On Point: 30. Pretrial proceedings

State v. William J. Thurber, 2015AP161-CR, 7/27/16, District 2 (not recommended for publication); case activity (including briefs)

“Was Thurber’s trial a game being played or was it a trial designed to search for the truth? Thurber is certainly no angel as evidenced by his current long-term incarceration for crimes apart from this case. I believe the justice system best defines itself by scrupulously adhering to high standards when the worst of the worst comes before it. We travel a slippery slope when we excuse mistakes by the judiciary, the State, and defense counsel because we ‘know’ the defendant is a criminal.” Slip op. ¶91. (Reilly, J. dissenting).

A prosecutor’s exercise of discretion can trigger or avoid collateral consequences for your client. This new law review article analyzes how and why prosecutors make these decisions.

State v. Patrick J. Lynch, 2016 WI 66, 7/13/16, affirming (for all practical purposes) a published court of appeals decision, 2015 WI App 2, 359 Wis. 2d 482, 859 N.W.2d 125; case activity (including briefs)

A very divided supreme court once again declines to overrule State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, and leaves the current standard and remedy intact—or, as the mandate puts it, “the law remains as the court of appeals has articulated it.” But four separate writings totaling 135 pages make it clear Shiffra in its current form will certainly be subject to challenge again.

State v. Brian R. Corvino, 2016 WI App 52; case activity (including briefs)

This decision examines § 967.055(2)(a), which requires the State to apply to the circuit court before amending an OWI charge. The court of appeals found that amending the charge here would be inconsistent with the public policy of deterring drunk-driving and held that the circuit court had the inherent authority to order the State to file an Information charging Corvino’s 4th OWI as a felony.

State v. Salinas, 2016 WI 44, 5/26/2016, reversing an unpublished per curiam court of appeals decision; case activity (including briefs)

In which our so-called law-developing court does not develop the law of joinder under § 971.12(1)—and even leaves it less clear than it used to be.

State v. L.C., 2016AP81, 5/25/16, District 2 (1-judge opinion; ineligible for publication; case activity

That sums up the court of appeals’ decision in this juvenile delinquency case.  The State failed to timely provide the defense with a copy of L.C.’s recorded confession and a witness list before trial. The circuit court and court of appeals shrugged off these discovery violations.

State v. Tony Phillip Rogers, 2015AP921-CR, 4/12/16, District 1 (not recommended for publication); case activity (including briefs)

Though the complainant in Rogers’s child sexual assault prosecution made statements to her mother about “hearing voices” and needing mental health assistance, trial counsel was not deficient for failing to move for an in camera review of her treatment records because he could not have made the materiality showing needed under State v. Shiffra, 175 Wis. 2d 600, 608-09, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, ¶¶32-34, 253 Wis. 2d 356, 646 N.W.2d 298.

State v. Raymond L. Nieves, 2014AP1623-CR, 4/5/16, District 1 (recommended for publication, but not published); petition for review granted 9/13/16; case activity (including briefs).

This case explores the line between Bruton v. U.S., 391 U.S. 123 (1968)(which holds that at a joint trial the confession of one defendant is inadmissible against the co-defendant unless the confessing defendant testifies and is subject to cross examination) and Richardson v. Marsh, 481 U.S. 200 (1987)(which holds that a non-testifying defendant’s written confession can be admitted if it is redacted to eliminate all references to his co-defendant). Nieves and his codefendant, Maldonado, were accused of 1st degree intentional homicide. The trial court denied severance and allowed a witness testify about Maldonado’s confession while repeatedly use the term “they” (implicating Maldonado and Nieves). The court of appeals ordered a new trial because admission of the confession evidence violated the Confrontation Clause.

State v. A.C., 2015AP1604, 1/20/16, District 1 (one-judge decision; ineligible for publication); case activity

A petition alleging A.C. was delinquent contained sufficient facts to establish probable cause that A.C. acted as a party to the crime of operating a motor vehicle without the owner’s consent.

State v. Gregory Tyson Below, 2014AP2614-2616-CR, 1/12,16, District 1 (not recommended for publication); case activity, including briefs

This was a high profile case in Milwaukee. Below was convicted of 29 charges of kidnapping, strangulation and suffocation, sexual assault, battery, reckless injury and solicitation of prostitutes. He appealed and asserted 4 claims for a new trial. The court of appeals rejected all of them.