By Joe Forward, Legal Writer, State Bar of Wisconsin
Aug. 20, 2010 – The circuit court did not have authority to grant a new trial to a criminal defendant, convicted in 2000 for sexually assaulting a female freshman at the University of Wisconsin-Whitewater, the Wisconsin Supreme Court recently held.
In State v. Henley, 2010 WI 97 (July 21, 2010), the supreme court ruled 4-3 that allowing the circuit court to grant a new trial in the case “would unwisely broaden the scope of the circuit court’s inherent powers.”
The dissenters – Chief Justice Shirley Abrahamson, Justice Ann Walsh Bradley, and N. Patrick Crooks – agreed that that a circuit court’s inherent authority is not limitless, but argued for a holding that circuit court’s have inherent authority to grant new trials if the “real controversy has not been fully tried or there has been a miscarriage of justice.”
The court also held (unanimously) that a criminal defendant cannot seek a new trial in the interest of justice under Wis. Stat. section 805.15(1), a provision that applies to civil cases.
The decision means that Dimitri Henley, exhausted of all other appeals, will serve the remainder of his 20-year prison sentence. Meanwhile, Henley’s co-defendants, charged with the same crimes arising from the same incident, have been dismissed of all charges.
Facts and procedure
In 1998, the state charged Henley, Jarrett Adams, and Rovaughn Hill each with five counts of first-degree sexual assault, one count of second-degree sexual assault, and one count of false imprisonment.
A female freshman at the U.W.-Whitewater alleged the three men, all nonstudents from Chicago, sexually assaulted her in her dormroom.
All three were tried together in 1999. However, the court granted a mistrial, and the charges were amended to five counts of second-degree and one count of fourth-degree sexual assault.
In 2000, a jury found Adams and Henley guilty on five counts each of second-degree sexual assault. Henley was sentenced to 20 years imprisonment, and Adams was sentenced to 28 years imprisonment for demonstrating a lack of remorse.
Hill’s case was severed when he appealed on double-jeopardy grounds after the first trial. His appeal was unsuccessful, and Hill was retried in 2001. That trial resulted in a hung jury. In that trial, Hill called Shawn Demain to testify. Demain was a resident of the dorm where the victim met the defendants.
Demain’s testimony undermined and contradicted the testimony of the victim. Demain did not testify in the Henley-Adams trial. The state ultimately dismissed the case against Hill based on newly discovered evidence that further corroborated Demain’s testimony.
Henley, who had filed a Wis. Stat. section 974.02 motion for post-conviction relief upon conviction and sentence, subsequently amended his motion, arguing that his trial counsel was constitutionally deficient for failing to call Demain to the stand at trial. The motion was denied.
Henley and Adams, who filed similar motions for post-conviction relief unsuccessfully, both appealed, and the appeals court affirmed the denials. Both Adams and Henley then petitioned the supreme court for review under section 974.06, and the petitions were denied.
In 2003, Henley filed a pro se petition for a writ of habeas corpus in the U.S. District Court for the Western District of Wisconsin based on the same claims in his post-conviction motion. He asked for a new trial in the interest of justice. The court denied the motion. He did not appeal.
In 2004, Adams, represented by the Wisconsin Innocence Project, filed a petition for a writ of habeas corpus in the U.S. District Court for the Eastern District of Wisconsin. The court ruled in his favor, concluding that Adams’s trial counsel was constitutionally deficient for failing to investigate and call Demain as a witness. The state dismissed the charges against Adams.
In 2007, Henley filed a motion for a new trial under section 805.15(1) based on the same claims that were previously rejected in both state and federal courts. Henley also invoked the circuit’s court’s inherent authority to grant new trials in the interest of justice.
In 2008, the same circuit court judge that oversaw Henley’s trial and denied post-conviction motions granted Henley a new trial, finding that the Seventh Circuit’s decision in the Adams case showed that the issues of consent were not fully tried.
The state appealed the decision, and appeals court certified the case to the supreme court.
Majority on circuit court’s inherent authority
Henley argued that the circuit court had inherent authority to grant him a new trial in order to serve the interests of justice. But the majority – in a majority opinion written by Justice Michael Gableman – disagreed.
The majority recognized the inherent power of circuit courts, but noted limitations. In general, the circuit court’s inherent power should be limited, the majority explained, to those situations that guard against actions that would impair the power or efficiency of the courts. In addition, circuit courts have inherent power to regulate the bench and bar, ensure the efficient and effective functioning of the court, and to fairly administer justice, the majority explained.
“Recognizing inherent authority to order a new trial here, where Henley seeks another crack at the same arguments that failed earlier, would take us far beyond the more modest justifications for inherent authority,” the majority wrote. “Put simply, the circuit court’s authority to revisit old arguments must end somewhere.”
Justice Prosser wrote a concurring opinion, stating that “rejecting inherent authority and limiting circuit court review to the terms of section 974.06, protects circuit courts from a deluge of successive claims.”
Dissent on circuit court’s inherent authority
Noting that the “stakes in this case are just about as high as any case a court decides,” the 29-page dissent – written by Justice Crooks – departed from the majority view that the circuit court did not have inherent authority to grant a new trial in the interest of justice.
