"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full. These "in brief" posts let me cover a few more. The posts lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
State v. Darnial C. Craig
Appeal 23AP2086
Filing attorney: Ellen Henak
Post-conviction judge: Kenosha County Circuit Judge Jason Rossell
A woman incorrectly identified two other men as her assailant before she positively identified Darnial Craig as the man who kidnapped and raped her three times.
The identification occurred 2½ to three months after the crime, which involved two assailants, during the third photo array police showed the victim.
In the first photo lineup, LC (the victim - AW) identified an innocent man as Man 1. Slightly more than a month after the assaults, LC picked out a cousin of Mr. Craig’s as Man 1. She insisted she was “100 percent positive.” The police then determined that this man was innocent.
In the second photo lineup, LC stated that Man 1 was not present, although Mr. Craig’s picture was in the lineup. ...
In the third photo lineup (which was the second time police presented Mr. Craig’s picture and occurred after Mr. Craig’s arrest), she identified Mr. Craig’s photo as one of Man 1. ... As she had done earlier when identifying the incorrect man, LC claimed she was “absolutely positive.”
Craig's alleged accomplice in the crime, Lebor Keys, was offered a plea deal and subsequently also said Craig was the assailant known as Man 1, as did a jailhouse snitch.
At Craig's trial, LC identified Keys as Man 2, even though she said earlier that Man 2 was not in a photo array when Keys’ picture was indeed in the lineup.
Man 2 forced the victim to perform oral sex on him. No DNA was available from that crime.
A vaginal swab from the victim was tested for DNA.
DNA expert Laura Kwart testified for the state. She said the test results
failed to meet the State Crime Lab’s standards for DNA interpretation. To everyone’s surprise, she also testified that new, more sensitive testing procedures had recently become available.
The State Crime Lab then re-examined the rape kit to see if re-testing was possible, but the Lab believed (inaccurately as it would turn out) that there was no other semen to test.
Craig was convicted in 2000 after a jury trial in front of Kenosha County Circuit Judge Wilbur Warren Wilbur III. Wilbur sentenced him to 145 years in prison, according to the appeal. An additional 50-year prison sentence was stayed in favor of 30 years of probation.
A few months later, the State Crime Lab started using a more powerful DNA-testing technology, Henak wrote. Craig's first post-conviction counsel realized that there was indeed evidence that could be tested – a vaginal swab from LC. The state agreed that Dr. Alan Friedman, who owned a lab specializing in forensic DNA and paternity testing, should perform the testing. He did, but afterward Craig wanted a different lawyer.
Mr. Craig had been pushing for DNA testing before trial and at sentencing so a high probability exists that Mr. Craig’s problem with postconviction counsel was his failure to pursue DNA evidence further.
The Kenosha County Sheriff's Department, which was holding the evidence, destroyed it all after authorized to do so by the district attorney's office.
Craig, in prison, contacted the Wisconsin Innocence Project (WIP) about eight years after the evidence was destroyed, according to the appeal. Sarah Shields, a senior DNA analyst with an accredited lab, examined Friedman's report and compared it to DNA profiles for Craig and Keys.
"Ms. Shields concluded that Mr. Craig was excluded as a contributor to the partial profile," Henak wrote in the appellate brief.
WIP referred Craig to the the Legal Assistance to Incarcerated Persons Program. Neither organization filed a brief on Craig's behalf.
It took time, but Craig's family came up with the money to hire Henak to represent him.
Shields testified at the 2022 post-conviction hearing before Rossell. She repeated her conclusion that Craig was not the person who vaginally raped LC.
Friedman, who also testified.
He agreed that Mr. Craig was excluded if there was only one minor contributor. ...
Like Ms. Shields, he reasoned that there was only one minor contributor because there was no evidence to support otherwise . ...
Ms. Shields could neither include nor exclude Mr. Keys as one of the minor contributors to the material on the vaginal swab. When she compared the partial profile to Mr. Keys, the partial profile was consistent with him.
Rossell denied Craig's request for a new trial.
Although the court held that Mr. Craig had shown both that the evidence was discovered after trial and that it was not cumulative, the court also held that Mr. Craig was negligent in not seeking it sooner after the trial, was not material because it was not admissible, and that there was no reasonable probability of a different outcome with the evidence.
Craig, through Henak, said the Court of Appeals should reverse Rossell's ruling and grant Craig a new trial "as a matter of due process based upon the newly discovered DNA evidence excluding him as the source of the semen."
The full appellate brief in the case is here.
Both Craig and Keys remain incarcerated.
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