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Point #3: No new or unused evidence

In 1980, there was a criminal case in the Wisconsin courts titled "State v Brown".  In the decision, it is noted that:


"If the state issues a new criminal complaint for a charge or charges considered at a previous preliminary examination, the prosecutor…should summarize how…the new or unused evidence will support a finding of probable cause." 


In other words, if the state wants to re-add a criminal charge later in the game (i.e. what happened to Martell), the burden is on the state to show how new or unused evidence could lead to probable cause. 


If there is such new or unused evidence, then a second preliminary hearing must take place where probable cause might be found for the newly added charge. 


However, in this case, no such new or unused evidence was ever presented to the court nor did the Assistant District Attorney ever argue that any such new or unused evidence existed. 


Despite this, the court still allowed the state to proceed with re-adding the charge back into Martell's list of charges for the trial. 


Furthermore, the court of appeals upheld the circuit court's decision despite no new or unused evidence ever being presented.

A little history: State v. Brown

In 1980, the Wisconsin supreme court case State v. Brown established the procedure for filing another charge that was previously dismissed for lack of probable cause.

Coll Att 28.PNG

The procedure for reintroducing a charge

  1. New or unused evidence must be placed in front of a circuit court

  2. The circuit judge must determine if probable cause can likely be obtained

  3. Then and only then, an additional preliminary hearing must take place in order for the court to be able to try someone for the criminal charge

Ironically, this was the very case that the appellate court ruling used to justify taking Martell to trial on an allegation for which no probable cause existed despite the very clear precedent.

Wisconsin Statute 970.04

Then in 1993, a Wisconsin law (970.04) was passed to help clarify the State v. Brown decision.  It states the following:

Retro law scales on table. Symbol of jus

This statute does allow the state to reissue a charge if there is new or unused evidence.  However, the statute is entitled "Second Examination" and does not give the state or the court the authority to bypass an official finding of probable cause because it would be in direct violation of any citizen's rights guaranteed by the 4th and 14th amendments of the US constitution as well as Wisconsin's own legislation.

Martell's charge re-introduced despite lack of probable cause and no new or unused evidence

In 2010, 17 months after Martell's preliminary hearing where the charge was dropped due to lack of probable cause, the state prosecution decided it was going to try to re-introduce the charge that was thrown out at the preliminary hearing regarding the robbery outside Italian Fest despite not providing any new or unused evidence. 


Reintroducing this single count would ultimately lead to Martell getting an additional 10 years added onto his sentence.

Here is an excerpt from that hearing that introduced the amended (re-added) charge with particularly relevant sections highlighted:

The Point

The judge allowed the count to proceed, but not because of new or unused evidence.  He instead allowed it to proceed saying that it could "probably be considered transactionally related."

What evidence?

In August 2014, Martell submitted a "Petition for Review" for his original appeal.  In this petition, Martell detailed a key error in the logic of the courts:

"In rendering its finding that the Assistant District Attorney 'still had sufficient, unused evidence to charge Rogers[,]' the Court overlooked its own acknowledgement that 'the assistant district attorney said she did not have enough evidence to show probable cause on this charge.


And, if the assistant district attorney did have 'sufficient, unused evidence to charge Rogers,' nothing in the Court's decision or arguments of Plaintiff-Respondent renders any reason justifying bypass of the statutory required procedure."

~Martell D. Rogers, Aug 2014 - Petition for Review of Collateral Attack

The relevant section of the petition:

Petition for Review p14.PNG
Petition for Review p15.PNG
Petition for Review p16.PNG

The Point

The court cannot have sufficient unused evidence to charge Rogers while simultaneously not having enough evidence to show probable cause at the preliminary hearing. 


Yet, this is exactly what the court has claimed.

You can find Martell's full petition here:


No new or unused evidence was ever presented to the circuit court, which means that Martell's count should never have gone to trial according to the ruling set forth in State v. Brown.

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