On Point: Important Posts

On March 22, 2020, the supreme court issued an order temporarily suspending or continuing all jury trials scheduled to commence between March 22 and May 22, 2020. As a follow-up, on March 31 the supreme court issued a new order adopting an interim rule that suspends until further notice the following statutory deadlines for the conduct of non-criminal jury trials:

Many thanks to Mike Tobin, retired Deputy State Public Defender and co-author of Wisconsin Criminal Practice and Procedure for today’s thoughtful and timely guest post:

Two main resources are available to assist attorneys in preparing for hearings conducted by video or telephone:

As reported here, effective Monday, March 23, the Department of Corrections has imposed a “moratorium” on prisoner intake for DOC’s prisons and juvenile detention facilities, with the exception of “essential transfers” (which is not defined). The DOC memo is here. That means defendants sentenced to prison will, for now, be kept in the county jail instead of being transferred to Dodge. Internal transfers of DOC prisoners in county jail under a contract with DOC are also suspended.

Due to the public health emergency created by COVID-19, the Wisconsin Supreme Court has decided to limit temporarily the number of people who are physically present in appellate court offices and to modify temporarily certain appellate procedures. For the court’s order, click here. Our summary and explanation is below.

State v. Jamie Lane Stephenson, 2018AP2104, petition to review a published court of appeals decision granted 3/17/20; case activity

Issues:

1. To prove that a person meets the criteria for commitment under Chapter 980, must the state present expert opinion testimony that the person is “dangerous” as defined under ch. 980?
2. Should the standard of review of the sufficiency of the evidence of dangerousness in a Chapter 980 case be changed to require that a reviewing court conduct a de novo review of whether the evidence satisfies the legal standard of dangerousness?

State v. Brian Halverson, 2018AP858-CR, review of a published court of appeals opinion granted 3/17/20; affirmed 1/29/21; case activity (including briefs)

Issues:

Whether a person who is interrogated by police while incarcerated is “in custody” and entitled to a Miranda warning under either the federal or state constitution?

Whether, under the totality of the circumstances, Halverson, who was incarcerated in jail was “in custody” when police interrogated him?

State v. Mitchell L. Christen, 2019AP1767-Cr, 3/17/20, District 4 (1-judge opinion; ineligible for publication); review granted 9/16/16; case activity (including briefs)

Interesting case. Section 941.20(1)(b) makes operating or going armed with a firearm while under the influence of an intoxicant a misdemeanor.  Christen argued that the statute violates the 2nd Amendment “as applied” to anyone who engages in the prohibited conduct while inside his or her home. The State declined to file a response brief, which means it conceded the point. Still, the court of appeals rejected Christen’s argument and affirmed.

State v. Alexander M. Schultz, 2020 WI 24, affirming a published court of appeals opinion; 3/4/20; case activity (including briefs)

In a 4-3 decision, SCOW holds that the State may assert a vague charging period (i.e “late summer to early fall”) for repeated child sexual assault, but then constructively narrow the charging period after trial in order to bring a second prosecution for child sexual assault without violating the Double Jeopardy Clause.

State v. A.A., 2020 WI App 11; case activity

Wisconsin Stat. § 938.355(6)(d)1. sets a maximum length of “not more than 10 days” for a custody sanction that a circuit court may impose on a juvenile who has violated a dispositional order. Is that 10 calendar days? Or, as the state argues, does “day” mean 24 consecutive hours, so that the maximum sanction is 10 consecutive 24-hour periods? It’s a calendar day, essentially, holds the court of appeals.

Demonta Antonio Hall v. Wisconsin Department of Justice, 2020 WI App 12; case activity (including briefs)

In a decision that will certainly benefit some people who were arrested for a crime but never charged, the court of appeals orders the Department of Justice to expunge its records showing Demonta Hall was arrested for two felony offenses that were never prosecuted.