On Point: A. Construction

Honorable William Gabler v. Crime Victims Rights Board, 2017 WI 67, 6/27/2017, affirming circuit court on bypass; case activity (including briefs)

The legislature created the Crime Victims Rights Board and tasked it with, among other things, issuing “private and public reprimands of public officials” who violate victims’ rights as defined by our state Constitution and statutes. Wis. Stat. 950.09(2)(a). The supreme court now declares this mission contrary to the state Constitution when those “public officials” are judges. 

On bypass;  case activity (including briefs)

Issue (derived from court of appeals’ briefs):

Whether the Crime Victims Rights Board’s power to remedy a violation of a victim’s right to the speedy disposition of a criminal case can be applied to judges without violating the separation of powers doctrine.

State v. Mastella L. Jackson, 2016 WI 56, 7/1/16, affirming a published decision of the court of appeals, 2015 WI App 49, 363 Wis. 2d 553, 866 N.W.2d 768; case activity (including briefs)

Despite the “flagrant” and “reprehensible” violations of Jackson’s Fifth Amendment rights by police, the supreme court holds that physical evidence seized based in part on information obtained from those violations should not be suppressed because the evidence would have been inevitably discovered. In the course of this ruling, the court alters Wisconsin’s long-established inevitable discovery standard and refuses to rule out using the doctrine in cases where the police intentionally violate a suspect’s rights.

State v. Mastella L. Jackson, 2015 WI App 49, petition for review granted, 10/8/15, affirmed, 2016 WI 56; click here for briefs

This decision is SCOW bait. Police in Outagamie County engaged in what the court of appeals called “reprehensible” actions while interrogating the defendant. “Outraged” the circuit court suppressed the defendant’s statements to police and the physical evidence obtained during the search of her home. The court of appeals reversed the suppression of physical evidence on the theory that the untainted evidence described in the officers’ search warrant established probable cause and that the physical evidence was admissible via the inevitable discovery doctrine.

State v. Philip B. Caminiti, 2013AP730-CR, District 4, 3/20/14; court of appeals decision (not recommended for publication); case activity

The prosecution of Caminiti for conspiracy to commit child abuse, §§ 939.31 and 948.03(2)(b), based on his instructions to his congregants to use a rod to discipline their children did not violate his First Amendment rights to advocacy or freedom of religion.

On review of certification request; case activity

Invocation of the right to counsel

Issues (Composed by On Point)

1. Does the Wisconsin Constitution provide more protection than Maryland v. Shatzer, ___U.S. ___, 130 S. Ct. 1213 (2010) (holding that, even if a defendant has invoked his or her right to counsel, law enforcement may give the Miranda warnings again so long as the defendant has been released from custody for at least fourteen days)?

on review of unpublished decision; case activity

Issues (composed by On Point) 

1. Whether the non-waivable nature of the defendant’s right to personal presence at voir dire, citing, § 971.04(1)(c); State v. Harris, 229 Wis. 2d 832, 839, 601 N.W.2d 682 (Ct. App. 1999), extends to examination of a juror for possible dismissal following selection and swearing-in.

2. Whether the trial court properly dismissed two jurors,

court of appeals certification review granted 1/15/13; case activity

Issues Certified:

1. In Maryland v. Shatzer, ___U.S. ___, 130 S. Ct. 1213 (2010), the United States Supreme Court held that, even if a defendant has invoked his or her right to counsel, law enforcement may give the Miranda[2] warnings again so long as the defendant has been released from custody for at least fourteen days.  

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.

State v. Joel Joseph Lobermeier, 2012 WI App 77 (recommended for publication); for Lobermeier: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

Appellate Procedure – Waiver – Jury Instructions 

Failure to object to a jury instruction amounts to a failure to preserve for review an asserted objection, which must therefore be reviewed in the context of ineffective assistance of counsel. Nonetheless, failure to object to a “material variance”