STATE OF WISCONSIN CIRCUIT COURT KEWAUNEE COUNTY MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE BACKGROUND

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1 STATE OF WISCONSIN CIRCUIT COURT KEWAUNEE COUNTY STATE OF WISCONSIN, Plaintiff, v. Case No. 96-CF-97 BETH A. LABATTE Defendant. MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE The defendant, Beth A. LaBatte, by her attorneys, Keith Findley, John Pray, and Byron Lichstein, of the Wisconsin Innocence Project, and law students Robin Dalton, Nathan Kroes, Andy Meehan, and David Saltzman, respectfully requests, under Wis. Stat and , that this Court vacate her conviction and grant a new trial in the interests of justice on the grounds that newly discovered evidence, including new DNA test results, supports Ms. LaBatte s claim of innocence and that Ms. LaBatte is incarcerated in violation of the United States Constitution and the Wisconsin Constitution. In support of this motion, Ms. LaBatte alleges the following: BACKGROUND 1. On November 16, 1991, Ann and Cecelia Cadigan were found dead in their Casco home in Kewaunee County. Autopsies revealed that both victims were beaten and stabbed. (Trial Tr. 12/2/97 at 20.) Investigators concluded that Ann Cadigan was stabbed to death while sitting in her chair. Cecelia Cadigan was killed by blunt force trauma while sitting on the couch; her wounds required an object with a linear edge, such as a pool cue. (Trial Tr. 12/3/97 at 64.) A blood-stained segment from the handle-end of a shattered pool cue was found at the scene. (Trial Tr. 12/2/97 at 165.) In its closing argument, the State argued that the length of a pool cue would have allowed a woman such as Ms. LaBatte to generate enough force to inflict the fatal wounds. (Trial Tr. 12/11/97 at 27.) The assailant(s) overturned the couch onto Cecelia after killing her. (Trial Exhibit # 75.) 2. Several items of forensic evidence located at the scene of the crime were examined for DNA evidence by the Wisconsin State Crime Lab in Most of the tests were inconclusive. (State Crime Lab Report, 6/15/93, attached as Exhibit B to Ms. LaBatte s Motion for DNA Testing, filed 2/2/04.) None of the tests

2 produced any links to Ms. LaBatte. (Id.) The items whose tests were inconclusive included the following: a. A folded, bloodstained pair of socks found on top of the TV console near the bodies. The State theorized that the socks were used to wipe blood from other objects at the scene. b. The segment from the shattered pool cue found under the TV console. The State theorized the fragment was part of a two-piece pool cue that was used as one of the murder weapons. c. Hairs recovered from Cecelia Cadigan s clothing. d. Hairs clutched in the hands of both of the victims. e. Trace evidence recovered from fingernail clippings from both of the victims. 3. Only one fingerprint located at the crime scene was suitable for identification. (Trial Tr. 12/2/97 at 173.) This fingerprint was found on the front doorjamb between the inner and outer doors. (Id.) The fingerprint did not match Ms. LaBatte or either victim. 1 (Id. at 180, 184). 4. Although the police continued their investigations of the Cadigan murders for over five years and devoted an enormous amount of resources to solve the case, no one was arrested for the crime until Ms. LaBatte on December 16, (Trial Tr. 12/9/97 at ) 5. The State theorized that Ms. LaBatte single-handedly robbed and murdered the two sisters while her alleged accomplice, Charles Benoit, remained in a getaway car outside of the house. 6. The State s case against Ms. LaBatte rested on the following evidence: (1) Five years after the crime, Ms. LaBatte could not provide an alibi (Trial Tr. 12/11/97 at 36); (2) a car observed at the scene of the murders was similar to one driven by Mr. Benoit (id. at 27-28); (3) Ms. LaBatte allegedly made incriminating statements during her police interrogation (Trial Tr. 12/3/97 at ); (4) Ms. LaBatte confessed the murders to others, including to fellow inmates while she was serving time for an unrelated burglary (Trial Tr. 12/11/97 at 36-44); and (5) Ms. LaBatte had two previous convictions for robbery (id. at 29). More specifically: 1 The Cadigan sisters could not be definitively excluded because their fingertips were too deteriorated to provide a reference print, and an analyst testified that, because of their age, they could no longer leave detectable fingerprints. (Trial Tr. 12/2/97 at ) In addition, an extensive search of suitable surfaces in the house, including a frequently used metal cane, revealed no fingerprints whatsoever. (Id. at 186.) 2

