Courtroom dramas often depict a mid-trial surprise – the finger of blame is pointed in another person’s direction. This person could have committed the crime, not the defendant. These scenes make for great plot twists, but that could not happen in a Wisconsin courtroom.
Wisconsin is a rare state where a criminal defense attorney must first get permission from the judge to introduce another possible suspect. They seek that permission through a Denny motion.
An example of a Denny motion occurred in Green Bay in October 2020. Jason Mendez-Ramos was murdered in September 2021. The defense attorney for one of the suspects, Pedro Santiago-Marquez, was denied the right to blame the murder on a witness the state plans to call to the stand. If he does testify, the defense will be able to cross-examine him about his involvement.
History of the Denny Motion
This unique motion stems from the 1984 case State v. Denny. In 1982, Christopher Mohr was founded stabbed to death. Brothers Kent and Jeffrey Denny reportedly bragged about the murder to friends and family. They were ultimately charged with the crime and tried jointly. They were convicted in 1982.
In his appeal, Kent Denny made three arguments:
- He and his brother should have been tried separately.
- He was denied his constitutional right to present a defense when the trial court refused to allow evidence suggesting that third parties had motive and opportunity to commit the crime.
- Denny contended that the trial court was wrong to prohibit his defense counsel from reviewing police investigation reports that supported the theory that others could be guilty.
His appeal was denied. Among the points made at the appellate level is that motive alone was not enough to cast suspicion on another person. The defense would have to satisfy the “legitimate tendency” test.
For a third party to be introduced as a possible guilty party, the defense must satisfy three requirements:
- Show the person had the motive to commit the crime.
- Show the person had the opportunity to commit the crime.
- Present evidence that connects the person to the crime.
The court ruling stated that the rule would place “reasonable limits on the trial of collateral issues” and “avoid undue prejudice to the People from unsupported jury speculation as to the guilt of other suspects.”
In the Denny case, the appeals court said that Denny’s offer of proof was deficient:
- One proposed witness was going to testify that two other named individuals had a possible motive to kill Mohr but did not offer opportunity or evidence that linked them to the crime.
- Another proposed witness was to testify that a third person was angry at Mohr, but once again did not offer evidence related to opportunity or a connection to the crime.
Without all three elements of the legitimate tendency test, any Denny motion will fail.
Defense Disadvantages at Trial
Prosecutors are not obligated to convince a jury of a defendant’s motives, yet the defense must show motive when presenting a possible alternative suspect. The defendant also must show the other suspect had a direct connection with the crime. Prosecutors can bring someone to trial on circumstantial evidence alone. These guardrails can sometimes lead to wrongful convictions and allow true culprits to remain free.
In a high-profile and controversial case, the Denny rule was partly responsible for keeping Steven Avery behind bars for a crime he did not commit. Ten years after he was convicted of rape and attempted murder in 1985, DNA advances showed that the DNA from underneath the victim’s fingernails was not Avery’s or hers. Avery also provided evidence that law enforcement investigated another suspect but failed to tell his defense lawyers.
Despite this new evidence, and more than a dozen alibi witnesses, the appeals court denied him a new trial. Avery was freed only after new DNA testing conclusively said the DNA belonged to Gregory Allen. While Avery was in prison, Allen went on to commit other sex crimes, including a violent rape. Full disclosure: Avery is once again behind bars. He was convicted of a 2005 murder and is currently in the Fox Lake Correctional Institute.
Defense Counsel Ready to Take Difficult Cases
At the Law Offices of Christopher J. Cherella, we doggedly pursue every angle to provide clients with exceptional criminal defense counsel. From traffic violations to murder, Attorney Cherella brings to bear his 20 years of legal experience.
Your future demands the focus and attention of Attorney Cherella. If you ever face a criminal accusation, contact us right ASAP. We are available to take your call 24/7 at (414) 882-8382.