On Point: Important Posts

State v. Michael L. Washington, 2017 WI App 6, petition for review granted 4/10/17, affirmed, 2018 WI 3; case activity (including briefs)

Michael Washington was set to go on trial for burglary and obstructing an officer. On the morning of the first day of trial, before voir dire, Washington began complaining about his attorney, engaged in a contentious dialogue with the judge, and then “semi was removed and semi left on his own.” Voir dire and trial went on without him; he was occasionally contacted in his jail cell and refused to come back to the courtroom. He was convicted, and on appeal argues that his statutory (as opposed to constitutional) right to presence was violated because the statutory conditions for waiving that right were not met.

Review of a published court of appeals opinion; case activity (including briefs); petition for review

Issues (from the petition):

I. Whether the circuit court properly suppressed Mr. Blackman’s warrantless blood test because he was unconstitutionally coerced into taking the test when he was read the informing the accused form which incorrectly told him that he faced a revocation and other penalties if he refused chemical testing, when he was actually only facing a possible arrest?

II. Whether the circuit court below properly suppressed Mr. Blackman’s blood test where Mr. Blackman was unconstitutionally coerced into taking the blood test, under the totality of the circumstances, when he acquiesced to the unlawful assertion by the officer that they take blood samples in cases like his—in addition to being told that he faced a revocation and other penalties if he refused?

III. Whether section 343.305(3)(ar)2 is unconstitutional on its face and as applied because it coerces consent to otherwise unconstitutional searches without due process of law?

Review of an unpublished court of appeals opinion; case activity (including briefs); petition for review

Issues (composed by On Point):

1.  Whether a driver, who is a non-native speaker of English, consents to a blood draw where, in response to the officer’s question “will you consent” gives an unintelligible answer, then clearly asks “what kind of test?” and “don’t you need a warrant?” and where the driver does not otherwise “resist” or “fight” the blood draw?

2.  Whether a driver’s acquiescence to a blood draw is voluntary when it occurs after he asks the officer “don’t you need a warrant?” and the officer shakes his head “no.”

Lee v. United States, USSC No. 16-327, cert. granted 12/14/16

Question presented (based on the cert. petition):

To establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984), a defendant who has pleaded guilty based on deficient advice from his attorney must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Under this standard, is it always irrational for a noncitizen defendant with longtime legal resident status and extended family and business ties to the United States to reject a plea offer despite strong evidence of guilt because the plea would result in mandatory deportation or permanent exclusion?

Turner v. United States, USSC No. 15-1503, and Overton v. United States, USSC No. 15-1504, cert. granted, consolidated for argument and decision, 12/14/16

Question presented (as formulated by SCOTUS)

Whether the petitioners’ convictions must be set aside under Brady v. Maryland, 373 U.S. 83 (1963).

Foley & Lardner has examined the extraordinary turn over in Wisconsin’s court of appeals judges over the last 10 years.  When Judge Higgenbotham retires, only 2 courts of appeals judges will have more than 10 years experience. Click here for Foley’s post. Looks like 6 of the 16 court of appeals’ judges (including Judge Dugan, Judge Curley’s replacement) were appointed by our current governor.

State v. Anton R. Dorsey, 2015AP648-CR, District 3, 12/6/16 (per curiam; not citable as precedent or for persuasive value), petition for review granted, 4/10/17, affirmed, 2018 WI 10; case activity (including briefs)

You may not cite this per curiam opinion as binding precedent or for persuasive value in any Wisconsin court, see § 809.23(3)(b), but On Point is telling you about it because the court of appeals concludes that the purported “greater latitude” rule in § 904.04(2)(b)1. is not a codification of the “greater latitude” rule created by case law regarding admission of other acts evidence in child sex cases. While you can’t cite this decision for authority, you may and should use the court’s reasoning for its conclusion to counter the claim of a prosecutor or circuit judge that § 904.04(2)(b)1. codifies a “greater latitude” rule.

State v. Richard L. Weber, 11/29/16, 2016 WI 96, reversing a per curiam court of appeals decision, 2014AP304-CR; case activity (including briefs)

A deputy activates his emergency lights upon seeing a car with a defective brake lamp weave over a highway fog line. The car slows for 100 feet, turns right into a driveway, and pulls into a garage attached to a house.  The deputy apprehends the driver inside the garage.  Was there a 4th Amendment violation? 

State v. Tydis Trinard Odom, 2015AP2525-CR; District 2, 11/9/16; certification refused 1/9/17; case activity (including briefs)

Issue:

Does the imposition of multiple DNA surcharges constitute “potential punishment” under WIS. STAT. § 971.08(1)(a) such that a court’s failure to advise a defendant about them before taking his or her plea establishes a prima facie showing that the defendant’s plea was unknowing, involuntary, and unintelligent?

Question presented (as formulated by Scotusblog):

Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”