Supreme Court denies DNA testing in 1982 Ozaukee murder case – Milwaukee Journal Sentinel

Jeffrey Denny(Photo: Wisconsin Department of Correcti)

The Wisconsin Supreme Court has reversed a Court of Appeals decision that would have allowed DNA testing of evidence from a 1982 Ozaukee County homicide case, and set aside its own prior precedent in the process.

The decision concluded that Jeffrey Denny, who is represented by the Innocence Project, did not meet the statutory threshold for testing old evidence with new science, even at his own expense, and in the process overruled a unanimous 2005 decision interpreting the statute on post-conviction DNA testing.

The ruling Tuesday was 4-3 to deny the testing, but 5-2 to overrule the court's prior case, Wisconsin v. Moran. In all, the court put out 88 pages of the majority, concurring and dissenting opinions.

In a strong dissent, Justice Ann Walsh Bradley concluded, "Making several missteps along the way, the majority limits the contours of this search (for truth)," and legislates from the bench.

Denny and his brother Kent were convicted of killing Christopher Mohr in Grafton. Another man reported to police that he had shown up at Mohr's house and found him dead, and assumed it was suicide. But an autopsy showed Mohr had been beaten with a bong and stabbed repeatedly. Several people later testified that Kent and Jeffrey Denny admitted to killing Mohr, and about hiding blood-stained clothes from the crime.

Supreme Court Justice Ann Walsh Bradley(Photo: Milwaukee Journal Sentinel)

The brothers were sentenced to life in prison. Kent Denny died in 2012.

After other appeals failed, JeffreyDenny in 2014 sought to have numerous items from the crime scene tested for DNA that he suggested might match other people alreadyin the state or federaldatabase, or exclude him, and tend to prove he was innocent.

In 2015, Ozaukee County Circuit Judge Joseph Voiland denied the request and in 2016, the Court of Appeals reversed Voiland and ordered the forensic DNA testing.

But the high court majority rejected Denny's contention that he may not have been prosecuted or convicted if the DNA testing had been available. The court overruledits own precedent that would have held that Denny would be entitled to the testing if he paid for it himself.

Otherwise, the court now says, it would allow "post-convictionfishing expeditions in attempts to cast doubt uponand upset" convictions.

And in Denny's case, the majority found, there was too much evidence to overcome, even ifDNA testing revealed none of his was on the evidenceand even if other known offenders' DNA was found on the evidence.

"The ideathat the DNA results Denny seeks would tip the scales and causepolice or a jury to reject the substantial evidence againstDennyis simply conjecture,"Justice Annette Ziegler wrote for the majority.

Chief Justice Patience Roggensack wrote separately, concurring that the 2005 case, Moran, should be overruled, but dissenting to say she would allow Denny to test the evidence.

Supreme Court Justice Annette Ziegler.(Photo: Associated Press)

In her dissent, Bradley condemned the majority for legislating from thebench. "Throwing caution (as well as any semblance of judicial restraint) to the wind, the majority steps in to perform the Legislature's job," she wrote.

She noted that even though the 2005 Moran decision clearly invited the Legislature to address issues raised then, it did not, and the law on post-conviction DNA testing has been perfectly functional since then.

"Only the makeup of this court has changed," she wrote.

Thequestion is not whether there is strong evidenceof guilt. Rather, the question is whether the Legislature haswritten a statute that gives Denny the opportunity to testevidence that has the potential toexonerate him."

Justice Shirley Abrahamson joined Bradley's dissent, and wrote a separate dissent regarding the appellate procedures that landed the case before the court.

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Supreme Court denies DNA testing in 1982 Ozaukee murder case - Milwaukee Journal Sentinel