On Point blog, page 27 of 29
Due Process – Exculpatory Evidence – Deferred-Judgment Probationary Status, Prosecutorial Duty to Disclose, § 971.23(1)(f)
State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz
Issue/Holding:
¶23. Under Wis. Stat. § 971.23(1)(f), a prosecutor must, upon request, disclose to the defense “[t]he criminal record of a prosecution witness which is known to the district attorney.” A prosecutor, however, has an affirmative duty to make reasonable inquiry and may not assert that he or she did not know of those things within the ambit of § 971.23 that could have been reasonably discovered.
Due Process – Exculpatory Evidence – Generally
State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813
For Harris: Steven A. Koch
Issue/Holding:
¶12 In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment,
Due Process – Judicial Intervention in Presentation of Case
State v. Johnnie Carprue, 2004 WI 111, reversing 2003 WI App 148
For Carprue: Stephanie G. Rapkin
Issue/Holding:
¶58. Carprue contends that he was denied his due process right to a fair trial because Judge Schellinger was not impartial. His evidence consists of the judge’s actions in calling and questioning Morrow and in questioning Carprue.¶59. “A fair trial in a fair tribunal is a basic requirement of due process.”
Due Process – Defendant’s Right to Testify – Waiver
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue:Whether the defendant’s explicit waiver of his right to testify was conditional (on the outcome of two defense witnesses) such that another colloquy should have been conducted; or, if the waiver is deemed binding, whether the trial court nonetheless erroneously exercised discretion in refusing the defendant’s request, after the close of evidence,
Due Process – Right to Present Defense – “Denny” Evidence
State v. Matthew J. Knapp, 2003 WI 121, on certification; vacated and remanded on other grounds for further consideration in light of United States v. Patane, 542 U. S. ____ (2004), Wisconsin v. Knapp, No. 03-590); subsequent decision on remand, Miranda issue: State v. Knapp (II),
Enhancer — § 939.62(2m)(a), Persistent Repeater — Validity – Due Process
State v. Alan R. Radke, 2003 WI 7, affirming 2002 WI App 146
For Radke: William E. Schmaal, SPD, Madison Appellate
Issue/Holding:
¶5. The precise question raised, therefore, is whether the “two strikes” law violates the Due Process Clause of either the United States or Wisconsin Constitution because it requires a greater penalty to be imposed on an offender convicted of a second Class B non-fatal child sexual assault than the statutes require to be imposed on an offender convicted of a second Class A felony homicide offense.
Due Process – Resentencing – Increase in Original Sentence After Appellate Relief
State v. William J. Church (II), 2003 WI 74, reversing 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873; earlier history: State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted, 2000 WI 90
For Church: James L. Fullin, SPD, Madison Appellate
Issue: Whether an increase in sentence on re-sentencing violated due process,
Due Process – Defendant’s Right to Testify – Personal Waiver Required
State v. Patricia A. Weed, 2003 WI 85, affirming unpublished opinion of court of appeals
For Weed: T. Christopher Kelly
Issue/Holding: A defendant has a “fundamental” constitutional right to testify on his or her own behalf. ¶39.
¶43. Accordingly, in order to determine whether a criminal defendant is waiving his or her right to testify, a circuit court should conduct an on-the-record colloquy with the defendant outside the presence of the jury.
Due Process – Defendant’s Right to Testify, as Affected by Intent to Commit Perjury – Counsel’s Role
State v. Derryle S. McDowell, 2003 WI App 168, affirmed, 2004 WI 70, ¶¶42-47
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John T. Savee, John A. Pray, Frank Remington Center & WACDL
Issue/Holding: The defendant’s right to testify does not include a right to testify falsely, Nix v. Whiteside, 475 U.S. 157 (1986):
¶37.
Due Process – Scienter, § 948.12
State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶32. Schaefer claims that by allowing conviction for possession of child pornography when a defendant “reasonably should know” that the child depicted is under eighteen years of age, Wis. Stat. § 948.12 omits a scienter requirement for the offense. He contends that in expressing the intent element regarding the minority of the depicted child in the pornographic materials as “knows or reasonably should know,”