On Point: 28. Weight of authority

Sandy Williams v. Illinois, USSC No. 10-8505, 6/18/12, affirming People v. Williams, 238 Ill. 2d 125, 939 N.E. 268

A split Court (4-1-4) upholds against Confrontation objection, admissibility of expert testimony that a DNA profile, produced by a different lab, matched Williams’ profile. Because the rationale favoring admissibility doesn’t earn a clear majority of votes, the opinion should be approached with the following principle in mind, 

Question Presented (from cert petition): 

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.

seventh circuit court of appeals decision; cert granted, 4/30/12

Padilla v. Kentucky: Retroactivity – Habeas Review 

The holding of Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), that as in incident of effective representation, “counsel must inform her client whether his plea carries a risk of deportation,” is a “new rule”

on petition for review of unpublished decision; for Stevens: Paul G. LaZotte, SPD, Madison Appellate; case activity

Issues (provided by court):

If a suspect in custody initiates communication with the police after previously invoking his Miranda right to consult with an attorney but has yet to again waive his Miranda rights, do the police violate the demands of Miranda by denying an attorney access to the suspect prior to the second waiver of his Miranda rights?

7th circuit court of appeals decision

Retroactive Application of Case Law, on Collateral Review

Narvaez’s federal ACCA enhancement, imposed in 2003, is now unsupportable in light of subsequently-decided Supreme Court authority (Begay v. U.S.; Chambers v. U.S.). He may therefore seek relief against the sentencing enhancement via 28 U.S.C. § 2255: the case law development worked a change in “substantive liability”

State v. Jimmie C. Grayer, 2010AP1749-CR, District 1, 6/1/11

court of appeals decision (not recommended for publication); for Grayer: Bridget E. Boyle; case activity

Postconviction denial of ineffective assistance of counsel challenge without Machner hearing upheld.

1. Although counsel performed deficiently by inaccurately telling the jury in his opening statement that Grayer’s in-custody had not been recorded by the police, Grayer wasn’t prejudiced by the deficiency.

On Point is very pleased to publish this guest post by Attorney Michael B. Brennan, currently practicing with Gass Weber Mullins LLC, and formerly a Milwaukee County Circuit Court judge. Mr. Brennan offers his thoughts on the fractured decision of the supreme court in State v. Forbush, 2011 WI 25. On Point invites readers to submit comments to this post, in the box below.

As Dean Kearney pointed out in an interesting speech he gave to the Western District of Wisconsin bar association,

Columbia County v. Fred A. Ederer, 2010AP2369, District 4, 5/12/11

court of appeals decision (1-judge, not for publication); for Ederer: John Smerlinski; case activity

Ederer’s no contest plea waived his right to appeal suppression issue in this OWI-1st (therefore, civil) case. His reliance on County of Ozaukee v. Quelle, 198 Wis. 2d 269, 275-76, 542 N.W.2d 196 (Ct. App. 1995) (court should consider 4-factor test in determining whether to impose waiver bar) is misplaced:

¶5        Ederer acknowledges that Quelle was partially overruled on other grounds by Washburn County v.

State v. Brad E. Forbush, 2011 WI 25, reversing 2010 WI App  11; for Forbush: Craig A. Mastantuono, Rebecca M. Coffee; amicus: Colleen D. Ball, SPD, Milwaukee Appellate; case activity

Forbush’s 6th amendment right to counsel had already attached – because a criminal complaint had been filed – and he had retained counsel before officers began interrogating him on that charge in the absence of his attorney.

State v. Allen L. Resch, 2010AP2321-CR, District 2, 4/27/11

court of appeals decision (1-judge, not for publication); for Resch: Christopher Lee Wiesmueller, Corinne N. Wiesmueller; case activity

Reasonable suspicion supported investigatory stop for possible burglary, where vehicle was parked in private business parking lot at 2:26 a.m., with engine running and lights off.

¶13      Specifically, as the trial court indicated, the time of day is an important factor in determining whether a law enforcement officer had a reasonable suspicion.