Wednesday, April 3, 2013

'State v. Deadwiller' argument preview

State v. Deadwiller (2010AP2363-CR and 2010AP2364-CR) is scheduled for argument before the Wisconsin Supreme Court April 10, 2013 10:45 a.m. The case is before the court on review of the Court of Appeals, 2012 WI App 89, 343 Wis. 2d 703, 820 N.W.2d 149.The synopsis states:
The issue raised in this sexual assault case is whether the U.S. Supreme Court's recent decision in Williams v. Illinois, 567 U.S.___, 132 S. Ct. 2221 (2012) [pdf] is binding upon Wisconsin courts. The Supreme Court is asked to review whether the Court of Appeals erred in affirming two convictions against Richard Deadwiller for second-degree sexual assault with the use of force.

Some background: Deadwiller was charged with forcibly assaulting two women, both of whom testified at trial that the he had raped them. Deadwiller testified at trial that he had consensual sex with the women. He did not dispute that semen recovered from both women's bodies was his.

A jury found Deadwiller guilty of both sexual assaults. He was sentenced to consecutive terms of 15 years of initial confinement and five years of extended supervision. Deadwiller appealed, arguing that he may not have testified had the trial court not allowed a state crime lab technician to rely on DNA analysis and reports by Orchid Cellmark, a company that runs a DNA testing lab in Texas. Deadwiller argued reliance on Orchid Cellmark's DNA reports violated his constitutional right to confrontation.

A state Crime Lab analyst testified at trial that Orchid Cellmark analyzed semen samples taken from the two victims and produced DNA profile reports. The Orchid Cellmark profiles matched Deadwiller's profile stored in a DNA databank. This initial match prompted the state Crime Lab to obtain a fresh DNA sample from Deadwiller. The state Crime Lab analyst testified that he compared the fresh sample to the semen DNA taken from the victims and in his opinion Deadwiller was the source of the semen found in both victims.

The Court of Appeals held Deadwiller's appeal in abeyance pending the U.S. Supreme Court's decision in Williams. The Court of Appeals noted that Williams determined that reports like the one issued by Orchid Cellmark are not testimonial and may be relied on by a testifying expert without violating a defendant's right to confrontation, even though the person who prepared the report does not testify at trial. Consequently, the Court of Appeals affirmed.

The Court of Appeals said the confrontation right applies to statements that are 'testimonial.' See Davis v. Washington, 547 U.S. 813, 821 (2006) [pdf]; Crawford v. Washington, 541 U.S. 36, 68–69 (2004).

Deadwiller argued that Orchid Cellmark's report was testimonial and that the trial court should not have allowed the state Crime Lab technician to rely on it in giving his opinion that the defendant was the source of the DNA taken from the women.

The Court of Appeals said the conclusion that the outside laboratory's report was not testimonial governed this appeal, and there was no need to analyze whether the outside laboratory's report was or was not relied on for its truth or whether the Williams court's analysis might have been different if the trial had been to a jury rather than to a judge.

Deadwiller argues that Orchid Cellmark's DNA profile results were clearly testimonial because the state needed those results in order to prove or establish the identity of the perpetrator. He argues the Court of Appeals erred in finding Williams controlling.

He argues that this case is materially different because Williams dealt with the applicability of an Illinois state rule of evidence; Illinois did not request substantive admissibility of the Texas lab results and material; and the Williams Court deemed it important that the trial was to a judge rather than a jury because a judge is less likely to be confused as to legal matters.

The state says the Court of Appeals correctly decided that the narrow holding in Williams – that the outside laboratory DNA profile is not 'testimonial' – is binding on Wisconsin courts and, as a result, that the defendant's confrontation clause rights were not violated. From Milwaukee County.