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Sentencing – Review – Inaccurate Information – Prosecutorial Allocution

State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney

Issue/Holding: Asserted prosecutorial misconduct, in the form of misleading statements during allocution, is tested under State v. Wolff, 171 Wis. 2d 161, 167, 491 N.W.2d 498, 501 (Ct. App. 1992) (whether “what the prosecutor does has ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process’”), ¶15. On the merits, the prosecutor merely alluded to what the uncontradicted evidence at trial proved, hence “was wholly fair comment,” ¶17.

Does it make sense to import into the law of sentencing the test for mistrial occasioned by improper closing argument? Are these events sufficiently comparable? If so, then why isn’t the test derived from Napue v. Illinois, 360 U.S. 264, 269-272 (1959) (defendant denied due process when prosecutor obtains conviction with aid of evidence prosecutor knew or should have known to be false and new trial required when there is a reasonable likelihood that false testimony affected verdict)? Worse, if the challenged argument “was wholly fair,” then why fashion a novel test? No error occurred anyway, there’s nothing to challenge, and the court’s exercise is entirely unnecessary. Worse still, the issue isn’t even ripe for review under this test (“Further, Haywood did not object to what the prosecutor did, and this forfeits his right to have review other than in an ineffective-assistance-of-counsel context,” ¶15.).


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