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  • WisBar News
    April
    26
    2011

    Sexual assault defendant won’t get a new trial, Wisconsin Supreme Court concludes

    Joe Forward
    Legal Writer

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    April 26, 2011 – Despite the defendant's argument that his case was not fully tried, a defendant convicted of sexually assaulting his 14-year-old niece won’t get a new trial, the Wisconsin Supreme Court recently concluded.

    Sexual assault defendant won’t get a new trial, Wisconsin Supreme Court concludes

    Defendant argued that certain testimony misled the jury and a new trial was warranted in the interest of justice. The supreme court majority disagreed.

    By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    April 26, 2011 – Despite the defendant’s argument that his case was not fully tried, a defendant convicted of sexually assaulting his 14-year-old niece (victim) won’t get a new trial, the Wisconsin Supreme Court recently concluded.

    Sexual assault defendant won’t get a 
new trial, 
the Wisconsin Supreme Court concludes Alan Burns appealed his 2007 conviction, which resulted in a 25-year prison term, arguing a new trial was necessary “in the interests of justice” because the real controversy – whether the victim was truthful in alleging Burns sexually assaulted her – was not fully tried.

    But in State v. Burns, 2011 WI 22 (April 26, 2011), the supreme court ruled 5-2 that a new trial was not warranted. Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissented.

    Burns argued the controversy remained untried because the victim gave an incomplete statement that implied Burns took her virginity, and the jury did not hear evidence that the victim’s grandfather (Burns’ father) sexually assaulted her on previous occasions.

    Incomplete statement

    Wisconsin’s Rape Shield Law generally excludes evidence of the victim’s prior sexual conduct. But under State v. Pulizzano, 155 Wis.2d 633, 456 N.W.2d 325 (1990), exceptions may apply when a defendant’s right to mount a meaningful defense is at issue, the supreme court explained.

    The rape shield law prevented Burns from introducing evidence that the victim’s grandfather sexually assaulted her on previous occasions. The grandfather was also charged and convicted in a separate trial. But the victim was directed to exclude references to her grandfather when testifying against Burns.

    Burns argued that once the victim made misleading statements about her virginity – allowing the jury to infer Burns took her virginity, not the grandfather, “testimony regarding the assaults by the grandfather became admissible to challenge” the truthfulness of those statements. In the subsequent trial against the grandfather, the victim admitted that her uncle did not take her virginity.

    Burns also argued the testimony was particularly prejudicial “because the concept of rape of a virgin causes significant outrage in our society.”

    But the majority concluded that such misleading statements were not clearly relevant to the issue of whether Burns sexually assaulted her, and “testimony that [the victim] lost her virginity to Burns is not more prejudicial than testimony that Burns had intercourse with a 14-year-old child.”

    The majority also noted that Burns had numerous opportunities to challenge the victim’s credibility. The victim’s “virginity testimony did not so cloud the critical issue of whether [the victim] lied about what Burns did, as to warrant a new trial in the interest of justice,” Justice Roggensack wrote.

    Other arguments

    The majority rejected Burns’ argument that he should have been allowed to cross-examine an expert witness – who testified the victim’s post-assault behavior was consistent with a sexual assault victim – because the behavior could have been the result of assault by the grandfather.

    The majority also rejected the argument that the prosecutor’s arguments “were so improper as to warrant a new trial in the interest of justice.” The prosecutor had indicated in closing argument that there was no other explanation for the victim’s destructive behavior subsequent to Burns’ assault.

    “[U]pon examining [the prosecutor’s] statements in the context of the entire trial, we conclude that they did not ‘so infect [ ] the trial with unfairness as to make the resulting conviction a denial of due process,’” Justice Roggensack wrote.

    Dissent

    Chief Justice Shirley Abrahamson wrote a dissenting opinion, joined by Justice Bradley. The dissent argued that based on the totality of the circumstances test, the real controversy – whose story was more credible, the accuser’s or Burns’ – was not tried and a new trial was warranted.

    “Because the jury did not hear evidence central to the determination of whose story was more credible and in his closing statement the prosecutor invited the jury to make an inference he knew was incorrect, I conclude that the real controversy was not fully tried,” Chief Justice Abrahamson wrote.

    Attorneys

    Assistant Attorney General Daniel O’Brien represented the state. David Karpe of Karpe Law Office, Madison, represented defendant Alan Burns.