On Point: 13. Due Process

State v. Daniel G. Scheidell, 2015AP1598-CR, 3/29/17, District 2 (not recommended for publication); case activity (including briefs)

Congrats to the Remington Center for a winning a new trial in the interests of justice based on newly-discovered, 3rd-party perpetrator evidence 19 years after Scheidell was convicted of 1st degree sexual assault and armed robbery. Even better, their win was affirmed on appeal!

State v. Karl W. Nichols, 2016AP88-CR, 3/20/17, District IV (not recommended for publication); case activity (including briefs)

Nichols was convicted, at trial, of a sexual assault of a four-year-old child; the child did not report the alleged assault to anyone until she was 10 years old. Nichols’s postconviction motion alleged that the state had failed to turn over a list, prepared by the child, of changes she wished to make to statements she made during her first forensic interview. The circuit court found the state had acted in bad faith in withholding the list, vacated Nichols’s conviction, and dismissed the charges with prejudice. The court of appeals now reverses and remands for the circuit court to consider Nichols’s sentence modification claim.

Review of an unpublished court of appeals decision; affirmed 4/10/18, case activity (including briefs)

Issues (composed by On Point)

1. Whether the safe transport statute, which permits transporting a handgun in a vehicle, forecloses convicting a non-permit-holder under the concealed carry law for having a handgun in his vehicle.
2. Whether the safe transport statute’s apparent contradiction of the concealed carry statute renders the law unconstitutionally vague.

State v. Shaun M. Sanders, 2017 WI App 22, petition for review granted 6/13/17, affirmed, 2018 WI 51; case activity (including briefs)

When Sanders was 19 years old he was charged with committing repeated sexual assaults of H.S. during a time period when he was aged 9 to 12 and H.S. was aged 7 to 9. He asserts the circuit court had neither subject matter jurisdiction nor competency to proceed on those charges because under §§ 938.02(3m), 938.12(1), and 938.183(1)(am) persons who commit criminal acts when they are under the age of 10 are not subject to the juvenile justice code or the criminal code. The court of appeals rejects the claim.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. Whether the prosecutor’s closing argument impermissibly shifted the burden of proof by telling the jury that in order to acquit the defendant they would have to believe the complaining witnesses were lying, that there would have to be evidence of a reason for them to lie, and that the defendant had presented no reason to believe they were lying.
2. Whether the defendant was deprived of the right to effective assistance of counsel because trial counsel did not object to the jury being given unredacted exhibits containing inadmissible information that one complainant had not had sexual intercourse before the assault alleged in this case.

State v. Earnest Lee Nicholson, 2015AP2154-CR & 2015AP2155-CR, 3/7/2017, District 1 (not recommended for publication); case activity (including briefs)

Nicholson challenges the validity of the no-contact order he was convicted of violating, and also argues his rights to confrontation and to testify were violated. The court of appeals rejects his claims.

Travis Beckless v. United States, USSC No. 15-8544, 2017 WL 855781 (March 6, 2017), affirming Beckles v. United States, 616 Fed. Appx. 415 (11th Cir. 2015) (unpublished); Scotusblog page (including links to briefs and commentary)

The Supreme Court holds that provisions in the federal advisory sentencing guidelines are not subject to vagueness challenges under the Due Process Clause.

Michael Damon Rippo v. Renee Baker, Warden, USSC No. 16-6316, 2017 WL 855913 (March 6, 2017) (per curiam), reversing and remanding Rippo v. State, 368 P.3d 729 (Nev. 2016); Scotusblog page

In this per curiam decision, the Supreme Court holds the lower court erred in demanding a defendant show actual bias to satisfy his claim that his due process right to an impartial judge was violated.

State v. Robert Mario Wheeler, 2016AP55-CR, 2/21/2017, District 1 (not recommended for publication); case activity (including briefs)

Robert Wheeler was tried for reckless injury and being a felon in possession of a gun arising out of a single shooting incident. To keep the jury from hearing about his status as a felon, the parties stipulated that he was and agreed that the gun possession charge would be decided by the court. Wheeler’s counsel specifically noted the possibility that the two counts could be decided differently, given the different factfinders. (¶5).

Question presented:

Whether, when this court held in Ake v. Oklahoma, 470 U.S. 68 (1985), that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.