Post-Appeal Interest-of-Justice Litigation

By Wisconsin State Public Defender
Jul 21, 2010

State v. Dimitri Henley, 2010 WI 97, on certification; prior history: unpublished decision; related: disqualification litigation; for Henley: Keith A. Findley, John A. Pray, Byron Lichstein; Amicus: SPD

“Wisconsin circuit courts do not have the inherent authority to order a new trial in the interest of justice when a case is not before the court under a proper procedural mechanism,” ¶5.

Much more to be said, but if you just want the Cliffs Notes version, that quote will do and you needn’t read farther. This is dry-as-dust discussion of appellate technicalities. Unless you happen to be the star-crossed Dmitri Henley, for whom the court’s message is, We care more about preserving the finality of your conviction than the fairness by which it was obtained. Hyperbole? Read on and decide for yourself.

Henley, along with Hill and Adams, was tried for sexual assault. Mistrial resulted in Hill’s case being spun off into an eventually separate trial. Henley and Adams were jointly tried and both were convicted. They had a jointly derived “strategy” (about which more, momentarily) of consensual sex,which didn’t include presenting any witnesses. Then Hill went to trial and for some odd reason decided that a readily available defense might be preferable to none, and so took the trouble to produce a crucial witness who corroborated the consent defense. The jury hung, with 11 in favor of acquittal and the charge against him ultimately was dismissed after it turned out that the State had withheld still more evidence. Henley and Adams then filed separate postconviction motions, but raising an identical issue: that each counsel was ineffective for not producing the witness who made the difference at Hill’s trial. Each such motion lost, and separate appeals were taken. The court of appeals affirmed Henley’s case, blithely noting “that counsel’s overarching decision was to make ‘no defense’ a statement to the jury,” and matter-of-factly ratifying the “no defense” strategy. State v. Henley, 01AP2168-CR, 10/10/02. Adams met the same fate several weeks later, State v. Adams, 02AP39-CR, 11/7/02 (“defense counsel agreed they were not going to call witnesses, and this was a reasonable decision”). Both Henley and Adams filed federal habeas petitions, both lost in district court, and then their paths and fates completely diverged. Henley never appealed, but Adams did—and obtained relief, Adams v. Bertrand, 453 F.3d 428 (7th Cir. 2006). Long and short of it: the Seventh wasn’t bowled over by the no-defense defense strategy (counsel “committed to a predetermined strategy without a reasonable investigation that could have produced a pivotal witness”; the state appellate court’s conclusion that this sort of decision-making, without first interviewing the potential witness, was no more reasonable than counsel’s decision); and, because the evidence of guilt was “relatively thin,” this deficiency was prejudicial. If you don’t know anything about 2254 habeas law, know this: review is very deferential to the state-court result, which therefore has to be awfully flawed to support relief. Back, now, to the decision at hand.

Here we are, then: Henley’s trial, if not quite farcical, resulted in what a federal court, bending over backward to try to accommodate the outcome, nonetheless pronounced unreliable. And yet, that pronouncement affected only Adams, so that even though Henley’s case was jointly tried and jointly strategized, and not meaningfully distinct, it was literally unaffected by the Adams mandate. Which left Henley procedurally hamstrung. He didn’t appeal his habeas denial, so he’s procedurally barred in federal court from taking advantage of Adams, otherwise that holding would equally mandate relief for him. And the appeal he lost in state court operates as a bar that simply wouldn’t be affected by Adams. What to do? Henley did about the only possible thing he could do: moved for relief in the interest of justice. The same judge who presided over Henley’s trial heard this motion and determined that the real controversy, consent, hadn’t been fully tried. Her analysis derived from the Adams decision, which clarified that the jury had been denied the opportunity to hear critical testimony that went to the heart of consent, ¶¶125-35. But the supreme court, by the slimmest of margins, 4-3, says that the circuit court was never even authorized to hear his claim, that finality of judgment counts most, a fair and just result not at all.

Long and short of it: civil rules for relief from judgment, §§ 805.15 and 806.07, aren’t available to a postconviction litigant, ¶¶33-71. (One of the reasons is that the statutory text refers to motions after “verdict,” rather than “postconviction” motions, ¶40. But this just makes it jarring to see the concurrence unconcernedly observe, “the defendant may file a whole host of motions after verdict in an effort to secure a new trial,” ¶96.) The court goes on to agree unanimously (with the State Public Defender’s amicus position, it must be said) that circuit courts possess inherent authority to engage interest-of-justice review, but diverges as to the limits of this authority. Majority:

¶75 Put simply, the circuit court’s authority to revisit old arguments must end somewhere. While defendants deserve a fair hearing, defendants do not deserve unlimited, duplicative hearings. The fair administration of justice is not a license for courts, unconstrained by express statutory authority, to do whatever they think is “fair” at any given point in time.[29] Rather, any conception of the fair administration of justice must include the principle of finality. Thus, while circuit courts do have inherent powers, we do not recognize a broad, inherent power to order a new trial in the interest of justice at any time, unbound by concerns for finality and proper procedural mechanisms.

This inherent authority to grant relief in the interest of justice may be exercised during (and, apparently, only) during the direct appeal process, ¶63.


¶125 The majority insists that a circuit court’s inherent authority is restricted by statutory procedures and time limits, id., ¶¶76, 86; however, a court’s inherent authority is entirely independent of its statutory authority. The Wisconsin Constitution confers circuit court jurisdiction, and therefore circuit court authority is not constrained by legislative directives. Wis. Const. art. VII § 2; In the Matter of the Guardianship of Eberhardy v. Circuit Court for WoodCounty, 102 Wis. 2d 539, 548, 307 N.W.2d 881 (1981). We have continuously affirmed that a circuit court’s inherent authority is entirely independent of any statutory authority. Pulaski, 23 Wis. 2d at 142-43 (noting the circuit court’s authority to allow withdrawal of a guilty plea is not derived from a statute, but rather stands upon the circuit court’s inherent authority).

Which side has the better of the argument? That depends, doesn’t it, on whether you fetishize finality of judgment. (¶75: “Rather, any conception of the fair administration of justice must include the principle of finality. Thus, while circuit courts do have inherent powers, we do not recognize a broad, inherent power to order a new trial in the interest of justice at any time, unbound by concerns for finality and proper procedural mechanisms.”) Precisely why finality should trump a fair and just result, the majority doesn’t ever say. Tension in the dea that inherent judicial authority — which has always been recognized — to grant relief in the interest of justice can be silently regulated by procedural legislation is captured in the majority’s curiously worded conclusion:

¶85 In cases like this, the temptation may arise for courts to create a new procedural protection or new remedy unfounded in the law to fit the facts of a very difficult case. But the old adage is still true——hard facts make bad law. We choose to not make bad law.

The majority has just got done informing us in a cursory, dismissive “analysis,” that nothing went wrong in the fact-finding process, that if anyone got it wrong it was the 7th Circuit in Adams, ¶¶82-83. So it is jarring to see the court say in the next breath that the case is indeed “very difficult.” The difficulty is not because, as the concurrence euphemizes, ¶101, that Henley has been “treated differently,” but because he’s been treated unfairly. Hard cases make bad law: “Its meaning is that a particularly unpleasant case is a poor basis for a general law which would cover a wider range of less extreme cases.” And so you have to wonder just what it is about Henley’s case that the majority finds “particularly unpleasant.”