On Point: 11. Defense Wins

Click here to read the Iowa County Circuit Court’s July 7th decision declaring that §165.95(1)(a) and (3)(c), which bars persons charged with violent offenses from participating in drug treatment court, violates  substantive due process as applied and procedural due process on its face. The court says its decision has the effect of a permanent statewide injunction against enforcement of the statute. The State agrees.

State v. Larry Davis, 2017 WI App 55; case activity (including briefs)

Applying § 304.072(4) and State v. Presley, 2006 WI App 82, 292 Wis. 2d 734, 715 N.W.2d 713, the court of appeals holds that a person who is revoked from extended supervision resumes serving his sentence when he is received in the prison system, not when revocation occurs; he is therefore entitled to sentence credit up to the date he returns to prison.

Brendan Dassey v. Michael A. Dittman, 7th Circuit Court of Appeals No. 16-3397, 2017 WL 2683893, 6/22/17, affirming Dassey v. Pittman, 201 F.Supp.3d 963 (E.D. Wis. 2016).

Over a dissent, the Seventh Circuit holds that the Wisconsin court of appeals unreasonably applied clearly established federal law when they decided that Brendan Dassey voluntarily confessed to being involved with Steven Avery in the murder of Teresa Halbach.

State v. Edward J. Zimbal, 2017 WI 58, 6/14/17, reversing a per curiam court of appeals opinion, case activity (including briefs)

Don’t get too excited about this victory. The majority, by A.W. Bradley, repeatedly notes that Zimbal’s late request for substitution of judge under §971.20(7) is deemed timely due to the “unique facts” of this case. In a concurrence, Ziegler took the unusual step of warning:

[L]itigants should be hesitant to cite this case as authority in future circumstances not identical to what occurred here. Absent these unique facts, an untimely filing would be just that.  It need not be intelligently waived. Op. ¶76.

So, SCOW has published a defense win having no precedential value. It’s better than nothing.

State v. Robert Joseph Stietz, 2017 WI 58, 6/13/17, reversing a per curiam decision of the court of appeals; case activity (including briefs)

This case breaks no new legal ground, but simply reaffirms some long-standing rules governing when a trial judge should instruct a jury on self-defense: The defendant has only to meet the “low bar” of producing “some evidence” to support the defense; the evidence supporting the instruction should be viewed in the light most favorable to the defendant; and that the trial judge shouldn’t weigh the credibility of the evidence because that’s the job of the jury. (¶¶12-23). Under the specific facts of this case, the trial judge erred in not giving Stietz a self-defense instruction. (¶¶24-60).

State v. Shawn W. Forgue, 2016AP2414-CR, 5/11/17, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)

Forgue, convicted of misdemeanor battery and disorderly conduct, appealed the circuit court’s decision to exclude evidence of the victim’s prior violent conduct toward him (i.e. McMorris evidence) and her other bad acts. He also appealed an order setting restitution at $269.50 for the victim’s lost wages and $1,000 to the Crime Victim Compensation Program.

State v. George D. Taylor, 2015AP1325-CR, 4/27/17, District 1/4 (not recommended for publication); case activity (including briefs)

Taylor raises a host of challenges to his felony murder conviction. The court of appeals rejects all of them except one: an ineffective assistance of counsel claim, which the court orders must be assessed at a Machner hearing.

State v. Thomas G. St. Peter, 2016AP683-CR, District 1, 4/18/17 (one-judge decision; ineligible for publication); case activity (including briefs)

St. Peter is entitled to a new sentencing hearing because the judge violated his due process rights when it relied on inaccurate information to jump the parties’ joint recommendation for time served and impose more jail time. State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1 (sentencing based on inaccurate information violates due process). Not only that, but the judge erroneously exercised his sentencing discretion by failing to link the relevant facts and factors of the case to the standard sentencing objectives. —And you thought an erroneous exercise of sentencing discretion was as mythical a beast as a unicorn!

State v. Frank V. Blonda, 2015AP2431-CR, 4/11/17, District 1, (not recommended for publication); case activity (including briefs).

 M.L., the victim in this case, called her sister, Vincenza, and allegedly told her that Blonda had hit her in the head with a telephone. Vicenza reported this to the police.  Later, M.L. told the DA’s victim advocate that she did not want to press charges, Blonda did not hit her with the phone, and she had been drinking and wasn’t sure how she had been injured. She also filed a victim impact statement, which said that her injury was due to an accident that happened in Blonda’s absence. Unfortunately, the State didn’t disclose these statements to Blonda until the first and second days of his trial.

State v. Daniel G. Scheidell, 2015AP1598-CR, 3/29/17, District 2 (not recommended for publication); case activity (including briefs)

Congrats to the Remington Center for a winning a new trial in the interests of justice based on newly-discovered, 3rd-party perpetrator evidence 19 years after Scheidell was convicted of 1st degree sexual assault and armed robbery. Even better, their win was affirmed on appeal!