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Ernest Green

Other Wisconsin exonerations involving official misconduct
On February 12, 2014, Walworth County Sheriff’s officers arrested 29-year-old Ernest Green on charges of being a party to the distribution of heroin in Lake Geneva, Wisconsin.

Six days later, on February 18, 2014, the Walworth County District Attorney’s Office filed a six-count criminal complaint against Green. He was accused of the heroin transaction and five more drug transactions on separate dates from September 24, 2013 to December 3, 2013. On those five occasions, the complaint accused Green of being the source for cocaine that was sold by 27-year-old Ashley Keller. The complaint also said that on February 12, 2014, Green was a passenger in a car driven by his cousin, Matthew Brown, and was the supplier of heroin that Brown sold to undercover sheriff’s deputy Cory Newmann.

In February 2016, Green went to trial in Walworth County Circuit Court on all six counts. Newmann testified that he arranged to meet Brown in the parking lot of a Home Depot. He said when he attempted to get into the front seat, Green was sitting there, so he got into the back seat. The rear seat door frame was loose and Green told him not to close it all the way or it would lock him in like a “real police car.” Newmann said that when he got into the back seat, Brown turned partially toward him. Newmann handed Brown marked money, and Brown handed Newmann several small baggy corners containing heroin. Newmann testified that afterward, Green pushed the door open so Newmann could get out of the car. Newmann told the jury that the transaction occurred about six inches away from Green’s left arm, but the headrest was between them, and Newmann didn’t see whether Green was actually looking in their direction when the transaction occurred.

Green and Brown were arrested and searched shortly thereafter. Deputy Michael Krahn testified that Green said Brown was giving him a ride after Green stopped at the courthouse to make a child support payment. Krahn did locate documents related to Green’s child support obligations. Green had $296 cash on his person, but none of it was marked money from the controlled buy. The officers seized Green’s cell phone, and obtained a warrant to search it.

The evidence relating to the five cocaine sales made by Keller came from other officers as well as police informants Daniel Metzger and Allen Miles. Metzger testified that on September 24, 2013 and October 10, 2013, he purchased cocaine from Keller at her home. Green was not present.

The other three sales made by Keller occurred in her car. Metzger made one of these purchases on September 30, 2013. Metzger said Green was in the front seat on that occasion. The other two sales Keller made in her car occurred on October 16, 2013 and December 3, 2013 when she sold cocaine to police informant Allen Myles. Green was not present during these transactions.

The prosecution sought to introduce evidence that Metzger had purchased drugs from Green in the past, but the trial judge refused to allow it. Out of the presence of the jury, the judge instructed Metzger to testify that he knew Green because they ran in the same circle, but nothing more. When the jury was back in the courtroom and the prosecutor asked Metzger how he knew Green, Metzger said, “Basically through the same circle of selling drugs and buying drugs.”

The judge ordered the testimony stricken. He also denied a motion for a mistrial made by Green’s defense attorney, Lane Fitzgerald.

Keller testified and admitted to selling cocaine on all five occasions. For the lone transaction where Green was present in her vehicle, Keller testified that Green was aware that she was selling to Metzger, and that he was in the car to receive money from the delivery. She claimed that Green supplied her with the cocaine and that he was her only source of cocaine from September to December 2013. Although she admitted she could get cocaine from Matthew Brown, she denied ever personally receiving drugs from Brown.

To support the claim that Green was Keller’s cocaine supplier, the prosecution presented text messages with suspicious language. Texts from Green’s phone to Keller on December 25, 2013 said: “Can u meet someone for me,” “100$ I left a half soft at yo house. He will come to you. My buddy joe,” and “If u can just give him a ball.”

Keller testified that “soft” referred to powder cocaine, and “ball” meant 3.5 grams. Another text from Green’s phone to Keller on January 8, 2014 said: “He only got 150. So just take him a 3.0.” Keller testified that meant Green was saying a person who was purchasing cocaine didn’t have enough money.

Keller also testified that she had been selling cocaine for Green for a “few years.” In addition, the prosecution played recorded telephone calls between Keller and Green when he was in the Walworth County Jail. Those calls included discussions about money, and references to a “zip,” which Keller testified meant an ounce of crack cocaine.

However, those jail phone calls were from August 2011, approximately two years before the charged transactions. And all of the text messages were on dates between December 23, 2013—after the last cocaine sale—and January 15, 2014—prior to the heroin transaction.

Keller, who had four prior convictions including passing bad checks and disorderly conduct, denied receiving any consideration for her testimony. She testified it was the “right thing to do,” and that she expected to be charged and convicted.

During cross-examination, Keller acknowledged she’d been charged with numerous counts of delivery of cocaine, but the charges had been dismissed in December 2015. She said she did not know why the charges were dismissed. She also denied that, if charged again, she expected to get a better deal because of her testimony against Green. The prosecution said that the charges had been dismissed due to a scheduling problem, not because of any deal with Keller.

The prosecution said Keller was an honest, cooperative witness who admitted her crimes to law enforcement immediately.

