On Point: 13. Due Process

Kahler v. Kansas, USSC No. 18-6135, 2020 WL 1325817, 3/23/20, affirming State v. Kahler, 410 P.3d 105 (Kan. 2018); Scotusblog page (including links to briefs and commentary)

Kansas amended its insanity defense to limit to defendants whose mental illness prevents them from forming the required intent to commit a crime. A majority of the Supreme Court holds that does not violate due process.

State v. Brantner, 2020 WI 21, 2/25/20, affirming in part and reversing in part a summary order, 2018AP53; case activity (including briefs)

Brantner was arrested (for reasons unrelated to this case) in Kenosha County by Fond du Lac County detectives. They took him to jail in Fond du Lac, where a booking search revealed several different types of pills concealed in his boot. He was tried, convicted and sentenced in Fond du Lac on five counts of drug possession and five associated bail-jumping counts. The supreme court now rejects his argument that he didn’t “possess” any of the drugs in Fond du Lac County–that the arrest in Kenosha terminated his possession because he lacked control over the pills. But it agrees with him that his conviction on two of the counts (with their associated bail-jumping counts) is a double-jeopardy violation; the bare fact that he had pills with two different oxycodone dosages (5 and 20 milligram) will not support two different charges of possessing that drug.

State v. Stephan I. Roberson, 2019 WI 102, 12/3/19, affirming a per curiam court of appeals opinion, 2017AP1894, case activity (including briefs)

The result here is simple, and expected, given the current makeup of the court: a five-two majority to overturn State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. Dubose held that “show up” identifications–those where the police present a witness with only one suspect–were inherently suggestive, and identifications so obtained would be inadmissible unless circumstances rendered the procedure “necessary.” So, now, Wisconsin courts will review claims that a show-up identification should be excluded under the test of State v. Wolverton, 193 Wis. 2d 234, 264, 533 N.W.2d 167 (1995): a defendant must carry the initial burden to show the procedure was impermissibly suggestive, and if he or she does, the state must then prove that the identification is nevertheless reliable under the totality of the circumstances.

State v. Michael K. Lorentz, 2018AP1515, 10/1/19 (one-judge decision; ineligible for publication); case activity (including briefs)

The state charged Lorentz with violating four injunctions. One count was brought under Wis. Stat. § 813.12(8)(a) (for violating a domestic abuse injunction regarding his ex-wife) and three under Wis. Stat. § 813.122(11) (for violating three child abuse injunctions–one for each of their three children). Each injunction required Lorentz to “avoid” the “residence” the mother and children shared.

State v. Daniel A. Griffin, 2019 WI App 49; case activity (including briefs)

Someone killed a young child in Griffin’s home. Both Griffin and the child’s mother were present at the time. What evidence was the jury allowed to hear about who committed the crime? If you guessed “any remotely relevant evidence implicating Griffin” (whom the state had charged) and “no evidence implicating the mother” (whom it had not) then you are a scholar of Wisconsin evidentiary law.

United States v. Davis, USSC No. 18-431, June 24, 2019, affirming and vacating in part, United states v. Davis, 903 F.3d 483 (5th Cir. 2018); Scotusblog page (includes links to briefs and commentary)

No surprise here.  Section 18 U.S.C. §924(c) makes it a crime to use a firearm during a crime of violence and 18 U.S.C. §924(c)(3)(B) defined a crime of violence as an offense that by its nature involves a substantial risk that physical force would be used in committing it. SCOTUS declared similar language unconstitutionally vague in  Sessions v. Dimaya, and it followed suit here.

State v. Dominique M. Anwar, 2018AP2222-CR, 6/25/19, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

The court of appeals rejects Anwar’s arguments that she’s entitled to resentencing because the State offered certain information at her sentencing hearing without first disclosing the information and giving her notice it would use the information.

Adams County  Health and Human Serv. Dep’t. v. D.J.S., 2019AP506, District 4, 6/20/19 (1-judge opinion, ineligible for publication; case activity

You don’t see defense wins in TPR appeals very often! In this case, D.J.S., the witnesses, the GAL, and counsel for both parties were at the Adams County Courthouse. For unknown reasons,the judge appeared by videoconference from the Marquette County Courthouse. D.J.S. objected, arguing that under §885.60(2) he had a right to be present in the same courtroom as the judge, and he won!

State v. Fitzgerald, 2018AP1296-CR, 2019 WI 69, 6/13/19; case activity

Sell v. United States, 539 U.S. 166 (2003) held that a mentally ill  defendant has a constitutional right to avoid unwanted antipsychotic medication. The State can force it on him to restore his competency for trial only by proving the 4 “Sell factors.” Fitzgerald holds that §971.14 does not conform to Sell. Going forward, the State cannot obtain involuntary med orders based solely on §971.14 because it is constitutionally infirm.  The State must satisfy Sell factors. The cases where this is possible may be “rare.” Sell, 539 U.S. at 180.  Involuntary medication to restore competency to proceed should be the exception, not the rule.

State v. Frederick Ramsey, 2017AP1318-CR, 5/29/19, District 1 (not recommended for publication); case activity (including briefs)

Ramsey confessed to the stabbing death of A.T., but it turns out that the DNA under her fingernails belonged to a guy named Teague. Ramsey filed a motion to admit the DNA evidence  and to argue that Teague killed A.T., pursuant to State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984). He lost, but then persuaded the court of appeals to grant an interlocutory appeal, and  then won. Pretty impressive!