By Gretchen Schuldt
The vehicle of a driver arrested for drunk driving can be searched for other drugs even when an officer has no reason to believe the driver is under their influence or has any in his or her possession, the State Court of Appeals ruled last week.
That is because the offense of operating while intoxicated (OWI) includes driving while under the influence of alcohol or other drugs, the District II Court of Appeals panel said.
"It is not unusual for a driver’s impaired condition to be caused by a potpourri of substances—some legal, some illegal, some easily detected, some not—sometimes including alcohol, sometimes not," Appeals Judge Mark D. Gundrum wrote. "All such substances are relevant to proving that the driver is in violation of ...(state statute) due to driving while impaired by either drugs, alcohol, or both."
Gundrum was joined in his opinion by Appeals Judges Paul F. Reilly and Brian K. Hagedorn.
The ruling stems from the case of Mose Coffee, who was convicted in Winnebago County Circuit Court of second offense OWI and possession of marijuana with intent to deliver. The officer who stopped Coffee said that he smelled of alcohol, had slurred speech, and glazed and bloodshot eyes.
Coffee was arrested and officers searched his vehicle. One officer found a bag containing two jars of marijuana, several cell phones, and a package with numerous small plastic bags. Officers found more marijuana in the trunk.
Coffee sought to have the drug evidence suppressed, arguing it was not reasonable for officers to believe they would find OWI-related evidence in the bottom of the bag.
In upholding Circuit Judge John A. Jorgensen's rejection of the request, the appeals court also rejected its own precedent. In the past, Gundrum wrote, the court found that a search was justified if there was a reasonable belief that evidence of OWI would be found during a search. The U.S. Supreme Court has held, though, that a vehicle search is permissible when it is reasonable to believe that evidence might be found in the vehicle.
Previously, Gundrum wrote, "We ultimately relied upon the wrong standard, as Coffee does in this appeal."
He concluded: "We hold as a matter of law that when an officer lawfully arrests a driver for OWI, even if alcohol is the only substance detected in relation to the driver, a search of the interior of the vehicle, including any containers therein, is lawful because it is reasonable to believe evidence relevant to the offense of OWI might be found."
By Gretchen Schuldt
A judge erred when he said that sperm DNA evidence helpful to the defendant in a sexual assault case was inadmissible under the state's rape shield law, the State Court of Appeals has ruled.
The shield law disallows evidence of a sexual assault victim's sexual history because of its prejudicial effect.
"In general, 'all relevant evidence is admissible,'” the panel said, quoting state law. The case now heads back to Sauk County Circuit Court.
The unsigned decision by the District IV Court of Appeals panel reversed a ruling by Circuit Judge Todd J. Hepler, who barred sperm DNA evidence that excluded defendant Juan L. Walker as the source of sperm found on the victim's bed sheet.
Hepler said the sperm was evidence of "prior sexual conduct" of the victim, Katherine, or someone else, and thus was inadmissible under the rape shield law.
Defendant Walker also was excluded as the source of other, non-sperm DNA evidence, but Hepler also ruled that evidence inadmissible.
Hepler said the absence of Walker's DNA on the sheet "does not necessarily equate to the absence of Mr Walker at the scene. Simply because there is no DNA there on that particular bed sheet does not necessarily mean that Mr. Walker was not there. The presence of another's DNA doesn't equate to the absence of another's DNA either."
The victim, identified only as Katherine, had been drinking before the assault, according to the appeal panel. Two friends helped her after she vomited outside a Lake Delton restaurant. Walker, whom none of the three had met before, stopped, offered to help, and eventually gave them a ride to Katherine's home, according to the appeals panel, which included Appeals Judges Paul Lundsten, Brian Blanchard, and Michael R. Fitzpatrick.
By Gretchen Schuldt
A Forest County deputy overstepped when he searched a vehicle because the driver turned the car around at night within a mile of where another person fled a traffic stop, a Court of Appeals judge ruled Tuesday.
