On Point: F. Instructions

City of Madison v. Jacob Ong, 2015AP1176, 10/20/16, District 4 (1-judge decision; ineligible for publication) case activity (including briefs)

The court rejects all challenges to this pro se appellant’s jury-trial conviction of an ordinance violation for stealing a letter from a mailbox.

Oconto County v. Jonathan E. Van Ark, 2015AP1415, 8/23/16; District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

Van Ark was sitting in his parked pickup truck when a deputy approached him, smelled alcohol, saw his glossy, blood-shot eyes, and observed his slow, slurred speech.  A subsequent hospital blood draw indicated that Van Ark had a .237 BAC. The State charged him with OWI and operating with a Prohibited Alcohol Concentration and moved for directed verdicts on both counts. The circuit court denied a directed verdict on the OWI charge, but granted it on the PAC charge. The court of appeals reversed based on WIS JI–CRIMINAL 2660A.

State v. Rodell Thompson, 2015AP1764-CR, District 4, 8/4/16 (not recommended for publication); case activity (including briefs)

The trial court didn’t erroneously exercise its discretion in deciding to admit other-acts evidence in Thompson’s trial for sexual assault, false imprisonment, and battery, and Thompson’s IAC claims fail for want of prejudice.

Attorney Michael Cicchini and Professor Lawrence White previously documented here that jurors who were told to “search for the truth” were much more likely to convict a defendant even if they had reasonable doubt about his guilt than those who were properly instructed on reasonable doubt. In other words, truth-related language lowers the State’s burden of proof. Their new study confirms their earlier findings, discusses the cognitive link between jury instructions and conviction rates,

McDonnell v. United States, USSC No. 15-474, 2016 WL 3461561 (June 27, 2016), reversing United States v. McDonnell, 792 F.3d 478 (4th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

While he was governor of Virginia, Bob McDonnell, along with his wife, accepted gifts and favors worth about $175,000 from a businessman who was trying to get the state medical schools to run studies on a nutritional supplement his company had developed. As discussed in our post on the cert grant, a jury convicted McDonnell of various honest services fraud and extortion counts in relation to various actions he undertook related to the supplement, including arranging and attending meetings with other government officials about the supplement and hosting a private lunch with the businessman at which checks were given to university researchers.

State v. Michael W. Bryzek, 2016 WI App 48; case activity (including briefs)

Bryzek had already completed most of his alleged acts when a 2010 statute broadened the definition of theft by a bailee; the court of appeals agrees with the circuit court that the jury should have been instructed on the narrower element.

Donovan M. Burris v. Judy P. Smith, 7th Circuit Court of Appeals No. 15-2891, 4/28/16

Burris’s claim that a supplemental instruction to the jury about how to determine “utter disregard for human life” doesn’t present a claim for federal habeas relief because it presents only a claim about an error of state law, not a claim that the instruction violated federal constitutional law.

State v. Phillip Kareen Green, 2015AP1126-CR, 4/26/16, District 1 (not recommended for publication); case activity (including briefs)

Green argues that the evidence was insufficient to convict him of first degree reckless homicide because it didn’t prove he acted with utter disregard for human life. He also argues for a new trial in the interest of justice on the grounds that: 1) the jury wasn’t fully instructed about the interaction between self-defense and the utter disregard element; and 2) important facts were not introduced or placed in proper context. The court of appeals rejects Green’s claims in a decision heavy on facts and light on analysis.

Racine County Human Services Dep’t v. L.H., 2015AP1872, 3/23/16, District 2 (1-judge opinion; ineligible for publication); case activity

During the fact-finding stage of L.H.’s TPR trial, counsel (1) failed to object to evidence that L.H’.s child, C.M., had bonded with his foster parents; (2) failed to object to an inaccurate 5/6ths verdict instruction; and (3) and agreed to only 3 peremptory strikes though L.H. was entitled to 4. The court of appeals nevertheless upheld the order terminating L.H.’s parental rights.

State v. Miguel Muniz-Munoz, 2014AP702-CR, 3/1/16, District 1 (not recommended for publication); case activity (including briefs)

By the time Muniz-Munoz went to trial for first degree intentional homicide, the medical examiner who conducted the autopsy of the victim was dead. The trial court allowed another medical examiner who reviewed the case record to give his independent opinion about the cause of the victim’s death. This did not violate Muniz-Munoz’s right to confrontation.