Wisconsin Legislature: 16,4031e

2. It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under sub. (2), if exculpatory deoxyribonucleic acid testing results had been available before the prosecution, conviction, finding of not guilty, or adjudication for the offense.

3. The evidence to be tested meets the conditions under sub. (2) (a) to (c).

4. The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.

(b) A court in which a motion under sub. (2) is filed may order forensic deoxyribonucleic acid testing if all of the following apply:

1. It is reasonably probable that the outcome of the proceedings that resulted in the conviction, the finding of not guilty by reason of mental disease or defect, or the delinquency adjudication for the offense at issue in the motion under sub. (2), or the terms of the sentence, the commitment under s. 971.17, or the disposition under ch. 938, would have been more favorable to the movant if the results of deoxyribonucleic acid testing had been available before he or she was prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense.

2. The evidence to be tested meets the conditions under sub. (2) (a) to (c).

3. The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.

(8) The court may impose reasonable conditions on any testing ordered under this section in order to protect the integrity of the evidence and the testing process. If appropriate and if stipulated to by the movant and the district attorney, the court may order the state crime laboratories to perform the testing as provided under s. 165.77 (2m).

(9) If a court in which a motion under sub. (2) is filed does not order forensic deoxyribonucleic acid testing, or if the results of forensic deoxyribonucleic acid testing ordered under this section are not supportive of the movant's claim, the court shall determine the disposition of the evidence specified in the motion subject to the following:

(a) If a person other than the movant is in custody, as defined in s. 968.205 (1) (a), the evidence is relevant to the criminal, delinquency, or commitment proceeding that resulted in the person being in custody, the person has not been denied deoxyribonucleic acid testing or postconviction relief under this section, and the person has not waived his or her right to preserve the evidence under s. 165.81 (3), 757.54 (2), 968.205, or 978.08, the court shall order the evidence preserved until all persons entitled to have the evidence preserved are released from custody, and the court shall designate who shall preserve the evidence. The court may not issue an order under this paragraph requiring that an agency transfer evidence to a crime laboratory specified under s. 165.75 for the purpose of preservation of the evidence by the crime laboratory, unless the crime laboratory consents to the transfer.

(b) If the conditions in par. (a) are not present, the court shall determine the disposition of the evidence, and, if the evidence is to be preserved, by whom and for how long. The court shall issue appropriate orders concerning the disposition of the evidence based on its determinations. The court may not issue an order under this paragraph requiring that an agency transfer evidence to a crime laboratory specified under s. 165.75 for the purpose of preservation of the evidence by the crime laboratory, unless the crime laboratory consents to the transfer.

(10) (a) If the results of forensic deoxyribonucleic acid 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 and any evidence or other matter presented at the hearing, the court shall enter any order that serves the interests of justice, including any of the following:

1. An order setting aside or vacating the movant's judgment of conviction, judgment of not guilty by reason of mental disease or defect, or adjudication of delinquency.

2. An order granting the movant a new trial or fact-finding hearing.

3. An order granting the movant a new sentencing hearing, commitment hearing, or dispositional hearing.

4. An order discharging the movant from custody, as defined in s. 968.205 (1) (a), if the movant is in custody.

5. An order specifying the disposition of any evidence that remains after the completion of the testing, subject to sub. (9) (a) and (b).

(b) A court may order a new trial under par. (a) without making the findings specified in s. 805.15 (3) (a) and (b).

(11) A court considering a motion made under sub. (2) by a movant who is not represented by counsel shall, if the movant claims or appears to be indigent, refer the movant to the state public defender for determination of indigency and appointment of counsel under s. 977.05 (4) (j).

(12) (a) The court may order a movant to pay the costs of any testing ordered by the court under this section if the court determines that the movant is not indigent. If the court determines that the movant is indigent, the court shall order the costs of the testing to be paid for from the appropriation account under s. 20.410 (1) (be).

(b) A movant is indigent for purposes of par. (a) if any of the following apply:

1. The movant was referred to the state public defender under sub. (11) for a determination of indigency and was found to be indigent.

2. The movant was referred to the state public defender under sub. (11) for a determination of indigency but was found not to be indigent, and the court determines that the movant does not possess the financial resources to pay the costs of testing.

3. The movant was not referred to the state public defender under sub. (11) for a determination of indigency and the court determines that the movant does not possess the financial resources to pay the costs of testing.

(13) An appeal may be taken from an order entered under this section as from a final judgment.