3 a. The car the police linked to Mr. Benoit was a yellowish four-door Impala. (Trial Tr. 12/3/97 at 30.) However, at trial, testimony regarding the cars seen near the Cadigan house the day of the murders was confusing and often contradictory. Witness descriptions ranged from a light blue two-door car and a light blue van, to a dark, small to midsize car. (Trial Tr. 12/8/97 at 79-80, 82-3, 100, ) b. The prosecution introduced allegedly incriminating statements made by Ms. LaBatte during police interrogations. Those statements, however, were ambiguous. When asked by Special Agent Vendola if she could have done it and blacked out, Ms. LaBatte responded, I don t remember, but it s possible. She further clarified, stating, No way, I have never been that bad on drugs. (Trial Tr. 12/3/97 at ) During her interrogations, Ms. LaBatte repeatedly stated that she did not remember committing any murders. She conceded that it was possible that she could have done it during a blackout, but said that she did not think that she had committed the murders. (Id. at , , 162.) c. The remainder of the prosecution s case focused on the testimony of individuals who said that they heard Ms. LaBatte make incriminating statements. One of the jail house snitches, Patricia Williams, testified at trial that she could not remember telling the State that Ms. LaBatte confessed to her. (Trial Tr. 12/5/97 at 60.) Another jail house snitch, Theresa Radl, said after trial that she believed that Ms. LaBatte likely implicated herself falsely in order to gain a reputation in prison. (Affidavit of Theresa Radl, attached as Exhibit D to Ms. LaBatte s Motion for DNA Testing, filed 2/2/04.) 2 7. Comments in the prosecution s opening statement demonstrated the weakness of the case against Ms. LaBatte: It would be a lot easier job for us, and a lot easier job for you, if there were more physical evidence, if there were eyewitnesses, if there were a clear and concise confession. It would be an easier job if half 2 In the wake of the many wrongful convictions exposed by post-conviction DNA testing in recent years, generalized suspicion about the reliability of jailhouse informants has hardened into a growing certainty about the role their testimony has played in wrongful convictions. A 1999 study reconstructing 62 cases of proven wrongful convictions found that jailhouse informants were a factor in 21% of those convictions. Jim Dwyer, Peter Neufeld & Barry Scheck, ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CONVICTED 246 (2000). Numerous government commissions and inquiries, both in the United States and Canada, have noted the threat to justice posed by reliance on jailhouse snitch testimony. See Report of the Commission on Capital Punishment (Illinois, April 2002), Chapter 8, 122, available at Sophonow Inquiry: Jailhouse Informants, Their Unreliability and the Importance of Complete Crown Disclosure Pertaining to Them, at Northwestern University School of Law, Center on Wrongful Convictions, The Snitch System, available at 3

4 the witnesses weren t convicts, if they were all nice upstanding citizens, but none of that is the case. This is the evidence we have. This is the evidence you ll have to consider, and it is what you need to make a decision on. It is no good to wish for things that aren t here or to seek for something that is not here. (Trial Tr. 12/2/97 at 44.) 8. Furthermore, after Ms. LaBatte s trial, her alleged accomplice and one-time boyfriend, Charles Benoit, was acquitted of first-degree intentional homicide and armed robbery charges arising from this crime. State v. Benoit, Kewaunee Case No. 97CF14, not guilty verdict returned on 1/20/98. The State s case against Ms. LaBatte relied largely on the assumption that Mr. Benoit s car was in fact at the scene. (Trial Tr. 12/2/97 at 19.) 9. There was no physical evidence linking Beth LaBatte to the homicides, and there were no eyewitnesses. (Id. at 44.) Ms. LaBatte has maintained her innocence throughout these proceedings. Also, the violent nature of these murders is inconsistent with Ms. LaBatte s criminal history. Although she had burglarized homes, those offenses involved no violence. In fact, on the one occasion when she was confronted by a homeowner during an attempted burglary, Ms. LaBatte fled the scene rather than risk physical confrontation. (Trial Tr. 12/4/97 at 102.) DISPOSITION AND SUBSEQUENT COURT ACTIVITY 10. In December 1997, two months before Mr. Benoit was acquitted, Ms. LaBatte was found guilty of two counts of armed robbery and two counts of first-degree intentional homicide for the murders of Ann and Cecelia Cadigan. Ms. LaBatte was sentenced to two life sentences plus 40 years in prison. 11. In February 2004, Ms. LaBatte filed a motion with the Circuit Court of Kewaunee County requesting post-conviction testing of DNA evidence pursuant to Wis. Stat In May 2004, the Honorable Dennis C. Luebke, Circuit Court Judge, granted Ms. LaBatte s motion and ordered DNA testing of the evidence listed in paragraph 2 above. 13. In May 2005, the Wisconsin State Crime Lab completed the ordered testing and issued a report indicating that Ms. LaBatte could not have been the source of any DNA recovered from any of the tested crime scene evidence. (State Crime Lab Report, 5/19/05, attached as Exhibit A.) On the contrary, someone other than Ms. LaBatte or either of the victims was the source of the DNA found on the pool cue fragment, on the back of the socks used to wipe up blood, and on the surface of two of Cecelia Cadigan s hairs found on her clothing. (Id.) 4

