On Point blog, page 1 of 29
Defense win: COA holds revocation of NGI acquittee’s conditional release for rule violations under § 971.17(3)(e) is unconstitutional
State v. Desmond J. Wilhite, 2024AP2177-CR, 9/25/25, District IV (recommended for publication); case activity (including briefs)
COA agrees with Wilhite that Wis. Stat. § 971.17(3)(e) is facially unconstitutional to the extent that it permits a circuit court to revoke an NGI acquittee’s conditional release and to commit the acquittee to institutional care based solely on the violation of a court-ordered condition or department rule without proof of current dangerousness. It also concludes that the unconstitutional provisions in § 971.17(3)(e) are severable, and leaves in place the remainder of the statute.
COA: Circuit court properly exercised its discretion in its evidentiary rulings at trial on grounds to terminate parental rights.
State v. D.J., 2025AP1334 and 1335, 9/16/25, District I (one-judge decision; ineligible for publication); case activity
Over the respondent’s evidentiary objections, the COA affirmed the circuit court’s orders terminating D.J.’s parental rights to two of her children.
COA, bound by precedent, rejects constitutional challenge involving mandatory minimum CSA charges
State v. Keith Kenyon, 2022AP2228-CR, 9/16/25, District I (recommended for publication); case activity
Although COA is surprisingly candid in acknowledging some of the injustices present in this appeal, the Court ultimately concludes that Kenyon’s constitutional challenge is foreclosed by existing precedent.
COA concludes testimony alone, with no physical evidence, is sufficient to affirm conviction for driving faster than was reasonable and prudent.
Dane County v. Trent Joseph Meyer, 2024AP1630, 8/14/25, District IV (ineligible for publication); case activity
The COA affirmed a conviction for driving faster than was reasonable and prudent under the conditions where the defendant drove 20 miles-per-hour above the speed limit and came “close” to other cars’ bumpers.
SCOW relies on deferential standard of review to reject allegation that Zoom procedure violated defendant’s due process rights
State v. Kordell Grady, 2025 WI 22, 6/13/25, affirming COA’s summary disposition order; case activity
Although SCOW presumably took this case to clarify the rules of Zoom court–and the oral argument focused intensely on such questions–SCOW ultimately opts to issue a decision which makes no substantive law and denies relief based on what it claims is a deferential review of the circuit court’s factual findings.
COA affirms resentencing denial, holds judge’s comments about defendant’s non-criminal sexual behavior, etc. did not show objective bias
State v. Anthony J. LaRose, 2022AP647-CR, District 3, 3/25/25 (not recommended for publication); case activity (including briefs)
LaRose appeals an order denying his postconviction motion for resentencing on his conviction for first-degree sexual assault of a child, in which he claimed that the circuit court judge was biased against him based on three sets of facts. COA rejects all of LaRose’s arguments and affirms, holding that the court’s comments were related to appropriate sentencing factors and LaRose failed to establish sufficient risk of actual bias.
COA holds that difference between “L meth” and “D meth” does not create a defense to RCS prosecution
State v. Walter L. Johnson, 2024AP79-CR, 2/13/25, District IV (recommended for publication); case activity
In a case resolving a hot issue for OWI litigators, COA rejects challenges to an RCS prosecution based on the chemical difference between “L meth”–found in certain nasal decongestant sprays–and “D meth,” which is found in illicit street drugs.
SCOTUS issues per curiam order clarifying that erroneous admission of prejudicial evidence can violate due process
Andrew v. White, USSC No. 23-6573 (per curiam), 1/21/25, vacating Andrew v. White, 62 F.4th 1299 (10th Cir. 2023); Scotusblog page (with links to briefs and commentary)
In a rare defense win (of sorts) on federal habeas in the US Supreme Court, SCOTUS clarifies that its decision in Payne v. Tennessee “clearly established” the rule that when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.”
COA affirms denial of motion to dismiss for state’s failure to preserve video evidence
State v. Jeffrey A. Roth, 2024AP737, 12/11/24, District II (1-judge decision, ineligible for publication); case activity
Three police officers confronted Roth after receiving a complaint that he was stumbling around and then sitting in a vehicle. The state charged Roth with five counts, including resisting. Before his jury trial, which resulted in two misdemeanor convictions, Roth moved to dismiss based on the police officers’ failure to preserve body and squad camera footage of the underlying incident. After a three-day evidentiary hearing, the circuit court denied the motion. The COA affirms, concluding that Roth failed to prove the videos were apparently exculpatory, or that the police acted in bad faith.
In complicated habeas appeal, 7th circuit affirms and holds that failure to preserve evidence does not entitle petitioner to relief
Karl W. Nichols v. Lance Wiersma, No. 22-3059, 7/16/24
In a complicated case that contains many harsh lessons about the standards applicable to habeas petitions, the Seventh Circuit affirms an order denying habeas relief as the exculpatory value of unpreserved evidence was not “apparent.”