WI Court of Appeals rules revoked probationer can reopen proceedings.

• Date: 18 February 2004

Byline: David Ziemer

A probationer has the right to reopen a revocation hearing based on newly discovered evidence, the Wisconsin Court of Appeals held on Feb. 10.

On July 14, 1993, Raymond Booker was convicted of burglary and sentenced to a 10-year prison term, which was stayed. Booker was placed on six years' probation. After three years on probation, the Department of Corrections recommended that Booker's probation be revoked.

The revocation recommendation was based on an incident which occurred on Aug. 12, 1996. Booker was walking on a sidewalk near his house when a vehicle being driven by Dennis Adams approached. Adams stopped the vehicle near Booker and Booker recognized a passenger, Myles Marshall.

Marshall exited the vehicle, and Booker and Marshall walked along the sidewalk talking. They discussed a 1989 incident, in which Marshall pointed an air gun in Booker's face and pumped it twice. Booker believed the gun was real and Marshall told Booker the only reason Booker was alive was because the gun jammed.

The two men returned to the vehicle. As Marshall reached for the door handle, Booker hit him. The exact nature of the hit was disputed. Booker claimed he pushed him because he thought Marshall was reaching for a shotgun to kill him. Marshall stated that Booker punched him three times, once in the chest, once in the stomach and once to his wrist, breaking it in three places. Marshall denied that he was reaching for a gun; he maintained that he asked Adams to "hand me that thing," referring to a bar that locks the steering wheel, rather than a shotgun.

Both testified at the probation hearing. The administrative...