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Appeals court orders new trial in fatal Green Bay crash

GREEN BAY, WI (WTAQ) - A state appeals court Tuesday rules that a Green Bay man convicted in a fatal hit-and-run case after killing a man in a wheelchair will get a new trial.

On January 25, 2011, Mark Sperber was convicted for the crash that killed John Kennedy.

Sperber claimed he couldn't see clearly out his windshield, and thought he struck a garbage can. He was sentenced to 10 years in prison.

In his appeal, Sperber argued his trial counsel was ineffective for failing to request that the court inform the jury that the knowledge inquiry - whether Sperber knew the crash involved a person - focused on the time Sperber left the crash scene.

The appeals court agreed. 

"For the foregoing reasons, we conclude Sperber was prejudiced by his trial attorney's failure to request clarification of the jury instruction. In light of the jury's repeated questions, counsel's failure undermines our confidence in the verdict," the court wrote.

"Here, the State is correct that the jury's verdict was entirely consistent with a proper finding of guilt-finding that Sperber knew the accident involved a person at the time he left the scene. Nonetheless, the verdict was similarly consistent with a finding that should have resulted in acquittal-a finding that Sperber did not know a person was involved until some later point in time. Because the only admissible evidence providing direct insight into the jury's understanding of the legal standard are the communications between it and the court, there is no way to know which time frame the jury ultimately applied. Accordingly, the real controversy was not fully tried," the court added.

The case will be sent back to a Brown County judge for further proceedings. No hearings have been scheduled.

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