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SCOW reverses COA and finds that circuit court exercised “sound discretion” when it granted a mistrial based on evidence later found to be admissible

State v. Mitchell D. Green, 2023 WI 57, 6/29/23, review of an unpublished court of appeals decision; case activity (including briefs)

In yet another reversal of a defense win, a divided Court upholds the circuit court’s exercise of discretion, despite serious criticisms of the circuit court’s reasoning made by the dissenters.

(See our previous posts on this case here and here.)

At Green’s trial for allegations of sex trafficking, the alleged victim, S.A.B., testified that Green drove her to a hotel “where she was forced to engage in a sex act.” (¶1). Green then called a witness, Cousin,  who testified that it was he, and not Green, who drove S.A.B. to the hotel. (¶1). He claimed to have no idea the trip was in any way connected to sex trafficking; in his recitation of the events, he merely agreed to give a ride in exchange for gas money. (¶11). Cousin was properly included on the defense witness list. (¶5). Although the defense possessed a statement from Cousin, the State did not demand that statement pretrial. (Id.). And, while the State had filed a motion in limine seeking to prohibit the admission of third-party perpetrator evidence, there is no evidence the State ever obtained a ruling on that motion prior to trial. (Id.).

While the State did not object to Cousin’s testimony, the circuit court took issue with it during an in-chambers conference. (¶12). In its view, the defense had presented potentially inadmissible third-party perpetrator evidence without ever giving the State notice or seeking a pretrial ruling as to admissibility. (Id.). Although defense counsel denied presenting the evidence for that purpose, those remarks were met with harsh condemnation from the circuit court. (¶13). While neither party was requesting a mistrial, the circuit court ultimately concluded it needed to declare one because it could not “unring the bell” caused when the jury heard potentially inadmissible third-party perpetrator evidence. (¶16).

Following the mistrial, Green moved to dismiss, arguing that retrial would violate his Fifth Amendment right to be protected against double jeopardy. (¶17). The circuit court denied relief and, in an interlocutory appeal, the court of appeals reversed. (¶18).

Writing for four justices, Justice R.G. Bradley reverses the court of appeals and affirms the ruling of the circuit court. (¶4). As Justice R.G. Bradley concedes, the protection against double jeopardy after an invalidly-declared mistrial is pretty firmly rooted in our nation’s legal history. (¶26). Thus, retrial will only be permitted when the court exercises “sound discretion” in determining there is a “manifest necessity” justifying a mistrial. (Id.). While there’s something of a sliding scale for the amount of deference accorded to the circuit court’s discretionary decision to declare a mistrial, here, SCOW is satisfied that even under “strict scrutiny,” the circuit court appropriately exercised “sound discretion.” (¶27). It reaches that conclusion based on the following factors:

  • The circuit court gave “both parties a full opportunity to explain their positions and consider[ed] alternatives such as a curative instruction or sanctioning counsel.” (¶28).
  • The circuit court then “identified alternatives to mistrial.” (¶29).
  • The court appropriately considered Green’s “interest in having the trial concluded in a single proceeding.” (¶30).
  • The record “reflects that there is an adequate basis for a finding of manifest necessity.” (¶31).
  • Finally, the circuit court “considered the relevant facts, based its conclusion on applicable law, and reasoned its way to a rational conclusion.” (¶32).

Importantly, the majority opinion clarifies that it must consider the totality of the circumstances as they appeared to the circuit court at the time it made what is essentially a judgment call to declare a mistrial. (¶35). It therefore decries what it to believes to be a request that it second-guess the lower court’s reasoning process. (¶42).

The majority’s broad defense of the circuit court’s discretionary decision is consistent with our deferential standard review, although difficult to square with a notable prior decision issued by the same four justices.

Of course, as defense counsel and the dissenters point out, there are some tricky facts to be reckoned with on the way to upholding the circuit court’s actions as evidence of “sound discretion.” For one, the circuit court later found the evidence admissible and, in fact, not third-party perpetrator evidence at all–just as defense counsel represented during the discussion as to whether a mistrial ought to be declared. (¶33). Justice Hagedorn (joined by Justice Dallet), while reluctant to declare an erroneous exercise of discretion, nevertheless believes that failure to consider the admissibility of this evidence before declaring a mistrial means the court of appeals got it right. (¶75). Justice Ann Walsh Bradley, in a separate dissent, echoes that sentiment. (¶56). To the majority, however, these considerations are “irrelevant.” (¶34). In its view, SCOW is reviewing the circuit court’s “in the moment” judgment call that third-party perpetrator evidence needed to be vetted pretrial; not ruling on the admissibility of that evidence. (Id.)

Justice A.W. Bradley also discerns a second flaw in the circuit court’s reasoning, which appears to operate under an assumption that defense counsel had somehow failed to properly notice the State pretrial about this evidence. (¶56). As the circuit court chastised the defense, defense counsel “darn well knows that you can’t spring a
witness on the State, especially a witness of this nature.” (¶38). Under one view of the circuit court’s remarks, the circuit court–which had rotated into the case the morning of trial–was operating under a mistaken belief that Cousin’s testimony violated a nonexistent ruling on the State’s motion in limine. (¶56). The majority, however, concludes this was not an unreasonable assumption to make under the circumstances, especially considering the “culture” of Milwaukee County trial practice, as referenced by the circuit court in its remarks. (¶37). It was “neither irrational nor irresponsible for the trial court to believe a pretrial order had been violated, particularly when defense counsel did not disabuse the court of that notion.” (¶39).

This case shows the full power of the deferential standard of review, even when modified with a “strict scrutiny” tag. Here, the circuit court was objectively mistaken in at least two respects. Not only did it later find the evidence admissible, it was also clearly wrong to blame the defense for violating a nonexistent pretrial order and surprising the (non-objecting) State at trial. To the majority, these disproven assumptions are simply insufficient to derail a finding of “sound discretion.”

Many trial court practitioners may find themselves scratching their head over this result. Respectfully, what was stopping the court from adjourning the proceedings for the afternoon so the parties could provide actual arguments as to the admissibility of this evidence? And couldn’t the court have used that same time to check the electronic docket to ensure that it was not mistaken about the existence of a violated pretrial ruling? Obviously, Milwaukee County circuit court actors are, as always, under substantial pressure to resolve trial cases efficiently. Yet, with a little more time taken, it seems that this entire appeal could have been avoided.

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