On Point: 5. Inaccurate information

State v. Thomas G. St. Peter, 2016AP683-CR, District 1, 4/18/17 (one-judge decision; ineligible for publication); case activity (including briefs)

St. Peter is entitled to a new sentencing hearing because the judge violated his due process rights when it relied on inaccurate information to jump the parties’ joint recommendation for time served and impose more jail time. State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1 (sentencing based on inaccurate information violates due process). Not only that, but the judge erroneously exercised his sentencing discretion by failing to link the relevant facts and factors of the case to the standard sentencing objectives. —And you thought an erroneous exercise of sentencing discretion was as mythical a beast as a unicorn!

State v. David L. Johnson, 2015AP2605-CR, 4/4/17, District 1 (not recommended for publication); case activity (including briefs)

A jury found Johnson guilty of aggravated battery and false imprisonment but acquitted him of sexual assault and strangulation. The court imposed 2 consecutive 6-year sentences.  Johnson appealed and argued that the postconviction court erred in denying his claim for ineffective assistance of trial counsel without a hearing, imposing a DNA surcharge in violation of the ex post facto clause, and in denying resentencing. 

Last summer, SCOW held that, if used properly, a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate due process. See State v. Loomis and our post. Loomis filed a petition for writ of certiorari which presents this question for review:

State courts increasingly are relying on risk assessment instruments at sentencing. When the risk assessment instrument used is proprietary, as the Correctional Offender Management Profiling for Alternative Sanctions (“COMPAS”) software is, defendants have very little information about how the risk is analyzed. Is it a violation of a defendant’s constitutional right to due process for a trial court to rely on such risk assessment results at sentencing:

a.  because the proprietary nature of COMPAS prevents a defendant from challenging the accuracy and scientific validity of the risk assessment; and

b.  because COMPAS assessments take gender and race into account in formulating the risk assessment?

SCOTUS ordered the State of Wisconsin to respond to the petition, which according to this study, happens in maybe 2-3% of cases. But today SCOTUS took an even more unusual step by issuing a “CVSG”–a call for the views of the acting U.S. Solicitor General, even though the United States is not a party to Loomis v. Wisconsin.

State v. Matthew Allen Lilek, 2014AP784-CR, 10/4/16, District 1 (not recommended for publication); case activity (including briefs)

Lilek’s trial counsel raised his competency to stand trial and the court-appointed expert found him incompetent and unlikely to become so. The state, dissatisfied with that result, requested another evaluation, and the court obliged. This new evaluation reached the opposite conclusion, and Lilek was eventually found competent. Is this OK?

State v. Patricia A. Enriquez, 2015AP1850-CR, District 2, 7/27/16 (not recommended for publication); case activity (including briefs)

After Enriquez made a statement at her sentencing for delivering nonnarcotic controlled substances, the sentencing judge presented the parties with information he had uncovered based on his own internet searches. He claimed the information showed that Enriquez’s misrepresented facts about her nursing license status in Texas and Illinois. Finding that Enriquez’s character for honesty was “miserable” based in part on this ex parte research, the judge sentenced her to consecutive terms of sixty-six months’ imprisonment, far beyond what the state had recommended. But the information the judge dredged up was inaccurate, and because the court relied on that misinformation in sentencing her, Enriquez is entitled to be resentenced.

State v. Eric L. Loomis, 2016 WI 68, 6/13/06, on certification from the court of appeals, case activity (including briefs)

The developer of COMPAS says that he didn’t design it to be used in sentencing, and he won’t disclose its “trade secret” algorithm. See Pro Publica interview here. But in a 7-0 decision (with 2 concurrences) SCOW holds that if used properly, observing certain “limitations and cautions,” a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate due process. Slip op. ¶8.

State v. Leopoldo R. Salas Gayton, 2016 WI 58, 7/6/16, affirming an unpublished court of appeals opinion, 2014 WI App 120, 358 Wis. 2d 709, 856 N.W.2d 345; case activity (including briefs)

SCOW took this case to address “whether a sentencing court may rely on a defendant’s illegal immigrant status as a factor in fashioning a sentence.” See here. In a 6-0 decision, the answer, at least on the facts of this case, is that a Wisconsin court may sentence a defendant more harshly because he is an “illegal alien.” The concurrence by Justice A.W. Bradley provides guidance to lower courts and defense attorneys about how to handle immigration status at sentencing.

State v. Loomis, which SCOW will soon decide, is being closely watched around the country. The case challenges the sentencing court’s use of an algorithm to predict the defendant’s risk of reoffending. Today’s New York Times discusses Loomis and notes that algorithms also use predictive data to decide which streets to patrol, to compile lists of people most likely to shoot or be shot, and so forth.

City of Milwaukee v. D.S., 2015AP1634, 2/2/16, District 1 (one-judge opinion; ineligible for publication); case activity

D.S., a juvenile, was ordered to register as a sex offender for life. On appeal, he argued that the circuit court relied on two types of inaccurate information: (1) a report, prepared by Dr. Paul Hesse, regarding the recidivism rate for juvenile sex offenders at Lincoln Hills, and (2) misinformation about the meaning of D.S.’s JSOAP-II scores.  He lost on both counts.

On review of a court of appeals certification; case activity

Issue (from certification)

Does a defendant’s right to due process prohibit a circuit court from relying on COMPAS assessments when imposing sentence, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account.