On Point: 1. Generally

David Asa Villarreal v. Texas, USSC No. 24-557, certiorari granted 4/7/25

SCOTUS added to its 2025-26 docket this week when it granted the petitioner’s cert. petition to address the following:

Question presented:

Whether a trial court abridges the defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess.

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.

State v. Richard M. Arrington, 2022 WI 53, reversing a published court of appeals opinion, 2021 WI App 32, 7/1/22, case activity (including briefs)

In a majority opinion written by Roggensack, SCOW holds that the State did not violate Arrington’s 6th Amendment right to counsel by using a jailhouse snitch to help cinch a 1st-degree homicide conviction against him. Thus, Arrington’s lawyer did not perform deficiently by failing to file a suppression motion. Dallet wrote a concurrence joined by A.W. Bradley and Karofsky arguing that a 6th Amendment violation did occur and that Arrington’s lawyer performed deficiently by not moving to suppress the snitch evidence. The concurrence agrees, however, that Arrington was not prejudiced by counsel’s conduct.

State v. Percy Antione Robinson, 2020AP1728-CR, certification granted 5/18/22; case activity (including briefs); ; remanded  5/10/23

Question presented:

The 4th Amendment requires that a judicial officer determine probable within 48 hours of a warrantless arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Milwaukee County complies with this mandate by having the judicial officer review a sworn affidavit from law enforcement and set initial bail. This procedure does not require the accused to appear in person. The judicial officer simply conducts a paper review and completes a CR-215 form. Does this procedure trigger the accused’s right to counsel?

State v. Percy Antione Robinson, 2020AP1728-Cr, certification filed 4/19/22, District 1; case activity (including briefs)

Whether Milwaukee County’s CR-215 procedure for determining probable cause triggers an accused’s 6th Amendment right to counsel for any subsequent “critical stage” of the legal proceeding?

Nelson Garcia, Jr. v. Brian Foster, 20-CV-335 (E.D. Wis. 11/9/21).

Garcia challenged his robbery conviction on two grounds. (1) He was denied his right to counsel at a post-arrest police line up. (2) He was denied his right to go pro se at trial. While habeas wins are rare, what’s most remarkable is how blatantly the Wisconsin Court of Appeals violated SCOTUS precedent on both issues. To top that, SCOW granted review and then split 3-3 allowing the court of appeals decision to stand. Now, at long last, the Eastern District grants Garcia the relief SCOTUS requires.

State v. Richard Michael Arrington, 2021 WI App 32; review granted 9/14/21, reversed, 2022 WI 53; case activity (including briefs)

Arrington was being held at the Brown County Jail for 1st-degree homicide when another inmate, Miller, began chatting with him about his case. Turns out Miller was a snitch for State. With the assistance of police, Miller recorded his conversations with Arrington. Then the State used Arrington’s statements to obtain a homicide conviction. The court of appeals held that the State’s use of the snitch violated Arrington’s 6th Amendment right to counsel, and his trial lawyer was ineffective for failing to move to suppress the evidence.

State v. Nelson Garcia, Jr., 2019 WI 40, 4/19/19; case activity (including briefs)

ASPD Pam Moorshead briefed this appeal and argued it to SCOW less than two weeks ago. The lead issue was whether the Sixth Amendment right to counsel attaches upon the finding of probable cause and setting of bail by a court commissioner. Justice Abrahamson withdrew from participation leaving only 6 justices to decide the case.

State v. Nelson Garcia, Jr., 2016AP1276-CR, petition for review of an unpublished court of appeals decision granted 12/12/18; case activity (including briefs)

Issues (from the petition for review)

1. Does the Sixth Amendment right to counsel attach upon the finding of probable cause and setting of bail by a court commissioner?
2. Was the line-up impermissibly suggestive because it violated the Department of Justice’s Model Policy and Procedure for Eyewitness Identification and the viewing witnesses failed to follow the standard instructions given to them?
3. Can a trial court at a pre-trial hearing decide that a defendant has waived the right to self-representation because the court believes the defendant will engage in disruptive behavior in front of the jury? If so, does the defendant have a right to redeem himself?

The latest edition of the Volokh Conspiracy analyzes a recent 12-4 en banc decision by the 6th Circuit decision in which the majority answers the question above “no” based on current precedent. However, a “concurrence dubitante” argues that this conflicts with The Founders’ intent when they drafted the 6th Amendment. Another concurring opinion calls on SCOTUS to change its precedent. A dissent argues that based on the facts of this case,