Lawsuit says agents patroling courthouse deters victims, witnesses from testifying
By Michaela Paukner
BridgeTower Media Newswires
MILWAUKEE - In a 4-3 decision announced Tuesday, the Wisconsin Supreme Court rejected the possibility of having a new trial in a decade-old double homicide case - a request made because of missing transcripts. In upholding an appellate court's previous decision, the majority concluded the defendant could not prevail without making a facially valid claim of arguably prejudicial error, no matter if all or part of a transcript is on hand.
The high court reviewed State v. Pope, which resulted in a double-homicide conviction in 1996. The same day that Robert Pope, Jr. was convicted, he and his lawyer, Michael Backes, said they intended to pursue postconviction relief. But Pope didn't take any action until 14 months after his filing deadline had expired.
In the Supreme Court opinion issued Tuesday, Justice Annette Ziegler wrote, "The procedural history of his case is lengthy. But it is Pope's inaction for 14 months from July 1996 to September 1997 that partially controls the outcome in this case - both then in September 1997, and now in 2019."
Pope said he had instructed Backes to take action right away, but Backes never did. Many filings and a decade later, the court of appeals, in October 2016, ordered Pope's direct appeal rights be reinstated. Pope made a postconviction motion for a new trial and made a vain attempt to obtain his trial transcripts. As it turned out, court reporters no longer had notes from his trial. As a result, a circuit court concluded in 2017 that a new trial was needed.
The Court of Appeals later reversed that decision and reinstated Pope's conviction, concluding he wasn't entitled to a new trial since he had failed to meet his burden to assert a facially valid claim of error. Under State v. Perry and State v. DeLeon, known as the Perry/DeLeon procedure, a defendant may be entitled to a new trial if a transcript is shown to be incomplete, but the defendant must first make a facially valid claim of arguably prejudicial error.
The Supreme Court majority, made up of Chief Justice Patience Roggensack and Justices Annette Ziegler, Dan Kelly and Brian Hagedorn, decided the Perry/DeLeon procedure applies whether all or just part of a transcript is unavailable. In the majority opinion released Tuesday, Ziegler wrote the court's conclusion is consistent with Perry, DeLeon, federal law and general appellate procedure.
"If we were to presume prejudice when the entire transcript is unavailable, there would be nothing to stop criminal defendants from sitting on their hands for ten years, and then claiming that they told trial counsel to file a notice of intent," Ziegler wrote. "Under Pope's proposed rule, criminal defendants would automatically be entitled to a new trial after ten years regardless of their sentence because their transcripts would be unavailable if not previously requested."
Justices Rebecca Bradley, Ann Walsh Bradley and Rebecca Dallet dissented. Rebecca Bradley's opinion contended Pope's Sixth Amendment rights were violated when Backes didn't file a notice of appeal and sought an acknowledgement by the court that his rights had been violated.
"Compounding the calamity of errors that deprived Pope of his direct appeal, the majority casts aside constitutional and statutory rights, misapplies cases, and wrongfully blames Pope for his attorney's errors," Rebecca Bradley wrote. "The people of Wisconsin should be troubled by any conviction or imprisonment that stands at the expense of fundamental constitutional rights."
She also discussed the majority's interpretation of the Perry/DeLeon procedure, writing "The majority flouts the law by imposing the consequences of the lost transcripts on Pope despite the fault plainly lying elsewhere."
Published: Thu, Dec 19, 2019
