On Point blog, page 6 of 29
Defense win! Judge can’t attend TPR dispositional hearing by video over parent’s objection
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!
Defense win! SCOW declares 971.14’s treatment to competency provisions unconstitutional
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.
Defense win! Trial court should have admitted 3rd party perpetrator DNA evidence at reckless homicide trial
State v. Frederick Ramsey, 2017AP1318-CR, 5/29/19, District 1 (not recommended for publication); case activity (including briefs)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!
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.