5 14. Ms. LaBatte now asks that her conviction be vacated and that she be granted a new trial on the basis that the DNA tests conducted on the evidence submitted under the court order have excluded her as the source of the DNA. The State s theory suggests that the murderers DNA would likely be on the items from which Ms. LaBatte has been excluded. I. NEW DNA TESTING PROVES THAT MS. LABATTE IS NOT THE SOURCE OF ANY OF THE DNA PROFILES RECOVERED FROM ITEMS AT THE SCENE THAT WERE LIKELY TOUCHED BY THE KILLER(S). 15. The most recent DNA testing of the evidence listed in paragraph 2, conducted by the Wisconsin State Crime Lab in Madison, revealed that Ms. LaBatte was not the source of any of the DNA profiles recovered from evidence collected at the scene. The testing also excluded one of the alternate suspects, Grainger Bohochik, as the source of any of the recovered DNA profiles. Specifically, the report established the following: a. Someone other than Ms. LaBatte gripped the back of the folded, bloodstained socks found on top of the television. Ms. LaBatte and both of the victims are excluded as the source of the DNA profile recovered from the back side of the socks. (Exhibit A.) However, the DNA profile recovered from the bloodstains on the socks is consistent with Cecelia Cadigan, establishing that these socks were used to wipe up blood from the murder. (Id.) b. Someone other than Ms. LaBatte handled the pool cue that was used by the killer as a murder weapon. Ms. LaBatte and both of the victims are excluded as the source of the DNA profile recovered from the pool cue. (Id.) The DNA found is a male profile. (Id.) c. Someone other than Ms. LaBatte left DNA evidence on two hairs found on Cecelia Cadigan s shirt. Ms. LaBatte and both of the victims are excluded as the source of the DNA profiles recovered from material attached to the shafts of those hairs. (Id.) The profiles recovered from the hairs themselves establish that the hairs were Cecelia Cadigan s. (Id.) The foreign DNA profiles on the shafts of those hairs DNA which could not have come from Ms. LaBatte or either of the Cadigans reveal that someone else had direct contact with Cecelia Cadigan s hair. The following hairs were touched by someone other than Ms. LaBatte: i. Hair Shaft H1-16 A complete DNA profile, not consistent with Ms. LaBatte, or either victim, was found on material attached to this hair. (Id.) The DNA found is a male profile. (Id.) The DNA profile recovered from the hair itself is consistent with Cecelia Cadigan to a high degree of scientific certainty. (Id.) 5

