On Point: 11. Defense Wins

Mark D. Jensen v. Marc Clements, 7th Circuit Court of Appeals No. 14-1380, 9/8/15, affirming Jensen v. Schwochert, No. 11-C-0803 (E.D. Wis. Dec. 18, 2013)

At Jensen’s trial for the murder of his wife Julie the State introduced Julie’s handwritten letter to the police, written two weeks before her death, in which she wrote she would never take her life and that her husband should be the suspect if anything should happen to her. The Wisconsin Court of Appeals assumed the admission of the letter violated Jensen’s right to confrontation but found the error harmless. The Seventh Circuit holds that the court of appeals’ decision was an unreasonable application of the Chapman v. California, 386 U.S. 18 (1967), harmless error standard, and that the erroneous admission of the hearsay evidence had a substantial and injurious influence or effect in determining the jury’s verdict, thus satisfying the actual prejudice standard under Brecht v. Abrahamson, 507 U.S. 619 (1993).

United States v. Rodolpho Hernandez Flores, 7th Circuit Court of Appeals No. 15-1515, 8/19/15 (per curiam)

Hernandez Flores was stopped for driving with an obstructed license plate because his rear plate was affixed to his car by a standard frame that covered the plate’s periphery. The stop violated the Fourth Amendment because it was based on an unreasonable mistake of law regarding the statute governing the display of license plates.

Benjamin Price v. United States, 7th Circuit Court of Appeals No. 15-2427, 8/4/15

Price seeks to bring a successive collateral attack under 28 U.S.C. § 2244(b)(3) to the enhancement of his sentence under the Armed Career Criminal Act. He claims that Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the imposition of an enhanced sentence under the residual clause of ACCA violates due process, announces a new substantive rule of constitutional law that the Supreme Court has categorically made retroactive to final convictions. The Seventh Circuit agrees.

United States v. Karenza S. Pickering, 7th Circuit Court of Appeals No. 14-3730, 7/23/15

Because there was no proof—let alone the required proof beyond a reasonable doubt—that Pickering willfully disobeyed a summons for jury duty, her conviction for criminal contempt is reversed.

United States v. Dontray A. Smith, 7th Circuit Court of Appeals No. 14-2982, 7/20/15

Smith’s encounter with two officers on bicycles amounted to a seizure based on the totality of the circumstances surrounding the encounter, and because he was seized without reasonable suspicion, his Fourth Amendment rights were violated.

Village of Thiensville v. Conor B. Fisk, 2015AP576-FT, District 2, 8/26/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Sending the opposing party with a copy of a notice of appeal by email attachment satisfied § 800.14(1)‘s requirement that the appellant “giv[e] the municipal judge and other party written notice of appeal within 20 days of the judgment or decision.”

State v. Kim M. Lerdahl, 2014AP2119-CR, District 3, 8/4/15 (one-judge decision; ineligible for publication); case activity (including briefs)

In an interesting decision that sheds some light on how to apply the newly-adopted “reasonable mistake of law” doctrine to traffic stops, State v. Houghton, 2015 WI 79, ___ Wis. 2d ___, ___ N.W.2d ___,  the court of appeals holds that it a police officer’s mistaken belief that the truck she stopped was required to have a center high-mount stop (or brake) lamp (CHMSL) was not a reasonable mistake of law and, therefore, the stop was unlawful.

State v. Albert J. Chagnon, 2015 WI App 66; case activity (including briefs)

Under § 948.14, no registered sex offender may intentionally “capture a representation” of a minor without consent of the minor’s parent or guardian. The phrase “captures a representation” is defined in § 942.09(1)(a) to mean “takes a photograph, makes a motion picture, videotape, or other visual representation, or records or stores in any medium data that represents a visual image.” The court of appeals concludes the phrase “captures a representation” cannot reasonably be construed to apply to Chagnon’s act of cutting pictures of minors from magazines and newspapers, pasting them into a notebook, and adorning the pictures with graphic sexual comments.

State v. Kerby G. Denman, 2014AP2133, District 4, 7/9/15 (not recommended for publication); case activity (including briefs)

Denman is entitled to a hearing on his petition for discharge from his ch. 980 commitment because an expert changed her opinion about Denman’s risk to reoffend based on a new risk assessment scale that hadn’t been relied on by any of the experts at Denman’s previous discharge proceeding.

State v. Andrew Obriecht, 2015 WI 66, 7/7/15, reversing a published court of appeals decision; case activity (including briefs)

When sentence credit is granted after a convicted defendant’s parole is revoked, the additional credit must be applied to the parolee’s reincarceration time, and not—as the Department of Corrections and the court of appeals thought—to any period of parole remaining after the reincarceration time is served.