State Response

The State says the motion should be denied because Kathleen is procedurally barred on the grounds that they say she received this information long before she claims to have received it.  

They go on to say the defendant has no legal basis for asking the judge to recuse herself, say they didn't break the law when they returned the bones because the bones they gave back were never confirmed as Teresa's and were also never confirmed to be human, and they also say the testing Kathleen wants to have done on the bones is not approved for forensic testing and shouldn't be allowed.

Defendant's Motion for Leave to File Defendant's Reply to the State's Response in Opposition to Defendant's Motion for New Trial.

Request for leave:

(Because the title is wordy and might be confusing)  Kathleen says the State filed a response without it having been requested by the Court.  She is asking for permission to reply to their response, as it brought up some issues that she says need to be addressed.  Kathleen says that if the Court denies her request to have her reply considered, the Court should strike the State's response since it was not requested by the Court.  Kathleen states this request is made in good faith and not for purposes of delay.

The Reply:

Kathleen says the Court should reject the State's procedural arguments, since their arguments disobey the Court of Appeals' order for there to be proceedings on the merits of the issues in the motion (regarding the return of the bones).  

She says Kirby never received the CASO documents the State claims to have sent and that any confirmation of receiving the 64-page postconviction investigation reports does not confirm receipt of the 1117 page of reports.

She quotes Gahn's comment regarding making arrangements to preserve the evidence, "until these proceedings are over because Wisconsin does have a mandatory preservation statute that would be applicable in this case." She says this confirms that the State knowingly violated the preservation statute. She said this knowing deviation confirms bad faith.

She points out that the two attorneys who returned the bones are the same two attorneys who are representing the State in this proceeding.  She says their "protestations and denials are therefore suspect; this Court must discern whether their arguments themselves are made in good faith or in the simple interest of self-preservation."

She explains, again, why these bones were so important.

The State claimed Rapid DNA testing is not approved for forensic use.  She shows that their quote from the Rapid DNA Act of 2017 didn't actually come from the Act itself, but came from a report from the House Judiciary Committee's.  She says they're not taking more recent usage and development into account.

Here's a little more in-depth explanation if you want it:

She says the State's procedural bar argument fails because they previously encouraged the defendant to file this very motion regarding this exact issue so it would NOT be procedurally barred.  She says they cannot claim one position in a proceeding that contradicts their position on the same issue in an earlier proceeding.

She says the State claimed the only thing the defendant needed in order to raise these claims is "sufficient reason" for not claiming it previously.  She repeats that it was not raised before because the State concealed the information from the defendant, so he had no way of knowing it was an issue needing to be raised.  She says the State is now arguing that the claim is procedurally barred, not because the defendant has not given a sufficient reason but because he did not raise it in a prior motion before the Court of Appeals.

She says the Court of Appeals recognized this as the proper time and forum for the defendant's claims and it would be manifestly erroneous to dismiss them.

The State says the defendant's claims are not allowed because he didn't bring up the issue of retesting the bones earlier.  She says that the issue the defendant is actually raising is the State's unlawful destruction of evidence, not simply a request to have the bones tested.  The State says the defendant could have raised the issue of the destruction of the bones earlier.  She says the State's arguments are invalid because the defendant (nor the defendant's counsel) was not previously notified of the destruction of the bones.  She says that even though the State claims to have sent the reports to Kirby, he never received them.  She says when he received the package, he delivered it to her office without having opened it.  Her law clerk attests that when he opened the package, it only contained the 64-page postconviction investigation document.

She says the State's argument cuts against the recent Wisconsin Supreme Court ruling regarding the Brady doctrine which focuses more on the State's misconduct than on the defendant's due diligence. (Here's a link to the recent Brady ruling.) She says this is exactly what the State is doing.  They're hiding evidence from the defendant and then when he finds it, they're saying he can't bring it up now because he didn't bring it up before.

In response to the State saying the claims under 974.06 are not within this court's jurisdiction (cognizable), She talks about the two cases quoted by the State in support of their claim.  The first one, she says, paraphrases the very thing she's claiming and the second one, she says, misquotes the law.  She asks the Court to consider the actual verbiage of the statute which says claims arising under Wisconsin statutes are cognizable under 974.06.

Regardless, she says, this claim is constitutional in nature and is cognizable based on that alone.  The State says Youngblood and its progeny do not apply to postconviction proceedings.  She says they do.

The State says the gravel pit bones were not subject to preservation under the statute.  She says the State is mistaken when it equates the burn pit bones with the gravel pit bones.  She says the location from where the bones were recovered is the key to their evidentiary value.  The identity of the bones from the gravel pit was never confirmed.  Due to the State's actions, the identity can never BE confirmed.  She says they're not asking the State to preserve every single piece of material; they're asking the State to follow the regulations set forth regarding those matters.

The State claimed Rapid DNA testing is not approved for forensic use.  She shows that their quote from the Rapid DNA Act of 2017 didn't actually come from the Act itself, but came from a report from the House Judiciary Committee's.  She says they're not taking more recent usage and development into account.