6 ii. Hair Shaft H1-1 A partial DNA profile, not consistent with Ms. LaBatte, or either victim, was found on material attached to this hair. (Id.) The DNA profile recovered from the hair itself is consistent with Cecelia Cadigan, but not conclusively so. (Id.) d. Only the victims DNA was recovered from hairs clutched in the hands of the victims. (Id.) e. Only the victims DNA was recovered from the fingernail clippings. (Id.) 16. Accordingly, the new DNA testing in this case establishes that some person or persons other than Ms. LaBatte left DNA on the murder weapon, the socks used to wipe up Cecelia Cadigan s blood at the crime scene, and two of Cecelia Cadigan s hairs found on her body at the crime scene. II. UNDER WIS. STAT (10), MS. LABATTE IS ENTITLED TO A NEW TRIAL IN THE INTERESTS OF JUSTICE, BASED ON THE FACT THAT THE RESULTS OF THE DNA TESTS ORDERED BY THE COURT SUPPORT MS. LABATTE S CLAIM OF INNOCENCE. 17. As the results of the DNA testing support Ms. LaBatte s claim of innocence, Ms. LaBatte is entitled to a new trial in the interests of justice. 18. Wis. Stat (10)(a) establishes that, with regards to the results of DNA testing, the standard for granting a new trial based on those results is whether the new trial would advance the interests of justice: If the results of forensic [DNA] testing ordered under this section support the movant s claim, the court shall schedule a hearing to determine the appropriate relief to be granted to the movant. After the hearing, and based on the results of the testing the court shall enter any order that serves the interests of justice. 19. Ms. LaBatte is entitled to an evidentiary hearing. In State v. Moran, the Wisconsin Supreme Court held that, under this statute, if the DNA results support the movant s claim of innocence, the court will hold an evidentiary hearing to determine the appropriate relief WI 115, 47. The results of the DNA testing ordered by this court in May 2004 under (7) support Ms. LaBatte s claim of innocence. Thus, an evidentiary hearing to determine the appropriate relief to be granted to Ms. LaBatte is warranted. 20. In Ms. LaBatte s case, the appropriate relief is a new trial. The standard for granting a new trial is whether doing so would advance the interests of justice. Wis. Stat (10)(a) & (1). Courts may grant a new trial in the interests of justice whenever, either: (1) the real controversy was not fully tried, or (2) it is probable that justice has for any reason miscarried. State v. Hicks, 202 Wis. 2d 150, , 549 N.W.2d 435 (1996). In the first circumstance, when the 6

7 real controversy was not fully tried, the court may grant a new trial without considering whether the outcome would probably be different on retrial. State v. Harp, 161 Wis. 2d 773, 775, 469 N.W.2d 210 (Ct. App. 1991). 21. The new DNA evidence in this case is critical to a full trial on whether Ms. LaBatte was the person who beat and stabbed the Cadigans, wiped their blood with a pair of socks, and overturned furniture in their home. Both the police and the state consistently recognized the significance of the physical evidence on the pool cue, the bloody socks, and the hairs on Cecilia s body because the attacker(s) likely came into contact with all three pieces of evidence: a. Police theorized that the portion of a pool cue recovered from the scene was a part of one of the murder weapons. This theory is supported by the fact that neither of the elderly Cadigan sisters was known to play pool or had any reason to have a pool cue in their house, and autopsies revealed that both victims were beaten by a blunt object with a linear edge, such as a pool cue. (Trial Tr. 12/3/97 at 64.) The pool cue was purchased an hour away at the Sturgeon Bay K-Mart. (Id. at 94.) The pool cue was in the attacker s possession, at least while he used it to beat Cecelia to death, and was most likely brought to the crime scene by the attacker. The jury did not hear that the DNA evidence found on the murder weapon does not belong to the victims or to Ms. LaBatte. Hence, the State s claim that Ms. LaBatte was the murderer who wielded that pool cue was not fully tried. b. The prosecution averred that the socks found at the scene were likely used by the perpetrator to wipe blood off of the murder weapon(s). DNA analysis was done on the backside of the socks, where the attacker would have gripped while he wiped off the blood. In addition, the bloodstains themselves were tested. The bloodstains were consistent with Cecelia Cadigan, but the DNA on the backside of the socks did not come from either of the victims or Ms. LaBatte. This case was not fully tried because the jury did not hear that Ms. LaBatte is excluded as the person who left DNA on the back of those socks. c. Although the hairs found on Cecelia Cadigan s clothing are consistent with her DNA, other DNA found on those hairs did not match either Ms. LaBatte or the victims. In fact, on one hair, sufficient foreign DNA was present to produce a complete DNA profile, and that profile was of a male. There was no evidence introduced at trial suggesting that, before the murders, either Ann or Cecelia Cadigan had innocent contact with a male who would have been in intimate enough proximity to physically transfer his DNA onto her hair or blouse. On the contrary, both sisters were known to be reclusive (Ann was essentially housebound after breaking her hip in 1991). (Trial Tr. 12/2/97 at 79.) According to trial testimony, their last known visitor was two weeks prior to the murders. (Trial Tr. 12/2/97 at 97.) That this DNA was found on the victim s own hair, resting on her 7

