De Novo Review Case Analysis

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The decision that a defendant can only obtain a review of a preliminary hearing on the record certainly comports with what everyone has always assumed was the law, or at least since State ex rel. Dowe v. Circuit Court for Waukesha County, 184 Wis. 2d 724, 729, 731, 516 N.W.2d 714 (1994).

Nevertheless, the conclusion that sec. 970.04 is a specific statute governing the issue, while sec. 757.69(8) is only a general expression of a court commissioner’s powers is questionable. The most reasonable construction of the statutes plainly permits de novo review.

Subsection (8) plainly and unambiguously states that any decision of a court commissioner can be reviewed by a circuit court judge upon motion by any party de novo.
Section 970.04, on the other hand, only provides, "If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if the district attorney has or discovers additional evidence."

The most reasonable interpretation of the statute is that it has nothing to do with review of a bindover decision, but means nothing more than that, if the defendant is discharged, either by the circuit court (after either a review on the record, or a de novo hearing), or by the commissioner (and the State sought no review at the time, either de novo or on the record), the State is barred from filing a new complaint, unless it discovers new evidence.

Read this way, the statute merely prevents the State from refiling the same complaint, based on the same evidence, over and over again, until it can find a sympathetic court commissioner or judge willing to bind the defendant over for trial.

Interpreted this way, not only is the statute not a specific statute governing review of a court commissioner’s decisions by a circuit court, it is a wholly irrelevant statute on the issue.

Contrary to the court’s conclusion that, "the legislature expressly addresses in sec. 970.04 the circumstances under which a second preliminary examination can be held," the statute only addresses the circumstances under which "the district attorney may file another complaint."

The court’s discussion of Dowe is also misleading. The court states that the Supreme Court held in Dowe that review of a court commissioner’s bind over is limited to review of the transcript by the circuit court.

However, the only issue in Dowe was whether the defendant could obtain review via habeas corpus. The Supreme Court held that he could not, because adequate other avenues for relief existed, such as review on the transcript.

Admittedly, the Supreme Court did write, "the court’s review is limited to the transcript of the preliminary examination." However, the full text of the paragraph provides, "This same standard is applied whether the review is granted by means of a motion to dismiss or a petition for habeas corpus. In both, the court’s review is limited to the transcript of the preliminary examination."

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Reading the whole paragraph, it is clear that the purpose of the paragraph is to make clear that review by transcript provides as much protection to a defendant as review by habeas corpus, and therefore, review by transcript is an adequate remedy.

Nothing in the statement necessarily precludes the possibility that a defendant may have other avenues of relief — such as a de novo preliminary hearing — that provide even more protection to a defendant than habeas corpus would.

If the statutes were ambiguous, and the court was free to decide the issue based on policy reasons, the result in this case would be preferable to the one advocated above. Regardless of whether a preliminary hearing is held by a court commissioner or a circuit court judge, the fact finder is not permitted to make credibility findings, only findings as to plausibility.

Thus, de novo review is inappropriate, and review should be limited to the transcripts. De novo review is a redundant and unduly burdensome procedure that does nothing to further justice. Unfortunately, the plain and unambiguous language of sec. 757.69(8) permits it.

– David Ziemer

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David Ziemer can be reached by email.