On Point blog, page 1 of 7
Defense Win: COA finds exception to potential jurisdictional defect and reverses order denying early releasing following SAP completion
State v. Benny Burgos, 2024AP1497-CR, 6/3/25, District I (not recommended for publication); case activity
In an interesting appeal presenting questions of statutory construction and appellate jurisdiction, COA uses principles of equity to reach the merits and reverses in Burgos’s favor.
SCOW issues two opinions clarifying aspects of appellate procedure
In a set of non-criminal opinions, SCOW issues new guidance on the commonly-invoked rule that COA is not at liberty to disagree with its own precedents and also takes another run at clarifying when a final order is truly “final” for the purposes of appeal.
In published decision, COA holds that CR-215 procedure triggers attachment of right to counsel but denies relief given that law was “unsettled”
State v. Percy Antione Robinson, 2020AP1728-CR, 8/6/24, District I (recommended for publication); case activity
In a published decision that criminal practitioners have been waiting on for years, COA holds that a CR-215 probable cause procedure used to satisfy the requirements of Riverside triggers the attachment of the Sixth Amendment right to counsel.
Defense Wins: COA reverses commitment order
St. Croix County v. B.T.C., 2023AP2085, 6/11/24, District III (one-judge decision; ineligible for publication); case activity
In the second decision this week reversing a circuit court’s commitment order under Chapter 51, the COA concludes that respondent telling a police officer that he would “bring the chief to justice” not sufficient to establish the respondent is “dangerous.”
COA rejects multiple challenges to first-offense OWI and refusal convictions and affirms
City of Whitewater v. Douglas E. Kosch, 2022AP800, District II, 9/13/23, 1-judge decision ineligible for publication; case activity (including briefs)
Although Kosch throws the kitchen sink at his OWI and refusal convictions, COA methodically works through his myriad challenges on a path toward affirmance.
Six years after habeas affirmed, SCOW directs circuit court to hold new trial in Jensen case
State v. Mark D. Jensen, 2021 WI 27, 3/18/21, affirming a court of appeals summary disposition; case activity (including some briefs)
Julie Jensen died by poisoning in 1998. The state eventually charged her husband, Mark, with having killed her; the defense was that she had died by suicide. Before her death Julie had made oral and written statements to the effect that Mark would be responsible if something happened to her. She wasn’t available to testify at the trial, of course, and Mark moved to exclude these statements on Confrontation grounds. Our supreme court now holds that, when it held these statements testimonial in a prior appeal (in 2007), it established the law of the case; it further concludes that SCOTUS has not altered the law so much since then that the law-of-the-case doctrine should give way. So, it remands for a new trial, without the statements.
SCOW continues Jensen saga, grants state’s rather thin petition
State v. Mark D. Jensen, 2018AP1952, petition for review of a summary court of appeals order granted 6/16/20; affirmed 3/18/21; case activity
Usually we do to the issues presented first. Here, they’re pretty insubstantial, so let’s just say what’s going on: the supreme court has intervened to (potentially) save a manifestly unconstitutional (and you don’t have to take our word for it) homicide conviction and life sentence in a notorious case.
Defense win! COA affirms suppression of confession given after polygraph exam
State v. Adam W. Vice, 2020 WI App 34, petition for review granted 8/30/20, reversed, 2021 WI 63; case activity (including briefs)
This is a “recommended for publication”, split court of appeals opinion where the State lost in a child sexual assault case. In other words the State will surely petition for review, and SCOW will take it. Applying State v. Davis, 2008 WI 71, 310 Wis. 2d 583, 751 N.W.2d 332, the majority held that the defendant’s polygraph test and the confession were two discrete events, but based on the facts of this case, the confession was involuntary. The dissent by Judge Hruz would hold the confession voluntary.
Second attempt to challenge 1995 license revocation fails, too
State v. Robert E. Hammersley, 2018AP1022, District 3, 7/30/19 (one-judge decision; ineligible for publication); case activity (including appellant’s brief)
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), doesn’t provide a basis to void the revocation of Hammersley’s driver’s license back in 1995 for refusing a blood alcohol test after his OWI arrest.
DHS’s transfer of NGI acquittee to DOC custody violated circuit court’s commitment order
State v. Bruce C. Brenizer, 2015AP2181, District 3, 6/6/17 (not recommended for publication); case activity (including select briefs)
The Department of Health Services didn’t have authority to transfer Brenizer to the Department of Corrections because the circuit court’s commitment order unambiguously states that Brenizer is committed to DHS custody for life unless his custody is terminated under § 971.17(5) (1991-92).