"We cannot conclude that (Brady R.) Adams’ driving late at night, one-half hour or more after a suspect had fled the scene of a traffic stop within the vicinity of an active police search for that suspect, paired with Adams’ turning around on a street with a dead end, would lead a reasonable officer to suspect that Adams had committed, was committing, or was about to commit a crime, or any wrongdoing for that matter," District III Court of Appeals Judge Mark A. Seidl wrote in his opinion.
In reversing Forest County Circuit Judge Leon D. Stenz, Seidl threw out Adams' conviction for second offense drunk driving and sent the matter back to Circuit Court.
Sheriff's Deputy William Hujet testified in Circuit Court that he was looking for a person who fled a traffic stop when another deputy passed the word that a car was approaching. Adams was that car's driver. Hujet began to follow him.
By Gretchen Schuldt
The fraud conviction of a man who tried to win a fishing contest by entering a salmon with a one-pound weight hidden inside was upheld Tuesday by the State Court of Appeals.
"While (Michael A.) Cefalu initially suggested that the fish might have swallowed the weight from the bottom of Lake Michigan, multiple witnesses testified at trial that salmon are not bottom feeders," the three judge District III appeals court panel said in an unsigned opinion. "In addition, multiple witnesses – each of whom had cut open a significant number of fish—testified they had never encountered a fish with a similar weight inside."
It also was clear from the lack of a hole in the weight to accommodate fishing line that the weight never had been used for fishing.
The appeals panel's decision upheld rulings by Door County Circuit Judges Peter C. Diltz and David L. Weber, who presided over the trial and sentenced Cefalu, respectively.
The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.
Cefalu is a charter fishing boat captain in the Door County area and has more than 30 years experience, the panel said in its opinion. He tried to enter the weighted fish in the Kewaunee / Door Salmon Tournament, which awarded $10,000 in cash and $1,500 worth of other prizes to the first-place finisher.
By Gretchen Schuldt
A police officer who walked briskly to catch up to a man who did not want to talk to him was in "hot pursuit" and so was entitled to enter the man's garage without a warrant, a State Court of Appeals judge ruled this week.
A police officer went to Steven D. Palmersheim's home after a witness complained that Palmersheim was "all over the road" with his car and that Palmersheim publicly urinated after leaving his car, District II Court of Appeals Judge Mark D. Gundrum wrote.
Gundrum's ruling reversed Waukesha County Circuit Judge Michael J. Aprahamian, who found there was no hot pursuit and granted Palmersheim's motion to suppress evidence.
City of Waukesha Police Officer Richard Young watched Palmersheim walk from his vehicle toward the the garage attached to his house. The garage door was open.
The officer first politely said he wanted to talk to Palmersheim, Gundrum wrote. When Palmersheim did not stop, the officer yelled at him to do so.
Palmersheim turned and looked at the uniformed officer, then turned and continued into the garage.
"The officer 'briskly walked and hustled up to try to catch up' to Palmersheim," Gundrum wrote.
Palmersheim hit the button to close the garage door, and the officer put his foot in a position to break the beam and the door to retract.
The officer asked Palmersheim to come out of the garage and he did so. He denied driving recklessly or urinating by the vehicle, but the officer saw a "stream" coming from beneath Palmersheim's vehicle that could have been urine.
Palmersheim was arrested for second offense operating while intoxicated and disorderly conduct.
"Upon cross-examination, the officer expressed that by 'briskly walking' toward Palmersheim to prevent him from entering his residence, he was 'chasing' Palmersheim in 'hot pursuit' for urinating in the street," Gundrum wrote. "The officer added that he 'certainly stepped up [his] pace to catch up' to Palmersheim although '[t]he distance wasn’t that far'.”
The officer had enough probable cause to arrest Palmersheim, Gundrum said.
"Upon cross-examination, the officer expressed that by 'briskly walking' toward Palmersheim to prevent him from entering his residence, he was 'chasing' Palmersheim in 'hot pursuit' for urinating in the street." – State Court of Appeals Judge Mark Gundrum
"Within the particular context of this case, where Palmersheim, as far as we can tell from the record, did not run from the officer but nonetheless continued to steadily advance closer to the escape of his abode, and even attempted to close the garage door, which obviously would have aided his escape, the officer’s pursuit of Palmersheim was 'immediate' and 'continuous' and amounted to a hot pursuit tailored to prevent Palmersheim’s escape under these circumstances," Gundrum wrote.