8 body as she lay after the murder, strongly suggests that these were no random hairs or DNA innocently left on those hairs. Rather, this was DNA left by the killer or killers at the time of the murders. This case was not fully tried because the jury never had a chance to consider this evidence. 22. The DNA profiles on the significant pieces of evidence did not match one another. It is not possible to know whether this means there were multiple killers, or whether the killer left DNA on only one of the pieces of evidence, and the remaining DNA is from innocent individuals. But what is clear is that, given the significance of these pieces of evidence at the crime scene, the killer s DNA likely would have been present on at least one of the items. If Ms. LaBatte were the killer, surely her DNA would have been present on either the murder weapon, the socks used to clean up the victim s blood, or the hairs on the victim s shirt. 23. The Wisconsin Supreme Court has established that new DNA evidence can provide the basis for a new trial in the interests of justice, even where the DNA evidence does not conclusively eliminate the possibility that the defendant committed the crime, or identify an alternate perpetrator. In State v. Armstrong, the supreme court ordered a new trial in the interests of justice because new DNA tests established that biological evidence, including hairs, on the victim s body did not come from the defendant WI 119, 156. Because the new DNA test results contradicted the State s assertions at trial that the forensic evidence recovered at the crime scene came from Armstrong, the court found that the real controversy was not fully tried and that a new trial was thus warranted. Id. Thus, following Armstrong, a new trial may be warranted whenever the jury was not given an opportunity to hear important testimony that bore on an important issue in the case. Id. at 181. Moreover, the court may make such a determination regardless of whether the defendant meets the standard for newly discovered evidence under Wis. Stat WI 119, Similarly, in Hicks the Wisconsin Supreme Court ordered a new trial in the interests of justice where post-conviction DNA testing established that a single hair found in a rape victim s apartment did not come from the defendant. Hicks, 202 Wis. 2d at If the real controversy was not fully tried and a new trial was warranted in the interests of justice in Armstrong and Hicks, then that same conclusion must also be reached in this case. Ms. LaBatte recognizes that, in both of those cases, the State had asserted at trial that the physical evidence at the scene matched the defendants, and the post-conviction DNA testing proved that assertion false. The State did not similarly present evidence that the physical evidence in this case 3 The biological evidence in Armstrong also included semen on the victim s bathrobe. DNA testing, however, established that the semen was from the victim s boyfriend, and therefore was not evidence left by the killer WI 119,

9 matched Ms. LaBatte. Nevertheless, the new DNA evidence in this case is more significant than the new evidence in Armstrong and Hicks. a. First, the DNA evidence in this case is inherently more significant than the evidence in either Armstrong or Hicks, because it directly controverts the State s argument that Ms. LaBatte, acting alone, had used the pool cue to murder the victims and subsequently wiped their blood with the socks. In Armstrong, the DNA evidence related to hairs found at the crime scenes that could have been of wholly innocent origin, completely unrelated to the offense WI 119, Roggensack, J., dissenting, 169. Similarly, in Hicks, the DNA evidence related to hairs that only established that the defendant had been at the victim s apartment, not that he had committed the offense itself. 202 Wis. 2d at 171. Here, the DNA was obtained not just from hairs, but also from the murder weapon itself and the socks used to wipe up the victim s blood. And the hair evidence here was not of random innocent hairs, but of foreign DNA found on the victim s own hairs on her body. Here, unlike Armstrong or Hicks, the DNA results demonstrate that another person or persons, at least one of whom was male, had contact with the victim, the murder weapon, and the socks used to wipe up the victim s blood. b. Second, the new DNA evidence is of greater significance here because the evidence against Ms. LaBatte was thinner than that in Armstrong or Hicks. In both Armstrong and Hicks, the State had direct eyewitness testimony identifying the defendant and both defendants had a direct connection to the victims Hicks lived in the same apartment complex as the victim and did not show up at work the morning of the attack, and Armstrong admitted that he was the last person who spent time with the victim before she was murdered. Hicks, 202 Wis. 2d at ; Armstrong, 2005 WI 119, Further, in Armstrong, the jury heard evidence that human blood was detected on the defendant s fingers, toes, and watch, that $400 had been taken from the victim s apartment, and that the morning after the murder, the defendant made a deposit of $ WI 119, Roggensack, J., dissenting, 172. No such direct evidence implicated Ms. LaBatte in this case; no witnesses saw Ms. LaBatte with either of the Cadigan sisters, Ms. LaBatte never admitted to ever having been in the Cadigans home, and Ms. LaBatte was never linked to any property taken from the residence. Moreso than Armstrong or Hicks, the new DNA evidence excluding Ms. LaBatte from the crucial crime scene evidence demonstrates the real controversy was not tried. If a new trial was warranted in the interests of justice in Armstrong, then, a new trial must also be warranted in this case. 4 In Armstrong the new DNA also related to semen stains that in fact were wholly innocent, because they matched the victim s boyfriend. Id. 9

