On Point: B. Published opinions

On March 31, 2021, the court of appeals ordered the publication of the following criminal law related opinions:

State v. Patrick A. Keller, 2021 WI App 22; case activity (including briefs)

Keller was convicted of causing mental harm, as a party to a crime, to his stepdaughter, who has autism. During his trial, the circuit court admitted statements made by non-testifying confidential reporters to Child Protective Services access workers. In a published decision, the court of appeals holds that these statements were not made for the primary purpose of gathering evidence to prosecute Keller, so the Confrontation Clause does not apply.

State v. Joseph G. Green, 2021 WI App 18; case activity (including briefs)

SCOW recently declared parts of §971.14 unconstitutional. See State v. Fitzgerald,  2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165 and our post here. The statute allowed the government to administer unwanted antipsychotic medication to a defendant to render him competent for trial in violation of  Sell v. United States, 539 U.S. 166 (2003). Here in Green’s case the court of appeals describes the evidence the State must present, and the findings the circuit court must make, before ordering involuntary medication. It also clarifies the procedures involved in appealing an involuntary medication order.

On February 24, 2021, the court of appeals ordered publication of the following criminal law related cases:

State v. C.G., 2021 WI App 11 (rejecting claim of First Amendment interest in legal name change sought by transgender person)

State v. Nhia Lee, 2021 WI App 12 (charges dismissed due to delay in appointing counsel)

State v.

State v. James A. Jones, 2021 WI App 15; case activity (including briefs)

Sometimes friends or relatives post bail so that a loved one charged with a crime can be released. This published decision holds that when charges are dismissed and read in at sentencing, and the court doesn’t order restitution on those charges, the bond money must be returned to the payors. This rule applies even to global plea deals where the defendant pleads “no contest” to and is ordered to pay restitution on some charges, but other charges are dismissed and read in without a restitution order.

State v. Westley D. Whitaker, 2021 WI App 17, petition to review granted, 6/16/21, affirmed, 2022 WI 54; case activity (including briefs)

This appeal raises a hot-button issue likely to interest SCOW. Just last year an investigative journalist reported that Amish communities do not report sexual assaults of children to social workers or police. Parents and church elders strive to address the problem themselves. (NPR story). That’s what happened in Whitaker’s case. He repeatedly sexually assaulted his younger sisters then stopped when he was 14. His crimes went unreported until he was 25, well after he had left the Amish community. He pled to one count of 1st-degree child sexul assault and requested a “fines only” sentence. The circuit court found no risk that he would re-offend and no need for rehabilitation. Yet it imposed a prison sentence in order to “send a message” to the Amish community that this behavior is unacceptable and members need to report it.

State v. Gregory F. Atwater, 2021 WI App 16; case activity (including briefs)

The circuit court denied Atwater’s request to have trial counsel testify at a Machner hearing by telephone rather than in person, as trial counsel had moved out of state and returning to testify would be onerous and logistically difficult. The court then denied Atwater’s postconviction motion because he couldn’t get trial counsel to the hearing and couldn’t prevail without trial counsel’s testimony. The court of appeals holds the circuit court erroneously exercised its discretion by rejecting Atwater’s request for remote testimony by trial counsel.

State v. C.G., 2021 WI App 11; petition for review granted 4/27; case activity

Ella–a pseudonym–was adjudicated delinquent for a sexual assault committed when she was 15. Ella’s legal name is masculine in association; during her juvenile disposition she was transitioning to a female identity. In this appeal she challenges the circuit court’s refusal to stay sex offender registration under Cesar G., and also submits that the registry’s prohibition on changing her legal name violates her First Amendment right to express her identity. The court of appeals upholds the circuit court’s discretionary decision on the former claim; on the latter it offers three blithe paragraphs of discussion before casually announcing–in a decision that is set to be published, and thus binding–that requiring a transgender woman to use a man’s name implicates no First Amendment concerns whatsoever.

On January 27, 2021, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Nhia Lee, 2021 WI App 12, case activity (including briefs)

This is an important decision for areas of Wisconsin where there is a shortage of defense lawyers. In 2018, when the private bar rate was $40, Lee was charged with felonies in Marathon County and then held for 101 days without counsel while the SPD contacted over 100 attorneys to take his case. Meanwhile, the circuit court repeatedly extended the 10-day deadline for holding a preliminary hearing. He finally got one 113 days after his initial appearance. In a decision recommended for publication, the court of appeals held that the circuit court failed to establish it had good cause to extend the 10-day deadline. It also sets forth factors circuit courts should consider in future cases involving delay in the appointment of counsel for a preliminary hearing.