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SCOW to review whether the admission of admissible evidence warrants a mistrial

State v. Mitchell D. Green, 2021AP267-CR, petition for review of an unpublished COA opinion granted 6/22/22; reversed, 2023 WI 57 case activity (including briefs)

Question presented (from the State’s PFR):

Did the circuit court erroneously exercise its discretion when it concluded that there was a manifest necessity for a mistrial after Green introduced unnoticed third-party perpetrator evidence at trial via the testimony of a witness who claimed to have committed the crime but was unrepresented by counsel?

The State charged Green with trafficking a child, physical abuse of a child, and disorderly conduct with use of a dangerous weapon. Allegedly, Green drove the victim to a prostitution meeting at a hotel.  At trial, Green called his cousin, Jonathan Cousin, as a witness. Cousin testified that he was the one who drove the victim and others to the meeting. He did not say that he knew the meeting involved prostitution.

Cousin was on Green’s witness list. The State did not investigate him.  Nor did it seek a pretrial order prohibiting the use of Denny evidence without advance disclosure. Nevertheless, the court granted a mistrial due to manifest necessity. Green moved to dismiss arguing that a retrial would violate his constitutional right against Double Jeopardy. The circuit court denied the motion, but the court of appeals reversed because the decision to grant a mistrial was not supported by manifest necessity. The circuit court ultimately ruled that Cousin’s testimony was admissible. See our prior post on this case, which also notes that Cousin’s testimony may not even qualify as Denny evidence.

There is no law development issue for SCOW to decide in this case.  Consider how the State crafted its question presented. It’s mad because the court of appeals reversed the circuit court’s exercise of discretion, and it wants error correction. To that end, it invoked the special “State only” criterion for review that appears nowhere in §809.62: “Without this Court’s review, the court of appeals’ erroneous decision will prevent the State from having even the opportunity to hold Green accountable.” PFR at 5. Works every time. See another recent example here. 

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