On Point: 1. Appeals

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,

Chaidez v. United States, USSC No. 11-820, affirming 655 F.3d 684 (7th Cir. 2011)

Issue:  We know that Padilla v. Kentucky, 559 U.S. 356 (2010) requires counsel to advise a defendant about the risk of deportation arising from a guilty plea.  The question presented by Chaidez is whether or not that rule applies retroactively so that a person whose conviction became final before Padilla can benefit from it. 

Dane County v. Steven D. Koehn, 2012AP1718, District 4, 1/10/13

Court of appeals decision (1 judge; ineligible for publication); case activity

Motion to suppress evidence of intoxication properly denied because arresting officer had probable cause to administer a preliminary breath test. The court of appeals rejects Koehn’s claims that the officer’s failure to testify about the significance of the results of field sobriety tests means those results should have “minimal significance” in determining probable cause to administer the PBT:

¶10      I first conclude that,

State v. Daniel Ryan Curry, 2012AP515-CR, District 1, 12/27/12

Court of appeals decision (not recommended for publication); case activity

Newly discovered evidence

Defendant not entitled to new trial based on potentially exculpatory testimony of two witnesses, because the witnesses were known to him before trial. The two witnesses were the son and nephew of a defense witness named Rivera. Statements made by Curry and Rivera and contained in police reports,

Milwaukee County v. Cheri V., 2012AP1737, District 1, 12/18/12

 court of appeals decision (1-judge, ineligible for publication); case activity

Mental health commitment, § 51.20, requires proof of mental illness and dangerousness. Cheri V. limits this challenge to the latter; the court agrees:

¶7        As seen from our recitation of the facts adduced at the trial, however, there is absolutely no evidence that any of the statutory prerequisites were met—yelling at and pointing a finger at another person,

State v. Mark A. Gierczak, 2012AP965-CR, District 4, 12/13/12

court of appeals decision (1 judge; ineligible for publication); case activity

For purposes of obstructing an officer § 946.41, “officer” includes someone with authority “to take another into custody,” and therefore includes a correctional officer at a county jail, ¶¶11-12. The court of appeals thus rejects Gierczak’s challenge to the factual basis for his obstructing plea where as a county jail inmate,

State v. David J. Galarowicz, 2012AP933-CR, District 3, 12/11/12

court of appeals decision (1 judge; not eligible for publication); case activity

Galarowicz was not denied his right to a unanimous jury verdict on one count of disorderly conduct where the evidence showed an incident of disorderly conduct with the victim in the residence and additional conduct with the same victim in the residence after a twenty-minute pause. 

court of appeals certification request; certification granted 2/25/13; case activity (Seaton); case activity (Pinno)

Issue Presented (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”?

As suggested, in each of these consolidated cases the trial judge barred the public from the courtroom (during jury selection in each instance),

La Crosse Co. DHS v. Kristle S., 2012AP2005, District 4, 11/21/12

court of appeals decision (1-judge, ineligible for publication); case activity

The parent was given a meaningful opportunity to cross-examine the social worker with respect to conditions for the children’s return, in that the trial court permitted extensive questioning on these issues before instructing counsel to pursue a different line of questioning:

¶17      Our review of the record also demonstrates that Kristle had a meaningful opportunity to impeach Simmons’ credibility.

State v. Allen Dell Vaughn, 2012 WI App 129 (recommended for publication); case activity

Waiver / Forfeiture of Right, Generally 

Waiver is the intentional relinquishment or abandonment of a known right or privilege; forfeiture is:  (1) the failure to object to something without intending to relinquish that which an objection might have preserved and (2) doing something incompatible with the assertion of a right, ¶21, citing State v.