On Point: 11. Defense Wins

State v. Paul R. Vanderlinden, 2015AP901-CR, District 3, 8/30/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Vanderlinden was convicted of OWI 2nd and driving with a PAC 2nd. An officer had stopped Vanderlinden’s car because two witnesses had reported him drinking beer and leaving the theater with a beer in his pocket. According to the court of appeals, this did not amount to reasonable suspicion of OWI.

Oconto County v. Jonathan E. Van Ark, 2015AP1415, 8/23/16; District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

Van Ark was sitting in his parked pickup truck when a deputy approached him, smelled alcohol, saw his glossy, blood-shot eyes, and observed his slow, slurred speech.  A subsequent hospital blood draw indicated that Van Ark had a .237 BAC. The State charged him with OWI and operating with a Prohibited Alcohol Concentration and moved for directed verdicts on both counts. The circuit court denied a directed verdict on the OWI charge, but granted it on the PAC charge. The court of appeals reversed based on WIS JI–CRIMINAL 2660A.

Walker Whatley v. Dushan Zatecky, 7th Circuit Court of Appeals No. 14-2534, 2016 WL 4269805, 8/15/16

The maximum penalty for Whatley’s drug possession conviction was dramatically increased—from 2-to-8 years to 20-to-50 years—under a now-repealed Indiana penalty enhancer for drug offenses committed within 1,000 feet of a “youth program center,” defined as a “building or structure that on a regular basis provides recreational, vocational, academic, social, or other programs” for youth. (Sound familiar? Sure it does: see §§ 961.01(22) and 961.49(1m)(b)5.) On habeas review, the Seventh Circuit holds that the statute’s failure to provide an objective standard for determining what “regular” means makes the statute unconstitutionally vague, so Whatley is entitled to resentencing under the non-enhanced penalty scheme.

Brendan Dassey v. Michael A. Dittmann, U.S. District Court (E.D. Wis.) No. 14-CV-1310, 2016 WL 4257386, 8/12/16

Brendan Dassey was charged with homicide and sexual assault after confessing to being involved in the murder of Teresa Halbach along with his uncle, Steven Avery. He challenged his confession, arguing it was involuntary, but the trial court and court of appeals disagreed. In a lengthy, fact-intensive decision, a federal magistrate holds that the state courts’ conclusions involve both an unreasonable determination of the facts and an unreasonable application of clearly established federal law.

Joseph J. Jordan v. Randall R. Hepp, 7th Circuit Court of Appeals No. 14-3613, 2016 WL 4119862, 8/3/16

Jordan claims the Wisconsin courts unreasonably applied clearly established federal law when they held that he was not denied the right to represent himself and that his trial lawyer was not ineffective for failing to object to the prosecutor’s improper vouching for a police witness’s credibility. The Seventh Circuit okays the state courts’ decision on self-representation but orders a hearing on Jordan’s ineffective assistance claim.

State v. Paul L. Linde, 2014AP2445-CR, 8/2/16, District 3 (not recommended for publication); case activity (including briefs)

A court commissioner issued a warrant to search Linde’s cabin for evidence of drug manufacturing and for drug paraphernalia. It was based in part on a tip by an anonymous informant, a fact that proved decisive in the court of appeals decision to reverse the circuit court’s denial of Linde’s suppression motion.

State v. Patricia A. Enriquez, 2015AP1850-CR, District 2, 7/27/16 (not recommended for publication); case activity (including briefs)

After Enriquez made a statement at her sentencing for delivering nonnarcotic controlled substances, the sentencing judge presented the parties with information he had uncovered based on his own internet searches. He claimed the information showed that Enriquez’s misrepresented facts about her nursing license status in Texas and Illinois. Finding that Enriquez’s character for honesty was “miserable” based in part on this ex parte research, the judge sentenced her to consecutive terms of sixty-six months’ imprisonment, far beyond what the state had recommended. But the information the judge dredged up was inaccurate, and because the court relied on that misinformation in sentencing her, Enriquez is entitled to be resentenced.

State v. Alejandro Herrera Ayala, 2015AP865-CR, District 3, 7/26/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals affirms the circuit court’s findings that the manner in which standardized field sobriety tests were administered to Herrera Ayala was “fatally flawed” because of “significant communication issues” between the officer and Herrera Ayala (a Spanish speaker with apparently limited English) and that those flaws made the SFSTs “unreliable” for purposes of determining probable cause to arrest. 

United States v. Billy J. Robinson, Jr., 7th Circuit Court of Appeal Case No. 15-2019, 2016 WL 3947808, 7/22/16

A federal district judge’s sentencing comments “strayed so far from the record” that the Seventh Circuit Court of Appeals “cannot trace the (legitimate) reasons for Robinson’s sentence” and therefore Robinson is entitled to resentencing.

Robertson Fowler, III, v. Keith Butts, 7th Circuit Court of Appeals Case No. 15-1221, 2016 WL 3916012, 7/20/16

The Seventh Circuit holds a federal judge is always disqualified from hearing a collateral attack on a judgment he or she entered or affirmed as a state judge.