Appeals court reverses DNA test ruling in murder case

“We hold that it was error to deny Denny’s motion,” Appeals Court Chief Judge Lisa Neubauer wrote in the court’s March 23 opinion.  

“Denny showed that the items he sought to test were relevant to the investigation or prosecution that resulted in his conviction, that it is reasonably probable that he would not have been convicted if exculpatory DNA testing results had been available at the time of his conviction, and the testing he seeks was not available at the time of his conviction.”

Jeffrey Denny, who was 17 at the time of Mohr’s murder, and Kent Denny, then 19, were convicted of killing Mohr, who suffered more than 50 stab wounds and blunt-force trauma to the head, during a nine-day trial in November 1982 that hinged on the testimony of witnesses who said the brothers admitted to committing the murder.

 Among those witnesses was Jeffrey and Kent’s brother Trent Denny, who testified that Kent told him he and Jeffrey were at Mohr’s home on Jan. 26, 1982, when Kent asked Mohr how he was. When Mohr replied he was fine, Kent stabbed him in the stomach and asked how he was feeling then.

According to Trent’s account, Jeffrey then took the knife and began stabbing Mohr while Kent broke a marijuana bong over Mohr’s head.

Trent also testified that in March 1982, two months after the murder, he, Kent and a female friend drove to a Grafton cemetery where Kent retrieved a paper bag that he said contained clothing he had to dispose of. Trent said they drove to the Town of Port Washington dump and threw the bag, which smelled like blood, into a dumpster.

Jeffrey and Kent Denny were each sentenced to life in prison. Kent has since died, according to the Wisconsin Department of Corrections Division of Community Corrections office in Saukville. According to news reports and his obituary, he was killed in a one-vehicle accident on Jan. 1, 2012, in northern Wisconsin.

Jeffrey Denny is currently incarcerated at the Oakhill Correctional Institution, a minimum security prison in Oregon just south of Madison.

As Voiland noted in his order denying the motion seeking DNA testing, Jeffrey Denny has unsuccessfully tried appealing his case in Ozaukee County circuit court and well as to the Wisconsin  and U.S. courts of appeal. He also petitioned the Wisconsin Supreme Court, but it refused to review his case.

In 2014, however, the Wisconsin Innocence Project, a University of Wisconsin Law School group that works to exonerate people who have been wrongly convicted, filed a motion asking Voiland to order DNA testing of evidence, including pieces of a shattered bong, a bloody towel, a pair of gloves and hair found clutched in the victim’s hand.

His lawyers argued that the absence of  Denny’s DNA on the evidence would suggest he is innocent, and DNA from other people found on items recovered from the murder scene could indicate someone else killed Mohr.

“Finding another individual’s DNA instead of Denny’s DNA on this evidence would make it less probable that Denny was the attacker and therefore indisputably relevant to the ultimate question before the jury: the identity of the real killer,” Denny’s lawyers argued in their motion.

Voiland, however, concluded that the physical evidence in question did not result in Denny’s conviction, which instead hinged on the accounts of witnesses who said the Denny brothers told them they murdered Mohr. Thus, Voiland concluded the evidence to be tested was not relevant.

The appeals court disagreed.

“It is not difficult to imagine a scenario where evidence recovered during the investigation but not presented at trial is, due to advancement in scientific techniques, relevant,” Neubauer wrote. “Thus, the trial court applied an improper legal standard when concluding that the evidence Denny wants tested was not relevant because it did not result in conviction.”

Neubauer noted the bloody crime scene could have been rife with DNA “in the form of blood, hair, saliva, skin, sweat or other biological material on the items Denny identified for testing.”

Voiland also concluded that the items Denny wants tested were not relevant because he was charged as party to the crime, or an accomplice.

“There is no requirement that Denny be the individual (or likely one of the individuals) who stuck a knife or two into Mohr or smashed a bong over his head,” Voiland wrote in his order. “A jury could have found Denny guilty as a party to the crime if he acted in concert with the others who inflicted the wounds while Denny stood lookout in the hallway, leaving none of his DNA at the scene.”

The appeals court, however, noted that was not the prosecution’s theory.

“Denny was not a mere ‘lookout,’ but described by multiple witnesses, as recounted in the state’s closing argument, as having stabbed Mohr possibly ‘five, ten, fifteen times,’” Neubauer wrote.

“If, as Denny argues, testing of the items should show that another person’s DNA is on several of the items, and that the DNA of Denny is not on any of the items identified, such would call into doubt Denny’s participation in the murder of Mohr.”

In assessing whether Denny’s conviction could have hinged on DNA testing had it been available, and thus if he is entitled to testing at the public’s expense, Neubauer noted that there was no physical evidence linking him to the murder. 

She conceded that the incriminating statements Denny made to witness was “powerful evidence,” but noted that his lawyer effectively questioned the credibility of several of those witnesses.

“Trent had four criminal convictions, was granted immunity for his testimony and acknowledged that every time he heard a conversation involving Denny he was ingesting drugs or alcohol or both,” Neubauer wrote. 

“When we take all of this into account — the lack of physical evidence connecting Denny to the scene, the inculpatory statements he made, the manner in which the credibility of certain witnesses was called into question and an identified third party in the DNA test results and none of Denny’s — we conclude that it is reasonably probable that Denny would not have been convicted, that is, a probability sufficient to undermine the confidence in the outcome.”

The appeals court instructed Voiland to order the DNA tests with reasonable conditions to protect the evidence and testing process. Depending on the findings of those tests, Denny could argue for a new trial.