June 27, 2023 – A second prosecution for alleged acts that were the subject of a previous trial that ended in a mistrial did not place a defendant in double jeopardy, the Wisconsin Supreme Court has ruled, because several charges in the second prosecution involved different elements.
In State v. Killian, 2023 WI 52 (June 21, 2023), the supreme court also held (5-2) that a double jeopardy analysis must begin by looking at the criminal information in the first trial.
Chief Justice Annette Ziegler wrote the majority opinion, joined by Justice Patience Roggensack, Justice Rebecca Dallet, Justice Brian Hagedorn, and Justice Jill Karofsky. Justice Ann Walsh Bradley dissented, joined by Justice Rebecca Bradley.
Two Minor Victims
In March 2015, the Trempealeau County District Attorney charged James Killian with one count of first-degree sexual assault of a child (named Britney in the complaint) under the age of 12.
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 May 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 County Circuit Court consolidated the cases.
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.
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.
Motion to Dismiss
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.”
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 and the Wisconsin Court of Appeals affirmed. The state appealed.
Scope of Jeopardy
Chief Justice Ziegler began her opinion by pointing out that the U.S. Supreme Court has held that an overlap in proof and evidence between two prosecutions is not sufficient to establish a violation of the Fifth Amendment’s double jeopardy clause.
Ziegler also noted that the Wisconsin Supreme Court, in State v. Schultz, 2020 WI 24 (Mar 2, 2020), held that in assessing a claim of double jeopardy, a court must look at the entire record to determine the actual jeopardy faced by the defendant in the first prosecution.
Under Schultz, a court must begin its analysis with the complaint filed in the first prosecution.
Killian argued that under Schultz, the second prosecution violated the bar on double jeopardy because the evidence the state planned to submit in the second trial was sufficient to have convicted him in the first trial.
But Schultz was not so broad, Chief Justice Ziegler concluded.
“Schultz never suggested that the trial record, and the trial record alone, could expand the defendant’s scope of jeopardy beyond the jeopardy created by a fair reading of the charging documents,” Ziegler wrote.
No Risk of Being Found Guilty
Killian argued that he faced double jeopardy in the second trial because of: 1) the prosecutor’s attempt to introduce in the first trial other acts evidence regarding his alleged conduct toward Britney; and 2) the prosecutor’s attempts to introduce evidence that he’d allegedly assaulted Ashley when she was between six or seven years old until she was 17 years old (1988 to 1999).
But Chief Justice Ziegler concluded that Killian was never put in jeopardy for being convicted for those offenses because he never faced the risk that he would be found guilty of them.
Regarding the evidence about Britney, Ziegler wrote that the circuit court, while discussing the state’s motion to amend the complaint on the first day of trial, “’was not alleging there were additional things that happened.’”
Regarding the evidence about Ashley, Ziegler concluded that Killian was only at risk of being convicted for sexual assaults against Ashley from April 1994 through December 1999 – a date range narrower than that mentioned by the prosecutor during his opening statement.
Chief Justice Ziegler also pointed out that several counts in the second prosecution required proof of different elements than those in the first prosecution.
“Because no count in the present prosecution is identical both in law and fact with an offense charged in Killian’s previous prosecution, the present case is not a prosecution for the same offense and does not violate Killian’s right against double jeopardy,” Ziegler wrote.
Dissent: Majority Rewards ‘Gamesmanship’
In her dissent, Justice A.W. Bradley argued that the majority’s focus on the charges listed in charging document was myopic.
“The charging document does not reflect the definitive final charge,” A.W. Bradley wrote. “It is subject to amendment, meaning that the jeopardy to which a defendant is subject cannot be defined strictly by looking at the charging document.”
She also argued that the majority holding would incentivize bad behavior by prosecutors.
“By concluding that Killian’s double jeopardy rights were not violated, the majority rewards the State’s gamesmanship,” Justice A.W. Bradley wrote.