On Point: 11. Defense Wins

K.C. v. B.S.-S., 2015AP1702, District 2, 1/13/16 (one-judge decision; ineligible for publication); case activity

B.S.-S.’s single conviction for intentionally causing harm to a child in violation of § 948.03(2)(b) does not demonstrate “a pattern of physically … abusive behavior” under § 48.415(5), so the circuit court erred in terminating B.S.-S.’s parental rights based on that conviction.

Hurst v. Florida, USSC No. 14-7505, 2016 WL 112683 (January 12, 2016); reversing and remanding Hurst v. State, 147 So.3d 435 (Fla. 2014); Scotusblog page (includes links to briefs and commentary)

In Florida the jury makes a recommendation as to whether to impose the death penalty, but the judge then holds a separate sentencing hearing and decides whether there are sufficient aggravating circumstances to justify the death penalty. This sentencing scheme is unconstitutional because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” (Slip op. at 1).

United States v. Antonio West, 7th Circuit Court of Appeals Case No. 14-2514, 12/30/15

The trial court erroneously excluded expert evidence that West sought to admit regarding factors that made him susceptible to making an unreliable confession to a crime.

State v. Caroline D. Prieto, 2016 WI App 15; case activity (including briefs)

Nearly three years after the defense demand, and a year after the first (of two) court orders to produce a witness list, the state still hadn’t done so. The circuit court’s response? No list, no witnesses. The state appeals and…

State v. Rafael D. Honig, 2016 WI App 10; case activity (including briefs)

Honig, convicted at trial of two first-degree child sexual assaults, asserts that his trial counsel mishandled three issues bearing on the credibility of his accusers; the court of appeals agrees.

State v. Cory S. Herrmann, 2015 WI App 97; case activity (including briefs)

In light of the Second Amendment decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), Wisconsin’s prohibition on the possession of a switchblade knife, § 941.24(1), is unconstitutional as applied to a person who possesses a switchblade in his or her own home.

State v. Patrick K. Kozel, 2015AP656-CR, District 4, 11/12/15 (one-judge decision; ineligible for publication), petition for review granted 3/7/16, reversed, 2017 WI 3; case activity (including briefs)

The results of a blood draw done by an EMT after Kozel was arrested for OWI were inadmissible because the State failed to prove that the blood draw was conducted by a “person acting under the direction of a physician,” as required by § 343.305(5)(b).

State v. Jamie R. Anderson, 2015 WI App 92; case activity (including briefs)

Answering a question lingering since the Truth-in-Sentencing revisions that took effect in 2003 (TIS-II), the court of appeals holds that a person serving a bifurcated prison sentence for a misdemeanor enhanced under the repeater statute, § 939.62(1)(a), is eligible to petition for a sentence adjustment under § 973.195 after serving 75% of the confinement portion of the sentence.

State v. One 2013 Toyota Corolla, 2015 WI App 84; case activity (including briefs)

While a co-owner’s interest in a car didn’t make her the owner for purposes of the “innocent owner” exception to property forfeiture under § 961.55(1)(d)2., forfeiture of her full financial interest violated the Eight Amendment’s prohibition against the levying of excessive fines.

Paysun Long v. Kim Butler, 7th Circuit Court of Appeals Case No. 13-3327, 10/27/15

Long is entitled to habeas relief because the prosecutor in his state murder trial failed to correct perjured testimony given by a state’s witness.