Two Lawyers, Standing Close Together With Their Heads Bent, Argue A Point Before A Judge In Front Of His Dais

July 13, 2023 – A trial court did not err by declaring a mistrial when defense counsel introduced third-party perpetrator evidence without first notifying the state, the Wisconsin Supreme Court has ruled.

In State v. Green, 2023 WI 57 (June 29, 2023), the supreme court also held (4-3) that the fact the evidence was later ruled admissible was irrelevant.

Justice Rebecca Bradley wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Patience Roggensack, and Justice Jill Karofsky.

Justice Ann Walsh Bradley dissented, joined by Justice Rebecca Dallet. Justice Brian Hagedorn dissented, joined by Justice Dallet.

Paper Chase

In March 2019, the Milwaukee County District Attorney charged Mitchell Green with trafficking a child, a class C felony, and other offenses.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

Before the trial began, defense counsel filed a witness list that included Green’s cousin, Jonathan Cousin. Defense counsel possessed a written statement from Cousin, but the state never demanded that defense counsel produce the statement.

In August 2019, the state filed a pre-trial motion in limine, requesting that the Milwaukee County Circuit Court bar Green from introducing any other-acts evidence that involved a third-party perpetrator unless the circuit court first ruled that such evidence was admissible.

The pre-trial judge never ruled on the motion. On the day the trial was scheduled to begin, the pre-trial judge transferred the case.

Surprise Testimony?

At trial, Cousin testified that Green had nothing to do with the events that led to the trafficking charge.

Cousin testified that it was he, and not Green, who had driven the alleged victim and two other people, including the victim’s alleged pimp, to the site where the victim allegedly had an encounter with a man, and then waited for the victim and one of the other passengers to return after they got out of his car.

The state did not object to Cousins’ testimony.

Denny Violation

Later on the day of Cousin’s testimony, the trial judge met with the prosecutor and defense counsel in his chambers.

The judge said that defense counsel may have violated State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984) by presenting Cousins’ testimony without first notifying the state or asking for a ruling on the admissibility of the testimony.

The judge concluded that Cousins’ testimony violated Denny. He also concluded that it was impossible to “un-ring the bell,” because the jury heard Cousins’ testimony, but the defense hadn’t met the two pre-conditions established by Denny.

The trial judge declared a mistrial. Green then filed a motion to dismiss the case with prejudice, arguing that were the state to re-try him, it would violate his right against double jeopardy under the Fifth Amendment to the U.S Constitution.

The circuit court denied the motion. Green appealed, and the Wisconsin Court of Appeals reversed.

The state appealed.

‘Manifest Necessity’ Warranted Mistrial

Justice R. Bradley began her majority opinion by concluding that the circuit court’s grant of a mistrial represented a sound exercise of discretion, based on manifest necessity, because the trial court:

  • gave both parties a full opportunity to present their arguments, and considered alternatives, including a curative instruction;

  • balanced Green’s interest in facing only a single trial with the state’s interest in having a fair trial;

  • concluded a mistrial was necessary because it couldn’t “un-ring the bell” with the jury;

  • rationally concluded, after a reasoned consideration of all the facts, that Cousins’ testimony was Denny evidence.

“Only the trial court could assess the effect of the testimony on the jury,” Justice R. Bradley wrote regarding the third factor. “In this case, the record reflects an adequate basis for a finding of manifest necessity to order a mistrial.”

Later Admissibility Is Irrelevant

Green argued that the circuit court later concluded that Cousins’ testimony was not Denny evidence. But that was irrelevant, R. Bradley concluded.

“At the time the court declared a mistrial, the court believed the effect on the jury of introducing unnoticed Denny testimony could not be remedied by a jury instruction,” Justice R. Bradley wrote.

It was also irrelevant, R. Bradley concluded, that the original judge never ruled on the state’s motion in limine.

It was reasonable for the trial judge to assume that the pre-trial judge had ruled on the motion, Justice R. Bradley reasoned, and therefor rational for the trial judge to conclude that Cousins’ testimony violated a pre-trial order – especially since defense counsel did nothing to dis-abuse the trial court of that notion.

Justice A.W. Bradley Dissent: Admissibility Is Key

Justice A.W. Bradley argued in her dissent that the trial court later ruled Cousins’ testimony admissible, and that was determinative.

“How can hearing 25 minutes of unobjected-to admissible evidence justify a mistrial?” A.W. Bradley wrote.

Justice A.W. Bradley acknowledged that it would have been difficult for the court to rule on the admissibility of Cousins’ testimony before he gave it, given that the case was transferred on the day trial was scheduled to begin.

But, she wrote, “the constitutional protections against double jeopardy create a strong enough interest that the court should have at least tried.”

And the notion that the trial court could rely upon an assumption that the state’s motion in limine had been granted was ungrounded in the law, Justice A.W. Bradley argued.

The majority, she wrote, “cites no authority that would allow it to conclude that the circuit court was not ‘unreasonable’ in assuming a motion had been granted where nothing in the record indicates that this was the case.”

Hagedorn Dissent: Mistrial ‘Seems Discordant’

Justice Hagedorn argued in his dissent that the trial judge should have considered that Cousins’ testimony might be admissible before declaring a mistrial.

“We have the odd circumstance of a mistrial being declared due the introduction of evidence later deemed admissible,” Hagedorn wrote.

“This seems discordant with the command that a court should order a mistrial ‘only with the greatest caution, under urgent circumstances, and for very plain an obvious causes.”