16,4030 Section 4030. 977.05 (6) (c) of the statutes is repealed.

16,4031 Section 4031. 977.05 (6) (cm) of the statutes is repealed.

16,4031c Section 4031c. 977.07 (1) (b) of the statutes is amended to read:

977.07 (1) (b) For referrals not made under ss. 809.30 and, 974.06, and 974.07, a representative of the state public defender is responsible for making indigency determinations unless the county became responsible under s. 977.07 (1) (b) 2. or 3., 1983 stats., for these determinations. Subject to the provisions of par. (bn), those counties may continue to be responsible for making indigency determinations. Any such county may change the agencies or persons who are designated to make indigency determinations only upon the approval of the state public defender.

16,4031e Section 4031e. 977.07 (1) (c) of the statutes is amended to read:

977.07 (1) (c) For all referrals made under ss. 809.30 and, 974.06 (3) (b) and 974.07 (11), except a referral of a child who is entitled to be represented by counsel under s. 48.23 or 938.23, a representative of the state public defender shall determine indigency, and. For referrals made under ss. 809.30 and 974.06 (3) (b), except a referral of a child who is entitled to be represented by counsel under s. 48.23 or 938.23, the representative of the state public defender may, unless a request for redetermination has been filed under s. 809.30 (2) (d) or the defendant's request for representation states that his or her financial circumstances have materially improved, rely upon a determination of indigency made for purposes of trial representation under this section.

16,4031j Section 4031j. 978.03 (3) of the statutes is amended to read:

978.03 (3) Any assistant district attorney under sub. (1), (1m) or (2) must be an attorney admitted to practice law in this state and, except as provided in s. ss. 978.043 and 978.044, may perform any duty required by law to be performed by the district attorney. The district attorney of the prosecutorial unit under sub. (1), (1m), or (2) may appoint such temporary counsel as may be authorized by the department of administration.

16,4031p Section 4031p. 978.044 of the statutes is created to read:

978.044 Assistants to perform restorative justice services. (1) Definitions. In this section:

(a) "Crime" has the meaning given in s. 950.02 (1m).

(b) "Offender" means an individual who is, or could be, charged with committing a crime or who is, or could be, the subject of a petition under ch. 938 alleging that he or she has committed a crime.

(2) Duties. The district attorneys of Milwaukee county and the county selected under sub. (4) shall each assign one assistant district attorney in his or her prosecutorial unit to be a restorative justice coordinator. An assistant district attorney assigned under this subsection to be a restorative justice coordinator shall do all the following:

(a) Establish restorative justice programs that provide support to the victim, help reintegrate the victim into community life, and provide a forum where an offender may meet with the victim or engage in other activities to do all of the following:

1. Discuss the impact of the offender's crime on the victim or on the community.

2. Explore potential restorative responses by the offender.

3. Provide methods for reintegrating the offender into community life.

(b) Provide assistance to the district attorney in other counties relating to the establishment of restorative justice programs, as described in par. (a).

1. The amount of time spent implementing the requirements of pars. (a) and (b).

2. The number of victims and offenders served by programs established under par. (a).

3. The types of offenses addressed by programs established under par. (a).

4. The rate of recidivism among offenders served by programs established under par. (a) compared to the rate of recidivism by offenders not served by such programs.

(3) Report to department of administration. Annually, on a date specified by the department of administration, the district attorneys of Milwaukee county and the county selected under sub. (4) shall each submit to the department of administration a report summarizing the records under sub. (2) (c) covering the preceding 12-month period. The department of administration shall maintain the information submitted under this subsection by the district attorney.

(4) Selection of 2nd county. The attorney general, in consultation with the department of corrections, shall select a county other than Milwaukee county in which restorative justice services are to be provided under sub. (2).

(5) Expiration. This section does not apply after June 30, 2005.

16,4031r Section 4031r. 978.05 (8) (b) of the statutes is amended to read:

978.05 (8) (b) Hire, employ, and supervise his or her staff and, subject to s. ss. 978.043 and 978.044, make appropriate assignments of the staff throughout the prosecutorial unit. The district attorney may request the assistance of district attorneys, deputy district attorneys, or assistant district attorneys from other prosecutorial units or assistant attorneys general who then may appear and assist in the investigation and prosecution of any matter for which a district attorney is responsible under this chapter in like manner as assistants in the prosecutorial unit and with the same authority as the district attorney in the unit in which the action is brought. Nothing in this paragraph limits the authority of counties to regulate the hiring, employment, and supervision of county employees.

