On Point: 11. Defense Wins

Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020

Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.

Racine County Human Services Department v. S.J.A., 2019AP2160 & 2161, 2/5/20, District 2 (one-judge decision; ineligible for publication); case activity

It would be interesting to see the briefs in this case, but since it’s a TPR, they’re not online. What we can see is the opinion, which shows commendable (and unfortunately uncommon) attention to detail. It’s easy to imagine a glib, slapdash affirmance of this summary judgment against the parent in a TPR; we don’t get one though. Instead we see a searching review of what was proved and what was not, and a (really all too uncommon) reversal.

State v. George E. Savage, 2019AP90-CR, District 1, 1/22/20 (not recommended for publication), petition for review granted, 5/19/20; case activity (including briefs)

Savage pleaded guilty to violating the sex offender registry statute for not providing updated information about where he was residing. He moved to withdraw his plea, asserting his trial lawyer was ineffective for failing to advise him he had a defense to the charge under State v. Dinkins, 2012 WI 24, 339 Wis. 2d 78, 810 N.W.2d 787. The circuit court rejected the claim based on an erroneous understanding of Dinkins, so it has to reassess Savage’s claim.

State v. Matthew Curtis Sills, 2018AP1052-CR, District 1, 1/14/20 (not recommended for publication); case activity (including briefs)

The State initially Sills with 1^st degree child sexual assault, but then amended the charge twice. Ultimately, Sills pled to 2^nd degree sexual assault of a child. Before he was sentenced, he moved to withdraw his plea arguing, among other things, that court had failed to inform him that he faced a maximum fine of $100,000.

State v. Antonio L. Bell, 2018AP1593 & 1594, 12/27/19, District 1 (not recommended for publication); case activity (including briefs)

Bell pleaded to two sexual assaults: one of his 9-year-old daughter and one of his 14-year-old stepdaughter. He maintained his innocence but insisted that he would plead to spare them from testifying. After sentencing, he filed postconviction motions alleging his counsel didn’t sufficiently investigate the possibility that the 14-year-old’s boyfriend was the actual perpetrator, and also that there was newly-discovered evidence in the form of a more detailed recantation by the 9-year-old: she now also said it was the boyfriend who’d assaulted her. The circuit court denied both without a hearing, but the court of appeals now says Bell should have a chance to prove his claims.

Wood County v. Trevor J. Krizan, 2019AP350, 12/12/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

A sheriff’s deputy on patrol at 2:00 a.m. happened by a parking lot for a boat landing. The lot was open to the public 24 hours a day, and he saw a vehicle parked, not running, with its lights off. The officer pulled behind it and shined his spotlight and “takedown lights” (these are apparently very bright lights that may temporarily blind occupants of a vehicle on which they are shined) at the car. He saw two occupants and no signs of distress, but he approached the vehicle, spoke to the occupants, and took their identification. Eventually he noted signs of intoxication that led to Krizan’s arrest for first-offense OWI. But Krizan challenged the stop and won in the trial court, and the county appealed.

State v. Larry W. Olson, 2019 WI App 61; case activity (including briefs)

Olson and the state resolved some felony counts with an agreement that he’d plead not guilty by reason of mental disease or defect. The court found him NGI and committed him for 19 years, placing him on conditional release immediately. A few weeks later, Olson admitted violating his release conditions by smoking methamphetamine. DHS, which supervises NGI committees, immediately took him into custody. For reasons unknown, it held him for eight days before filing a petition to revoke his supervised release. This, everyone agrees, violated Wis. Stat. § 971.17(3)(e), which says such a petition “shall” be filed within 72 hours of detention (excluding weekends and holidays). The dispute on appeal is what that violation means: the state says there’s no consequence at all; Olson says a late petition is no good and must be dismissed. In legalese, the question is whether the word “shall” is mandatory or directory.

State v. Vaylan G. Morris, 2018AP1694-CR, Distrct 1, 10/1/19 (not recommended for publication); case activity (including briefs)

O.M., an infant, died while c0-sleeping with Morris and her mom. Morris admitted that he may have rolled over onto her and pled guilty to 2nd degree recklessly endangering safety, party to a crime, At sentencing, the State said that O.M.’s cause of death could have been the synthetic marijuana that Morris had been smoking, even though the medical examiner attested that it  wasn’t.

State v. Jesse J. Jennerjohn, 2018AP1762, 9/24/19, District 3 (not recommended for publication); case activity (including briefs)

Just last week we had Kettlewell, where the court of appeals rejected the state’s claim that the officers who entered a suspected drunk driver’s home were performing a legitimate community-caretaker search because he might have been injured. Here, we have the police going into a home whose occupant they’ve already arrested outside; the court rejects as merely speculative the state’s argument that someone else might have needed assistance inside, or that firearms in the home might have posed a danger. We also get this gem: “The court did not explain why the fact that Jennerjohn was holding a piece of venison when he came out of his residence supported an objectively reasonable basis for the officers to believe it was necessary to search his residence in order to protect themselves or others.” (¶40).

State v. Scott J. Faruzzi, 2019AP167-CR, 9/25/19, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

Don’t pinch yourself! You’re not dreaming.  An officer stopped Faruzzi’s truck for a “welfare check” due to some “possible family troubles.” But then he performed a series of FST’s and asked Faruzzi to submit to a preliminary breath test. When Faruzzi refused, the officer arrested him for OWL. The circuit court granted Faruzzi’s motion to suppress, and the court of appeals affirms due to lack of probable cause.