Wednesday, May 30, 2012

What’s Your Motive?

Criminal law is riddled with double standards.  For example, suppose that two seventeen-year-olds get into fisticuffs in the state of Wisconsin, and one of them gets a bruise on the cheek.  Typically, the winner of the fight gets prosecuted regardless of who started it, so let’s further suppose that the kid without the bruise gets charged with felony child abuse.  How can this be?  In Wisconsin, he’s considered an adult because he’s seventeen, and therefore can be charged criminally in adult court.  But wait: the kid who got the bruise on his cheek is also seventeen, so how can this be “child” abuse?  Because there’s a double standard: when considering the age of the accuser, seventeen-year-olds are considered to be mere children, rather than adults.  But as absurd as this double standard is, it pales in comparison the double standard for motive and the third-party defense.  

A third-party defense typically arises in this situation: the cops get tunnel vision and focus on one suspect as the perpetrator of a crime.  Maybe they do this because they’re too busy too fully investigate; maybe they have it in for this guy; or, as is typically the case, they think they’ve got the ability to “know” what happened and trust their “gut” or “instincts” in their pursuit of their target.  In cases like this, the suspect-turned-defendant may want to present a third-party defense at trial: “I didn’t do it, but someone else did, and I’m going to present that evidence to the jury.”     

Unfortunately, though, another double standard rears its ugly head.  When the prosecutor puts on his case, the judge will instruct the jury that “the State is not required to prove motive on the part of a defendant in order to convict.” (Wis. J.I. Crim. 175.)  But, on the other hand, the defendant will not even be permitted to present his third-party defense to the jury unless he can show: (1) there is evidence to connect the third-party to the crime; (2) the third-party had the opportunity to commit the crime; and (3) the third-party had motive to commit the crime.

A horrifying application of this rule came in State v. Koepp, where the defendant was accused of murder via three different weapons: “a ligature,” “a knife,” and “a second knife.”  The defendant wanted to present a third-party defense; that is, “I didn’t do it, but someone else did.”  The basis for the defense was quite compelling: there was, among other compelling evidence, “unknown male DNA found on the ligature and the handles of the two knives found at the scene[.]”

Sounds like a good defense, right?  Well, it wasn’t good enough for the trial court or the appellate court.  The courts would not permit the defendant to use this defense because he couldn’t provide a compelling enough motive for the third-party to commit the murder.  (Actually, the third-party’s motive was just as compelling as the defendant’s motive as offered by the state; however, the state, as we know, is not required to show motive at all.)  This horrifying ruling raises several questions:

  1. Why isn’t the defendant entitled to have the third-party’s motive evaluated by the jury, rather than the judge?  When the state wants to introduce evidence, it is rarely if ever excluded; rather, weight of evidence is left solely to the jury.
  2. Why does the defendant even have to show the third-party's motive?  Isn’t another person’s DNA evidence on the murder weapons enough to at least argue to the jury that the defendant is innocent?  If the defendant’s DNA had been on the murder weapons, that would be more than enough for the state to convict.
  3. Also, what if the real perpetrator was flat-out crazy and homicidal, and didn’t have a motive?  Why is the defendant denied a defense just because the real perpetrator was psychopathic?  
So much for the right to present a defense.  However, defense lawyers in Wisconsin need to be aware of a different approach.  Normally, these third-party defenses are tied into a sloppy police investigation.  In Koepp, for example, why didn’t the police explore their other leads, especially after someone else’s DNA evidence was found on the murder weapons?  And there is an entirely different line of cases that might permit a defendant to attack the quality of the police investigation, while indirectly showing that someone else committed the crime.

This line of cases includes State v. DelReal and Kyles v. Whitley.  And although the underlying facts and basis for appeal are different, DelReal, citing Whitley, held that the defendants are allowed to attack “the quality of the police investigation” and to

throw the reliability of the investigation into doubt and to sully the credibility of the lead detective in the case.  The same holds true here. In the interest of securing a fair trial, DelReal was entitled to challenge the reliability of the police investigation and to challenge the credibility of [the detective].

So, with a careful factual analysis of the case at hand, and a careful legal analysis of DelReal, Kyles, and related cases, the Sixth Amendment right to present a defense may not be dead . . . yet. 


  1. Very interesting and sad post.
    But I would like to know:
    A. What can we do for this poor defendant at this point?
    B. How can we get this ridiculous ruling changed?
    C. How many other states have similar law?

    If you reply, take your time as I know you must be busy as you are a lawyer. Thanks for the blog post.

    1. Great questions.

      1. As for this defendant, this was just an appellate court case. Hopefully his appellate lawyer will appeal to the Wisconsin Supreme Court. If that doesn't work, then maybe there is a way to jump to the federal appeals system based on the denial of the Sixth Amendment right to present a defense. But, it's a long and uncertain road, for sure.

      2. There are a couple of ways that these kinds of laws can change. The quickest and simplest would be for the state legislature to pass a statute (much like the self-defense statute, sec. 939.48, Wis. Stats.) that gives the defendant the right to present a third-party defense, even if he can't show the third-party's motive. (But someone needs to kick the legislature's ass into gear before this happens. Any politically savvy people out there who want to take on this cause?)

      3. I don't know how many other states have a ridiculous law like this, but I'd bet that a fifty-state survey would produce many similar laws. (This could be a great research project for a bored law student.)