On Point blog, page 20 of 29
State v. Leilani E. Neumann, 2011AP1105-CR / State v. Dale R. Neumann, 2011AP1044-CR, rev. granted 6/13/12
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.
Double Jeopardy – Retrial after Mistrial
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,
State v. Demone Alexander, 2011AP394-CR, District 1, 5/8/12, WSC rev granted 11/14/12
court of appeals decision (not recommended for publication), supreme court review granted 11/14/12; for Alexander: Hans P. Koesser; case activity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.
Stun Belt – “Standing Order”
State v. Allen K. Umentum, 2011AP2622-CR. District 3, 5/1/12
court of appeals decision (1-judge, not for publication); for Umentum: Roberta A. Heckes; case activity
Under a local, Brown County “standing order,” all in-custody defendants appearing at jury trial were required, without particularized demonstration of need, to wear a non-visible stun belt. The courthouse had no screening checkpoints, and any defendant was entitled to relief from the order “for good cause shown.”
State v. Leilani E. Neumann, 2011AP1105-CR / State v. Dale R. Neumann, 2011AP1044-CR, District 3, 5/1/12
court of appeals certification, review granted, 6/13/12; 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
Convicted of reckless homicide, § 940.06(1), in the death of their daughter for failing to obtain medical treatment, the Neumanns raise various issues relating to interplay with the right to rely on prayer as treatment,
Shiffra-Green Procedure – Privileged Records – Remedy
State v. Samuel Curtis Johnson, III, 2011AP2864-CRAC, District 2, 4/18/12, WSC rev granted 11/14/12
court of appeals decision (not recommended for publication), supreme court review granted 11/14/12; for Johnson: Mark D. Richards, Michael F. Hart, Craig S. Powell, Geoffrey R. Misfeldt; case activity
Shiffra-Green Procedure – Privileged Records – Remedy Where Witness Declines Consent for in Camera Review
Johnson, charged with sexual assault of his stepdaughter T.S.,
Exculpatory Evidence – Police Personnel Records; Postconviction Procedure – Serial Litigation Bar: Supplement to Still-Pending Motion
State v. Christopher J. Anderson, 2009AP3053-CR, District 1, 3/27/12
court of appeals decision (not recommended for publication); pro se; case activity; prior history: 2008AP504-CR
Anderson’s prior appeal established that “the trial court erred when it denied his request for an in camera review of [police] personnel files because he had both a constitutional and statutory right to any exculpatory or impeachment evidence in the files,”
Jury Selection – Batson; Privileged (Mental Health) Records – In Camera Review; Evidence – Relevance; Expert Witness
State v. Britney M. Langlois, 2011AP166-CR, District 4/1, 3/6/12
court of appeals decision (not recommended for publication); for Langlois: Philip J. Brehm; case activity
The court of appeals upholds a trial court finding that the prosecutor’s explanation for striking an African-American juror (recent conviction for disorderly conduct) was non-discriminatory:
¶33 After reviewing the record, we are satisfied that the trial court properly applied the Batson test.
TPR – Default Judgment as to Grounds – Sufficiency of Evidence; § 48.415(6) – Constitutional Challenge, Vagueness
Dane Co. DHS v. Sophia S., 2011AP2639, District 4, 2/23/12
court of appeals decision (1-judge, not for publication); for Sophia S.: Faun M. Moses; case activity
Although the parent isn’t required to object to the sufficiency of evidence adduced in support of a default judgment on grounds for termination (the court rejecting the County’s argument on this point), there was a sufficient factual basis for the default.
Keith Bland, Jr. v. Hardy, 7th Cir No. 10-1566, 2/13/12
Habeas – Knowing Use of False Testimony (“Napue”)
Due process prohibits knowing prosecutorial use of false testimony, Napue v. Illinois, 360 U.S. 264, 269 (1959). However, the prosecutor’s exploitation of Bland’s incorrect testimony on a potentially important point (the date his gun was confiscated) doesn’t support habeas relief on a Napue-type theory.
Napue and Giglio hold that a prosecutor may not offer testimony that the prosecutor knows to be false.