De
Novo Review Case Analysis
Jan.
12, 2005
The
decision that a defendant can only obtain a review of a preliminary hearing on
the record certainly comports with what everyone has always assumed was the law,
or at least since State ex rel. Dowe v. Circuit Court for Waukesha County, 184
Wis. 2d 724, 729, 731, 516 N.W.2d 714 (1994).
Nevertheless,
the conclusion that sec. 970.04 is a specific statute governing the issue, while
sec. 757.69(8) is only a general expression of a court commissioner's powers is
questionable. The most reasonable construction of the statutes plainly permits
de novo review.
Subsection
(8) plainly and unambiguously states that any decision of a court commissioner
can be reviewed by a circuit court judge upon motion by any party de novo.
Section
970.04, on the other hand, only provides, "If a preliminary examination has
been had and the defendant has been discharged, the district attorney may file
another complaint if the district attorney has or discovers additional evidence."
The
most reasonable interpretation of the statute is that it has nothing to do with
review of a bindover decision, but means nothing more than that, if the defendant
is discharged, either by the circuit court (after either a review on the record,
or a de novo hearing), or by the commissioner (and the State sought no review
at the time, either de novo or on the record), the State is barred from filing
a new complaint, unless it discovers new evidence.
Read
this way, the statute merely prevents the State from refiling the same complaint,
based on the same evidence, over and over again, until it can find a sympathetic
court commissioner or judge willing to bind the defendant over for trial.
Interpreted
this way, not only is the statute not a specific statute governing review of a
court commissioner's decisions by a circuit court, it is a wholly irrelevant statute
on the issue.
Contrary
to the court's conclusion that, "the legislature expressly addresses in sec.
970.04 the circumstances under which a second preliminary examination can be held,"
the statute only addresses the circumstances under which "the district attorney
may file another complaint."
The
court's discussion of Dowe is also misleading. The court states that the Supreme
Court held in Dowe that review of a court commissioner's bind over is limited
to review of the transcript by the circuit court.
However,
the only issue in Dowe was whether the defendant could obtain review via habeas
corpus. The Supreme Court held that he could not, because adequate other avenues
for relief existed, such as review on the transcript.
Admittedly,
the Supreme Court did write, "the court's review is limited to the transcript
of the preliminary examination." However, the full text of the paragraph
provides, "This same standard is applied whether the review is granted by
means of a motion to dismiss or a petition for habeas corpus. In both, the court's
review is limited to the transcript of the preliminary examination."
Reading
the whole paragraph, it is clear that the purpose of the paragraph is to make
clear that review by transcript provides as much protection to a defendant as
review by habeas corpus, and therefore, review by transcript is an adequate remedy.
Nothing
in the statement necessarily precludes the possibility that a defendant may have
other avenues of relief — such as a de novo preliminary hearing — that
provide even more protection to a defendant than habeas corpus would.
If
the statutes were ambiguous, and the court was free to decide the issue based
on policy reasons, the result in this case would be preferable to the one advocated
above. Regardless of whether a preliminary hearing is held by a court commissioner
or a circuit court judge, the fact finder is not permitted to make credibility
findings, only findings as to plausibility.
Thus,
de novo review is inappropriate, and review should be limited to the transcripts.
De novo review is a redundant and unduly burdensome procedure that does nothing
to further justice. Unfortunately, the plain and unambiguous language of sec.
757.69(8) permits it.
-
David Ziemer
Click
here for Main Story.
David
Ziemer can be reached by email.
