Sexual assault defendant won’t get a new trial, Wisconsin Supreme
Defendant argued that certain testimony misled the jury and a new trial
was warranted in the interest of justice. The supreme court majority
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.
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
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.
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
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.
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
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.
Assistant Attorney General Daniel O’Brien represented the state.
David Karpe of Karpe Law Office, Madison, represented defendant Alan