On Point: Important Posts

State  v. Catherine Cuskey Large, 2019AP1966-CR, 8/13/20, District 4 (1-judge opinion, ineligible for publication; case activity (including briefs)

The court of appeals correctly affirmed the circuit court’s decision to suppress OWI evidence in this case, where an officer admitted that the New Glarus Police Department’s “protocol” was to administer PBTs on motorists whether they had probable cause for OWI or not. But court of appeals did so by taking a heavy-handed approach to waiver, a rule of administration that appellate courts have the discretion to apply or not.

Rock County v. R.J., 2020AP93, 8/13/20, District 4 (1-judge opinion, ineligible for publication); case activity

Thank heavens this opinion is not published. R.J’s initial commitment expired before he filed his notice of appeal. According to the court of appeals, R.J. should have sua sponte addressed mootness in his initial brief–before the County ever argued the point. Because R.J. waited to see whether the County would even raise mootness and then addressed the matter in his reply, the court of appeals dismissed his appeal. The court of appeals also made an error of law regarding the “contemporaneous objection” requirement.  Hopefully, R.J. will move for reconsideration or petition for review.

On July 29, 2020, the court of appeals ordered publication of the following criminal law related cases:

State v. Dawn M. Prado, 2020 WI App 42 (striking down implied consent law for unconscious drivers)

State v. Mark J. Bucki, 2020 WI App 43 (dog sniff evidence need not be corroborated to be admissible)

Winnebago County v.

Danny Wilber v. Michael Thurmer, Case No. 10-C-179 (E.D. Wis., Aug. 4, 2020).

It’s said that defendants having meritorious postconviction claims are more likely to win relief on a habeas petition in federal court than on direct appeal in Wisconsin’s appellate courts. This decision could be a poster child for that theory.  On Point last reported on Danny Wilber’s case in 2018 when the court of appeals rejected seven §974.06 claims and affirmed his conviction for 1st degree homicide. Judge Griesbach just granted Wilber’s habeas petition and ordered a new trial.

State v. Darrin Stingle, 2019AP491, District 3, 7/28/20 (1-judge opinion, ineligible for publication); case activity (including briefs)

Stingle is not the typical subject of an On Point post. He owns farmland in Outagamie County, and the DNR cited him for discharging fill material into wetlands on it. At a 1-day bench the trial judge twice made comments suggesting that he had prejudged the case. The court of appeals reversed and remanded for a new trial before a different judge. It also admonished (but did not sanction) the State’s appellate lawyer for requesting an extension two weeks after its deadline for filing a response brief.

SCOWstats recently posted a three-part analysis of the 2019-2020 term. The first post noted the plunge in SCOW’s output this year. It issued only 45 opinions. The record low is 43. Indeed, since 1971 the number of opinions is, à la a certain Bruce Springsteen refrain, going down, down, down down. Then there’s this shocker: Justice Hagedorn actually voted with Justices A.W. Bradley and Dallet more often than he did with R.G. Bradley! Will this trend continue now that Karofsky is in and Kelly is out?

Waupaca County v. K.E.K., 2018AP1887, petition for review of an unpublished court of appeals decision granted 7/24/20; case activity

Issues presented:

1. Did the circuit court lose competency to conduct a recommitment hearing because the County did not file the evaluation of K.E.K. at least 21 days before the expiration of her commitment, as required by § 51.20(13)(g)2r.?
2. Is the recommitment standard in § 51.20(1)(am) facially unconstitutional under the 14th Amendment  because it violates the guarantees of substantive due process and equal protection of the law or abridges the privileges or immunities of citizens?
3. Is the recommitment standard in § 51.20(1)(am) unconstitutional as applied to K.E.K.?

SCOW addressed the elements of a criminal legal malpractice claim last month in Skindzelewski v. Smith, 2020 WI 57, __ Wis. 2d __, __ N.W.2d__. One element is that the criminal defendant/malpractice plaintiff must prove that he was actually innocent of the charge in his underlying criminal case. Last week, the court of appeals certified a follow up question to SCOW: What if the criminal defendant/malpractice plaintiff was charged with multiple crimes and can show actual innocence as to some, but not all, of the charges against him in the underlying criminal case? See Jama I. Jama v. Jason C. Gonzalez and WILMIC, Appeal No. 2019AP629 (July 9, 2020).

State v. Ryan M. Muth, 2020 WI 65, reversing a per curiam court of appeals decision; case activity (including briefs)

Muth drove while intoxicated and caused the death of T.K. About a month later T.K.’s adult children reached a settlement with Muth’s insurer under which the children received the maximum payout under Muth’s policy as settlement for all claims against Muth. (¶3). Or so Muth thought. A majority of the supreme court holds that, because Muth was later convicted of homicide by intoxicated use of a vehicle, he can also be ordered to pay more money to the children as restitution under § 973.20.

State v. Alan M. Johnson, 2020 WI App 50, state’s petition for review granted, 9/16/20, affirmed in part, reversed in part, 2021 WI 61; case activity (including briefs)

Johnson killed his brother-in-law, K.M., while he was in K.M.’s house, uninvited, to look to see whether K.M. had child porn on his computer. The court of appeals orders a new trial for Johnson because the trial court erred in denying Johnson’s perfect self-defense instruction and lesser-included offense instruction and in excluding evidence that there was, in fact, child porn on K.M.’s computer.