Innocence project notches win on writ of coram nobis

State v. Sammy Joseph Hadaway, 2018 WI App 59; case activity (including briefs)

Hadaway pleaded guilty to an armed robbery more than 20 years ago. Based, in part, on Hadaway’s testimony, his purported accomplice, Ott, was tried and convicted of first-degree intentional homicide–the victim of the crime was sexually assaulted and murdered.

But not by Ott. In 2002, the Wisconsin Innocence Project got DNA testing done, and it showed that some then-unidentified other male, not Ott, had raped the victim. Later, that DNA profile was matched to Walter Ellis – who, as it turns out, had committed very similar crimes against at least eight other women.

Hadaway’s testimony against Ott–and his associated guilty plea–were the product of two days of police interrogation. During this interrogation–the notes of which, contrary to policy, the police destroyed–Hadaway says his interlocutors “regularly threatened” that he would be raped in prison, where they said he’d be for 80 years, unless he implicated Ott. They also told him the details of the murder, and “all the things to say.” Hadaway has severe cognitive and intellectual disabilities.

Once the DNA evidence surfaced, Ott, who was serving his life sentence, won postconviction relief under Wis. Stat. § 974.06. (The Claims Board also found him innocent by clear and convincing evidence, and the police and city of Milwaukee settled his claims against them for $6.5 million.)

Hadaway, though, had already done his five-year sentence, and a person who’s not in custody can’t use § 974.06. So he (again with the help of the Innocence Project) instead sought a writ of coram nobis to clear his name.

When lawyers speak of the writ of error coram nobis, they tend to focus on two questions: “Is that a thing?” and “Are you sure?”

It is a thing. In Wisconsin, it’s a thing where the trial court may, in its discretion, “correct its own record of an error of fact not appearing on the record and which error would not have been committed by the court if the matter had been brought to the attention of the trial court.” Jessen v. State, 95 Wis. 2d 207, 212, 213-14, 290 N.W.2d 685 (1980). To  obtain this common-law writ, a person must show there is no other available remedy, and that the error complained of is “crucial to the ultimate judgment” and the factual finding challenged “must not have been previously visited or passed on by the trial court.” State ex rel. Patel v. State, 2012 WI App 117, ¶13, 344 Wis. 2d 405, 824 N.W.2d 862. (As is noted here, it means something different, and broader, in federal court.)

The circuit court denied the writ for two reasons, both of which the state urges the court of appeals to accept. It said the fact that DNA showed the semen inside the victim was from Ellis (who was, again, a serial killer committing similar crimes, in the same area, at the same time as this crime) didn’t conclusively show that Ott wasn’t actually the killer, working in concert with Hadaway. As the court of appeals notes, “conclusiveness” is not the standard a coram nobis petitioner must meet. He must instead show the contested fact to be false by either a preponderance of of the evidence or clear and convincing evidence. (There’s no case law saying which, but the court of appeals says it doesn’t matter–Hadaway has met the higher burden.)

The state also contends the fact that Hadaway testified to his own guilt at Ott’s trial bars relief–because Ernst v. State, 181 Wis. 155, 159, 193 N.W. 978 (1923), said coram nobis “does not reach a question of perjury by a witness on trial.” The court responds that this case wasn’t a trial: Hadaway pleaded guilty. So, the state’s second contention– which, again, is that because the mentally limited Hadaway told the story the state’s agents pressured him to tell on the stand, he shouldn’t be able to withdraw his plea now that DNA has implicated a different killer–fails.