The definition of "hot pursuit" depends "on the particular circumstances of each case," Gundrum wrote.
"In this case, there is no indication Palmersheim ran from the officer, so hot pursuit could be accomplished by the officer 'stepp[ing] up [his] pace' to 'briskly walk[ing] and hustl[ing] up' to try to catch Palmersheim," he said. "The officer then stopped the closing of the garage door as part of his pursuit. The manner in which the officer engaged in hot pursuit was appropriately measured to the manner Palmersheim used to try to evade the officer."
By Gretchen Schuldt
Outagamie County Circuit Judge Mark McGinnis went far beyond his legal authority when he sentenced a defendant last year to six months in jail for contempt of court, according to the State Court of Appeals.
The law provides for a maximum of 30 days in jail for the type of contempt invoked by McGinnis against Brian Mitchell, District III Appeals Judge Mark A. Seidl wrote in summarily dismissing the contempt finding.
McGinnis offered to purge the contempt finding if Mitchell, facing a human trafficking charge that later was dismissed, apologized orally and in writing, and paid a $5,000 fine.
But the law allows only a $500 fine, Seidl said.
McGinnis found Mitchell in contempt of court for rolling his eyes and moving papers around. He also later accused Mitchell of giving him a "fuck-you look."
Mitchell, then 27 and poor enough to have public defender representation, eventually served 42 days on the contempt charge.
McGinnis lifted the $5,000 fine after Carrie L. Plant, an attorney, obtained an order to appoint an attorney on the civil contempt charge if McGinnis refused to purge the fine, according to court records.
Mitchell appealed the entire contempt finding. The state did not put forward a response brief and instead filed a letter "in which it concedes the circuit court's contempt sanction constituted an unauthorized penalty," Seidl wrote.
Mitchell's appeal lawyer, Joseph N. Ehmann, in a court filing described his client as "an African-American man incarcerated far from home pre-trial because he could not post cash bond."
Before the contempt finding, Ehmann wrote, Mitchell tried to explain that his top priority was a speedy trial.
"Judge McGinnis responded telling Mitchell he 'must not' understand his rights, was 'obviously very confused,' was making 'comments that don’t make sense.'" The judge also told Mitchell he better hope that he doesn't come before McGinnis for sentencing, Ehmann wrote in his brief.
"Mr. Mitchell reacted with body language expressing frustration or exasperation, and according to Judge McGinnis, 'rolling his eyes,'” Ehmann said.
McGinnis did not make a clear record of what Mitchell did that constituted contempt, Ehmann said. The judge also failed to give McGinnis a chance to speak before imposing sanctions, as required by law, Ehmann wrote.
Seidl, in dismissing the contempt finding, said the unauthorized penalty meted out by McGinnis was enough to do so.
The state did not respond to Mitchell's argument that the excessive penalty demanded dismissal, nor did it argue that the excessive sanction could be reduced to something allowed by law, Seidl said.
"We interpret the State's silence on this point as a concession of reversible error, and we have no obligation to develop arguments to the contrary," he wrote.
By Gretchen Schuldt
Outagamie Circuit Judge Mark McGinnis last year kept a defendant jailed for 42 days for contempt of court for rolling his eyes, shuffling papers and giving McGinnis, in the judge's own words, a "fuck-you look."
The contempt finding against Brian Mitchell was eventually overturned by a state appeals judge. Mitchell's lawyer on appeal, Joseph Ehmann, said Mitchell merely was reacting in frustration to comments McGinnis made.
A Court of Appeals panel last month overturned a prison sentence McGinnis handed down in a different case. The appeals panel ruled McGinnis showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison.
McGinnis did something similar but not identical in the Mitchell case. He told Mitchell during a pre-trial hearing that he better keep in mind that McGinnis would be the one to eventually sentence him.
McGinnis originally sentenced Mitchell to six months for the contempt but offered to purge the finding if Mitchell apologized in writing and orally in court and paid a $5,000 fine. Mitchell was poor enough to be represented by the State Public Defender's Office.
