Concept of burden of proof too nuanced for SCOW

SCOW

In State v. Bell, 2018 WI 28, the defendant appealed his conviction because the prosecutor improperly lowered the state’s burden of proof and even shifted it to the defendant.  The jury trial was essentially a credibility battle.  And the prosecutor argued to the jury that, in order to find the defendant not guilty, the jury would have to believe that the accusers were liars. ⁋ 34.  The prosecutor further argued that the defendant’s trial counsel was unable to provide the jury with a motive for the accusers to lie, so therefore the jury must convict. ⁋ 35.  The Supreme Court of Wisconsin (SCOW) upheld the conviction.  Its reasoning: “Even now, [defendant’s appellate counsel] does not tell us how the jury could have acquitted him if it nonetheless believed the victims.” ⁋ 47.  Actually, appellate counsel did tell the court—repeatedly, in fact—how the jury could acquit the defendant even if it believed “the victims.”

Among numerous cases in her brief, appellate counsel cited Vargas:  “If the jurors believed that the [government] agents probably were telling the truth and that Vargas probably was lying . . . it would have been proper to return a verdict of not guilty because the evidence might not be sufficient to convict defendant beyond a reasonable doubt. To tell the jurors that they had to choose between the two stories was error.” Pg. 18.

I’ve learned firsthand that this is a common tactic of appellate courts that want to affirm convictions: simply ignore the defendant’s case law and then blame him for not providing any.  But the reality is that the problem doesn’t lie with the defendant, his trial lawyer, or his appellate counsel.  Rather, in this case in particular, the concept of the burden of proof was simply too nuanced a topic for our state’s high court to grasp.

SCOW also needed several paragraphs to parse and twist the prosecutor’s language to justify upholding the conviction.  It couched its opinion in phrases like “necessary and sufficient conditions” and “symmetrical logical prerequisites.”  This is fancy language, indeed, from the court that needed police intervention because it couldn’t write one of its opinions without things getting physical in chambers.

In any case, rarely does a single court decision highlight so many problems with the criminal justice system.  Sate v. Bell does, and I will be writing more about these issues in future posts or in a law review essay.  But for now, you can read more about Wisconsin’s burden lowering search-for-truth-not-doubt jury instruction here, about the numerous other, often overlooked defects in Wisconsin’s burden of proof instruction here, and about prosecutor misconduct in closing argument here.