On Point blog, page 29 of 29
Due Process – Parole – “Presumptive” MR Liberty Interest
State ex rel. Michael J. Gendrich v. Litscher, 2001 WI App 163
Issue: Whether the “presumptive mandatory release date” under § 302.11(1g) creates a liberty interest in parole protected by due process.
Holding: Prisoners sentenced for a “serious felony” between April 21, 1994, and December 31, 1999, are given a “presumptive” MR date. Discretionary parole does not create a due process-protected liberty interest, while mandatory release does.
Substantive Due Process – Automatic SVP commitment to secure confinement
State v. Ronald Ransdell, 2001 WI App 202, PFR filed 8/27/01
For Ransdell: Ellen Henak, SPD, Milwaukee Appellate
Issue: Whether the automatic initial commitment to institutional care provision, § 980.06, on its face violates substantive due process.
Holding: A person challenging the constitutionality of a statute must show its infirmity beyond reasonable doubt; a statute restricting liberty implicates a “strict-scrutiny” test. ¶5. Applying this test,
Right to be Present – Trial Court Communication with Jury
State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether the trial court’s response to a jury request to see a written report and a transcript of a witness’s testimony — that these items were “not available” — without first seeking defense input was error.
Holding: The defendant’s presence is required at any critical stage,
Right to Be Present – Voir Dire
State v. George S. Tulley, 2001 WI App 236
For Tulley: Patrick M. Donnelly
Issue: Whether excluding defendant and his attorney from in camera voir dire of several jurors was reversible error.
Holding: A defendant has both constitutional and statutory rights to be present, with assistance of counsel, at voir dire, and the trial court therefore erred in excluding them from the in camera proceedings.
Due Process – Exculpatory evidence – failure to disclose – hand-swabbing results
State v. Andres DelReal, 225 Wis.2d 565, 593 N.W.2d 461 (Ct. App. 1999)
For DelReal: Richard D. Martin, SPD, Milwaukee Appellate
Holding: The defense was denied exculpatory evidence when a detective testified that the defendant had not been swabbed for gunshot residue when in fact he had, with negative results.
Due Process – Exculpatory Evidence – prosecution witness’s understating number of prior convictions – harmless error
State v. Robert Carnemolla, 229 Wis.2d 648, 600 N.W.2d 236 (Ct. App. 1999)
For Carnemolla: Robert T. Ruth
Holding: A state’s witness testified that he had two priors, when in fact he had three. The court finds any error harmless, stressing that the witness was a prison inmate and testified in prison clothes – therefore the jury necessarily knew in any event that he’d been convicted of a serious crime.
Gambling, § 945.03(5) — Constitutionality — Vagueness Challenge
State v. Lester E. Hahn, 221 Wis. 2d 670, 586 N.W.2d 5 (Ct. App. 1998)
For Hahn: Bruce Elbert
Issue/Holding: The meaning of “gambling machine” is sufficiently well-understood as to survive a vagueness challenge. (The court reserves whether “contrivance” might be vague when applied to facts not raised by this case.)