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SCOW will review scope of double jeopardy bar to retrial

State v. James P. Killian, 2020AP2012, review of a published court of appeals decision granted 1/20/23; case activity

Issues presented (from state’s PFR):

Has the State exposed Killian to multiple prosecutions for the same offense in violation of double-jeopardy principles?

The facts here are complex, and summarized in our post on the court of appeals decision. Killian was on trial for several alleged sexual assaults involving two girls. As a result of pre- and mid-trial rulings, the prosecutor was forbidden to elicit testimony about certain other sexual acts of which the girls had accused Killian. Nevertheless the prosecutor–after remarking, in court, about the possibility that he would prompt a mistrial–did just that, asking one of the girls a question that led her to discuss the excluded accusations.

Killian immediately moved for a mistrial and the circuit court granted it. Later, the same court dismissed a new case the state filed against Killian, concluding that he had run the risk, during the aborted trial, of being convicted of all the acts of which the state had recharged him.

The court of appeals affirmed. In particular, 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. The court of appeals noted that the prosecutor had, during his opening statement, described sexual acts beyond those for which Killian was charged, and then elicited testimony about some of them. The prosecutor had also told the trial court that he might 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, 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.

The state’s petition notes that Schultz involved a trial that had been completed, unlike Killian’s. It asks SCOW to revisit the “entire record” rule as applied to situations, like this one, where it’s impossible to be sure what charges would ultimately have gone to the jury.


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