On Point blog, page 32 of 119
Seventh Circuit’s rare habeas grant notes COA misapplication of Strickland and upbraids state for false claims about the record
Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020
Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.
Restitution challenge forfeited
State v. Michael S. Coleman, 2019AP1999-CR, District 4, 1/30/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Coleman appealed the restitution ordered for the damage he did to a squad car by striking his head against the cage inside and kicking the door. (¶2). But his challenges are forfeited for failure to raise them in the circuit court.
SCOW again can’t decide the law; declares truth unknowable; two votes missing
State v. Donavinn D. Coffee, 2020 WI 1, 1/9/20, 2017AP2292, affirming a per curiam court of appeals opinion; case activity (including briefs)
Where to begin?
Court of appeals finds factual basis for plea to contempt
State v. Kody K. Johnson, 2019AP1058-CR, District 4, 1/9/19, (1-judge opinion, ineligible for publication); case activity (including briefs)
Johnson accepted a negotiated disposition of 3 contempt charges stemming from his interference with child custody. He then moved to withdraw his plea arguing that the charges had no factual basis and were multiplicitous.
SCOW holds defendants abandoned by counsel to same standards as licensed lawyers
State v. Robert James Pope, Jr., 2019 WI 106, affirming an unpublished court of appeals opinion; case activity (including briefs)
In the most absurd decision this term (still time for worse), SCOW has denied a defendant sentenced to life without parole both a direct appeal and a new trial because the court system destroyed all of his trial transcripts. The defendant “sat on his rights,” said the majority opinion, written by Justice Ziegler. When his lawyer failed to file a timely notice of intent to pursue postconviction relief, he should have immediately, without counsel, figured out how to defend his appeal rights and effectively defended them. He didn’t. No relief.
Defense win! No community caretaker basis to seize people sitting in car in parking lot
Wood County v. Trevor J. Krizan, 2019AP350, 12/12/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
A sheriff’s deputy on patrol at 2:00 a.m. happened by a parking lot for a boat landing. The lot was open to the public 24 hours a day, and he saw a vehicle parked, not running, with its lights off. The officer pulled behind it and shined his spotlight and “takedown lights” (these are apparently very bright lights that may temporarily blind occupants of a vehicle on which they are shined) at the car. He saw two occupants and no signs of distress, but he approached the vehicle, spoke to the occupants, and took their identification. Eventually he noted signs of intoxication that led to Krizan’s arrest for first-offense OWI. But Krizan challenged the stop and won in the trial court, and the county appealed.
Court of appeals affirms circuit court’s fabrication of “oh shit” moment in speeding case
State v. Chris K. Feller, 2019AP318, 11/27/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
This appeal poses an interesting question of law: whether the justification defense available in certain civil forfeiture actions applies where a driver exceeds the speed limit in order to get away from another driver who is dangerously tailgating him on the freeway. See State v. Brown, 107 Wis. 2d 44, 318 N.W.2d 370. The court of appeals contorts the undisputed facts in order to duck the issue.
COA: evidence sufficient for ch. 51 extension
La Crosse County v. J.M.A., 2018AP1258, 11/21/19, District 4 (one-judge decision; ineligible for publication); case activity
J.M.A. appeals his recommitment under ch. 51. He argues the psychiatrist who was the sole witness at his trial provided only conclusory testimony on dangerousness; the court of appeals disagrees.
Circuit court erroneously admitted hearsay at child sexual assault trial, but error was harmless
State v. Jeffrey D. Lee, 2018AP1507-CR, 11/5/19, District 1 (not recommended for publication); case activity (including briefs)
At a jury trial for child sexual assault, the circuit court admitted “other acts” evidence that Lee had similarly assaulted 5 other children. The court of appeals called the “other acts” evidence of the 3rd, 4th and 5th children “textbook hearsay,” held that the circuit court erred in admitting it, but affirmed based on the harmless error doctrine.
COA finds no error in denying mistrial for 3 evidentiary issues
State v. Ross Harris, Jr., 2018AP1667, 10/24/2019, District 4 (one-judge opinion; ineligible for publication); case activity (including briefs)
The charges in this case, disorderly conduct and battery, arose from an altercation in a hospital elevator. The state said Harris, newly a grandfather, had attacked A.D., the fiancé of his newborn grandchild’s maternal grandmother, while both were visiting the baby. Harris said it was A.D. who had attacked him.