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  • WisBar News
    July 07, 2015

    No New Trial for Man Who Killed Parents, Wisconsin Supreme Court Says

    Joe Forward

    July 7, 2015 – A man who was convicted and sentenced to life in prison for killing his mother and father won’t get a new trial, the Wisconsin Supreme Court has ruled, despite the man’s claim that a new trial was warranted in the interests of justice.

    Corey Kucharski, who suffered from severe schizophrenia, shot and killed his parents in 2010. During a bench trial on his mental responsibility, the defense’s physician experts said that Kucharski lacked the capacity to appreciate the wrongfulness of his crimes or conform his conduct to the law. However, the state presented evidence to the contrary.

    The circuit court judge ruled that Kucharski did not meet his burden to disprove mental responsibility under Wis. Stat. section 973.15(3), which says “mental disease or defect excluding responsibility is an affirmative defense which the defendant must establish to a reasonable certainty by the greater weight of the credible evidence.”

    However, an appeals court reversed, granting a new trial under section 752.35, which gives appeals courts the rarely used discretionary power to order a new trial “if it appears from the record … that it is probable that justice has miscarried for any reason.”

    Unlike the trial court, the appeals court (2-1) concluded that a new trial could produce a different result because Kucharski met his burden to disprove mental responsibility.

    But in State v. Kucharski, 2015 WI 64 (July 7, 2015), the Wisconsin Supreme Court ruled (5-2) that a new trial was not warranted, reversing the appeals court.

    A five-justice majority ruled that the appeals court erroneously exercised its discretion in determining that Kucharski met his burden on mental responsibility, noting that triers of fact, not reviewing courts, must decide whether an evidentiary burden is met.

    “In this case the only reason given by the court of appeals for the new trial in the interests of justice was that court’s improper de novo weighing of the evidence,” wrote Justice Patrick Crooks, noting that Kucharski’s mental responsibility was a question of fact, and reviewing courts must uphold findings of fact unless clearly erroneous.

    “When the evidence is reviewed under the proper standard, there is not a probability of a different result on retrial such that a new trial in the interest of justice is warranted.”


    Justice Ann Walsh Bradley wrote a dissenting opinion, joined by Justice Shirley Abrahamson, stating the majority opinion places undue restrictions on the discretionary power of reviewing courts, including the supreme court, to reverse lower court rulings.

    “The majority declares that a reviewing court cannot base a decision in the interest of justice on a reassessment of the evidence,” Bradley wrote. “Its decision to limit a reviewing court’s discretionary powers in this manner is extraordinary.”

    Justice Bradley said limiting the discretion to reverse based on a reassessment of the evidence “conflicts with the express purpose of the discretionary reversal statute.”

    “For over a century, appellate courts in Wisconsin have had the power to reverse judgments in the interests of justice,” Justice Bradley wrote in her dissent.

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