On Point: 25. Jury

State v. Roshawn Smith, 2012 WI 91, reversing in part, affirming in part unpublished decision; case activity

Standard of Review: Sufficiency of Evidence 

¶29  We understand Smith’s central argument regarding the standard of review on the evidentiary question to be summed up in the proposition that a jury verdict of guilt[9] must be reversed on appeal if “[t]he inferences that may be drawn from the circumstantial evidence are as consistent with innocence as with guilt.” 

Southern Union Company v. United States, USSC No. 11-94, 6/21/12, reversing 630 F.3d 17 (1st Cir 2010)

Criminal fines, no less than length of imprisonment, come within the “Apprendi” doctrine, such that a fine beyond the maximum statutory amount must be based on facts decided by the jury. Southern Union was tried for violating environmental laws carrying a fine of up to $50,000 per day in violation.

State v. James E. Emerson, 2011AP1028-CR, District 3, 6/26/12

court of appeals decision (not recommended for publication); case activity

Counsel – Substitute 

Given findings made by the lower court after an evidentiary hearing, the court of appeals upholds denial of counsel’s motion to withdraw: counsel was prepared for trial; “(t)his was a dilatory tactic by the defendant,” on the eve of trial after the charge had been pending for some time;

Question Presented:

Whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period — a fundamental due process question that is the subject of a well-developed circuit split.

on review of published decision; for Novy: Bridget E. Boyle; case activity

Rebuttal – Evidence Excluded from Case-in-Chief for Discovery Violation / Sleeping Juror 

Issues (Composed by On Point) caution: issue-identification necessarily speculative; check case activity link after briefs filed for verification of issues: 

1. a) Whether evidence ruled inadmissible during the State’s case-in-chief as a sanction for violating discovery rules is thereby rendered inadmissible at all stages,

State v. Joel Joseph Lobermeier, 2012 WI App 77 (recommended for publication); for Lobermeier: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

Appellate Procedure – Waiver – Jury Instructions 

Failure to object to a jury instruction amounts to a failure to preserve for review an asserted objection, which must therefore be reviewed in the context of ineffective assistance of counsel. Nonetheless, failure to object to a “material variance”

seventh circuit court of appeals decision

Habeas Review – Batson Claim 

The State’s pattern of peremptory strikes – at least 15, possibly 17, out of 20, directed at African-Americans – was so “disproportionate” as to “give[] rise to an inference of discrimination.” This is so, despite Harris limiting his challenges to 9 of these 17 strikes: “that does not make the pattern of strikes any less probative.” The strongly deferential nature of habeas review notwithstanding,

State v. Susan M. Thorstad, 2011AP2854-CR, District 4, 5/31/12

court of appeals decision (1-judge, not publishable); for Thorstad: Charles W. Giesen; case activity

Mistrial was granted after the arresting officer, in contravention of pretrial order, testified that this was Thorstad’s second OWI. However, the officer was unaware of the order, because the prosecutor had failed to advise of same, an omission the trial court attributed to “laxness on the part of the State.” The trial court then ruled that,

Alex Blueford v. Arkansas, USSC No. 10-1320, 5/24/12, affirming 2011 Ark. 8

Double Jeopardy doesn’t bar retrial on greater offenses, despite jury foreperson’s report of unanimous votes against those charges, after ensuing deadlock resulted in mistrial.

Blueford’s primary submission is that he cannot be retried for capital and first-degree murder because the jury actually acquitted him of those offenses. See Green v.

State v. Darryl P. Benson, 2010AP2455-CR, District 1, 5/8/12

court of appeals decision (not recommended for publication); for Benson: Mary Scholle, SPD, Milwaukee Appellate; case activity

Sexual assault charges were not duplicitous, and in any event, potential unanimity problem was resolved by the instructions:

¶17      To begin, we conclude that the amended information properly notified Benson of the charges against him.  The counts were set forth with enough specificity to allow Benson to plead and defend himself and to protect him from being tried twice for the same offense.