On Point: 23. Judge

State v. Mark D. Jensen, 2011 WI App 3; prior history: 2007 WI 26; for Jensen: Terry W. Rose, Christopher William Rose, Michael D. Cicchini; case activity; (Jensen BiC not posted); State Resp.; Jensen Reply

Confrontation – Generally

The Confrontation Clause regulates testimonial statements only, such that nontestimonial statements are excludable only under hearsay and other evidence-rule ¶¶22-26,

State v. Morris L. Harris, 2009AP2833-CR,  District 1, 10/13/10

court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply

Lesser-Included Instruction – Battery

Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense,

State v. Roger D. Godwin, No. 2009AP2999-CR, District 4, 8/5/10

court of appeals decision (1-judge, not for publication); pro se

Recusal – Waiver

¶10      Godwin argues that Judge VanDeHey should have recused himself from the case because one of the judge’s colleagues, Judge Curry, and other courthouse staff were Godwin’s victims in the bomb threat case. The State argues that the judge was not required to recuse under WIS.

State v. James Robert Thomas, No. 2010AP332-CR, District III, 7/27/10

court of appeals decision (1-judge, not for publication); for Thomas: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply

The sentencing court exhibited objective bias, requiring resentencing, when it imposed the maximum on sentencing after revocation, given the court’s threat when it placed Thomas on probation to do just that if his probation were revoked.

2010 WI 61 (Abrahamson, CJ, Bradley, Crooks, JJ); 2010 62 (Prosser, Roggensack, Ziegler, JJ); Judicial Conduct Panel Findings, etc.; WJC Brief; Resp.; WJC Reply

Judicial Discipline – Campaign-Related Misconduct

The court splits 3-3 on whether Justice Gableman’s infamous “loophole” ad violated the Judicial Code. The Chief, et al. (61 bloc), say it did:

We three,

State v. Joshua D. Conger, 2010 WI 56, on certification; for Conger: Anthony L. O’Malley; Brief (State); Brief (Conger); Brief (Judge Grimm); Reply (Conger); Amicus (Prosecution Project, UW)

Plea Bargain – Rejection

A circuit court has post-arraignment authority to reject a proposed plea bargain that would result in amendment to the charge; State v.

7th circuit court of appeals decision

Judges – Elections – Partisan Affiliation, Endorsements

The judicial candidate partisan affiliation ban, SCR 60.06(2)(b)1, violates the first amendment.

The crux of the state’s concern here seems to be that a judge who publicly affiliates with a political party has indicated that he is more inclined toward that party’s stance on the variety of legal issues on which that party has a position.

Wisconsin supreme court order

The underlying question is whether Justice Roggensack “previously handled” Henley’s earlier appeal when she was a court of appeals judge; if so, then by statute she must be disqualified from participating in his now-pending appeal. She declined to disqualify herself in a memorandum decision, 2010 WI 12. Further background, here. And here, especially with respect to State v.

court of appeals decision (3-judge, not recommended for publication); for Sterling: Dianne M. Erickson; BiC; Resp.; Reply

Charging Decision – Judicial Involvement
Increase in the charge, following trial judge’s veiled suggestion to the prosecutor that such an increase would be appropriate, wasn’t occasioned by judicial interference with prosecutorial discretion, ¶¶16-22.

Initially charged with first-degree reckless injury, Sterling was ultimately convicted on an amended charge of attempted first-degree intentional homicide.

court of appeals decision (3-judge; not recommended for publication)

Machner Hearing
Postconviction motion conclusory, didn’t require Machner hearing on effective assistance.

Recusal
Judicial comments reflecting attempt to get Jackson to tell truth in connection with asserted problems with lawyer didn’t establish judicial bias.

Sentencing
Sentence taking into account primary factors and much less than maximum penalty not erroneous exercise of discretion.