McGinnis let Mitchell out after 42 days. The human trafficking charge against Mitchell was dismissed less than a month later.
The action leading up to the jailing played out during two days of hearings. Below is an excerpt from the transcript from the first day.
During this June 6, 2017 hearing, Mitchell is accompanied by attorney Daniel Muza, who has just withdrawn from the case and no longer represents Mitchell. The defendant is without a lawyer.
This section begins after McGinnis cautions that Mitchell's request for a speedy trial means that there are factors that his lawyer might not have enough time to prepare.
Mitchell: I highly understand.
McGinnis: I'm not done talking yet.… There is a likelihood, a good likelihood, that that case will need to be rescheduled and pushed to a later date. Do you understand that?
Mitchell: yes. I – – I will feel that's a conflict.
McGinnis: I'm not sure what that means.
Mitchell: I would like it at the earliest convenient on the calendar dates, my jury trial. I want to, I intend, will exercise my right to exercise a speedy trial. If my attorney can't cooperate with that, it's a conflict of my interest.
McGinnis: How come it's a conflict of your interests? ... And if you're attorney is on vacation, for example, on that date – –
Mitchell: I understand that.
McGinnis: You must not.
Mitchell: I can sign a stipulation with my attorney. I mean, saying that I understand that it will probably put them in less effective -- It wouldn’t put me in the best defense, but that’s just my decision. Me and my attorney could probably come to some type of an agreement on that.
McGinnis: You’re obviously very confused. That’s probably one of the reasons Mr. Muza is withdrawing.
Mitchell: No. I -- I asked him to.
McGinnis: It wasn’t a question for you. Okay. So you use terms that don’t make sense, which is okay. Then when we try to explain things to you, you appear or you seem to want to know everything; and then you seem to make more comments that don’t make sense. So I’m not interested in trying to really have a conversation with you where you and I both agree.
Mitchell: Me neither. Me neither.
"You’re obviously very confused. That’s probably one of the reasons Mr. Muza is withdrawing." – Outagamie Circuit Judge Mark McGinnis
McGinnis: I’m just telling you the reality of something.
McGinnis: Okay. I want you to understand today.
Mitchell: I understood that already.
McGinnis: I wasn’t done asking the question. For some reason you have a problem with interrupting people when they are talking. You can roll your eyes. It’s really impressive.
Mitchell: You have a problem the way you talk to people.
McGinnis: Okay, good. Someday I’m going to sentence you.
McGinnis: That’s going to be a problem --
McGinnis: -- for you that day.
McGinnis: Maybe. For your sake you’d better hope it doesn’t happen because I have a pretty good memory of it and if it --
Mitchell: I’m innocent so I don’t worry about your sentencing.
McGinnis: You might be innocent. You might not have to worry about it. That’s fine.
Mitchell: All right then.
McGinnis: Are you done rolling your eyes?
"Someday I’m going to sentence you. ... That’s going to be a problem...for you
A few moments later, after another brief exchange, Mitchell urged McGinnis to proceed with the hearing.
McGinnis: I am trying, but you are interrupting and creating nonsense by rolling your eyes and other antics.
Mitchell: That’s not interrupting if I am rolling your (sic) eyes. I can roll my eyes.
McGinnis: No, you can’t roll your eyes, sir. I am going to find you in contempt of court for your conduct today, for the disrespect to the Court. Is there anything you’d like to say before I impose a consequence for that?
McGinnis: I’m going to sentence you to six months in the Outagamie County Jail in lockup. That sentence begins today. You may purge that contempt by writing an apology letter to me.
Mitchell: I will.
McGinnis: And, secondly, by appearing here in court and making a verbal apology.
Mitchell: I will.
McGinnis: And by paying a fine of $5,000. If you purge that contempt by doing those three things, then that contempt is purged and you’re no longer sitting. Otherwise you will sit for six months in lockup. Anything on that issue, sir?
McGinnis: Okay. So you can keep rolling your eyes and then I will keep giving you six months, or you can grow up and handle yourself the way that people are supposed to handle themselves in court. Do you have any questions about that?
