Conviction reversed due to many errors.

• Author: Ziemer, David

Byline: David Ziemer

On Aug. 12, the Wisconsin Court of Appeals held that a defendant is entitled to a new trial where his counsel: (1) failed to introduce DNA test results that excluded him; (2) failed to obtain and present independent medical testimony regarding the victim's death; and (3) failed to obtain and present expert testimony challenging the hypnotically refreshed testimony of the crime's only witness.

On Feb. 26, 2000, at about 5:45 a.m., Kathy Thompson's strangled body was found on a curb on Laurel Street in Eau Claire. Thompson had last been seen walking home from jail around 3 a.m. She and her husband, Robert Miles, had both been taken to jail as a result of a domestic dispute, although Miles was kept overnight on a probation hold.

They had been married the day before, and had been seen fighting at their wedding reception. When leaving the jail, Thompson refused a police officer's offer of a ride, saying she wanted to walk home. She began walking in the direction of her apartment, which was a few blocks away and close to the apartment of an ex-boyfriend, Evan Zimmerman.

After a year-long investigation, Zimmerman was charged with Thompson's murder. At trial, the State's theory of the crime was that Thompson had met up with Zimmerman after leaving jail, probably at his apartment. The State argued that Thompson's marriage and her rejection of Zimmerman had angered him and led him to kill her. Finally, the State claimed Zimmerman transported Thompson's body to Laurel Street upright in the passenger seat of his van.

The trial evidence consisted of the following: (1) Zimmerman's inconsistent alibis, incriminating statements to police, and suspicious behavior and statements to others on the morning Thompson's body was discovered; (2) the opportunity he had to kill her; (3) evidence that Zimmerman was obsessed with Thompson; (4) medical testimony regarding the cause of Thompson's death and the circumstances surrounding it; and (5) the hypnotically refreshed testimony of Brice Rene, who said he saw a van similar to Zimmerman's with a woman in the passenger seat near the site and close to the time Thompson's body was discovered.

Zimmerman was found guilty in a trial before Eau Claire County Circuit Court Judge Eric J. Wahl. He filed a motion for post-conviction relief, but the circuit court denied the motion.

Zimmerman appealed, and the court of appeals reversed in a decision by Judge Thomas Cane, finding that Zimmerman received ineffective assistance of counsel, and was prejudiced as a result.

DNA Evidence

The court concluded that Zimmerman's counsel was ineffective in several respects. First, counsel failed to present DNA evidence that excluded Zimmerman.

At trial, the State submitted numerous items for DNA testing, including cigarette...