On Point blog, page 109 of 215
Attenuation of Taint — Statements — After Illegal Arrest
State v. Cesar Farias-Mendoza, 2006 WI App 134
For Farias-Mendoza: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: The “causal chain” between the defendant’s illegal arrest and his statement wasn’t attenuated where: he gave the statement within 25 minutes of the circumstance establishing the arrest, ¶¶28-29; there were no intervening circumstances, ¶¶30-31; and, there were suggestions of purposeful misconduct, ¶¶32-34.
Consent — Acquiescence — Generally
State v. Jed A. Giebel, 2006 WI App 239
For Giebel: Robert E. Bellin, Jr.
Issue/Holding:
¶12 The test for voluntariness asks whether consent was given in the “absence of actual coercive, improper police practices designed to overcome the resistance of a defendant.” State v. Clappes, 136 Wis. 2d 222, 245, 401 N.W.2d 759 (1987). In making this determination, no single factor is dispositive.
Consent — Acquiescence — Assertion of Subpoena
State v. Jed A. Giebel, 2006 WI App 239
For Giebel: Robert E. Bellin, Jr.
Issue: Whether Giebel’s “consent” to a search of his computer, in response to a police claim of a subpoena and accompanied by an expression that Giebel assumed he had no choice, was voluntary or mere acquiescence to asserted police authority.
Holding:
¶17 Three considerations weigh heavily in our decision.
Judicial Bias — Generally, Structural Error
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶10 A biased tribunal, like the lack of counsel, constitutes a “structural error.” See id. at 8; Franklin v. McCaughtry, 398 F.3d 955, 961 (7th Cir. 2005); State v. Carprue,
Recusal – Judicial Bias: Prejudgment of Issue
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether, given the trial judge’s statement at sentencing that defendant’s counsel had in fact provided competent representation, established prejudgment of the issue such that recusal was required for the subsequent postconviction assertion of ineffective assistance of counsel.
Holding:
¶35 … (A)bsent a pervasive and perverse animus,
Judicial Bias — Test — Objective Bias
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶21 The second component, the objective test, asks whether a reasonable person could question the judge’s impartiality. Franklin, 398 F.3d at 960; Walberg, 109 Wis. 2d at 106-07 (looks to whether partiality can “reasonably be questioned”).
Judicial Bias — Prejudgment of Issue in Controversy
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether a judge’s instruction to a probation agent, who asked that probation not be extended, “No—I want his probation extended,” evinced judicial bias so as to taint the judge’s subsequent extension order.
Holding: While the judge’s comment did not establish “actual bias” (“given our experience and the reputation of this particular trial judge as a fair and just administrator of the law”),
(State) Habeas – Enlargement of Direct Appeal Deadline Based on Ineffective Assistance of Counsel — Habeas in Court of Appeals as Exclusive Mechanism
State ex rel. Luis Santana v. Endicott, 2006 WI App 13
Pro se
Issue/Holding1: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992):
¶1 … Although Santana may seek habeas relief on his ineffective assistance claim,
Plea-Withdrawal, Post-sentencing – Procedure – Shackled, Deaf Defendant: Must Show Actual Interference with Effective Signing
State v. Jeremy D. Russ, 2006 WI App 9
For Russ: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: A deaf defendant who had been shackled when he entered a guilty plea and was sentenced must show actual inability to communicate effectively in order to meet his burden of showing a violation of rights. Thus, even though the defendant adduced expert proof at the postconviction hearing “that communication would be limited and difficult if a deaf person who used sign language were handcuffed,” he did not meet his burden of proof:
¶10 As the trial court observed,
Plea-Withdrawal – Pre-Sentence – Fair and Just Reason: Desire to Avoid Prison
State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose
Issue/Holding: Defendant’s recalculation of his chance’s at trial after pleading guilty in an effort to maximize chances of avoiding or reducing prison term, uncoupled to any claim of confusion about the nature of the offense, was not a fair and just reason for pre-sentencing plea withdrawal, ¶¶24-29.