16,4031s Section 4031s. 978.08 of the statutes is created to read:

978.08 Preservation of certain evidence. (1) In this section:

(a) "Custody" has the meaning given in s. 968.205 (1) (a).

(b) "Discharge date" has the meaning given in s. 968.205 (1) (b).

(2) Except as provided in sub. (3), if physical evidence that is in the possession of a district attorney includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, delinquency adjudication, or commitment under s. 971.17 or 980.06, the district attorney shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.

(3) Subject to sub. (5), a district attorney may destroy biological material before the expiration of the time period specified in sub. (2) if all of the following apply:

(a) The district attorney sends a notice of its intent to destroy the biological material to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment and to either the attorney of record for each person in custody or the state public defender.

(b) No person who is notified under par. (a) does either of the following within 90 days after the date on which the person received the notice:

1. Files a motion for testing of the biological material under s. 974.07 (2).

2. Submits a written request to preserve the biological material to the district attorney.

(4) A notice provided under sub. (3) (a) shall clearly inform the recipient that the biological material will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material is filed under s. 974.07 (2) or a written request to preserve the material is submitted to the district attorney.

(5) If, after providing notice under sub. (3) (a) of its intent to destroy biological material, a district attorney receives a written request to preserve the material, the district attorney shall preserve the material until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7), (9) (a), or (10) (a) 5., unless the court orders destruction or transfer of the biological material under s. 974.07 (9) (b) or (10) (a) 5.

16,4032m Section 4032m. 978.13 (1) (d) of the statutes is amended to read:

978.13 (1) (d) In counties having a population of 500,000 or more, the salary and fringe benefit costs of 2 clerk positions providing clerical services to the prosecutors in the district attorney's office handling cases involving the unlawful possession or use of firearms. The state treasurer shall pay the amount authorized under this paragraph to the county treasurer from the appropriation under s. 20.475 (1) (f) pursuant to a voucher submitted by the district attorney to the department of administration. The amount paid under this paragraph may not exceed $51,300 in the 1999-2000 fiscal year and $64,000 in the 2000-01 fiscal year the amount appropriated under s. 20.475 (1) (f).

16,4033g Section 4033g. 979.01 (1m) of the statutes is amended to read:

979.01 (1m) The coroner or medical examiner receiving notification under sub. (1) shall immediately notify the attorney general and district attorney.

16,4033k Section 4033k. 979.015 of the statutes is amended to read:

979.015 Subpoena for documents. Upon the request of the coroner, medical examiner, attorney general, or district attorney, a court shall issue a subpoena requiring the production of documents necessary for the determination of a decedent's cause of death. The documents may include the decedent's patient health care records and treatment records, as defined in ss. 51.30 and 146.81 (4). The documents shall be returnable to the officer named in the subpoena.

16,4033n Section 4033n. 979.02 of the statutes is amended to read:

979.02 Autopsies. The coroner, medical examiner, attorney general, or district attorney may order the conducting of an autopsy upon the body of a dead person any place within the state in cases where an inquest might be had as provided in s. 979.04 notwithstanding the fact that no such inquest is ordered or conducted. The autopsy shall be conducted by a licensed physician who has specialized training in pathology. The attorney general or district attorney may move the circuit court for the county in which the body is buried for an order disinterring the body for purposes of autopsy. The order shall be granted by the circuit court upon a reasonable showing that any of the criteria specified in s. 979.04 exists. This section does not prevent additional autopsies or examinations of the body if there are unanswered pathological questions concerning the death and the causes of death.

16,4034 Section 4034. 979.025 of the statutes is created to read:

979.025 Autopsy of correctional inmate. (1) Inmate confined to an institution in this state. If an individual dies while he or she is in the legal custody of the department and confined to a correctional facility located in this state, the coroner or medical examiner of the county where the death occurred shall perform an autopsy on the deceased individual. If the coroner or medical examiner who performs the autopsy determines that the individual's death may have been the result of any of the situations that would permit the district attorney to order an inquest under s. 979.04 (1), the coroner or medical examiner shall follow the procedures under s. 979.04 (2).

(2) Inmate confined in an institution in another state. If an individual dies while he or she is in the legal custody of the department and confined to a correctional facility in another state under a contract under s. 301.07, 301.21, or 302.25, the department shall have an autopsy performed by an appropriate authority in the other state or by the coroner or medical examiner of the county in which the circuit court is located that sentenced the individual to the custody of the department. If the coroner or medical examiner who performs the autopsy in this state determines that the individual's death may have been the result of any of the situations that would permit the district attorney to order an inquest under s. 979.04 (1), the coroner or medical examiner shall forward the results of the autopsy to the appropriate authority in the other state.

