On Point blog, page 1 of 18
Seventh Circuit retrospectively evaluates habeas petitioner’s competence at his 2006 trial; despite low IQ and mental illness, court denies due process and IAC claims.
Jacob Alan Powers v. Jon Noble, No. 24-2134, 3/25/25
The Seventh Circuit found that Jacob Powers was competent to stand trial in a Wisconsin court in 2006 for sexual assault of a child and child enticement. Although Powers’ IQ was in the borderline/mild mental retardation range; his trial testimony, trial counsel’s decision not to challenge his competency, and two experts’ findings that he was competent convinced the Court that he reasonably understood the charges against him, trial procedures, and could assist his lawyer in his defense. The Court therefore affirmed the district court’s order denying Powers’ petition for a writ of habeas corpus.
COA affirms default in TPR, violates rules of appellate procedure
Rock County Human. Servs. v. A.P., Appeal nos. 2022AP248-249; 7/14/22, District 4; (1-judge opinion, ineligible for publication); case activity
This is one more in a long line of appellate decisions affirming a default finding of grounds for terminating a parent’s rights without a finding that the parent had behaved egregiously as required by Dane Cnty. DHS v. Mable K., 2013 WI 28, ¶71, 346 Wis. 2d 396, 828 N.W.2d 198. The difference here is that the court of appeals also openly disregards (or perhaps is unfamiliar with?) the rules of appellate procedure.
Court of appeals: maybe 3>4
State v. Roy C. O’Neal, 2020AP1270, 6/2/21, District 3 (not recommended for publication); case activity (including briefs)
A person who’s been indefinitely committed under ch. 980 is entitled to a discharge trial if he can show … well, er, nobody really knows what he has to show. In State v. Hager, our supreme court failed to reach a majority for any view on the statute (while arguably striking down the court of appeals’ attempt at a gloss). Given the absence of an ascertainable rule, it’s not too surprising that we get incoherent decisions like this one. What is a little surprising is the court of appeals’ decision to “treat [Hager‘s] lead opinion as controlling” on one aspect of the statute’s meaning. That was a three-justice lead opinion; four other justices disagreed on the point. Arguably. Is the court of appeals here treating a supreme court minority view as binding?
SCOW clarifies law regarding substitution of judges in civil cases
State v. Tavodess Matthews, 2021 WI 42, reversing a published court of appeals opinion, 2020 WI App 33, 5/14/21, case activity (including briefs)
Section 801.58(1) allows a party to a civil case to request a new judge if, among other things, he files a written substitution request before “the hearing of any preliminary contested matter.” Matthews’ case concerns a substitution request made after the circuit court granted a motion to adjourn a Chapter 980 probable cause hearing regarding sexually violent persons. But since Chapter 980 commitments are civil proceedings, this unanimous SCOW opinion, which reverses a published court of appeals’ opinion, is an important clarification of the law governing all civil cases.
Important 980 defense win: SCOW holds DOC must turn over data on (low) statewide recidivism rate
State v. Anthony James Jendusa, 2021 WI 24, affirming a court of appeals order denying interlocutory appeal; case activity (including briefs)
This litigation has been procedurally weird, as we’ve discussed before, but SCOW’s decision on the merits may turn out to be a momentous one for the future of ch. 980.
SCOW: Expert opinion on risk not needed in ch. 980 proceeding
State v. Jamie Lane Stephenson, 2020 WI 92, 12/18/20, affirming a published decision of the court of appeals; case activity (including briefs)
A five-justice majority of the supreme court holds that the state does not need to present expert opinion testimony that a person subject to commitment under Chapter 980 is dangerous to others because his mental disorder makes it more likely than not that he will engage in one or more future acts of sexual violence.
SCOW to review meaning of “preliminary contested matter” under civil judicial substitution statute
State v. Tavodess Matthews, 2018AP2142, petition to review a published court of appeals decision granted 8/26/20; case activity (including briefs)
Issue presented:
Is an adjourned probable cause hearing under ch. 980 a “preliminary contested matter” that terminates litigants’ opportunity to request judicial substitution?
Court of Appeals affirms denial of ch. 980 discharge petition without a trial, but does not clarify legal standard
State v. Rodney Timm, 2019AP1922, District 3, 7/21/20 (not recommended for publication); case activity (including briefs)
If you handle ch. 980 cases you know that 2013 Wis. Act 84 changed the legal standard under § 980.09 for determining whether a person committed under ch. 980 is entitled to a discharge hearing. But you don’t know what the Act 84’s revisions to the standard mean—because no one knows, not even the supreme court. The court of appeals doesn’t decide what the standard means in this case, either, but it teases enough thread out of the tangle created by Act 84 to conclude Timm isn’t entitled to a discharge hearing.
SCOW to review need for state to have an expert on risk in ch. 980 trials
State v. Jamie Lane Stephenson, 2018AP2104, petition to review a published court of appeals decision granted 3/17/20; case activity
Issues:
- To prove that a person meets the criteria for commitment under Chapter 980, must the state present expert opinion testimony that the person is “dangerous” as defined under ch. 980?
- Should the standard of review of the sufficiency of the evidence of dangerousness in a Chapter 980 case be changed to require that a reviewing court conduct a de novo review of whether the evidence satisfies the legal standard of dangerousness?
SCOW: Precedent? What precedent? ¯_(ヅ)_/¯
State v. Anthony James Jendusa, 2018AP2357-CRLV, review of a decision of the court of appeals denying the state’s petition for leave to appeal; case activity
Before turning to the issues presented, we’ll start with an observation about how this case might seem to affect appellate litigation in all kinds of cases, civil and criminal.