On Point: 25. Jury

State v. Clifford D. Bvocik, 2010 WI App 49; for Bvocik: James C. Murray

Prosecutorial Misconduct – Closing Argument

Improper prosecutorial closing argument—encouraging jury to draw false inference—requires new trial in interest of justice; State v. Robert H. Weiss, Jr., 2008 WI App 72, controlling:

¶1        State v. Weiss, 2008 WI App 72, ¶¶15-17, 312 Wis. 2d 382,

court of appeals decision (not recommended for publication), reversed, 2011 WI 32; for Burris: Byron C. Lichstein; BiC; Resp.; Reply

Answer to Jury Question – Misleading Definition of “Utter Disregard”
Trial court answer to jury question misleading as to whether jury could consider post-shooting conduct as bearing on “utter disregard” element, entitling Burris to new trial.

court of appeals decision (not recommended for publication)

Closing Argument – Arbitrary Time Limit
30-minute time limit on defense closing upheld, ¶¶20-24. Moreover, majority not persuaded that closing counsel never had opportunity to make would have persuaded jury, ¶25-26. Judge Fine dissents, stressing significance to trial process of closing argument, ¶¶27-32.

 court of appeals decision; for Lesik: Anthony Cotton

Overbreadth challenge to 948.02, sexual assault of a child
Sexual assault (intercourse) of a child, § 948.02, isn’t unconstitutionally overbroad, against a theory that it criminalizes acts undertaken for “proper medical purpose.” Although the statute is silent with respect to medical conduct, potential overbreadth may be cured through judicial construction and the court therefore “conclude(s) here that ‘sexual intercourse’ as used in the sexual assault of a child statute does not include ‘bona fide medical,

Waiver of Escalona argument; claim of self-defense where crime includes “utter disregard of life” element

Click here for court of appeals decision, PFR filed 8/3/09

(opinion originally issued 4/23, withdrawn 5/12, reissued 5/21, withdrawn 6/12, reissued 7/2. Groundhog Day? Not quite: the withdrawn opinions found that trial counsel was ineffective for not seeking a lesser included instruction to reckless injury, but the new opinion rejects that conclusion)

Pro se

Issue/Holding: State failure to argue,

State v. Mark H. Tody, 2009 WI 31, reversing unpublished opinion
For Tody: Byron C. Lichstein, UW Law School

Issue/Holding:

¶32      … The correct principle of law that should have guided the circuit court judge is that a circuit court judge should err on the side of dismissing a challenged juror when the challenged juror’s presence may create bias or an appearance of bias. 

State v. Kelly R. Ferguson, 2009 WI 50, reversing unpublished opinion
For Ferguson: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Where it was clear not only that Ferguson obstructed the police outsideher apartment but also that the jury so found, arguable omission of a “complete” instruction on whether the police acted with lawful authority in entering her apartment was harmless:

¶43      The jury instruction here was a correct statement of the law for police actions outside of Ferguson’s home.

See summary of State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, here.

Omitted Issues – Stalking: Submission to Jury of Prior Conviction for “Violence” Despite Stipulation

State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42

For Warbelton: Paul G. Lazotte, SPD, Madison Appellate

Issue/Holding: On a trial for stalking,

Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification

TPR – Elements, Ground of Continuing Need of Protection and Services, Generally

Issue/Holding:

¶6 There are four elements to this ground for termination. First, the child must have been placed out of the home for a cumulative total of more than six months pursuant to court orders containing the termination of parental rights notice.

State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08
For Van Buren: Waring R. Fincke

Issue/Holding: Counsel’s failure to request a specific unanimity instruction with respect to juror agreement on which of the identified pictures was both harmful and shown to the victim was not prejudicial:

¶22      We reject this claim because Van Buren has not demonstrated the prejudice necessary to show ineffective assistance of counsel.