Defense win on newly-discovered Denny evidence affirmed on appeal

State v. Daniel G. Scheidell, 2015AP1598-CR, 3/29/17, District 2 (not recommended for publication); case activity (including briefs)

Congrats to the Remington Center for a winning a new trial in the interests of justice based on newly-discovered, 3rd-party perpetrator evidence 19 years after Scheidell was convicted of 1st degree sexual assault and armed robbery. Even better, their win was affirmed on appeal!

At 4:45 a.m. JD awoke to find a masked, knife-wielding man straddling her in bed. She kicked him away and pointed a pistol at him, causing him to flee. Based on a glimpse of his cheek and eyes (the only part of his face she saw), his body and gait, she was sure that the attacker was Scheidell, who lived in the apartment above her. Police investigated and found no evidence linking Scheidell to the attack. But based on JD’s identification, the State  charged him with attempted 1st degree sexual assault and armed burglary.

At trial, Scheidell wanted to offer evidence, per State v. Denny, that a very similar crime occurred 5 weeks later, just 4 blocks away, at 4:30 a.m. by a man who was “also white,” of the same build, wearing a mask and wielding a knife.  By then, Scheidell was in jail so he clearly didn’t commit the 2nd assault.

Denny holds that 3rd-party perpetrator evidence is admissible if the defendant shows that the 3rd party had motive, opportunity and a direct connection to the crime charged. Denny, at 625. The trial court barred Scheidell from offering evidence of the 2nd assault, so he appealed all the way to SCOW where he lost again. SCOW held that Denny does not apply where the defendant wants to show that an unknown 3rd party committed the crime at issue. State v. Scheidell, 227 Wis. 2d 285, 259 N.W.2d 661 (1991).

Enter the Wisconsin Innocence Project, which obtained a DNA profile from the sexual assault kit for the woman attacked 5 weeks after JD. The profile returned a match for a Joseph Stephen, a black man who is currently serving time for a sexual assault that also occurred in Racine. Scheidell filed a §974.06 motion for a new trial based on newly-discovered DNA evidence and a new trial in the interest of justice, which he won. The State appealed.

To win a new trial based on newly-discovered evidence, a defendant must prove 4 elements. One is that the new evidence was material to an issue in the case. Slip op. ¶14 (citing State v. Plude, 2008 WI 58, 310 Wis. 2d 28, 750 N.W.2d 42). The State argued that proof that Stephen committed the 2nd assault was not “material” to the issue of Scheidell’s guilt.  The court of appeals disagreed.  Citing Denny, it held that newly-discovered evidence of an identifiable third-party perpetrator was material to the issue of Scheidell’s guilt or innocence. ¶17.  It further held that if the jury had heard the evidence, there is a reasonable probability it would have reached a different result. ¶27.

¶30 Upon our independent review, we conclude that in a trial based almost entirely on J.D.’s identification of Scheidell as her attacker, if the jury heard evidence that a strikingly similar crime was perpetrated in the same area within five weeks of J.D.’s attack by a known serial rapist, the jury would have a reasonable doubt as to Scheidell’s guilt. Evidence calling into question the identity of J.D.’s attacker goes directly to the heart of the State’s case as J.D.’s identification of Scheidell was “the sole evidence to support the verdict against Scheidell.” As the circuit court explained, Scheidell “now has the opportunity to present a known individual as a possible perpetrator” and he “can construct an alternative theory to explain to the jury that someone else committed the crime.”

A few interesting wrinkles: The court of appeals dismissed JD’s insistence that her attacker was white, not black, by noting that “eyewitness testimony is often ‘hopelessly unreliable'” and that eyewitness misidentification is now the single greatest source of wrongful convictions in the United States.” ¶25 (citing State v. Dubose, ¶30).

Also, this was a split opinion. All three judges agreed with the points summarized above. They split over the procedural mechanism required to grant the new trial based on newly-discovered evidence. All three judges hold that the newly-discovered Denny evidence in this case provided grounds for a new trial in the interest of justice.  Judge Reilly would further affirm the circuit court’s decision under §752.35, which authorizes the court of appeal to order a new trial where the real controversy has not been tried or justice has been miscarried.  Judges Hagedorn and Gundrum hold that §752.35 is irrelevant to the analysis. Another oddity: This opinion was initially “recommended for publication.” The next day the court of appeals issued an errata changing it to “unpublished.”