The revelation that a Milwaukee police detective used a false confession to win a homicide case should be grounds for a new trial for a different defendant also convicted of murder based largely on an alleged confession involving the same detective, according to a new appeal.
A brief filed in the State Court of Appeals argues that Milwaukee County Circuit Judge Jean Kies erred when she denied a new trial for Michael Miller Jr., convicted in 2005 of first- degree murder based largely on testimony from MPD Detective Gilbert Hernandez. Three months before Miller's trial, Gilbert testified untruthfully about a false confession from another man, William Avery, according to the brief and court records.
That testimony resulted in Avery's conviction for a homicide he did not commit. He served six years in prison before he was cleared by DNA testing and released. He filed a federal civil rights suit and a jury awarded him $1 million, a verdict upheld in 2017 by the U.S. Seventh Circuit Court of Appeals.
Hernandez's misconduct, confirmed only when the Seventh Circuit upheld the jury award, should be enough to win Miller, at the very least, a new Miranda-Goodchild hearing, Miller argued through his attorney, Rex Anderegg. A Miranda-Goodchild hearing is held to determine the voluntariness of a confession.
(Hernandez, by the way, did not concede any wrongdoing. He said DNA showed only that a serial killer had sex with the victim in the Avery case, not that she was one of the serial killer's several victims.)
Kies rejected both Miller's requests.
There were two issues for Kies to decide, Anderegg wrote. The first, a trial issue, was whether the newly-discovered evidence would have so badly impeached Hernandez's credibility that a different trial outcome was likely.
The second, a Miranda-Goodchild issue, was how the newly-discovered evidence would impact the admissibility of Miller’s confession in the first place.
Kies, however, blended them into a single issue, Anderegg wrote, and never properly analyzed the trial issue.
"No analysis is ever devoted to the outcome at a trial where the reliability of Detective Hernandez’s claim of a confession would have been utterly destroyed with evidence of his falsification of confessions during that time frame," Anderegg wrote.
The victim in Miller's case, Marques Messling, was shot and killed while his car was stopped in slow-moving traffic on June 12, 2003. By January, 2004, police began looking at Miller as the shooter, Anderegg wrote. Miller learned that police wanted to question him and hired a defense lawyer, Michael Jackelen, to represent him. Jackelen apparently told Assistant District Attorney William Molitor that Miller should not be questioned without legal representation; Molitor passed that instruction along to the police.
Two officers subsequently tried to question Miller, Anderegg wrote.
"Both of them described Miller as the most ill-mannered suspect they had ever attempted to interview," Anderegg said.
"Detective Hernandez, however, would claim that his interrogation of Miller (which contravened “no process” and “no interview” orders) was strangely different, as Miller was suddenly polite and respectful, and eager to confess," Anderegg said.
Hernandez acknowledged Miller did tell him he was represented by Jackelen, but also that Miller said he did not want the lawyer there.
"Then, Detective Hernandez claimed, Miller then placed himself at the scene of the crime with a handgun he emptied into a vehicle," Anderegg said. Miller never signed his alleged confession, but his initials were on it.
Then Circuit Judge Mary Kuhnmuench, after Hernandez testified in a June 2004 hearing, ruled that Miller's confession was voluntary.
Two different eyewitnesses did not identify Miller as the shooter and no weapons were ever recovered, Anderegg said. There also was no forensic evidence linking Miller to the crime. The alleged confession was the key to the case and a jury convicted Miller of first-degree homicide. Then-Circuit Judge Karen Christenson sentenced him to life in prison with eligibility for extended supervision after 50 years. He now is incarcerated at Stanley Correctional Institution, according to the state Department of Corrections.
Miller, in December, 2021, sought sought a new trial based on the newly discovered evidence that Hernandez lied in the Avery case.
"This, Miller posited, coupled with the highly suspicious circumstances under which Detective Hernandez claimed to have taken his confession, so damaged that central piece of evidence at Miller’s trial that a new trial was warranted," Anderegg wrote.
Kies, in her ruling, applied the wrong standard, Anderegg said. Courts are supposed to consider "whether a jury would find the newly-discovered evidence sufficiently impactful ...such that a jury would have a reasonable doubt as to the defendant's guilt," he said.
Kies failed to do this, he said. "This major hole in the decision is betrayed by the abject absence of any examination or discussion of the trial evidence" in her decision, he said.
Kies also required Miller to show that impeaching Hernandez with with the evidence that he lied would have resulted in Miller's acquittal, Anderegg said. Miller, however, was required only to argue, and did, that "Hernandez’s falsification of confessions, especially when coupled with his dubious claim of a suddenly obeisant Miller, made a different outcome 'reasonably probable,'” he said.
At the very least, Miller should get a new Miranda-Goodchild hearing, Anderegg wrote.
Kies "hypothesized the outcome of a Miranda-Goodchild hearing that never happened by cobbling together testimony from prior proceedings that took place before the newly-discovered evidence was unearthed," Anderegg wrote. "Consequently...those proceedings did not address a multitude of issues that have now come to the fore as a result of the new evidence."
"The newly-discovered evidence alters how he would have approached litigation of those issues," he said.
"Only with a new Miranda-Goodchild hearing where Detective Hernandez is subject to full cross-examination on the newly-discovered evidence and the additional issues now made relevant by that evidence, where Miller testifies, and where all of the suspicious circumstances surrounding the interrogation are fully developed, can the real controversy be fully tried," he said.
The full appellate brief in 23AP1480, State v. Michael Mario Miller Jr., is here. The state has not yet filed a response.