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Brandon Burnside

Other Wisconsin DNA Cases
On August 11, 2010, shortly before 2 a.m., 29-year-old Bryan Drake and a friend, Barry McDade, left a bar in Milwaukee, Wisconsin and walked to their car in a parking lot. A man approached, physically fought with Drake, pulled a handgun and fatally shot Drake.

Witnesses said the gunman, who was wearing a blue shirt, drove away in a red Dodge Magnum. At the scene of the shooting, police found broken pieces from a car’s taillight. The owner of a minivan would later tell police that a Dodge Magnum backed into his vehicle in the parking lot where the shooting occurred.

The car’s description was broadcast to police units and at 2:20 a.m.—less than 30 minutes after the shooting, a police officer stopped a Dodge Magnum with a broken taillight. A search of the vehicle revealed no guns or evidence relating to the shooting.

The driver, 27-year-old Brandon Burnside, who was wearing a blue shirt, said he had been in the bar where the shooting occurred, that he left at 11:30 p.m. and that he was not aware of the shooting. Burnside agreed to go to a police station. His vehicle was taken to a police station as well.

Burnside was not read Miranda warnings and the police told him he was not under arrest. Burnside told the officer that he had not been in an accident near the shooting and that the damage to his car occurred a month earlier. Burnside admitted he might have left later than 11:30 a.m. The officer confronted Burnside with evidence that the broken taillight fragment at the scene of the shooting appeared to match his broken tail light, saying he would “have to have an answer cause otherwise you’re gonna get arrested.”

Burnside said he was the only one in the car that night and that while he had had a few drinks, he was not drunk. Ultimately, he told the police, “You can just book me, man, cause I don’t—I don’t know, dude. This is ridiculous.” Burnside was charged with obstruction of justice. Shortly before noon the next day, detectives questioned him again. At one point, a detective asked, “You change your mind?”

When Burnside said, “Yeah,” an officer read the Miranda warnings. Burnside then said his friend was driving the car, because Burnside believed he was too intoxicated to drive. He said that the car had been in an accident—his friend backed into the van. Burnside said they were driving away when they heard gunshots.

In the moments after the shooting, police had taken two people into custody who were in the parking lot. Barry McDade, a friend of the victim, was put in the same cell with Burnside. The next day, McDade was shown a photographic lineup that included Burnside’s photo. McDade said Burnside looked familiar, but he didn’t know where he had seen him before.

Approximately five weeks later, police brought McDade in to view a live lineup that included Burnside. McDade said he did not see the gunman. Afterward, a detective asked him if he had any questions and McDade said that Burnside had the same kind of hair as the gunman. The detective then said, “And the same facial hair?” McDade then viewed the same lineup again and this time he identified Burnside as the gunman.

The other person taken into custody was Jarrell Leonard, who was placed in a cell across from the cell where Burnside was held. Leonard was shown a photographic lineup that included Burnside. Leonard said the gunman was not in the array.

Eight days later, Leonard was shown another photographic array of suspects. This array included all new individuals except for Burnside—a highly suggestive practice. Leonard identified Burnside as the gunman.

A third witness was a woman who was at the bar when the shooting occurred. She later said that she was shown a photograph of Burnside and asked if she knew him. She said she circled his photograph because she had seen him before in the neighborhood.

Burnside was arrested on a charge of first-degree murder and the obstruction of justice charge was dismissed. He went to trial in Milwaukee County Circuit Court in January 2011. He was convicted by the jury on January 11, 2011 and sentenced to life in prison.

Burnside’s appellate attorney filed a post-conviction petition seeking DNA testing of the shirts found at the scene. The prosecution opposed the motion and the judge refused to grant the request.

In April 2014, the Wisconsin Court of Appeals reversed the conviction. The appeals court ruled that Burnside’s statements prior to being given his Miranda warning were inadmissible. The court ordered a new trial.

A month before his retrial, the prosecution sent off three shirts found at the scene of the crime for DNA testing. The test results were disclosed to the defense on the first day of Burnside’s retrial and showed that one shirt had the victim’s DNA, another shirt had no DNA and a third shirt—a blue shirt fitting the description of the shirt worn by the gunman—had the DNA of a man who had been convicted of a violent felony offense.

At the retrial, the defense called an expert witness in the subject of mistaken witness identification. The witness, Professor Larry White from Beloit University, testified that the lineup procedures in the case were highly suggestive and improper.

On September 18, 2015, the jury acquitted Burnside and he was released.

– Maurice Possley

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Posting Date: 9/28/2015
State:Wisconsin
County:Milwaukee
Most Serious Crime:Murder
Additional Convictions:
Reported Crime Date:2010
Convicted:2011
Exonerated:2015
Sentence:Life
Race:Black
Sex:Male
Age at the date of crime:27
Contributing Factors:Mistaken Witness ID, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:Yes*