Mitchell: Do I get appointed an attorney? Can I?
McGinnis: I asked if you had any questions about that?
Mitchell: Can I argue that?
McGinnis: Argue what?
Mitchell: The sentence you just gave me, your charge.
McGinnis: You can do anything you want you can keep rolling your eyes if you want, like you said. You told me a couple minutes ago you can roll your eyes. Sure you can go ahead and roll your eyes. That I can go ahead and do what I want to do.
Next: Another hearing, and the judge drops the Fbomb from the bench.
By Gretchen Schuldt
An Outagamie Circuit Court judge showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison, a State Court of Appeals panel ruled Tuesday.
The ruling does not reflect on the four-year sentence Circuit Judge Mark J. McGinnis ultimately handed to Emerson D. Lamb, Appeals Judge Thomas M. Hruz wrote for the District III panel.
"However justified Lamb’s prison sentence may have been, we cannot ignore the constitutional requirement that Lamb be sentenced by an impartial tribunal," Hruz wrote. "Our adherence to this fundamental precept of due process compels us to reverse Lamb’s conviction."
The court ordered that Lamb be sentenced again by a different judge.
Hruz was joined in his opinion by Appeals Judges Lisa K. Stark and Mark A. Seidl.
Lamb originally was charged with two counts of felony bail jumping, one count of battery by a prisoner, and one count of disorderly conduct. He was charged as a repeater in each instance.
He eventually pleaded guilty to one count of battery by a prisoner as a repeater, and the other counts were read in. The judge ordered a pre-sentence investigation, and Lamb was released on bond.
He failed, however, to keep his appointment with the PSI writer and expressed a desire to withdraw his plea.
During a hearing, Lamb said he was wrongly charged with two counts of bail jumping and called the district attorney a "criminal," then left the courthouse, Hruz wrote. McGinnis issued a bench warrant for Lamb's arrest. He was eventually taken into custody.
At his sentencing hearing, Lamb said he no longer wished to withdraw his plea and to skip the PSI because prosecutors agreed to recommend a sentence of probation.
''I feel like I could potentially benefit from, you know, maybe being on probation," Lamb said. "Also, there’s the possibility of leaving today, so I just --"
"Not really," McGinnis said. "Okay. Just thought I’d tell you that so you don’t have any false hopes. I mean, there’s a possibility, but it’s probably not going to happen. Do you understand that? Yes?"
Lamb said he understood.
McGinnis continued, "I don’t want you waiving your rights thinking something that might happen that maybe isn’t going to happen. So now that you know that it probably isn’t going to happen that you’re going to get out today, do you still want to proceed with sentencing and not argue on your request to vacate the pleas or to withdraw the pleas and to waive your right to have a PSI?"
Lamb said he did.
"You’re going to prison today because we’re sick and tired of you."
McGinnis heard from the district attorney, Lamb's attorney, and Lamb himself. Then the judge himself spoke.
"Well, just so there’s no surprise, I mean, you are going to prison today," he said. "I’m making that decision, and I think it needs to be communicated to you clearly without keeping you on edge as I tell you what’s going to happen, and you’re going to prison today because we’re sick and tired of you."
Lamb had several chances at probation, but kept committing crimes, McGinnis said, adding that he did not "know many people with as low of character as you have."
McGinnis sentenced Lamb to two years in prison and two years on extended supervision.
McGinnis' comments "reveal, by a preponderance of the evidence, a serious risk of actual bias because a reasonable lay observer would interpret them as prejudging Lamb’s sentence," Hruz wrote.
The timing of the judge's comments was important because they occurred before sentencing arguments and before Lamb had a chance to speak on his own behalf, Hruz said.
Wisconsin judges are required to consider several factors when passing sentence harsher than probation. They include the need to protect the public, the gravity of the offense, and the defendant’s rehabilitative needs, Hruz said.
McGinnis’ statements "failed to account for any of these sentencing factors and objectively show a 'serious risk' that he had already made up his mind about what kind of sentence Lamb would receive," Hruz said.
