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SCOW: Affidavits that co-conspirators framed defendant don’t support new trial

State v. David McAlister, Sr., 2018 WI 34, 4/17/18, affirming an unpublished court of appeals order, 2014AP2561; case activity

A jury convicted McAlister in 2007 of three counts having to do with an attempted and a completed armed robbery. The state’s case was founded on the testimony of two men (Jefferson and Waters) who had committed the crimes: they said McAlister was also involved. At trial, McAlister’s counsel impeached them by showing they had received consideration from the state in exchange for their testimony. But he couldn’t provide any direct evidence they had lied. Now he can, but the SCOW majority says it’s not good enough, even to get a hearing on his motion.

This new evidence comes in the form of affidavits from three men, each of whom swears that they met either Jefferson or Waters in jail around the time of the trial, and that Jefferson and Waters separately described a conspiracy to falsely accuse McAlister in exchange for favorable treatment from the state. (¶¶21-23). The circuit court denied McAlister’s Wis. Stat. § 974.06 motion without a hearing, and the court of appeals affirmed.

A four-justice majority opinion authored by Chief Justice Roggensack now affirms the two lower courts. It holds, first, that the affidavits are merely cumulative to the evidence adduced at trial–meaning McAlister fails the fourth prong of the newly discovered evidence test. See State v. Avery, 2013 WI 13, ¶25, 345 Wis. 2d 407, 826 N.W.2d 60. It reaches this conclusion despite the state’s concession that the evidence was not cumulative. It cites a definition of “cumulative evidence” from an 1853 SCOTUS case: “additional evidence of the same general character, to some fact or point, which was subject of proof before.” (¶39).

Emphasis on the “general”–basically, because McAlister impeached the witnesses by showing motive to cooperate with the state at trial, the court finds their own purported admissions to lying on the stand don’t add anything new. (¶¶40-50).

Though this would be enough to affirm, the court goes on to decide that the affidavits present “recantation evidence,” which cannot be used as newly discovered evidence unless corroborated by other newly discovered evidence. State v. McCallum, 208 Wis. 2d 463, 476, 561 N.W.2d 707, 711 (1997). Finding no corroboration here, the court holds McAlister also fails this test.

Justice Kelley concurs. He agrees with the majority on the second point: that the new evidence is in the nature of a recantation, so McAlister needs (and lacks) corroboration. He disagrees, though, that the evidence is cumulative, and proposes a test for the specific sort of evidence offered here. Where previously offered evidence has not convinced the finder of fact of a particular proposition (say, that allegations against a criminal defendant are fabricated), the court can ask whether “[i]f the trier of fact were to believe the new evidence, would he necessarily conclude the disputed fact has been established?” (¶67). Finding the answer to be “yes” here, Justice Kelley concludes the evidence was not cumulative.

He also pushes back against Justice Roggensack’s oft-expressed disappointment that the state has conceded an issue (here that the evidence was not cumulative), saying:

One of the distinguishing characteristics of an accomplished and wise advocate is knowing when to concede a point. And, having come to the realization that a previously defended position is not actually defensible, it takes courage and humility to say so. This is the type of candor we should be encouraging, not condemning. Just because the court (mistakenly, in my view) disagrees with the State’s position does not mean the State conceded for some reason other than its professional, good faith assessment of the issue’s merits. And yet the court’s rebuke implies that very thing. However, institutional litigators (like the State) should make certain that a concession truly is the result of a good faith assessment of the issue’s merits, and not an attempt to steer the court away from issues it would prefer not to address.


Justice A. W. Bradley, joined by Justice Abrahamson, dissents. She notes that the only question before the court is whether McAlister should get a hearing on his claims–not a trial or the vacation of his conviction. She faults the majority for failing to adhere to the established rule that, in deciding whether a hearing is due on a newly discovered evidence claim, a court must treat the defendant’s factual allegations as true unless they are incredible as a matter of law. (¶¶81-91); see State v. Love, 2005 WI 116, 284 Wis. 2d 111, 700 N.W.2d 62.

She also concludes the evidence is not cumulative, being of a different character than that offered at trial: “As McAlister aptly states in his brief, ‘evidence that Jefferson and Waters in fact conspired to frame McAlister is not cumulative to evidence that they had a motive to do so.'” (¶94).

The dissent finally argues that the evidence McAlister seeks to introduce is not “recantation evidence” and thus requires no additional corroboration. Unlike the situation where a witness proposes to testify, under oath, that he or she previously lied under oath–thus severely undermining his or her own credibility–here we have prior, out-of-court statements by testifying witnesses that their anticipated testimony would be lies concocted to gain personal advantage. The dissent says the proposed evidence here is more like a prior inconsistent statement, which, it submits, carries enough reliability to qualify as a hearsay exception. (¶¶95-99).

{ 1 comment… add one }
  • John T. Wasielewski April 25, 2018, 10:07 am

    Federal courts have slapped Wisconsin appellate courts in the past for abusing the notion of “cumulative” evidence. For example:
    “The impact of three more witnesses corroborating Washington’s alibi would not have been “cumulative” as the Wisconsin Court of Appeals believed. Evidence is cumulative when it “supports a fact established by existing evidence,” BLACK’S LAW DICTIONARY 577 (7th ed. 1999), but Washington’s whereabouts on the day of the robbery was far from established—it was the issue in the case.”
    Smith v. Washington, 219 F.3d 620, 634 (7th Cir. 2000).
    But the corroboration requirement is truly baffling as applied here. Even accepting the interpretation that the new witnesses present “recantation” evidence, there are THREE witnesses. They were witnesses to “recantations” of TWO persons (Jefferson and Waters). Don’t they corroborate one-another?

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