Deputy Newmann was allowed to testify that based on his expertise and training in drug investigations, the text messages and jail conversations were indicative of “drug lingo.” He admitted that some of his interpretations, however, were speculation.

The defense did not present the evidence showing that Green had in fact made the child support payment that he told police about on the day he was arrested.

During closing argument, the prosecutor, assistant Walworth County district attorney Daniel Necci noted that the defense had not called Matthew Brown to support Green’s claim that Green was not involved in the heroin transaction.

“You can infer from the fact that Matthew Brown is not here to testify,” Necci declared. “And you’re allowed to do this. You can infer the fact that his testimony would not have supported the defendant’s version of events and, in fact, would have helped the State.”

On February 11, 2016, the jury convicted Green of all the charges. He was sentenced to five years in prison on the heroin charge. He was sentenced to five two-year sentences on the five cocaine charges. All the sentences were to be served consecutively for a total of 15 years.

In February 2019, attorney Cole Ruby became the seventh attorney to handle the case for Green. Green had four different attorneys prior to his trial when the fifth attorney came on to handle the case at trial. The sixth attorney had unsuccessfully attempted to overturn the conviction prior to the appeal. When Ruby was retained to take on the case, he filed a motion to dismiss the pending appeal and essentially focus on a post-conviction petition for a new trial.

In October 2020, following a re-investigation of the case, Ruby filed a petition for a new trial claiming that the prosecution had failed to disclose evidence favorable to Green’s defense. The petition said the prosecution had not disclosed and that Green’s trial defense lawyer had failed to discover evidence that Keller had been charged with heroin delivery in Walworth County on February 11, 2014—the day before Green was arrested with his cousin, Matthew Brown.

And in that instance, Keller had been accused of driving Brown to complete a heroin transaction with Deputy Newmann.

“The fact that Keller had been charged (and would eventually be re-charged) with an additional charge of heroin delivery, a crime with a higher maximum penalty…than any cocaine delivery charges…was directly relevant to her credibility, bias, and motive to cooperate with the State,” the petition said.

The petition said that a review of court records showed that Miles and Metzger, the two police informants, had gotten significantly better deals on their own charges than was revealed in their testimony at the trial.

Moreover, the prosecution failed to disclose that on February 17, 2014, five days after Green was arrested, Keller told police that Green did not supply her any cocaine, that she was not involved with cocaine at all, and believed that Green had personally delivered the cocaine on the five dates in September, October and December 2013. “The latter statement was clearly false,” the petition said. “The second statement directly contradicted all of her other statements. And the first of these statements is directly exculpatory.”

In addition, the petition said that the prosecution had failed to disclose that during an interview with police that was recorded, Brown said that Green was not involved in the heroin transaction.

“The prosecutor knew Brown had provided statements to law enforcement denying Green’s involvement in the crime, yet he knowingly argued the jury should infer the opposite based on the lack of Brown’s testimony at trial,” the petition said. “And since the State hadn’t disclosed the recording of Brown’s statement to police, or any evidence about his subsequent statement to Deputy Newmann again denying Green’s involvement, the defense had no idea about this evidence, and wasn’t in a position to object. Knowingly arguing false inferences to the jury and exploiting the suppression of exculpatory evidence constitute prosecutorial misconduct.” By December 2020, Ruby had discovered through the filing of an open records request with the Walworth County Sheriff that forensic extractions of data had been performed on the cell phones of Brown and Keller. When Ruby asked assistant district attorney Andrew Herrmann, who was defending against the post-conviction petition, for the records, Herrmann refused. On December 18, 2020, Ruby filed a motion to compel the release of the cell phone extraction reports. The motion was granted and the records were disclosed. In April 2021, Ruby filed an addendum to the post-conviction petition based on the report on the extraction of text messages from Keller’s cell phone. The report, which had not been disclosed by the prosecution, showed that during the time period of the five cocaine transactions, Keller was texting someone else named “Tim” about obtaining cocaine. Some of the texts occurred on the same days as the sales she made, the addendum said.

“Evidence from Keller’s phone, in combination with the other evidence discovered post-conviction…demolishes her credibility regarding who supplied her with cocaine,” the addendum said.

A hearing on the motion was held on October 1, 2021 before Walworth County Circuit Court Judge David Reddy, who had presided over Green’s trial.

On March 3, 2022, before Judge Reddy issued a ruling, the prosecution agreed to vacate and dismiss the five cocaine convictions. Prosecutor Herrmann, in a joint motion also signed by Ruby, agreed that Green was entitled to relief because of the prosecution’s failure to disclose the cell phone extraction report of Keller’s cell phone.

Judge Reddy granted the motion to vacate the five cocaine convictions and the charges were dismissed. The heroin conviction—which was unrelated to the cocaine convictions—remained in place. Because Green had already completed the five-year-sentence on that conviction, he was released.

– Maurice Possley

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Posting Date: 3/19/2022
Last Updated: 3/19/2022
Most Serious Crime:Drug Possession or Sale
Additional Convictions:
Reported Crime Date:2013
Sentence:10 years
Age at the date of reported crime:29
Contributing Factors:False or Misleading Forensic Evidence, Perjury or False Accusation, Official Misconduct, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No