On Point: 30. Pretrial proceedings

State v. Cortez Lorenzo Toliver, 2014 WI 85, 7/23/14, affirming an unpublished per curiam court of appeals decision; majority opinion by Justice Prosser; case activity

When a juvenile is charged with a crime that gives the criminal court exclusive original jurisdiction, § 970.032(1) expressly requires the judge conducting the preliminary hearing to find probable cause for the specific felony that gives the court jurisdiction. In this case the supreme court addresses what happens when the trial judge doesn’t follow the statute’s clear mandate. On Point asked Eileen Hirsch, an attorney with the SPD’s Madison Appellate Office and all-around juvenile law guru, to discuss the decision. Here’s her take:

 State v. O’Brien, et al., 2014 WI 54, 7/9/14, affirming published court of appeals decision; majority opinion by Justice Bradley; case activity

The defendants challenged the constitutionality of recently enacted WI Stat. s. 970.038, which permits the use of hearsay at preliminary hearings, and allows a court to base a finding – that probable cause exists to hold a defendant for trial on a felony charge – entirely on hearsay. The Wisconsin Supreme Court cursorily rejected arguments that the new statute, as applied, violated their rights to confrontation, compulsory process, effective assistance of counsel and due process. Special Guest Marla Stephens, Director of the SPD’s Appellate Division, authored this post about the decision.

State v. John M. Navigato, 2012AP2108-CR, District 2, 4/9/14; court of appeals decision (not recommended for publication); case activity

State v. Teddy W. Bieker, 2012AP2693-CR, District 2, 4/9/14; court of appeals decision (not recommended for publication); case activity

The circuit court, relying on the district attorney’s assertion of the so-called “interlocking confessions” doctrine, denied Navigato’s and Bieker’s motions to sever their trials on homicide,

State v. Jeffrey D. Marker, 2013AP2725-CR, District 2, 3/26/14; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court erred in dismissing a complaint charging Marker with operating under the influence of a controlled substance because the complaint was sufficient to establish probable cause, applying Lofton v. State, 83 Wis. 2d 472, 478, 266 N.W.2d 576 (1978). After police received a tip about a reckless driver,

State v. Francisco Luis Canales, 2013AP1435-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity

Though the state violated its discovery obligation by failing to disclose multiple computer-aided dispatch (CAD) reports describing 9-1-1 calls regarding the incident, the circuit court did not erroneously exercise its discretion in denying Canales’s motion for mistrial after the discovery violation came to light.

A mistrial is appropriate only when there is a “manifest necessity,” for “the law prefers less drastic alternatives,

City of Lancaster v. Todd A. Chojnowski & Eric T. Chojnowski, 2013AP1593 & 2013AP1594, District 4, 2/6/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP1593; 2013AP1594

Arrest under § 968.075, the mandatory arrest law for domestic abuse offenses, doesn’t preclude a charge under city disorderly conduct statute. While § 968.085(8) prohibits the issuance of a “citation” to a person arrested under § 968.075,

State v. Jermaine L. Rogers, 2013AP992-CR & 2013AP993-CR, District 1, 1/14/14; court of appeals decision (not recommended for publication); case activity: 2013AP992-CR; 2013AP993-CR

The trial court properly exercised its discretion in granting joinder under § 971.12(1) of two cases involving human trafficking, sexual assault, attempted pandering, and child enticement charges against two different victims, P.R. and K.D. Relying primarily on State v.

State v. Anica C. C. Bausch, 2014 WI App 12; case activity

Bausch participated in a “Solidarity Sing Along” at the State Capitol in the fall of 2012.  The Capitol Police cited her for violating Wis. Admin. Code ADM sec. 2.14(2)(v). Bausch pled “not guilty” and served the State with requests for admissions, interrogatories, and production of documents.  The State responded with a “Motion in Opposition to Application of Civil Discovery.”

State v. Tina M. Jacobsen, 2014 WI App 13; case activity

Jacobsen was charged with 8 offenses for stealing $500,000 from her employer, and she was convicted on 3 counts.  The charges were based on 289 individual thefts occurring over 3 years.  On appeal she claimed her trial lawyer was ineffective for failing advise her that, and for failing to seek dismissal because, the charges were duplicitous or multiplicitous.  

Review of a published court of appeals decision; case activity

Issue (composed by On Point)

Wis. Stat. § 970.038 (2011-12) makes hearsay evidence admissible at a criminal defendant’s preliminary examination and permits the probable cause determination and bindover decision at a preliminary examination to be based “in whole or in part” on hearsay evidence. Do these provisions violate a criminal defendant’s constitutional rights to confront adversary witnesses,