On Point: Important Posts

This new law review article by Daniel Epps examine the subject in depth. Consider this excerpt from the abstract:

Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless-error when it  analysis applies, and, most fundamentally, what harmless constitutional error even is-what source of law generates it and enables the Supreme Court to require its use by state courts. This Article offers a new theory of harmless constitutional error,

Kerr’s latest post considers 2 recent federal district court decisions on this subject. One raises the question of whether, under the 5th Amendment, the government may compel a suspect to enter a passcode to unlock his device.  The other considers whether the government may use a passcode obtained from a suspect in violation of Miranda to unlock his phone. Read the full post here.

State v. Marque D. Cummings, 2017AP1587-CR, District 1, 4/3/18 (1-judge opinion, ineligible for publication); case activity (including briefs)

This is another one of those cases where the police seized and searched a person for being normal in a high crime area. “But OMG he was wearing a backpack–it might have contained drugs or burglary tools!!!” We are pleased to report that calmer minds prevailed both in the circuit court and the court of appeals.

On March 28, 2018, the court of appeals ordered the publication of the following criminal law related decision:

State v. Chad David Knauer, 2017AP2243-CR, 3/22/18, District 4 (one-judge opinion; ineligible for publication); case activity (including briefs)

Hats off to defense counsel, the circuit court, and court of appeals for the decision in this case. The State charged Knauer with misdemeanor theft of property. Police had interviewed him for just 1 hour at about 11 p.m. at the county jail. He admitted to stealing a trailer and storing it at his aunt’s and uncle’s house. But then police told Knauer that if any other stolen property was found at the same location they would arrest his aunt and uncle. The circuit court held that threatening to arrest Knauer’s relatives when police lacked probable cause that they had committed a crime was an improper interrogation tactic that rendered his confession involuntary. 

State v. Faith N. Reed, 2016AP1609-CR, petition for review of an unpublished court of appeals decision granted 3/13/18; case activity (including briefs)

Issues (composed by On Point):

1. Whether an apartment dweller consented to police entry of his apartment by leading an officer to the door and going in.

2. If such consent was given, whether it was revoked by trying to close the door on the officer.

3. Whether any such consent was free and voluntary where the officer directed the resident to take him to the apartment to speak to someone.

State v. Gary Lee Wayerski, 2015AP1083-CR, petition for review of unpublished court of appeals opinion granted 3/13/18; case activity (including briefs)

Issues (composed by On Point):

Whether trial counsel was ineffective where he did not ask the testifying defendant about the purported confession he gave to a jailhouse snitch, and defendant would have denied the conversation occurred.

Whether the state violated Brady when it did not inform defense that the snitch had pending child-sex charges during the trial.

State v. Johnny K. Pinder, 2017AP208-CR, certification granted 3/14/18; case activity (including briefs)

Issue (from certification)

If a search warrant issued under Wis. Stat. § 968.12 for the placement and use of a GPS tracking device on a motor vehicle is not executed within five days after the date of issuance per Wis. Stat. § 968.15(1) is the warrant void under § 968.15(2), even if the search was otherwise reasonably conducted?

State v. Shawn T. Wiskerchen, 2016AP1541-CR, petition for review of an unpublished court of appeals opinion granted 3/14/18; affirmed 1/4/19; case activity (including briefs).

Issue (composed by On Point):

In State v. Queever, 2016 WI App 87, 372 Wis. 2d 388, 887 N.W.2d 912, the court of appeals required a defendant to pay restitution for a security system that the victim bought before the date of the crime for which the defendant was convicted.

Must Queever be overturned because it is impossible for a crime committed on a certain date to cause losses on an earlier date? If not, what are the limits of Queever and of the definition of “a crime considered at sentencing” for restitution purposes? Can the definition include alleged prior-committed crimes?

State v. C.L.K., 2017AP1414, petition for review of an unpublished court of appeals opinion granted 3/14/18; case activity
Issues:

1. Where, during the grounds phase of a TPR trial, the circuit court errs by directing a verdict in favor of the State without giving the respondent an opportunity to present evidence, has the court committed structural error, or is the error subject to a harmless error analysis?

2. If the error in this case is not structural, then was it harmless?