On Point: L. Restraints on defendant

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.

Winnebago County v. J.M., 4/18/18, 2018 WI 37, affirming an unpublished court of appeals opinion, 2016AP619, case activity.

This opinion will interest lawyers who handle Chapter 51 cases and appellate lawyers of all stripes. It establishes that persons undergoing Chapter 51 mental commitments are entitled  to the effective assistance of counsel and formally adopts the Strickland test for ineffective assistance. It further holds that, due to the overwhelming evidence of dangerousness in this case, J.M. was not prejudiced when his counsel failed to object to him appearing before the jury wearing prison clothes accompanied by uniformed guards–even as he testified. Of particular interest to appellate lawyers, SCOW granted a motion to strike significant parts of Winnebago County’s oral argument because its lawyer asserted facts outside the appellate record.

Whether the subject of a §51.20(1)(a) extension of involuntary commitment and medication order has a claim for ineffective assistance of trial counsel where his lawyer fails to object to, prevent the admission of, or request a curative instruction to address, evidence of his prisoner status during his jury trial?

Whether the subject of a §51.20(1)(a) extension of involuntary commitment and medication order is entitled to a new trial in the interests of justice where the jury repeatedly sees and hears evidence of his prisoner status?

State v. Tony Phillip Rogers, 2015AP921-CR, 4/12/16, District 1 (not recommended for publication); case activity (including briefs)

Though the complainant in Rogers’s child sexual assault prosecution made statements to her mother about “hearing voices” and needing mental health assistance, trial counsel was not deficient for failing to move for an in camera review of her treatment records because he could not have made the materiality showing needed under State v. Shiffra, 175 Wis. 2d 600, 608-09, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, ¶¶32-34, 253 Wis. 2d 356, 646 N.W.2d 298.

State v. Scott E. Ziegler, 2012 WI 73, on certification; case activity

Interfering with Child Custody, § 948.31(2) – Elements

Language in State v. Bowden, 2007 WI App 234, ¶18, 306 Wis. 2d 393, 742 N.W.2d 332, that one method of violating § 948.31(2) (interference with child custody) requires the parent’s “initial permission” to take child, is now “withdrawn”:

¶52  Pursuant to the plain language of Wis.

State v. Allen K. Umentum, 2011AP2622-CR. District 3, 5/1/12

court of appeals decision (1-judge, not for publication); for Umentum: Roberta A. Heckes; case activity

Under a local, Brown County “standing order,” all in-custody defendants appearing at jury trial were required, without particularized demonstration of need, to wear a non-visible stun belt. The courthouse had no screening checkpoints, and any defendant was entitled to relief from the order “for good cause shown.”

seventh circuit decision

Habeas – Knowing Use of False Testimony (“Napue”) 

Due process prohibits knowing prosecutorial use of false testimony, Napue v. Illinois, 360 U.S. 264, 269 (1959). However, the prosecutor’s exploitation of Bland’s incorrect testimony on a potentially important point (the date his gun was confiscated) doesn’t support habeas relief on a Napue-type theory.

Napue and Giglio hold that a prosecutor may not offer testimony that the prosecutor knows to be false.

State v. Jeffrey T. Turner, 2011AP413-CR, District 4, 11/3/11

court of appeals decision (1-judge, not for publication); for Turner: Cody Wagner; case activity

The trial court erred in failing to make a sua sponte inquiry into necessity for shackling Turner during his jury trial. Although the court of appeals recently held that a trial court has no such duty to inquire, where the restraints are hidden from view, 

State v. Jason L. Miller, 2011 WI App 34; for Miller: Shelley Fite, SPD, Madison Appellate; case activity; Miller BiC; State Resp.; Reply

If the stun belt (or other restraint) isn’t visible to the jury, the trial court need not consider its necessity before requiring that the defendant wear it during trial. “Because there is no evidence that the jury could see the stun belt,

John M. Stephenson v. Levenhagen, 7th Cir No. 09-2924, 08/26/2010

7th Cir decision; petition for rehearing denied 1/14/11, 3 dissents from denial of en banc review

Habeas – Effective Assistance – Stun Belt

Counsel’s failure to object to placement of stun belt on Stephenson during trial was held by the state court to be deficient: accepting that conclusion (albeit with apparent reluctance), the federal court holds on habeas review that the deficiency wasn’t prejudicial.