10 III. IN THE ALTERNATIVE, UNDER WIS. STAT , MS. LABATTE S CONVICTION SHOULD BE REVERSED AND A NEW TRIAL ORDERED BECAUSE IT IS REASONABLY PROBABLE THAT THIS NEWLY DISCOVERED EVIDENCE, EXCLUDING MS. LABATTE AS THE SOURCE OF DNA RECOVERED FROM KEY PIECES OF EVIDENCE, WOULD RESULT IN A DIFFERENT JURY VERDICT. 26. Due process requires granting a new trial on the basis of newly discovered evidence under Wis. Stat where: a. The evidence has come to the moving party s knowledge after a trial; b. The moving party was not negligent in seeking to discover it; c. The evidence is material to the issue; d. The testimony is not merely cumulative to the testimony which was introduced at trial; and e. It is reasonably probable that a different result would be reached at a new trial. See State v. Bembenek, 140 Wis. 2d 248, 251, 409 N.W.2d 432 (Ct. App. 1987) (holding that due process requires applying the criteria under for new evidence even if the new evidence is discovered after the time for bringing postconviction relief has passed ); see also State v. Love, 2005 WI 116, 43, n.18, Wis. 2d, N.W.2d (holding that Bembenek properly analyzed Wisconsin s post-conviction relief statute, and that due process does indeed provide a right to a new trial based on newly discovered evidence when the fivefactor newly discovered evidence test is satisfied). 27. The new evidence in this case meets the standard for a new trial based on newly discovered evidence. a. First, the evidence came to Ms. LaBatte s knowledge after the trial. The new evidence Ms. LaBatte is presenting is the result of DNA testing that utilizes a technology that had not been developed at the time of Ms. LaBatte s trial, and therefore could not have been conducted. b. Second, Ms. LaBatte was not negligent in seeking to discover the evidence. Because the type of testing had not yet been developed at the time of trial, there was no way that Ms. LaBatte could have had knowledge of it at that time. As the technology did not yet exist, Ms. LaBatte could not have discovered it. 10

11 c. Third, the new DNA evidence excluding Ms. LaBatte is material to the issue. This new technology provided probative results, whereas earlier forms of DNA testing were too crude to give conclusive results. The more accurate scientific determinations are material because they show that someone other than Ms. LaBatte handled the murder weapon, gripped the socks that were used to wipe Cecelia Cadigan s blood, and came into sufficiently intimate contact with the victims to leave his own DNA on Cecilia Cadigan s hairs adhering to her clothing. d. Fourth, this information is not merely cumulative. No information regarding the true source of the DNA found on evidence at the scene was produced at trial. Thus, the jury did not hear testimony that Ms. LaBatte is excluded as the source of DNA left on items of evidence critical to the State s case. e. Fifth, it is reasonably probable that a different result would be reached at trial. a. Prior to Armstrong, in State v. Avery, 213 Wis. 2d 228, 241 (Ct. App. 1997), the court of appeals had suggested that a defendant must prove that a retrial would result in a different outcome. 213 Wis. 2d at 237. The Avery court held that a defendant was required to prove, by clear and convincing evidence, that it was reasonably probable that the new trial would produce a different result. Id. b. Armstrong expressly overruled Avery on this point by holding that, to be entitled to a new trial based upon newly discovered evidence, a defendant need not prove a probability of a different outcome by clear and convincing evidence. Instead, to obtain a new trial, there need only be a reasonable probability that a different result would be reached in a trial. Armstrong, 2005 WI 119, 162. c. While Armstrong made it clear that a defendant need not meet the clear and convincing evidence standard, it did not precisely define what a reasonable probability of a different outcome means. Elsewhere, however, the Wisconsin and United States Supreme Courts have held that this standard is not outcome-determinative. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 694 (1984); United States v. Bagley, 473 U.S. 667, 682 (1985); Kyles v. Whitley, 514 U.S. 419, 434 (1995). In State v. Pitsch, the Wisconsin Supreme Court confirmed that the reasonable probability standard is not outcome-determinative; the defendant need not show by a preponderance of the evidence that any error determined the outcome. 124 Wis. 2d 628, 642, 369 N.W.2d 711 (1985). Thus, Ms. LaBatte need not demonstrate that, given the new evidence, the jury 11

