On Point: 25. Jury

Looking for a creative objection? Consider this excerpt from the abstract on Michael Cicchini’s new article,  Spin Doctors: Prosecutor Sophistry and the Burden of Proof, forthcoming in the University of Cincinnati Law Review.

In two recently published studies, mock jurors who received truth-based instructions convicted at significantly higher rates than those who were simply instructed on reasonable doubt. Jurors who received the truth-based instructions were also far more likely to mistakenly believe it was proper to convict even if they had a reasonable doubt about guilt.

State v. Ronald Lee. Gilbert, 2016AP1852-CR, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Congratulations to Quarles & Brady, which took this appeal pro bono, for scoring a defense win! Gilbert, who was convicted trafficking a child and related crimes, argued that his trial counsel was ineffective for failing to (1) challenge the admission of cellular phone data testimony, (2) demand discovery before trial, (3) impeach the State’s star witnesses with prior inconsistent statements, and (4) strike a biased juror. Gilbert further alleged that his trial counsel made improper statements during his closing. The court of appeals granted a Machner hearing on all claims except the one regarding juror bias.

State v. Joseph T. Langlois, 2018 WI 73, 6/20/18, affirming a published court of appeals decision, 2017 WI App 44; case activity (including briefs)

A majority of the supreme court concludes that the jury instructions given in this case, when viewed in their entirety, accurately stated the law the jury needed to decide the case. Two dissenting justices disagree, concluding that when considered in their entirety, the instructions could have led the jury astray.

State v. R.D.W., Sr., 2018AP351, 6/19/18, District 1, (1-judge opinion, ineligible for publication); case activity (including briefs)

There were only 3 black jurors among the 25 on the panel for the grounds trial in this TPR cases. The ADA used peremptory challenges to strike all of them. The ensuing Batson hearing concerned only one–Juror 2. As proof of non-discriminatory intent, the DA filed a copy of her NAACP membership card, showed her Coretta Scott King tattoo, and explained why she struck Juror 2.

State v. Devin T. White, 2016AP119-CR, 4/10/18, District 1, (not recommended for publication); case activity (including briefs)

White was convicted of 1st-degree reckless homicide. He argued that the trial court misapplied the law governing self-defense and improperly instructed the jury. The court of appeals repeatedly struggled to determine the thrust of his argument, but it appeared to be this:

¶15 Under White’s interpretation of the law, the State must prove beyond a reasonable doubt that he did not have these actual beliefs; therefore, the trial court erred in failing to instruct the jury of the State’s burden and that White could not be found guilty if the State did not prove he did not have these actual beliefs. Under White’s interpretation of the law, his actual belief controls, not whether his belief was reasonable.

The court of appeals also admonished White’s appellate counsel.

State v. Roman D. Lovelace, 2017AP943-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

During deliberations at Lovelace’s trial on a charge of burglary as party to a crime, the jury sent a note to the judge asking how burglary and party to a crime “relate” and whether they were “two separate charges or one in the same.” Without consulting the parties the court sent a written response telling the jury to review the written instructions they were given. (¶4). The judge shouldn’t have done that without consulting Lovelace’s attorney, but the error was harmless.

State v. James C. Faustmann, 2017AP1932-CR, District 2, 3/7/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Under the test for lesser included offenses under § 939.66(1), disorderly conduct in violation of § 947.01(1) isn’t a lesser-included offense of unlawful use of a computerized communication system in violation of § 947.0125(2)(a).

Who wants to preserve a really provocative issue at their next trial? The Unconstitutionality of Criminal Jury Selection, by Brittany Dietch, a Harvard Law fellow, argues that because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power.

State v. Joseph T. Langlois, 2016AP1409-CR, petition for review of a published court of appeals decision granted 12/13/17; case activity (including briefs)

Issues (composed by On Point):

1. Was trial counsel ineffective for failing to object to the jury instructions for self defense and accident on the lesser included charge of homicide by negligent handling of a dangerous weapon?

2. Alternatively, is a new trial in the interest of justice warranted because the erroneous jury instructions on self defense and accident prevented the real controversy from being tried?

3. Did the erroneous instructions on self defense and accident violate due process by relieving the state of the burden to prove every element of the offense?

4. Was the evidence sufficient to support the jury’s verdict of guilty of homicide by negligent handling of a dangerous weapon?

State v. Kyle Lee Monahan, 2014AP2187, petition for review of an unpublished COA decision granted 11/13/17; case activity (including briefs)

The parties and the state agree that the circuit court erred in excluding Kyle Monahan’s proffered GPS evidence from his trial; the only dispute in this appeal is whether that error is harmless beyond a reasonable doubt.