initial step toward rehabilitation, but instead it merely earned him a 65-year sentence and a perjury prosecution for lying under oath at the trial. Hence, the question of admissibility of the admissions, without which the perjury case would be stopped in its tracks. The court of appeals, in its otherwise breathless rush to give the heave-ho to Jimmie’s appellate arguments, pauses momentarily to express mild disquietude “about the policy implications of this decision,” ¶26, namely the inhibiting effect on candid admissions of guilt:

¶27. Thus, we are presented with competing interests. We are concerned that the regular use of the perjury statutes may chill free and unfettered posttrial admissions, which are so necessary for rehabilitation and sentencing. However, a misuse of prosecutorial discretion challenge is not before us and we cannot address it here. Further, should prosecutors use this decision to charge defendants who admit guilt during the sentencing phase with perjury, the propriety of such charging decision is a question best left to the supreme court for a later date.

Take that!, Mr. and Ms. Prosecutor: if you “regularly” lodge perjury charges in the wake of posttrial admissions, the court of appeals just might ask the supreme court to say something about it. (And by the way, it’s not just admissions at sentencing – think about all those sexual offender treatment programs centered around admitting guilt; nothing to prevent prosecutors from using them to support perjury prosecution years after the trial.)

More interestingly, on appeal, Jimmie did not challenge admissibility of the D-PSR; instead, he limited his argument to inadmissibility of the PSR alone. His appellate brief couldn’t be clearer. The statement of the issue of ineffective assistance addresses “FAIL(URE) TO OBJECT TO TESTIMONY BY THE PRESENTENCE WRITER” – not the D-PSR writer. The summary of the argument asserted “entitle(ment) to a new trial because the presentence writer should not have been permitted to testify” – not because the D-PSR shouldn’t have been permitted to testify. The relevant argument heading was that “Trial Counsel Was Deficient When He Failed To Object To [PSR author] Doug Geske’s Testimony” – not when he failed to object to the D-PSR author’s testimony. That Jimmie was limiting his attack to the PSR was made clear in his concluding remark: “In sum, Geske was key to this prosecution. The erroneous admission of his testimony meant that Rogers did not have a fair trial, and the outcome of the trial is unreliable.” How much clearer could Jimmie have been? Why rant about it, though, if the testimony is indisputably admissible anyway? Because it suggests more than a little sloppiness on the court’s part, something that seems to have infected its discussion on other points, most pertinently the court’s treatment of prejudice, discussed elsewhere. To which it might be added that, if the court wanted to deter these sorts of prosecutions it should have given a bit more thought to finding prejudicial effect from the inadmissible PSR. If, that is, the court wanted to walk out on that particular limb.


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