(3) Costs of an autopsy. The costs of an autopsy performed under sub. (1) or (2) shall be paid by the department.

16,4034b Section 4034b. 979.04 (1) of the statutes is amended to read:

979.04 (1) If the attorney general or district attorney has notice of the death of any person and there is reason to believe from the circumstances surrounding the death that felony murder, first-degree or 2nd-degree intentional homicide, first-degree or 2nd-degree reckless homicide, homicide by negligent handling of a dangerous weapon, explosives, or fire, homicide by negligent operation of a vehicle, homicide resulting from negligent control of a vicious animal, or homicide by intoxicated user of a vehicle or firearm may have been committed, or that death may have been due to suicide or unexplained or suspicious circumstances, the attorney general or district attorney may order that an inquest be conducted for the purpose of inquiring how the person died. The attorney general or district attorney shall appear in any such inquest representing the state in presenting all evidence which that may be relevant or material to the inquiry of the inquest. The inquest may be held in any county in this state in which venue would lie for the trial of any offense charged as the result of or involving the death. An inquest may only be ordered by the attorney general or district attorney under this subsection or by the circuit judge under sub. (2).

16,4034c Section 4034c. 979.04 (2) of the statutes is amended to read:

979.04 (2) If the coroner or medical examiner has knowledge of the death of any person in the manner described under sub. (1), he or she shall immediately notify the attorney general and district attorney. The notification shall include information concerning the circumstances surrounding the death. The coroner or medical examiner may request the attorney general and district attorney to order an inquest under sub. (1). If the attorney general and district attorney refuses refuse to order the inquest, a coroner or medical examiner may petition the circuit court to order an inquest. The court may issue the order if it finds that the attorney general or district attorney has abused his or her discretion in not ordering an inquest.

16,4034d Section 4034d. 979.04 (3) of the statutes is amended to read:

979.04 (3) Subsequent to receipt of notice of the death, the attorney general or district attorney may request the coroner or medical examiner to conduct a preliminary investigation and report back to the attorney general or district attorney. The attorney general or district attorney may determine the scope of the preliminary investigation. This subsection does not limit or prevent any other investigation into the death by any law enforcement agency with jurisdiction over the investigation.

16,4034f Section 4034f. 979.05 (2) of the statutes is amended to read:

979.05 (2) The inquest shall be conducted before a jury unless the attorney general, district attorney, coroner, or medical examiner requests that the inquest be conducted before only the judge or court commissioner only. If the inquest is to be conducted before a jury, a sufficient number of names of prospective jurors shall be selected from the prospective juror list for the county in which the inquest is to be held by the clerk of circuit court in the manner provided in s. 756.06. The judge or court commissioner conducting the inquest shall summon the prospective jurors to appear before the judge or court commissioner at the time fixed in the summons. The summons may be served by mail, or by personal service if the judge, court commissioner, attorney general, or district attorney determines personal service to be appropriate. The summons shall be in the form used to summon petit jurors in the circuit courts of the county. Any person who fails to appear when summoned as an inquest juror is subject to a forfeiture of not more than $40. The inquest jury shall consist of 6 jurors. If 6 jurors do not remain from the number originally summoned after establishment of qualifications, the judge or court commissioner conducting the inquest may require the clerk of the circuit court to select sufficient additional jurors' names. Those persons shall be summoned forthwith by the sheriff of the county.

16,4034g Section 4034g. 979.05 (3) of the statutes is amended to read:

979.05 (3) The judge or court commissioner shall examine on oath or affirmation each person who is called as a juror to discover whether the juror is related by blood, marriage, or adoption to the decedent, any member of the decedent's family, the attorney general, district attorney, any other attorney appearing in the case, or any members of the office of the attorney general, district attorney, or of the office of any other attorney appearing in the case, ; has expressed or formed any opinion regarding the matters being inquired into in of the inquest; or is aware of or has any bias or prejudice concerning the matters being inquired into in of the inquest. If any prospective juror is found to be not indifferent or is found to have formed an opinion which that cannot be laid aside, that juror shall be excused. The judge or court commissioner may select one or more alternate jurors if the inquest is likely to be protracted. This subsection does not limit the right of the attorney general or district attorney to supplement the judge's or court commissioner's examination of any prospective jurors as to qualifications.