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Court Error – Trial Transcripts

By: Derek Hawkins//January 15, 2020//

Court Error – Trial Transcripts

By: Derek Hawkins//January 15, 2020//

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WI Supreme Court

Case Name: State of Wisconsin v. Robert James Pope, Jr.

Case No.: 2019 WI 106

Focus: Court Error – Trial Transcripts

This is a review of an unpublished opinion of the court of appeals, State v. Pope, No. 2017AP1720-CR, unpublished slip op. (Wis. Ct. App. Nov. 13, 2018), reversing the Milwaukee County circuit court’s order. The circuit court vacated Robert James Pope, Jr.’s (“Pope”) 1996 judgment of conviction for two counts of first-degree intentional homicide, party to a crime, and granted Pope’s postconviction motion for a new trial. The circuit court concluded that a new trial was necessary because there was no transcript of Pope’s 1996 jury trial available. The court of appeals reversed and reinstated Pope’s conviction. The court of appeals concluded that Pope was not entitled to a new trial because he failed to meet his burden to assert a facially valid claim of error. We affirm the court of appeals.

Under State v. Perry and State v. DeLeon, when a transcript is incomplete, a defendant may be entitled to a new trial, but only after the defendant makes a facially valid claim of arguably prejudicial error. Perry, 136 Wis. 2d 92, 101, 401 N.W.2d 748 (1987); DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985). This court must decide whether the Perry/DeLeon procedure applies even when the entire trial transcript is unavailable. Pope argues that the Perry/DeLeon procedure does not apply, and that courts should presume prejudice when the entire transcript is unavailable. The State argues that under the Perry/DeLeon procedure Pope is not entitled to a new trial because he has not asserted a facially valid claim of arguably prejudicial error.

We decline to presume prejudice when the entire trial transcript is unavailable. We conclude that the Perry/DeLeon procedure applies whether all or a portion of a transcript is unavailable. We also decline to create an exception to the Perry/DeLeon procedure for Pope because the transcript is affirmed.

Affirmed

Concur:

Dissent: BRADLEY, REBECCA GRASSL, J., filed a dissenting opinion, in which BRADLEY, ANN WALSH and DALLET, JJ., joined.

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