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SCOW: Threat to add new charges during trial didn’t bar the filing of those charges after mistrial

State v. James P. Killian, 2023 WI 52, 06/21/23, reversing a published court of appeals decision; case activity (including briefs)

The state’s threat to add new charges against Killian during a trial that ended in a mistrial didn’t expand the scope of the protection against double jeopardy to those new charges.

The facts and procedural history here are complex. They are set out at length in our post on the court of appeals decision. The following is a briefer summary of what’s needed to understand the supreme court’s ruling.

Killian was on trial for several alleged sexual assaults involving two girls. As a result of pre-trial rulings, including one on the eve of trial, the prosecutor was forbidden to elicit testimony about certain other sexual acts of which the girls had accused Killian but which either alleged a new crime or alleged acts occurring outside the time period the state had charged. This ruling caused the prosecutor to that the information could be amended at trial to conform to the evidence. Further, after the court denied the prosecutor’s mid-trial request that it reconsider its other-acts ruling, the prosecutor warned the court that “anything could happen” when one of the complainants testified and that if she couldn’t be controlled, “then I guess defense counsel is going to move for a mistrial.” When the witness testified in violation of the court’s ruling and the court granted Killian’s mistrial motion. (¶¶6-15).

The court later dismissed the case entirely due to the prosecutors intentional overreaching, a ruling the state didn’t appeal. (¶15). But the state then filed new charges during time periods that overlapped with the original charges but included new periods of time. (¶16). The circuit court dismissed this case on double jeopardy grounds. (¶17). The court of appeals affirmed. (¶18). As explained in our post, it rejected the state’s arguments that Killian had never faced jeopardy for the newly-charged offenses as they included different acts during different time frames given the facts here: the prosecutor describing during opening statement sexual acts beyond those for which Killian was charged and then eliciting testimony about some of them; and the prosecutor advising the trial court and defense that he could move to amend the information to conform with the evidence, once that evidence had been received. The court of appeals noted that it was obligated to consider the entire record of the proceedings in determining the scope of jeopardy Killian faced, State v. Schultz, 2020 WI 24, 390 Wis. 2d 570, 939 N.W.2d 519, and concluded that absent the mistrial, Killian was in jeopardy for the offenses with which the state recharged him.

A majority of the supreme court reverses, holding that Killian (and the court of appeals) read Schultz too broadly. (¶33). The court cites the principles that “an accused must suffer jeopardy before he can suffer double jeopardy” and that jeopardy doesn’t attach until the accused “has been subjected to the risk of conviction” (¶¶24, 25, 30-31, quoting Serfass v. United States, 420 U.S. 377, 392, 393 (1975), and citing United States v. Felix, 503 U.S. 378 (1992). Based on those principles, it clarifies the scope of Schultz‘s rule requiring the scope of jeopardy be determined from an examination of the entire record:

¶31     In line with the Supreme Court’s decisions in Serfass and Felix, we focused our inquiry on “the defendant’s actual exposure to jeopardy in a prior prosecution.” Schultz, 390 Wis. 2d 570, ¶31, 939 N.W.2d 519. We decided “examining the entire record, including evidentiary facts adduced at trial,” is relevant to discerning the scope of jeopardy in a prior trial. Id., ¶32. However, in reaching this conclusion, we also clarified that the focus of the inquiry remains on the defendant’s “actual exposure to jeopardy,” not on the parties’ subjective understandings concerning the scope of jeopardy. Id., ¶¶24-25, 31. “Jeopardy,” as we explained, includes “the actual danger to which a person is exposed, as opposed to the danger a person fears.” Id., ¶31. It is not based “on the criminal defendant’s fears, beliefs, or perceptions regarding his exposure in the first prosecution.” Id. ….


¶35     Schultz never suggested that the trial record, and the trial record alone, could expand the defendant’s scope of jeopardy beyond the jeopardy created by a fair reading of the charging documents. After all, “[t]he defendant cannot be convicted,” and the court is “without jurisdiction to convict” the defendant, “of a crime for which he is not charged.” State ex rel. Winnie v. Harris, 75 Wis. 2d 547, 553, 249 N.W.2d 791 (1977);… Were we to conclude jeopardy could attach based on “[t]he evidence the State intended to submit in the preceding trial” alone, this would contravene the Supreme Court’s holding in Felix “that a mere overlap in proof between two prosecutions does not establish a double jeopardy violation.” …. 503 U.S. at 386.

¶36     The fact that the information may be amended [under § 971.29(2)] to conform to the evidence presented at trial does not affect our analysis. …. [B]efore the information may be amended to conform to the evidence, such evidence must have been admitted at trial. Evidence in a criminal trial is inadmissible unless it is relevant to the defendant’s guilt or innocence of a crime charged at the time the evidence is introduced. …. If evidence is relevant and therefore admitted, then the defendant is in jeopardy insofar as that evidence is being used to prove the charged offense. See Felix, 503 U.S. at 379. Even if that same evidence could be relevant to proving some other offense, jeopardy for that offense does not attach until the defendant faces the “risk of a determination of guilt” with regard to that offense. Serfass, 420 U.S. at 391-92. Until the Information is actually amended, there exists no such risk, and therefore no jeopardy.


¶38     We therefore hold that, where a trial ends in a mistrial,… the defendant’s scope of jeopardy consists of those offenses for which the defendant faced actual danger of conviction, meaning the defendant was exposed to the “risk of a determination of guilt” regarding those offenses.10 Serfass, 420 U.S. at 391-92. The inquiry should focus on the charging documents, but the entire record may be examined if necessary to confirm the scope of jeopardy as established by those charging documents. Schultz, 390 Wis. 2d 570, ¶¶33–40. “[M]ere overlap in proof between two prosecutions does not establish a double jeopardy violation,” Felix, 503 U.S. at 386, nor does the prosecutor’s intent. The inquiry must always focus on “the defendant’s actual exposure to jeopardy in a prior prosecution.” Schultz, 390 Wis. 2d 570, ¶31.

10  This “risk” refers to the possibility that a jury might find the defendant guilty of the crime charged. It does not refer to the possibility that a jury might consider conduct which could constitute an otherwise uncharged offense. The Constitution requires that there be actual as opposed to hypothetical jeopardy. Id., ¶31.

Because the new charges cover different acts and time periods than those alleged in the dismissed case, they are not identical in law and fact and so are not barred by double jeopardy. (¶¶39-50).

Killian made the alternative argument that issue preclusion barred prosecution of the new case, but that is rejected because by being dismissed for prosecutorial overreaching after the state prompted a mistrial, the prior case did not result in a “valid judicial determination of ultimate fact,” a prerequisite to the application of issue preclusion. (¶¶51-53).

Two justices dissent (A.W. Bradley, joined by R.G. Bradley), arguing that a proper application of Schultz jeopardy attached due to the prosecutor’s desire to amend the information based on the evidence at trial. (¶¶59-98). “Any other result would allow the State to reap a windfall from its intentional wrongdoing.” (¶64).

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