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SCOW reverses grant of new trial by deferring to circuit court’s exercise of discretion when denying motion for mistrial

State v. Eric J. Debrow, 2023 WI 54, 6/23/23, reversing an unpublished court of appeals decision; case activity (including briefs)

In yet another reversal of a defense win, SCOW defers to the circuit court’s decision denying a motion for mistrial but slightly muddies the waters as to the proper legal analysis when assessing mistrial claims on appeal.

Debrow was charged with two sexual assaults and attempted to defend himself against those allegations at a consolidated jury trial. (¶2). Pretrial, he successfully moved to exclude any reference to a 2004 conviction for similar conduct. (¶3). During the trial, however, one of the State’s witnesses testified that he was “alert” as to Debrow’s conduct around one of the alleged victims because the witness “looked on CCAP,” a presumed reference to Debrow’s prior conviction. (¶9). Debrow requested a mistrial, which the court denied. (¶11). In essence, the circuit court believed the statement was ambiguous, did not clearly reference a prior conviction, and that the jury was probably more focused on the parties’ references to the statement being hearsay rather than it being a reference to an other-act. (¶¶12-13). The court contemporaneously instructed the jury to disregard this testimony (¶8). and, at the request of Debrow, gave the “standard jury instruction regarding stricken testimony” at the conclusion of the trial. (¶13).

The court of appeals reversed and focused its analysis on the sufficiency of the circuit court’s curative instruction, which it believed to be inadequate to remedy this error. See our previous posts on this case here and here. All seven justices now agree that the court of appeals got it wrong, although there is a slight disagreement as to how the ultimate result should be reached. Justice Karofsky, writing for the majority, focuses her analysis on the circuit court’s oral ruling in response to the mistrial motion. Applying an exceedingly deferential standard of review, Justice Karofsky is satisfied that the circuit court adequately exercised its discretion because it “considered the facts and circumstances in the record, heard arguments from both parties, assessed available remedies, and concluded that the error was not so prejudicial as to warrant a mistrial.” (¶18). According to the majority, the court of appeals got it wrong by focusing too intently on the sufficiency of the curative instruction, which, under Justice Karofsky’s analysis, is a different legal inquiry altogether. (¶19). Debrow did not object to the court’s instruction, however, so that question is not properly before the Court. (Id).

A lengthy concurrence authored by Justice Roggensack and joined by Justice R.G. Bradley gets at the same answer via a slightly different route, pointing out that the case law requires the reviewing court to assess the circuit court’s exercise of discretion in context of the entire trial, which necessarily includes a discussion as to the sufficiency of the curative instruction. (¶22). That inquiry also requires an assessment of the strength of the State’s case. (¶53). The concurrence also includes a detailed discussion of the deferential standard of review it feels duty-bound to apply in this case. (¶47).

What appears at first glance to be a relatively straightforward application of the inconsistently invoked “deference” owed to circuit court decisions is, on closer analysis, something more complicated. Justice Karofsky doesn’t claim to be modifying the test for assessing a circuit court’s denial of a motion for a mistrial, but her pathway to affirmance–in which she sets aside any discussion as to the sufficiency of the curative instruction–creates an obvious tension with prior case law, as the concurrence acknowledges. Long story short, defense lawyers litigating mistrial motions should be putting their objections to any curative instructions on the record throughout the trial to avoid waiver of any arguments on appeal and appellate practitioners need to recognize the legal distinction now recognized by the majority.


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