Appeals panel sides with Innocence Project client in case linked to North Side Strangler serial killer
By Gretchen Schuldt
A man sentenced to five years in prison two decades ago should be allowed to withdraw his guilty plea after showing convincing evidence that a serial killer was actually responsible for a murder police accused him of participating in, an appeals court panel ruled Tuesday.
The real killer very likely was Walter Ellis, known as the Milwaukee North Side Strangler, who was responsible for a string of rapes and killings in the city.
The panel overturned a decision by Milwaukee County Circuit Judge M. Joseph Donald, threw out the conviction of Sammy Joseph Hadaway, and sent the case back to Circuit Court.
Donald was the judge who heard and rejected Hadaway's post-conviction motion to withdraw his plea. The appeals court, in a decision written by Appeals Judge Timothy G. Dugan, ruled that had trial judge Diane Sykes known all the facts of the case revealed after the case was over, she would not have accepted the plea.
Hadaway was convicted of attempted robbery after reaching a plea agreement.
Hadaway, now 34, has severe cognitive and intellectual disabilities, cerebral palsy and seizure disorders. He was arrested in October 1995 in connection with the death of Jessica Payne.
Payne, a runaway prostitute, was found beneath a mattress in the back yard of a north side Milwaukee house, according to Dugan's decision, joined by Appeals Judges Joan F. Kessler and William W. Brash III.
"Her throat had been slashed, her bra had been torn, and her pants had been pulled down to her ankles. The evidence suggested that she had been sexually assaulted," Dugan wrote.
Police collected physical evidence from the scene, including vaginal swabs that revealed semen. Tests of the swabs proved inconclusive.
A month later, a jailhouse snitch told police that Richard Gwin had implicated himself in the murder of a white woman.
Gwin, Dugan wrote, told police that he drove the victim, Hadaway, and a man named Chaunte Ott, to an abandoned building. The three got out of the car and Hadaway and Ott came back a short time later, without Payne.
Gwin said he asked where the girl was, and Hadaway responded, “she didn’t have no money so [Ott] cut her throat.”
Gwin later recanted his confession. His sister said Gwin tld her that police put "severe pressure" on him during the investigation, the decision said.
Hadaway's interrogation by police continued over several days. At first Hadaway denied knowing any white girls at all and said he never met Payne.
Hadaway was formally arrested in October 1995. He later said that when police interviewed him, they "regularly threatened" that he would be raped in prison, Dugan wrote.
Hadaway later said "the police played 'nice cop/bad cop' and yelled at him and scared him, and told him that 'he would do eighty years' if he did not implicate Ott," Dugan wrote. "The police promised Hadaway that if he implicated Ott, he would serve five years in prison instead of eighty years. The police also shared the details of the murder with Hadaway, and showed him Gwin’s statements."
Police also told Hadaway what to say, Dugan wrote.
"After two days of interrogation, Hadaway gave a confession regarding Ott and his involvement with Payne," he wrote. He said he and Ott attempted to rob Payne, then Ott sexually assaulted Payne and killed her."
The detectives who interviewed Hadaway did not record notes in their memo books, Dugan wrote.
"Instead, they took notes during witness interviews—including their interviews of Gwin and Hadaway—on steno pads, and then destroyed the notes," Dugan wrote. "Further, no record was ever made of the first one and one-half hours of the detectives’ October 27, 1995 interrogation of Hadaway."
Ott was arrested, tried and convicted of first-degree murder, despite a complete lack of physical evidence linking him or any individual to the crime.
In a plea deal, Hadaway pleaded guilty to attempted robbery and served five years in prison.
The Wisconsin Innocence Project took on the case in 2002 and requested retesting of the swabs taken from Payne. The new tests excluded all three men – Gwin, Hadaway, and Ott – as the source of the semen found at the murder scene. The semen, in fact, did not match any profile known at the time.
Later, in 2007, the state matched the sample to semen collected during two other murder investigations, also on the city's north side. Ott could not have committed those murders – he was locked up at the time.
