Issue: Whether, given the constitutional protections afforded Ch. 980 respondents, issue preclusion applies so as to prevent Sorenson from attacking the reliability of his qualifying conviction with evidence that the complainant subsequently recanted.
¶22. We recognize the application of issue preclusion in this context is an important issue. However, we conclude that we should not reach a determination on this question at this time because the issue has not been fully briefed by the State. Instead, we conclude that, even if the doctrine would generally apply, application of the doctrine may be fundamentally unfair for Sorenson under the factors for restricting the application of the doctrine under Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993).¶24. Here, we are presented with recantation evidence that was newly discovered after trial. Sorenson sought a new criminal trial based on this evidence in a post-conviction motion. In Wisconsin, recantation evidence is reviewed on such motions under the test set forth in McCallum. The circuit court never reached a final determination on the post-conviction motion. Instead, after the court heard testimony from L.S., the parties reached a settlement, resulting in a reduction in Sorenson’s 17-year sentence to a 10-year sentence and in his almost immediate release on parole. The record contains almost no evidence identifying the content or the background of L.S.’s recantation testimony.
¶25. We conclude that, if the recantation evidence satisfies the test in McCallum, any application of issue preclusion to exclude this evidence from Sorenson’s ch. 980 trial would be fundamentally unfair to Sorenson under the fifth standard set forth in Michelle T. Fundamental unfairness results because Sorenson, assuming the recantation meets the McCallum test, has a due process interest in gaining admission at trial of this newly discovered evidence to ensure accurate expert opinions on his mental disorder and future dangerousness in his ch. 980 trial. In this case, the experts’ opinions reveal that they were based heavily on the fact that Sorenson committed the underlying crime.
¶26. We conclude that remand is required for the circuit court to make a determination on the credibility of the recantation evidence pursuant to McCallum….
This opinion raises as many questions as it answers, but this one sticks out: Does the trial court have the authority to make a credibility determination on what is, in effect, an issue of threshold admissibility? In other words, is the court supposed to determine merely whether the recantation could reasonably be believed by the jury, or may the court makes its own determination and thereby prevent the jury from hearing the evidence? Besides, why is the stringent McCallum test — which deals, after all, with plea-withdrawal — even transferable to this context? The court specifically agrees that Sorenson isn’t seeking to invalidate his conviction, ¶¶34-38; the policies that favor a very stringent test and that informed McCallum therefore wouldn’t seem to apply.