On Point: 13. Due Process

State v. Dallas R. Christel, 2020AP1127-1128-Cr, 12/8/21, District 2 (not recommended for publication); case activity (including briefs)

Christel argued that §940.235, which criminalizes strangulation and suffocation, (1) violates substantive due process on its face and as applied to him, (2) is overbroad, and (3) is void for vagueness. He also argued for a new-factor-based sentence modification on his bail-jumping convictions. The court of appeals torpedoed every claim.

Nelson Garcia, Jr. v. Brian Foster, 20-CV-335 (E.D. Wis. 11/9/21).

Garcia challenged his robbery conviction on two grounds. (1) He was denied his right to counsel at a post-arrest police line up. (2) He was denied his right to go pro se at trial. While habeas wins are rare, what’s most remarkable is how blatantly the Wisconsin Court of Appeals violated SCOTUS precedent on both issues. To top that, SCOW granted review and then split 3-3 allowing the court of appeals decision to stand. Now, at long last, the Eastern District grants Garcia the relief SCOTUS requires.

State v. Steven Tyrone Bratchett, 2020AP1347-Cr, 11/9/21, District 1, (not recommended for publication), case activity (including briefs)

A jury convicted Bratchett of burglary, armed robbery, and attempted 3rd-degree sexual assault.  Bratchett argued and lost 6 issues on appeal. The court of appeals split over two of them, and they are focus of this post. The majority (Judges White and Donald) held that: (1) the photo array the victim used to identify Bratchett, while impermissibly suggestive, was still reliable, and (2) trial counsel was not ineffective for failing to impeach the victim with her inconsistent statement. Judge Dugan would reverse on these issues and grant a new trial.

Danny Wilber v. Randall Hepp, 7th Cir. Nos. 20-2614 & 20-2703, decided 10/29/21

Danny Wilber was granted a writ of habeas corpus by a federal district judge due to the Wisconsin circuit court’s use of visible restraints during Wilber’s trial in violation of Deck v. Missouri, 544 U.S. 622 (2005). We wrote about that decision here. In a long, thorough opinion, the Seventh Circuit affirms the district court.

State v. Jacky Lee, 2020AP1633, 7/27/21, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

The state arrested Lee for second-offense OWI and PAC violations. The intoximeter breath test he took at the police department was video-recorded. However, due to the state’s delay in charging Lee, he did not request the video until it had already been recorded over, consistent with the department’s practice of keeping such videos for 3-6 months unless there’s been a request to preserve them.

State v. General Grant Wilson, 2018AP183-CR, 1/12/21, District 1 (not recommended for publication); case activity (including briefs)

This marks the 3rd time the court of appeals has addressed Wilson’s case. In this appeal, the sole question is whether trial counsel provided ineffective assistance of counsel. The circuit court found deficient performance but not prejudice. Two judges, White and Blanchard affirm. Brash filed an 18-page dissent arguing that the cumulative effect of several deficiencies warrants a new trial.

Shan Fieldman v. Christine Brannon, __F.3d__  (7th Cir. 2020)

Shan Fieldman climbed into a truck and told a hit man that he wanted his ex-wife and her boyfriend killed. Turns out the hit man was an undercover cop who videotaped their conversation. At trial the State played the video. Fieldman testified that he did not intend for the hit man to actually commit the murders, but he was barred from fully explaining why. He was convicted of soliciting murder for hire, lost his direct appeal, won habeas relief in the Southern District of Illinois, and now the 7th Circuit has affirmed.

Waupaca County v. K.E.K., 2018AP1887, petition for review of an unpublished court of appeals decision granted 7/24/20; case activity

Issues presented:

1. Did the circuit court lose competency to conduct a recommitment hearing because the County did not file the evaluation of K.E.K. at least 21 days before the expiration of her commitment, as required by § 51.20(13)(g)2r.?
2. Is the recommitment standard in § 51.20(1)(am) facially unconstitutional under the 14th Amendment  because it violates the guarantees of substantive due process and equal protection of the law or abridges the privileges or immunities of citizens?
3. Is the recommitment standard in § 51.20(1)(am) unconstitutional as applied to K.E.K.?

State v. K.L.G., 2019AP658, District 1, 6/16/20 (1-judge opinion, ineligible for publication); case activity

What a bummer. K.L.G. moved to suppress an officer’s identification of him made after she looked up his booking photo from a previous incidence. The circuit court granted the motion and dismissed. The State appealed, and the court of appeals reverses.

Ramos v. Louisiana, USSC No. 18-5924, 2020 WL 1906545, 4/20/20, reversing State v. Ramos, 231 So. 3d 44 (La. Ct. Apps. 2017); Scotusblog page (including links to briefs and commentary)

The holding in this case has no relevance to Wisconsin practitioners, or indeed anyone outside of Louisiana or Oregon–the only two jurisdictions permitting 10-2 guilty verdicts in criminal trials. The Sixth Amendment requires unanimity in federal trials, and our state supreme court has long held the Wisconsin Constitution confers the same right. See Holland v. State, 91 Wis. 2d 134, 138, 280 N.W.2d 288 (1979). So if you’re interested only in the impact on your practice, there is none, and you can stop reading now.