On Point: 11. Defense Wins

State v. C.L.K., 2019 WI 14, reversing an unpublished court of appeals opinion; 2/19/19; case activity (including briefs)

The State of Wisconsin petitioned the Milwaukee County Circuit Court to terminate C.L.K.’s parental rights, following which the matter went to trial in due course. After the State rested, the circuit court immediately  decided that Mr. K. was an unfit parent. That is, the circuit court decided the matter before giving Mr. K. an opportunity to present his case. The State concedes this was error, but says it is susceptible to a “harmless-error” review. It is not. We hold that denying a defendant the opportunity to present his case-in-chief is a structural error, the consequence of which is an automatic new trial. Opinion, ¶1.

State v. Brady R. Adams, 2018AP174-CR, 1/15/19, District 3 (1-judge, ineligible for publication); case activity (including briefs)

Noting that no Wisconsin precedent addresses the issue in this case, the court of appeals follows United States v. Bohman, 683 F.3d 861 (7th Cir. 2012) and holds that the suspicion of illegal activity in a place is not enough to transfer that suspicion to anyone who leaves that place such as would justify an investigatory detention.

State v. Devon Maurice Bowser, 2018AP313, 1/8/19, District 3 (not recommended for publication); case activity (including briefs)

Bowser was charged with several offenses in two cases; the two cases involved alleged drug sales on two different dates (one in 2015, one in 2016) to two different CIs. He and the state struck a deal in which he pleaded to some counts in each file with the rest dismissed. But before he could be sentenced, Bowser learned that the CI from the 2015 sale was recanting his claims that Bowser had sold him the drugs. Bowser moved to withdraw all his pleas in both cases.

State v. Victor Yancey, Jr., 2018AP802-CR, 1/8/19, District 2 (1-judge opinion, eligible for publication); case activity (including briefs)

Stormy applause for Godfrey & Kahn who took this appeal pro bono and then won it! The court of appeals held that Yancey alleged a prima facie claim for ineffective assistance of counsel when he pled guilty and was entitled to a Machner hearing.  It also held that the trial court incorrectly held that to establish prejudice Yancey had to show a “reasonable probability that he would have been able to mount a successful challenge to the State’s evidence at a trial.”

Hatem M. Shata v. Denise Symdon, No. 16-CV-574 (E.D. Wis. Dec. 12, 2018)

Shata’s case was one of two our supreme court decided on the same day–both held counsel not ineffective for failing to give accurate advice on immigration consequences. You can see our prior post for the facts and our analysis of those decisions. Basically, counsel told Shata that pleading to the charged drug count would carry a “strong chance” of deporation, when in fact deportation was mandatory. Unlike our supreme court, the federal court now says that this wasn’t good enough–and further, that the supreme court’s conclusion that it was good enough was an unreasonable application of the law that SCOTUS clearly established in Padilla v. Kentucky, 559 U.S. 356 (2010).

State v. Emerson D. Lamb, 2017AP1430-CR, District 3, 9/25/18 (not recommended for publication); case activity (including briefs)

The sentencing judge made comments at Lamb’s sentencing before it had heard any sentencing arguments from the parties, and those comments showed a serious risk that the court had prejudged Lamb’s sentence. Accordingly, the judge was objectively biased and Lamb is entitled to a new sentencing hearing before a different judge.

State v. Sammy Joseph Hadaway, 2018 WI App 59; case activity (including briefs)

Hadaway pleaded guilty to an armed robbery more than 20 years ago. Based, in part, on Hadaway’s testimony, his purported accomplice, Ott, was tried and convicted of first-degree intentional homicide–the victim of the crime was sexually assaulted and murdered.

State v. Brian D. Frazier, 2017AP1249-CR, District 4, 8/2/18 (not recommended for publication); case activity (including briefs)

Frazier agreed to drive himself to the police station to answer some questions and was assured when the questioning began that he was not under arrest and did not have to answer questions. But the initial non-custodial encounter was transformed into custody for purposes of Miranda by the officer’s subsequent words and actions, triggering the need for the Miranda warning.  The officer never read Frazier the warning, so the confession he gave must be suppressed.

State v. Tanya Lynn Schmit, 2017AP871-CR, District 3, 7/31/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Schmit was charged with OWI. She told her trial lawyer there were two witnesses who would support her defense that she wasn’t the driver, but trial counsel didn’t interview the witnesses or call them at trial. Trial counsel’s failure constitutes deficient performance and the deficiency was prejudicial.

State v. Patrick H. Dalton, 2018 WI 85, 7/3/18, reversing in part and remanding an unpublished court of appeals decision; case activity (including briefs)

The supreme court holds there were exigent circumstances that allowed police to draw blood from Dalton without a warrant after he refused to consent to a blood draw. But a majority of the court also holds that the sentencing judge erred by explicitly imposing a harsher sentence on Dalton because he refused to consent to the blood draw.