March 28, 2016 – The year 1982 was the last time the Milwaukee Brewers made the World Series (and lost). The same year, a man named Christopher Mohr was brutally murdered. Now, one of the convicted killers won his first fight towards a new trial.

A three-judge panel for the District II Appeals Court in State v. Denny, 2015AP202-CR (March 23, 2016), recently ruled that Jeffrey Denny, convicted of first-degree murder as a party to a crime, can test crime-scene evidence for DNA under modern methods.

That’s because Denny met the requirements of Wis. Stat. section 974.07, which governs postconviction requests for DNA testing. A 2-1 majority also ruled that Denny met other requirements for DNA testing to be performed at the public’s expense.

Brutal Murder

The murder occurred in January 1982 in Grafton, north of Milwaukee. Mohr’s friend found him dead with blunt force trauma to his head and more than fifty stab wounds.

Police found numerous pieces of evidence at the crime scene, including bloodied clothing and hair, a shattered bong pipe, and a bloody footprint.

The investigation that followed led to three brothers – Trent, Kent, and Jeffrey Denny. One of the apparent motives was a quarter-pound of marijuana that the victim possessed.

Trent became a state’s witness, with immunity, and brothers Kent and Jeffrey were charged with first degree-murder. None of the physical evidence linked Jeffrey (Denny) to the crime, and there were no eyewitnesses. Rather, Denny was convicted based on inculpatory statements that he allegedly made to numerous people within his circle.

The defense questioned the credibility of some of those witnesses on the basis that they received immunity to cooperate or had prior criminal convictions for major crimes.

Postconviction Motion

Three decades later, with the help of the Wisconsin Innocence Project, Denny moved to have crime-scene evidence tested for DNA, including bloodied hairs and clothing, pieces of a broken bong pipe, a glass cup and a lighter, and facial breathing masks.

Under section 974.07, convicted persons can request DNA testing if “[t]he evidence is relevant to the investigation or prosecution that resulted in the conviction,” the government still possesses the evidence, and the evidence was not previously tested for DNA or new testing techniques would likely produce more accurate DNA results.

Denny also argued for DNA testing at public expense because it was “reasonably probable” that he would not have been prosecuted or convicted if such DNA testing had been available before the prosecution or conviction occurred. He said he also met additional requirements to have the DNA testing performed using taxpayer dollars.

But the Ozaukee County Circuit Court denied Denny’s motion to test the evidence, concluding that DNA was not relevant. The circuit court noted that Denny was convicted based on testimony, not physical evidence. Thus, DNA testing would serve no purpose.

Appeals Court Majority Reverses

An appeals court reversed, which will allow Denny to have the physical crime-scene evidence that is in the government’s possession tested for DNA. The panel noted that such testing won’t guarantee that Denny gets a new trial. It’s just a first step.

The panel ruled that the circuit court was wrong to conclude that the evidence was not “relevant” to the investigation or prosecution that led to Denny’s conviction.

“[T]he trial court applied an improper legal standard when concluding that the evidence Denny wants tested was not relevant because it did not result in the conviction,” wrote Chief Appeals Court Judge Lisa Neubauer for the three-judge appeals court panel.

The panel also rejected the circuit court’s conclusion that since Denny was convicted “as a party” to the murder, undiscovered third-party DNA would not necessarily exculpate him since he could have been convicted as a mere “lookout.”

“But, this was not the State’s theory at trial,” wrote Chief Judge Neubauer, joined by Judge Paul Reilly and Judge Brian Hagedorn.

“If, as Denny argues, testing of the items should show that another person’s DNA is on several of the items, and that the DNA of Denny is not on any of the items identified, such would call into doubt Denny’s participation in the murder,” she continued.

The majority also rejected the state’s contention that defendants must prove a reasonable likelihood that DNA will be found, noting that the items sought to be tested here have a tendency to contain biological material and that establishes “relevance.”

“Putting the onus on a defendant to prove that an item contains biological material would pose serious impediments, and perhaps insurmountable barriers, to him or her ever obtaining testing since these items are in” the state’s possession, Neubauer wrote.

The majority also found the state’s argument on DNA degradation and contamination to be unconvincing, saying it’s premature to make those arguments at this stage.

Testing at Taxpayer Expense

Finally, the majority concluded that public dollars must be used to test the evidence for DNA because Denny showed a reasonable probability that he would not have been prosecuted or convicted if “exculpatory” DNA testing was previously available.

The majority applied the “undermine-confidence” test to determine “reasonable probability,” which is a “probability sufficient to undermine confidence in the outcome.” This test was developed under Strickland v. Washington, 466 U.S. 668 (1984).

The state argued that the standard for “newly discovered evidence” should apply, a reasonable probability that a jury would have reasonable doubt after reviewing old and new evidence. But the majority said the “undermine-confidence” test applies here.

“While evidence here would be new in a sense, in what it reveals, Denny is not, at this point, seeking a new trial,” wrote Judge Neubauer, noting that Denny is merely seeking to test the evidence for DNA under a post-conviction discovery statute.

“Wisconsin’s statute does not explicitly employ a new trial analysis under after the DNA testing has been done,” she wrote.

Concurrence/Dissent

Judge Brian Hagedorn agreed that Denny met the requirements to obtain DNA testing of crime-scene evidence, under Wis. Stat. section 974.07. But he did not agree that DNA testing should be performed at public expense. He said Denny should pay for it.

“The majority holds that the trial court erroneously exercised its discretion in concluding that Denny is not entitled to State-funded testing. I disagree,” Judge Hagedorn wrote.

Judge Hagedorn said it did not matter if the Strickland test or the “undermine-confidence” test were used to evaluate the reasonable probability that Denny would not have been convicted if exculpatory testing results were previously available.

“I decline to reach the proper standard here because I conclude that the trial court properly exercised its discretion under either standard,” Hagedorn wrote.

However, he examined counter arguments for each test, noting the state supreme court could review the case next. “In my view, the trial court got it right,” he wrote.

Even if testing showed no blood from Denny and blood from a third party, “I conclude that a reasonable jury looking at both the old and new evidence would be unlikely to have reasonable doubt as to Denny’s guilt as a party to a crime,” Hagedorn explained.

“Similarly, using the majority’s Strickland-like test, my confidence in the outcome would not be undermined even assuming exculpatory testing results,” he wrote, noting that Denny was convicted based on 36 inculpatory statements that linked him to the murder.