Feb. 16, 2023 – The Wisconsin Supreme Court has added two cases to its docket. In one case, State v. Killian, the supreme court will consider the scope of the Fifth Amendment’s double jeopardy clause.
In March 2015, the Trempealeau County District Attorney charged James Killian with one count of first-degree sexual assault of a child under the age of 12. The alleged victim in the case was named Britney.
In Mary 2016, the Trempealeau County District Attorney filed a second complaint against Killian, charging him with one count of repeated sexual assault of a child under the age of 16. According to the complaint, Killian assaulted a victim named Ashley from April 1994 through December 1999.
The Trempealeau Circuit Court consolidated the two cases for trial.
During a pre-trial hearing on the case involving Britney, the Trempealeau County Circuit Court granted the state’s motion to introduce other-acts evidence about Killian’s alleged assaults of Ashley between January 1988 and December 1999.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
In response, Killian moved to exclude additional other-acts evidence, including alleged assaults with a victim other than Ashley. The state did not object to the motion.
Last Minute Change
Two days before the trial, the state asked the court’s permission to file an amended information.
The state wanted to add a count of incest, alleging that Killian had sexual intercourse with Ashley at some time between April 1994 and December 1999. The state also wanted to broaden the date range of the allegations involving Britney, from Aug. 28, 2014 to January 2014 to Aug. 18, 2014.
The circuit court allowed the state to broaden the date range but denied the motion to add the incest charge involving Ashley.
When the prosecutor questioned Britney during the trial, she testified about an act that didn’t occur on or about Aug. 28, 2014, the night of the originally charged offense. Killian’s attorney moved for a mistrial. The circuit court granted the motion and dismissed the case without prejudice.
Before the state could re-file the case, Killian filed a motion to dismiss the charges on the grounds that a retrial would violate the double jeopardy provision of the Fifth Amendment to the U.S. Constitution.
The circuit court granted the motion.
The circuit ruled that the prosecutor had intentionally elicited the offending testimony from Britney to gain “another kick at the cat” – to boost the state’s chances of obtaining a conviction by: 1) more thoroughly preparing; 2) filing for an obtaining more favorable pre-trial rulings; and 3) bolstering the record with additional incriminating evidence.
A Third Complaint
In October 2019, the state filed new charges against Killian in Trempealeau County Circuit Court, charging him with 10 counts – nine involving Ashley and one involving Britney.
Killian moved to dismiss the charges on double jeopardy grounds. The circuit court concluded that the new charges fell within the scope of jeopardy posed by the first trial.
The state appealed.
Look Beyond the Pleadings
The court of appeals upheld the circuit court’s decision.
Writing for a three-judge panel, Judge Thomas Hruz explained that under court of appeals precedent, the double jeopardy bar does not apply where a mistrial was granted upon a defendant’s motion.
But Judge Hruz pointed out that an exception to that rule applies where the actions of the prosecutor that impelled the defendant’s motion for a mistrial were undertaken to push the defendant into asking for a mistrial, so that the state could obtain a second chance to try and convict the defendant or harass the defendant with subsequent prosecutions.
Judge Hruz applied the double jeopardy analysis established by the U.S. Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932).
The state argued that double jeopardy shouldn’t apply because the Britney-related count in the 2019 complaint was factually distinguishable from the charge related to Britney contained in the 2015 complaint.
Judge Hruz acknowledged that the charge in the 2015 complaint did not address the act related to the charge included in the 2019 complaint. But, he explained, the double jeopardy analysis requires an examination of the entire record in the first case, not just the pleadings.
Hruz reasoned that had Killian not moved for a mistrial in the first case, the state could have requested to amend the information, something the prosecutor had discussed during the first case.
Judge Hruz also pointed out that in the first case, before the mistrial, the prosecutor was prepared to elicit additional testimony from Britney about alleged assaults by Killian and amend the information accordingly.
‘Why the State Induces a Mistrial Matters’
The court of appeals also held that the charges related to Ashley in the 2019 complaint were not factually different from the charges related to Ashley in the 2016 complaint.
Hruz acknowledged that some of the charges in the 2019 complaint were for assaults alleged to have occurred before April of 1994, the start of the period in the 2016 complaint. But, he pointed out, the circuit court allowed the prosecutor to present testimony about all of Killian’s alleged assaults against Ashley, which began in 1988.
“Because the record establishes the prosecutor’s intention to seek to amend the charges to conform to the evidence or to add such charges upon a mistrial being declared, Killian was in jeopardy of being convicted of incest offenses and for offenses that occurred before 1994,” Hruz wrote.
Judge Hruz explained that the prosecutor’s motivations were central to the case.
“The outcome of this case is tied to, and limited by, it’s unique facts,” Hruz wrote. “In particular, we are mindful of the context in which the State purposely and egregiously induced a mistrial in the first case … How and why the State induces a mistrial matters, especially for purposes of protecting a person’s constitutional rights against double jeopardy.”
Sanders v. State of Wisconsin Claims Board
This case arises out of claim made to the State of Wisconsin Claims Board (Board) by a man who spent 26 years in prison for a crime he didn’t commit.
In August 2018, a Milwaukee County Circuit Court vacated Derrick Sanders’ 1993 conviction for first-degree intentional homicide as a party to a crime.
In February 2019, Sanders filed a claim with the Board under Wis. Stat. section 775.05. He sought $25,000, the maximum the Board could award under state law, and an additional $5.73 million.
In February 2020, the Board determined that Sanders had demonstrated by clear and convincing evidence that he was innocent of the crime of which he was convicted, and awarded him $25,000.
Sanders filed a petition for a rehearing with the Board. He claimed the Board erred by failing to address his request for the additional $5.73 million in compensation.
When the Board denied Sanders’ petition, he appealed to Dane County Circuit Court. The circuit court affirmed the Board’s decisions.
Board Must Demonstrate Exercise of Discretion
Writing for a two-judge majority, Judge Stephen Ehlke of the Wisconsin Court of Appeals District IV explained that under section 775.05(4), the Board must:
determine the amount, up to $25,000 and at a rate not to exceed $5,000 per year of wrongful imprisonment, that would adequately compensate a claimant; and
recommend to the legislature the amount that it considers adequate to compensate a claimant, if it determines that the amount it’s able to award is not adequate.
“Thus, [the statute], read as a whole, requires that the … Board, when it awards the statutory maximum amount, explain its discretionary determination that the statutory maximum amount either does or does not constitute adequate compensation,” Judge Ehlke.
Ehlke concluded that the Board erred by failing to demonstrate, by including findings or an analysis, that it had exercised its discretion in determining whether the $25,000 statutory maximum was adequate compensation for Sanders.
Dissent: Meaning of ‘If’ Controls
In his dissent, Judge Michael Fitzpatrick argued that the majority had impermissibly added to the two-step process required of the Board under section 775.05(4).
Under the statute, Fitzpatrick argued, the Board is required to determine an amount it considers adequate and communicate that amount to the legislature only if it has first determined that the maximum award of $25,000 is inadequate.
“The legislature’s choice of the word ‘If’ denotes the clear direction that the remainder of the sentence concerning a report to the legislature is conditional, and the Claims Board need do nothing further to satisfy Wis. Stat. section 775.05(4) unless it first decides that $25,000 is not adequate compensation for a petition,” Judge Fitzpatrick wrote.
“If the legislature wanted an explanation and analysis from the Claims Board in the second step as to why $25,000 is adequate compensation, the legislature would have stated that,” Fitzpatrick wrote. “It did not, and that makes all the difference.”