In 2017, conservative activists on SCOW overruled a 12-year-old, unanimous opinion in order to overwrite the plain language of §974.07(7), Wisconsin’s postconviction DNA testing statute. They made it virtually impossible for a defendant to get this type of testing. See State v. Denny, 2017 WI 17 and our post about it. This court of appeals decision toes the line. It may be summed as: Let the conviction stand.
Reas-Mendez was convicted of having robbed and sexually assaulted a woman in the bedroom of her apartment. He sought postconviction DNA testing of a jacket that he allegedly wore, and a knife he allegedly held, during the crime along with fingerprint lifts from the window of the victim’s bedroom. To prevail, §974.07(7)(1) required him to prove that it was “reasonably probable that [he] would not have been prosecuted [or] convicted if exculpatory [DNA] testing results had been available before the prosecution or conviction.” (Emphasis supplied).
What does “exculpatory” mean? The court of appeals would not say. Following Denny, it assumed that an exculpatory result could be: (1) a result that matches a known person, or (2) results that excluded Reas-Mendez on all items, or (3) a result on multiple items matching the same unknown third-party. Opinion,¶21. The court of appeals then considered these three types of exculpatory results in the context of Reas-Mendez’s case–performing what looks like a harmless error analysis. That is, it spent 8 or 9 pages sifting and weighing all of the trial evidence in order to prove that even if the DNA tests results had been “exculpatory”, the jury would have convicted Rea-Mendez anyway based on the strength of the State’s case. Opinion,¶24. Does this make sense?
There are many problems with this decision. One is that the court of appeal couldn’t or wouldn’t articulate what the “reasonably probable” test means. Denny, ¶21, expressly left this question open:
The parties offer nuanced, and differing, interpretations of the phrase “reasonably probable.” Wis. Stat. § 974.07(7)(a)2. The State asserts that “reasonably probable” means a “reasonable probability that a jury, looking at both the [old evidence] and the [new evidence], would have a reasonable doubt as to the defendant’s guilt.” State v. McCallum, 208 Wis.2d 463, 475, 561 N.W.2d 707 (1997). In contrast, Denny believes that “reasonably probable” means “a probability sufficient to undermine confidence in the out-come.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We decline to resolve the parties’ dispute over the precise meaning of “reasonably probable,” given that Denny’s motion should be denied under either standard.
These two approaches are very different and the bench and the bar need to know which one applies. The court of appeals also refused to decide which standard of review applies to an appeal from the denial of §974.07 motion. It says that Reas-Mendez would lose under either standard, but neglects to prove that point by actually applying both standards. Again, the bench and the bar need guidance on this issue. Opinion, ¶¶15-17.