12 would be more likely than not to return a different verdict. Rather, this Court should look to whether the new evidence undermines confidence in the jury s verdict. 28. Regardless of what standard this Court applies, the new DNA evidence warrants a new trial in this case. As argued above, the new DNA results from the pool cue, the socks, and the surface of Cecelia Cadigan s hair unequivocally demonstrate that Ms. LaBatte s DNA was not present on three items the State claims the attacker almost certainly touched. Rather, the results implicate at least one other unknown suspect as the source of the DNA. This incontrovertible DNA evidence undermines the State s inference that Ms. LaBatte was the person who handled those items in the process of committing these murders. Given the thinness of the remainder of the State s circumstantial case, the fact that all physical evidence excludes Ms. LaBatte creates a reasonable probability of a different outcome. 29. In opposing Ms. LaBatte s initial motion for post-conviction DNA testing, the State argued that the DNA testing in this case could not prove innocence in the same way that it proved innocence in the Steven Avery case. But that is not the standard that Ms. LaBatte needs to meet; she only must establish a reasonable probability of a different outcome. The error in the State s analysis is revealed by an examination of the history of the Avery case itself. a. In Avery, the defendant moved for a new trial in 1996, based on newly discovered evidence after DNA testing of fingernail clippings from the victim of a sexual assault revealed the presence of DNA from an unidentified third party. 213 Wis. 2d at 231. The court of appeals held, however, that the DNA results failed to prove, by clear and convincing evidence, a likelihood of a different outcome, because the third-party DNA could have been picked up by the victim from any number of innocent people who aided in her rescue and medical treatment after the attack. Id. at 243. The court held that this evidence if used at trial would invite a fact finder to speculate about various possible sources of the DNA. And much of this speculation would focus on those who assisted and treated [the victim]. Id. at 244. That decision, however, worked a fundamental miscarriage of justice, as subsequent DNA testing in 2003, utilizing more sophisticated DNA technology, conclusively proved that Steven Avery was innocent of that crime. See Tom Kertcher, Wrongly Convicted Man Freed, Milwaukee Journal-Sentinel (September 11, 2003), available at b. This Court should not repeat the Avery court s error in First, as noted above, the Wisconsin Supreme Court in Armstrong has now held that the Avery standard was wrong to require proof of a reasonable probability of a different outcome by clear and convincing evidence. The lower standard now mandated by Armstrong should lead to a different result here than in Avery. 12

13 c. Second, although the DNA evidence in this case does not conclusively identify the true perpetrator as did the DNA testing in 2003 that ultimately exonerated Steven Avery, it does much more than the DNA testing on the fingernail scrapings in Avery s 1996 case. The new DNA evidence definitively excludes Ms. LaBatte as the source of the DNA profiles obtained from evidence left behind by the murderer, while the 1996 testing in Avery could not exclude him as a co-contributor of the DNA in the fingernail scrapings. 213 Wis. 2d at 242. Unlike in Avery, in this case there are no ready explanations as to how other persons DNA could have innocently contaminated the very crime scene evidence that must have been handled by the murderers. There is no reasonable explanation as to why an innocent person would have had recent, casual contact with Cecelia s hairs, the bloodstained sock, or the murder weapon. Moreover, the remaining evidence against Ms. LaBatte is much weaker than the evidence in Avery. In Avery, the victim, who had a very good look at her attacker, positively identified Avery, and that identification was corroborated by physical evidence, including microscopic hair evidence. No such compelling evidence supported the State s very circumstantial evidence in this case. Given this evidentiary picture, the only reasonable conclusion is that here, even though the DNA evidence does not alone conclusively prove innocence, the results at least create a reasonable probability of a different outcome. 13

14 CONCLUSION 30. For the reasons stated above, Ms. LaBatte respectfully requests that this court vacate her conviction and grant a new trial in the interests of justice under Wis. Stat (10). In the alternative, Ms. LaBatte requests that this court reverse her conviction and grant a new trial pursuant to Wis. Stat on the grounds that the newly discovered evidence raises a reasonable probability that the jury would have returned a different verdict. Dated this day of August, Respectfully submitted, KEITH A. FINDLEY JOHN A. PRAY Bar No Bar No BYRON C. LICHSTEIN Bar No ANDREW MEEHAN Law Student ROBIN DALTON Law Student NATHAN KROES Law Student DAVID SALTZMAN Law Student 14