On Point blog, page 6 of 29
COA: Other-acts exception for first-degree sexual assault is constitutional
State v. Christopher L. Gee, 2019 WI App 31; case activity (including briefs)
Christopher Gee was accused of sexually assaulting two women at knifepoint; one of the women had come to Gee’s apartment building because someone there had agreed to pay her for sex. He admitted to police that he’d had sex with this second woman, but said it was consensual and he’d simply refused to pay her afterward–something he said he often did. (¶10).
ACLU files suit challenging Wisconsin’s refusal to release parole-eligible people who received life sentences as juveniles
Today the ACLU filed a 59-page class action complaint against Wisconsin parole commissioners in federal. It’s a “must read” for attorneys who defend juveniles. Among other things, it cites to a great deal of legal and scientific research on juvenile versus adult offenders. It also alleges that COMPAS assessments appear to treat youth as an “aggravating factor” and only a “miniscule number” of parole-eligible juvenile lifers have been paroled during the past 15 years. Most die in prison.
SCOW splits 3-3 over when a defendant’s right to counsel attaches
State v. Nelson Garcia, Jr., 2019 WI 40, 4/19/19; case activity (including briefs)
ASPD Pam Moorshead briefed this appeal and argued it to SCOW less than two weeks ago. The lead issue was whether the Sixth Amendment right to counsel attaches upon the finding of probable cause and setting of bail by a court commissioner. Justice Abrahamson withdrew from participation leaving only 6 justices to decide the case.
SCOW: There’s no fundamental right to participate in treatment court
State v. Michael A. Keister, 2019 WI 26, 3/19/19, reversing a court of appeals order dismissing the appeal and vacating a circuit court order; case activity (including briefs)
The statute providing for grants to set up treatment courts, § 165.95, does not create a fundamental liberty interest for defendants to participate in treatment court and does not itself need to define the procedures for expulsion from treatment court.
Court of Appeals rejects constitutional challenges to detectable amount of controlled substances law
State v. Blake Lee Harrison, 2017AP1811, District 3, 2/26/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Harrison’s due process and void-for-vagueness challenges to § 346.63(1)(am) (prohibiting driving with a detectable amount of restricted controlled substance) go up in smoke.
SCOW to decide whether an out-of-court identification using a single photo is a showup
State v. Stephan I. Roberson, 2017AP1894-CR, petition for review of per curiam opinion granted 2/12/19; case activity (including briefs)
Issue (from the petition for review):
Whether a pretrial out-of-court identification using a single photo is a showup and thus inadmissible at trial unless the State proves necessity under the totality of the circumstances?
SCOW alters test for whether state “suppressed” evidence under Brady v. Maryland
State v. Gary Lee Wayerski, 2019 WI 11, affirming and modifying an unpublished court of appeals decision; case activity (including briefs)
The supreme court overrules Wisconsin’s longstanding test for deciding whether the state has “suppressed” favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), saying the test is unsupported by and contrary to Brady and the U.S. Supreme Court’s decisions applying Brady.
SCOW to review issues relating to line-ups, right to self-representation
State v. Nelson Garcia, Jr., 2016AP1276-CR, petition for review of an unpublished court of appeals decision granted 12/12/18; case activity (including briefs)
Issues (from the petition for review)
- Does the Sixth Amendment right to counsel attach upon the finding of probable cause and setting of bail by a court commissioner?
- Was the line-up impermissibly suggestive because it violated the Department of Justice’s Model Policy and Procedure for Eyewitness Identification and the viewing witnesses failed to follow the standard instructions given to them?
- Can a trial court at a pre-trial hearing decide that a defendant has waived the right to self-representation because the court believes the defendant will engage in disruptive behavior in front of the jury? If so, does the defendant have a right to redeem himself?
Video seems to show white robber in state’s other-acts evidence; COA, over dissent, upholds conviction of black defendant
State v. Darrin L. Malone, 2017AP680-CR, 9/26/18, District 2 (not recommended for publication); case activity (including briefs)
The disputed image is below. It’s of a similar robbery three days before the robbery for which Malone was convicted of felony murder (the other robber in that latter robbery–who testified against Malone–admitting shooting and killing the gas station clerk). The state showed the video of that earlier robbery to the jury, hoping to convince them that Malone did that one, and thus likely did the one he was being tried for, too. Showed it, that is, except for the 10 seconds including this frame, which seems to show a white person’s hand on the robber the state claimed was Malone. Malone is black.
Court upholds convictions for multiple counts of sending unlawful emails, bail jumping
State v. Brian A. Barwick, 2017AP958-CR through 2017AP961-CR, District 1, 9/5/18 (not recommended for publication); case activity (including briefs)
Barwick was charged with eleven counts of various crimes in four separate cases that were consolidated for trial. He makes various unsuccessful challenges to his convictions.