On Point: 13. Due Process

State v. Tenesha T., 2012AP1283, District 1, 9/5/12

court of appeals decision (1-judge, ineligible for publication); case activity

Parent’s right to be present during TPR trial wasn’t violated when court allowed 30 minutes of testimony during parent’s volunary absence:

¶16      Tenesha bases her argument on Shirley E., contending that a parent’s right to be present during termination proceedings is inherent in Shirley E.

State v. Scott E. Schmidt, 2012 WI App 113 (recommended for publication); case activity

Adequate Provocation Defense, §§ 939.44(1),  940.01(2)(a) – Test for Admissibility

The “some evidence,” rather than Schmidt’s proposed less stringent “mere relevance,” standard controls admissibility of evidence of adequate provocation that would reduce first- to second-degree intentional homicide:

¶9        When applying the some evidence standard, “the circuit court must determine whether a reasonable construction of the evidence will support the defendant’s theory viewed in the most favorable light it will reasonably admit of from the standpoint of the accused.”  [State v.

seventh circuit decision

Sex Offender Registration – Due Process Right to Correct Errors 

Given restrictions on sex offender registrants, more than mere reputational stigma is at stake, and due process therefore requires the implementation of some mechanism for correcting errors in the registry.

That brings us to the heart of the due process claim in this case. Plaintiffs allege that errors in the registry—such as being mislabeled a sexually violent predator—infringe on a liberty interest protected by the Due Process Clause,

State v. Troy L. Cameron, 2012 WI App 93 (recommended for publication); case activity

Prosecutorial Vindictiveness – Neither Presumptive or Actual for Increased Charges Following Rejected Plea Offer 

Cameron failed to establish prosecutorial vindictiveness in the filing of an amended information containing additional charges, after he rejected a plea offer to the original information. State v. Johnson, 2000 WI 12, 232 Wis.

State v. Joseph J. Spaeth, 2012 WI 95, on certification; case activity

Probationer’s statement, compelled by rules of his supervision, is covered by derivative as well as use immunity in a criminal prosecution.

¶3   We hold that the statement that Spaeth made to Oshkosh police was derived from the compelled, incriminating, testimonial statement that he made to his probation agent.  Thus,

State v. Jon Anthony Soto, 2012 WI 93, on certification; case activity

A guilty plea defendant has a statutory right under § 971.04(1)(g) to be present in court when the plea is accepted and judgment pronounced, but the right may be waived (as distinguished from forfeited), as it was here.

¶2   We conclude that Wis. Stat. § 971.04(1)(g) provides a criminal defendant the statutory right to be in the same courtroom as the presiding judge when a plea hearing is held,

State v. Scott E. Ziegler, 2012 WI 73, on certification; case activity

Interfering with Child Custody, § 948.31(2) – Elements

Language in State v. Bowden, 2007 WI App 234, ¶18, 306 Wis. 2d 393, 742 N.W.2d 332, that one method of violating § 948.31(2) (interference with child custody) requires the parent’s “initial permission” to take child, is now “withdrawn”:

¶52  Pursuant to the plain language of Wis.

on review of certification request; for Leilani Neumann: Byron C. Lichstein; case activity; for Dale Neumann: Stephen L. Miller; case activity

Reckless Homicide and “Faith Healing” as Substitute for Medical Treatment 

Issues (Composed by On Point): 

1. Whether the “faith healing” defense in § 948.03(6) is limited to prosecutions for child abuse or extends to reckless homicide, § 940.06(1).

2.

State v. Susan M. Thorstad, 2011AP2854-CR, District 4, 5/31/12

court of appeals decision (1-judge, not publishable); for Thorstad: Charles W. Giesen; case activity

Mistrial was granted after the arresting officer, in contravention of pretrial order, testified that this was Thorstad’s second OWI. However, the officer was unaware of the order, because the prosecutor had failed to advise of same, an omission the trial court attributed to “laxness on the part of the State.” The trial court then ruled that,

court of appeals decision (not recommended for publication), supreme court review granted 11/14/12; for Alexander: Hans P. Koesser; case activity

Juror Selection / Dismissal – Right to Personal Presence 

A defendant has a non-waivable right to personal presence at voir dire, ¶6 (citing, § 971.04(1)(c); and, State v. Harris, 229 Wis. 2d 832, 839, 601 N.W.2d 682 (Ct.