On Point: 5. Particular issues

State v. Graham L. Stowe, 2021AP431-CR, District 3, 02/17/23 (not recommended for publication); case activity (including briefs)

Graham Stowe was found NGI in 2005 and committed to the Department of Health and Family Services for 39 years and 6 months. Between 2007 and 2019, Stowe filed 10 petitions for conditional release. The same circuit court judge who committed Stowe in 2005 has presided over every subsequent proceeding. After five prior appeals, the court of appeals now agrees with Stowe that the circuit court was objectively biased at his 2019 conditional release hearing based on a totality of comments that demonstrate a “serious risk of actual bias.” As a result, the court reverses the circuit court and remands the case for a new conditional release hearing before a different judge. (Opinion, ¶2).

Nelson Garcia, Jr. v. Brian Foster, 20-CV-335 (E.D. Wis. 11/9/21).

Garcia challenged his robbery conviction on two grounds. (1) He was denied his right to counsel at a post-arrest police line up. (2) He was denied his right to go pro se at trial. While habeas wins are rare, what’s most remarkable is how blatantly the Wisconsin Court of Appeals violated SCOTUS precedent on both issues. To top that, SCOW granted review and then split 3-3 allowing the court of appeals decision to stand. Now, at long last, the Eastern District grants Garcia the relief SCOTUS requires.

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.

Rico Sanders v. Scott Eckstein, 7th Circuit Court of Appeals No. 19-2596 (Nov. 30, 2020)

Sanders was give a 140-year sentence for sexual assaults he committed when he was 15 years old. He’ll be eligible for parole in 2030, when he’s 51. He argues he’s entitled to habeas relief because the Wisconsin Court of Appeals unreasonably rejected his claim that his sentence violates the Eighth Amendment under recent U.S. Supreme Court decisions dealing with life sentences for juveniles. The Seventh Circuit rejects his claim.

Larry H. Dunn v. Cathy Jess, 7th Circuit Court of Appeals No. 20-1168 (Nov. 24, 2020)

Dunn was charged with felony murder and other offenses based on the fact he had struck the victim, who was later found dead from a head injury. In a rare case that clears the high hurdles of both AEDPA and Strickland v. Washington, 466 U.S. 668 (1984), the Seventh Circuit holds his trial lawyer was ineffective for failing to call an expert witness to support his defense that his acts did not cause the victim’s death.

Shan Fieldman v. Christine Brannon, __F.3d__  (7th Cir. 2020)

Shan Fieldman climbed into a truck and told a hit man that he wanted his ex-wife and her boyfriend killed. Turns out the hit man was an undercover cop who videotaped their conversation. At trial the State played the video. Fieldman testified that he did not intend for the hit man to actually commit the murders, but he was barred from fully explaining why. He was convicted of soliciting murder for hire, lost his direct appeal, won habeas relief in the Southern District of Illinois, and now the 7th Circuit has affirmed.

Michael Gilbreath v. Dan Winkleski, Case No. 19-cv-728-jdp (W.D. Wis. Aug. 4, 2020)

Witness credibility was the key issue at Gilbreath’s trial, and his counsel’s failure to present evidence that would have undermined [the complaining witness’s] credibility and bolstered Gilbreath’s defense deprived Gilbreath of a fair trial. The Wisconsin Court of Appeals unreasonably concluded that the failure to present the credibility evidence was a matter of reasonable trial strategy and that the evidence was merely cumulative. Gilbreath is entitled to habeas relief.

Ladarius Marshall v. Scott Eckstein, No. 15-CV-008 (E.D. Wis. Apr. 22, 2020)

Marshall pleaded to homicide and other charges. Before he did so, though, he moved to suppress statements he’d made during more than 12 hours of interrogation at the police station (he was 16 years old at the time). The trial court and our court of appeals held that the interrogating officers “scrupulously honored” Marshall’s multiple assertions that he didn’t want to talk with them anymore. The federal district court finds this conclusion unreasonable because the officers deflected his refusals to talk and cajoled him into continuing. What’s more, the court says that even his later statements–given to officers who did follow Miranda‘s rules–must be suppressed because they were too closely connected to his original, unlawfully-taken statements.

Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020

Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.

State v. Maries D. Addison, 2018AP55-57-CR, 3/26/19, District 1 (not recommended for publication); case activity (including briefs)

The court of appeals agreed that the 17-month delay in bringing Addison to trial was presumptively prejudicial, but based on the unique facts of this case, it held that his speedy trial rights weren’t violated. Addison did a fine job representing himself (he got “not guilty” verdicts on 5 of 22 counts) so his “incompetency to proceed pro se” claim went nowhere. Plus his freedom of religion claim (right to have a Bible with him during trial) failed because his argument was insufficiently developed.