On Point blog, page 1 of 1
SCOW to review IAC, sentencing, and cross-appeal issues
State v. Anthony R. Pico, 2015AP1799-CR, petition for review granted 10/10/17; case activity (including briefs)
Issues (composed by On Point):
1. Did the Court of Appeals apply the proper standard of review to the trial court’s findings of fact regarding trial counsel’s conduct and strategy?
2. Did trial counsel perform deficiently by failing to investigate Pico’s serious head injury, and did that deficient performance prejudice Pico in pretrial proceedings and at trial?
3. Did the sentencing court impermissibly burden Pico’s privilege against self-incrimination?
4. Did the Court of Appeals err in concluding that Pico waived issues not raised by cross-appeal?
5. Is it permissible for a postconviction court to admit and consider expert testimony by another criminal defense attorney regarding the conduct of trial counsel?
Exclusion of expert testimony and of prior, unsubstantiated accusations of child sexual assault affirmed
State v. Ricky H. Jones, 2013AP1731-CR, District 2, 7/30/14 (unpublished); case actvity
Exclusion of expert testimony about defendant’s lack of propensity toward child sexual assault
In defending Jones against two counts of 1st-degree sexual assault of a child, his lawyer wanted to elicit expert testimony that Jones posed a low risk of committing a sexual offense–a strategy authorized by State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998). Unfortunately, trial counsel failed to give the expert report to the State pursuant to its discovery demand, so the trial court excluded it under §971.23(7m)(a) and State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488. Jones was convicted and appealed.
SCOW uses “harmless error” to dodge further anaylsis of statute barring use of PBT tests in OWI-related trials
State v. Luis M. Rocha-Mayo, 2014 WI 57, affirming an unpublished court of appeals decision; 7/11/14; majority opinion by Justice Crooks; case activity
Why tackle thorny legal issues surrounding Wis. Stat. §343.303’s prohibition against the use of PBTs at OWI trials when you can decide the case on harmless error grounds? In this case, the PBT was ordered and administered by ER staff, not law enforcement. SCOW gets to pick and choose its cases. So when it grants review, the parties, their lawyers, the lower courts, and the bar hope the court will decide the legal issues, not re-review the evidence presented to the jury. This fractured decision deserves a close look in order to understand what has and has not been decided about the use of PBTs in OWI trials.
Broken tail light, glassy eyes, and a wee wobble amount to probable cause for administering preliminary breath test
State v. Ross Timothy Litke, 2013AP1606-CR, 3/11/14, District 1 (1-judge opinion, ineligible for publication); case activity
This was a potentially interesting Daubert case. The police stopped the car Litke was driving because a tail light was out. The officer noticed Litke’s bloodshot eyes and asked if he had been drinking. “Yes, a few beers,” Litke replied. The officer thus conducted 3 field sobriety tests: the Horizontal Gaze Nystagmus test (which Litke flunked),
SCOTUS: Trial lawyer’s failure to seek funds to hire better expert, based on mistaken belief about funding cap, amounts to deficient performance
Anthony Ray Hinton v. Alabama, USSC 13-6440, 2/24/14 (per curiam), vacating Hinton v. State, __So. 3d__, 2013WL 598122 (2/15/13).
Docket here.
Trial lawyers, listen up. Check your expert witness funding cap before settling for an “expert” you know is sub par.
In 1985, managers of 3 different restaurants were robbed and shot—each with two .38 caliber bullets. The first two managers died.