On Point: 46. WI Court of Appeals

Oneida Co. DSS v. Therese S., 2008 WI App 159

Grounds

Issue/Holding: Informing the parent of potential “dispositions in a general sense” is not enough to satisfy § 48.422(7)(a):

¶16      Thus, at the very least, a court must inform the parent that at the second step of the process, the court will hear evidence related to the disposition and then will either terminate the parent’s rights or dismiss the petition if the evidence does not warrant termination.

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding: “Under the above case law, it is clear that, if Cole did invoke his Fifth Amendment/Miranda right to counsel when he was arrested on the battery charge, then the statement he gave Officer Riley while still in custody is inadmissible even if Cole’s waiver of Miranda rights in that interview was otherwise valid,”

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding:

¶38      The parties have not provided, and we have not discovered, any case that addresses the burden of proof in a factual context similar to this—where the defendant asserts he previously invoked his right to counsel as a basis for invalidating a later waiver. [9] However, we are persuaded that placing the burden on the State to show a prior waiver of this right,

State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz

Issue/Holding: The State bears the burden of proof, by preponderance of evidence, of a valid waiver of Miranda rights, ¶27.

¶35      As we have stated above, it is the State’s burden to prove by a preponderance of the evidence that the defendant validly waived his Miranda rights and that the statement was voluntary. 

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding1:

¶20      When an individual has given an involuntary statement, a subsequent statement is also considered involuntary unless it can be “separated from the circumstances surrounding” the earlier statement by a “break in the stream of events,” between the first statement to the second,

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding1:

¶28      In Kastigar, the … Court stated that, once a defendant demonstrates that he or she has testified under a grant of immunity for matters related to the prosecution,

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding: Parolee’s statement made under grant of immunity (per State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977)),

State v. Edward Townsend, 2008 WI App 20, PFR filed 2/13/08
For Townsend: Ellen Henak, SPD, Milwaukee Appellate

Issue: Whether admissibility of evidence gathered in a foreign jurisdiction by Wisconsin officers is tested by the law of that jurisdiction or of Wisconsin.

Holding:

¶1        … Townsend contends that the circuit court should have suppressed unrecorded statements he made while in custody in St.

State v. Ellen T. Straehler, 2008 WI App 14
For Straehler: Daniel P. Fay
Issue/Holding: ¶2 n. 4:

We appreciate the attorney general’s thorough recitation of the facts and draw freely from it. Both the district attorney and the attorney general submitted response briefs and we refer to their position collectively as the State’s. Straehler’s recitation of facts is incomplete, lacks citation to the record and cites to documents outside of the record.

Bettendorf v. St. Croix County, 2008 WI App 97

Issue/Holding: An appellate “brief contain(ing) a collection of attacks against [opposing counsel] that are nothing more than unfounded, mean-spirited slurs” subjects its author to ethical sanction:

¶17      “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” (Emphasis added.) Preamble, SCR ch. 20 (2005-06).