On Point: D. Waiver of issues/arguments

State v. Keith M. Bohannon, 2013 WI App 87; case activity

Substitution of judge; “new” judge under § 971.20(5)

When a case is reassigned from the original judge to a second judge and then reassigned again back to the first judge, the first judge is the “original” judge assigned to the case under § 971.20(4), not a “new” judge under § 971.20(5). Therefore, a motion to substitute the original judge had to be filed before the arraignment,

State v. Brian L. Jackson, 2012AP1008-CR, District 1, 5/14/13; court of appeals decision (not recommended for publication); case activity

Sufficiency of the evidence

In a necessarily fact-specific discussion (¶¶4-5, 10-12), the court of appeals holds there was sufficient evidence to support Jackson’s conviction for being a felon in possession of a firearm despite the existence of evidence to the contrary, which included the lack of Jackson’s DNA on the gun (and other objects) he supposedly discarded during a foot pursuit and the fact the officers lost sight of the men they were pursuing at various times during the chase:

 ¶13      The …

On review of court of appeals certification; case activity: Pinno; Seaton

Issue (from certification):

Is the failure to object to the closure of a public trial to be analyzed upon appellate review under the “forfeiture standard” or the “waiver standard”?

See our previous post for further discussion.

Henderson v. United States, USSC No. 11-9307, reversing 646 F.3d 223 (5th Cir. 2011)

When is plain really plain? That’s the plain and simple issue in this case.  During trial, the district court decided a substantive legal question against the defendant.  But while the case was on direct appeal, SCOTUS, in a separate case, settled the legal question in the defendant’s favor, thus prompting a question about whether the district court’s decision in Henderson qualified as “plain error.”

Issue:  “Is the time for determining “plainness” the time when the error is committed,

Question Presented

Rule 52(b) of the Federal Rules of Criminal Procedure permits an appellate court to correct a trial court’s “plain error” despite the lack of an objection in the trial court. In Johnson v. United States, 520 U.S. 461 (1997), this Court held that, when the governing law on an issue is settled against the defendant at the time of trial but then changes in the defendant’s favor by the time of appeal,

State v. Susan M. Thorstad, 2011AP2854-CR, District 4, 5/31/12

court of appeals decision (1-judge, not publishable); for Thorstad: Charles W. Giesen; case activity

Mistrial was granted after the arresting officer, in contravention of pretrial order, testified that this was Thorstad’s second OWI. However, the officer was unaware of the order, because the prosecutor had failed to advise of same, an omission the trial court attributed to “laxness on the part of the State.” The trial court then ruled that,

State v. Laurence W. Tucker, 2012 WI App 67 (recommended for publication); for Tucker: Robert T. Ruth; case activity

Tucker pleaded guilty pursuant to plea bargain, which terms included continuation of his release on bond and compliance with same. After Tucker failed to appear at sentencing, necessitating his arrest on a bench warrant and issuance of a new charge of bail jumping, the State informed counsel it was no longer bound by the agreement,

Patrick Wood v. Milyard, USSC No. 10-9995, 4/24/12, reversing 403 Fed. Appx. 335 (10th Cir 2010)

This case concerns the authority of a federal court to raise, on its own motion, a statute of limitations defense to a habeas corpus petition. After state prisoner Patrick Wood filed a federal habeas corpus petition, the State twice informed the U. S. District Court that it “[would] not challenge,

State v. Basil E. Ryan, Jr., 2012 WI 16, reversing 2011 WI App 21; case activity

¶32  We begin by addressing the circuit court’s application of the equitable doctrine of judicial estoppel.  Judicial estoppel is intended “to protect against a litigant playing ‘fast and loose with the courts’ by asserting inconsistent positions” in different legal proceedings. State v. Petty,

State v. Brian K. Little, 2011AP1740-CR, District 4, 1/26/12

court of appeals decision (1-judge, not for publication); for Little: Lane Fitzgerald; case activity

The court rejects  challenges to § 941.23, carrying concealed weapon, as facially violating the state and federal constitutional right to bear arms. (The statute presently allows concealed carry under specified circumstances, 2011 WI Act 35. Little was convicted under the prior version,