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2003AP2180 State v. Maloney

By: dmc-admin//February 13, 2006//

2003AP2180 State v. Maloney

By: dmc-admin//February 13, 2006//

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“We recognize that during Maloney’s initial trial, the jury did not have the opportunity to review evidence of Paulus’s misconduct because it did not yet exist; Paulus was charged and convicted subsequent to Maloney’s trial. Maloney asserts that the interest of justice mandates a retrial so that the jury has the opportunity to hear and evaluate information regarding Paulus’s misconduct in this case. Yet, because Maloney fails to present facts that Paulus’s conduct in this case was unlawful, or that there exists any connection between Paulus’s misconduct in the 22 particular cases to which Paulus admitted accepting bribes and Paulus’s actions in prosecuting Maloney’s homicide case, no basis exists that would support a remand in this matter.

“This case is distinguishable from Hicks and Armstrong. In those cases, this court reversed the defendants’ convictions because newly discovered DNA evidence discredited physical evidence that the State had relied on in its prosecution. Hicks, 202 Wis. 2d at 159; Armstrong, 283 Wis. 2d 639, 2, 139, 146, 155-56. As in Hicks and Armstrong, new information has come to light in this case: the prosecutor in Maloney’s case unlawfully accepted bribes in 22 other cases in which Paulus served as the prosecutor. However, unlike Hicks and Armstrong, where the newly discovered evidence compromised evidence on which the prosecution relied, Maloney has alleged no facts that would substantiate allegations that evidence on which the prosecution relied was compromised. Maloney has not presented this court with any objective factual assertions that, if true, would lead to the conclusion that Paulus unlawfully altered the tapes or manipulated any evidence to Maloney’s detriment. We cannot conclude that Paulus’s misconduct in other cases, without more, demonstrates Paulus’s misconduct in this case. Consequently, we conclude that Maloney has not asserted facts to justify a remand for a motion for an evidentiary hearing.”

Affirmed.

Court of Appeals, Butler, J.

Attorneys:

For Appellant: Lew A. Wasserman, Milwaukee

For Respondent: Daniel J. O’Brien, Peggy A. Lautenschlager, Madison

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