The same circuit court that presided over Henley’s trial “was sufficiently troubled by the potential significance of evidence not presented at Henley’s trial” and “took the rare step of granting Henley’s motion for a new trial,” the dissent wrote. In doing so, the circuit court “did exactly what circuit courts are asked to do.”
Citing a New York court, the dissent argued that circuit court’s have a responsibility to safeguard “both the rights of the accused and the interests of the public in the administration of criminal justice” and to “correct real or apparent improprieties.”
The dissent argued that a circuit court’s inherent authority is derived from the Wisconsin Constitution’s broad grant of original jurisdiction in Article VII, section 8, and cited Wisconsin and Illinois case law for the proposition that a circuit court has authority to grant new trials.
Noting that a circuit court’s inherent authority is not limitless, the dissenters nevertheless argued for a holding that circuit court’s have inherent authority to grant new trials if the “real controversy has not been fully tried or there has been a miscarriage of justice.”
Such authority would stand if “necessary for the efficient and orderly functioning of the court or to maintain the court’s dignity, transact its business or achieve the purpose of its existence.” To maintain dignity and achieve the purpose of its existence, the dissent explained, the circuit court has “authority to correct errors where an injustice has occurred.”
Countering the majority’s view that “arguments must end somewhere,” the dissent argued that a circuit court decision to grant a new trial is appealable as an erroneous exercise of discretion.
The dissent agreed with the circuit court’s decision to grant Henley a new trial on the ground that the real controversy in the case – whether sex was consensual – was not fully tried because crucial testimony was not presented.
Supreme court’s inherent authority
Noting that 751.06 expressly provides the supreme court with inherent power to order a new trial if the “real controversy has not been fully tried” or “it is probable that justice has for any reason miscarried,” the majority nevertheless refused to grant a new trial to Henley.
The court noted that controversy has not been fully tried if the jury was “erroneously not given an opportunity to hear important testimony that bore on an important issue of the case.” A miscarriage of justice occurs, the court explained, “if the defendant can show a substantial probability of a different outcome.”
However, the court stated: “We are not as persuaded as the Seventh Circuit that the absence of [Demain’s testimony] was so critical.” The majority concluded that Demain’s testimony would have been “largely duplicative” and “not critical.”
The court also concluded that Demain’s testimony would not have created a substantial probability of a different result and, thus, no miscarriage of justice.
Henley’s section 805.15(1) argument
The supreme court unanimously rejected Henley’s argument that section 805.15(1) allows a criminal defendant to seek a new trial in the interest of justice and the time limits of section 805.16(1) do not apply.
Section 805.15(1) states: “A party may move to set aside a verdict and for a new trial because of errors in the trial, or because the verdict is contrary to law or to the weight of evidence, or because of excessive or inadequate damages, or because of newly-discovered evidence, or in the interest of justice.”
Section 805.16(1) states that: “Motions after verdict shall be filed and served within 20 days after the verdict is rendered, unless the court, within 20 days after the verdict is rendered, sets a longer time by an order specifying the dates for filing motions, briefs or other documents.”
Henley argued that section 805.16(1)’s time limits are not applicable in criminal cases because section 972.11(1) provides that civil rules apply to criminal cases “unless the context of a section or rule manifestly requires a different construction.”
The time limitation set forth in 805.16(1) does not apply to motions under 805.15(1) because such a time limitation is absurd, Henley argued. That is, in the criminal context, sentencing occurs after a verdict is rendered and before appellate counsel has even been appointed.
The state argued that 805.15(1) applies in criminal cases, and so do the time limitations set forth in 805.16(1). Thus, the circuit court was barred from granting a new trial.
The State Public Defender (by amicus brief) argued that sections 805.15(1) and 805.16(1) are not applicable to criminal cases at all and urged a new trial based on the circuit court’s inherent authority to order one.
The supreme court agreed with the State Public Defender’s position, holding that sections 805.15(1) and 805.16(1) are not applicable to criminal cases because the time limitation set forth in section 805.16(1) “is absurd in the criminal context,” the text of both provisions suggest they apply to civil cases only, and the statutory history makes clear that both provisions don’t apply to criminal cases.
The court also noted that sections 974.02 and 974.06 are the primary statutory means of post-conviction relief for criminal defendants, and section 809.30 establishes specific procedures and time limitations for pursuing post-conviction relief. Sections 974.02 and 974.06 “would make no sense if motions under section 805.15(1) could be brought at any time,” the court wrote.
Thus, the court held that a criminal defendant cannot seek a new trial in the interest of justice under section 805.15(1).
Henley also argued that section 806.07(1)(g) and (h) provide independent grounds for a circuit court to award a new trial. Section 806.07(1)(g) and (h) allow a court to relieve a party from a judgment if “[i]t is no longer equitable that the judgment should have prospective application,” and “[a]ny other reasons justifying relief from the operation of the judgment."
But the supreme court clarified that section 806.07(1)(g) and (h) apply in equitable actions only, not criminal cases, “for many of the same reasons that section 805.15(1) is unavailable.”
Attorneys
Keith Findley, John Pray, and Byron Lichstein of the University of Wisconsin Law School’s Frank J. Remington Center, Madison, represented Dimitri Henley. Assistant Attorney General Katherine Lloyd represented the state.
