On Point blog, page 27 of 32
Adrian T. Johnson v. U.S., 7th Cir No. 08-1777, 5/14/10
Permissive Driver, Standing to Challenge Car Search
It is well-established that a driver of a borrowed vehicle may establish a reasonable expectation of privacy in a vehicle even though that driver is not the owner of the vehicle. … Courts have repeatedly recognized the right of a driver to assert a Fourth Amendment right to be free from unreasonable searches of a vehicle where the driver is operating that vehicle with the permission of the owner.
State v. Mark W. Sterling, 2009AP815-CR, District I, 5/4/10
court of appeals decision (3-judge, not recommended for publication); for Sterling: Dianne M. Erickson; BiC; Resp.; Reply
Charging Decision – Judicial Involvement
Increase in the charge, following trial judge’s veiled suggestion to the prosecutor that such an increase would be appropriate, wasn’t occasioned by judicial interference with prosecutorial discretion, ¶¶16-22.
Initially charged with first-degree reckless injury, Sterling was ultimately convicted on an amended charge of attempted first-degree intentional homicide.
State v. Earnest Jean Jackson, 2009AP1449-CR, District I, 4/27/10
court of appeals decision (3-judge; not recommended for publication); for Jackson: Mark S. Rosen; BiC: Resp.; Reply
Double Jeopardy – Retrial Following Mistrial
Mistrial on defendant’s motion, occasioned by prosecutorial failure to disclose that witness was cooperating with police in separate investigation of Jackson, didn’t bar retrial: there was no showing that the prosecutor was aware of the undisclosed information, or that failure to disclose was intended to provoke mistrial,
Peter H. v. Keri H., 2009AP2487, District III, 4/23/10
court of appeals decision (1-judge, not for publication); for Keri H.: Leonard D. Kachinski
IAC Claim – TPR
“The decision not to emphasize events preceding the current termination petitions was a reasonable strategic choice and does not constitute ineffective assistance of counsel,” ¶11. Separately: counsel did not perform deficiently in his efforts to obtain Keri H.’s client file from predecessor counsel, and then securing an adjournment to prepare for trial,
State v. Victor T. Jackson, 2009AP851-CR, District I, 4/6/10
court of appeals decision (3-judge; not recommended for publication); for Jackson: Byron C. Lichstein; BiC; Resp.; Reply
Hearsay, Child Sexual Assault, Residual Exception
Statements by youthful sex assault complainants admissible under residual hearsay exception, court rejecting idea that it’s thereby allowing exception to swallow general rule against hearsay admissibility; confrontation objection forfeited).
Counsel – Strategic Basis for Failing to Adduce Alibi Witness
Counsel’s failure to have potential alibi witnesses testify was reasonable strategy,
Failure to Advise Guilty Plea Defendant of Deportation Consequence
Padilla v. Kentucky, USSC No. 08-651, 3/31/10
In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Hill , 474 U. S., at 57; see also Richardson , 397 U. S., at 770–771. The severity of deportation—“the equivalent of banishment or exile,” Delgadillo v.
State v. Lazorus Lidell, 2009AP1191-CR, District I, 3/30/2010
court of appeals decision (3-judge; not recommended for publication); for Lidell: Jeremy C. Perri, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply Br.
Ineffective Assistance
Failure to impeach complainant with various prior inconsistent statements either adequate strategy or non-prejudicial; failure to call witnesses proper strategy, where attorney interviewed them and determined “that their demeanor would not help the defense.”
Terry C. Brown v. Finnan, 7th Cir No. 08-3151, 3/17/10
7th circuit court of appeals decision
Habeas – Ineffective Assistance – Extraneous Juror Influence
1. Where both defendant and homicide victim were African-American, in-court proclamation from latter’s mother that “the situation is racist” is deemed to be “ambiguous and apparently innocuous.” It follows that counsel’s failure to pursue the matter was reasonable.
Remmer v. United States, 347 U.S. 227 (1954) (unauthorized extraneous contact with juror creates presumption of prejudice and thus requires hearing),
State v. Stephen A. Broad, 2009AP1983-CR, District II, 3/17/2010
court of appeals decision (1-judge, not for publication) BiC; Resp. Br.; Reply Br.
Traffic Arrest
Probable cause to believe Broad drove on public roadway, hence to arrest for OWI, where car was found off the road, Broad was in driver’s seat and admitted to being driver, car “was warm and running.”
Right to Testify
Violation of rule requiring contemporaneous colloquy as to waiver of right to testify at trial doesn’t lead to automatic reversal of conviction;
Kenneth E. Gentry v. Sevier, 7th Circuit App. No. 08-3574, 2/26/10
Terry Stop / Frisk
1. Pulling up in a patrol car and telling Gentry to keep his hands up amounted to a stop for purposes of Terry analysis.
2. The stop, which was based on a report of a “suspicious person,” without reference to any specific facts concerning a crime, was not supported by reasonable suspicion to believe Gentry had either committed a crime or was armed.