That same year, Ott filed a motion for a new trial based on the DNA evidence in the Payne case. He was denied and appealed. He cited several new pieces of evidence including recantations by Hadaway and Gwin of their earlier statements. Both attributed the recanted statements to police pressure.
Ott's conviction was eventually reversed by the Court of Appeals and the state dismissed all charges against him. A state board found “clear and convincing evidence” that Ott was innocent of the crime.
Ott eventually sued the City of Milwaukee and several officers for violating his rights. He received $6.5 million under a settlement.
The state, meanwhile, matched the DNA from all the three north side murders to Ellis, a serial killer who raped and murdered at least eight other women besides Payne. Those women were found in the same neighborhood as Payne, and their murders had several similarities to Payne's slaying.
Ellis was arrested in September 2009 and eventually pleaded no contest to seven murders. He was sentenced to seven consecutive life terms. He died in prison in 2013.
The state, in opposing Hadaway's request to withdraw his plea, argued that the DNA linked to Ellis and the clearing of Ott's name was irrelevant to whether Hadaway was guilty of attempted robbery.
The appeals panel disagreed.
"We conclude that, based on the new facts regarding the presence of Ellis’s DNA on Payne’s body and the presence of Ellis’s DNA and his involvement in the murders of seven women committed in the same vicinity that also have several other characteristics of Payne’s murder, Hadaway has presented clear and convincing evidence that if known by the trial court, would have prevented it from accepting his guilty plea," Dugan wrote.
By Gretchen Schuldt
A defense lawyer who did not interview potentially helpful witnesses and cannot give a reason for failing to do so was ineffective in the representation of his client, a state appeals judge ruled this week.
District III Court of Appeals Judge Mark A. Seidl, in rejecting rulings by St. Croix County Circuit Judge R. Michael Waterman, threw out the third-offense drunk driving conviction of Tanya Lynn Schmit and sent the case back to circuit court for further proceedings.
During a post-conviction hearing, defense lawyer Aaron A. Nelson testified that “there was no strategy involved at all” in his non-investigation of one of the potential witnesses and that he simply “didn’t do it,” according to Seidl's one-judge opinion.
The main question at Schmit's trial was whether she was driving when the car she was in crossed the center line of a road and crashed into a bridge wall. Another woman, Britney Aumer, was with Schmit in the car when the accident occurred.
Neither Schmit nor Aumer testified at Schmit's jury trial. It is not clear whether Aumer could be found in time to testify, Seidl wrote.
A police officer testified at trial that Schmit said both that she was the driver and that she was not the driver. Aumer declined to give a statement to police.
About three years after the accident and two weeks before trial, a witness, Holly Korn, told Schmit that she saw Aumer leave the car by the driver’s door. Korn had not spoken up earlier because she assumed Aumer was the one charged with drunk driving, Seidl said.
Schmit’s estranged husband, Chad, told Schmit before the trial that a distraught Aumer talked to him on the phone after the accident and acknowledge being the driver. Chad and Schmit owned the business that owned the vehicle.
Schmit told her lawyer that there were two potential witnesses and that he should talk to them.
During the post-conviction hearing, attorney Nelson testified that he knew about Chad even before Schmit told him, and also said he learned of the two witnesses about the same time.
"There is a reasonable probability that, had (the witnesses) testified, the result of the proceeding would have been different."
Waterman, the circuit court judge, ruled that the lawyer was not ineffective because a reasonable attorney would not have had time to investigate the new information obtained a week or two before trial.
Seidl rejected that reasoning, saying “Nothing in the record on appeal supports" the contention that Nelson did not have enough time.
"Rather, and contrary to the circuit court’s statement, Schmit did present evidence clearly showing that the efforts could have been completed in time for trial….” he wrote.
Waterman also ruled that even if Nelson had been ineffective, the outcome of the trial would not change and Chad’s testimony about Aumer’s phone call would have been inadmissable heresay.
Wrote Seidl: “The court failed to provide any basis for its conclusions. ... There is a reasonable probability that, had Chad and Korn testified, the result of the proceeding would have been different. As an initial matter, the record sufficiently establishes that both witnesses could have significantly undermined the State’s case if they had testified at trial.
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