On Point: M. Subpoenas

Fond du Lac County v. John Anthony Hettwer, 2020AP 1422, 7/21/21, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

The county charged Hettwer with OWI- and PAC-first. At the first attempted trial, the jury was sworn, but before opening statements could begin, the county told the court that the phlebotomist it intended to call as a witness was home with a sick child, and asked that she be allowed to testify by telephone. Hettwer objected and ultimately the court declared a mistrial. (No double-jeopardy problem here because an OWI-1 is non-criminal.)

Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020

Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.

State v. Keimonte Antoine Wilson, Sr., 2017 WI 63, 6/22/17, reversing a per curiam court of appeals decision; case activity (including briefs)

The supreme court holds that the provisions of § 885.03 govern service of a subpoenas in criminal cases, not the provisions of § 805.07.

On review of a per curiam opinion; case activity (including briefs)

Issues:

1. Which statute governs the service of a subpoena in a criminal case: §885.03 which provides that a subpoena may be left at a witness’s abode or §805.07 and §801.11 which require reasonable diligence to personally serve a witness before leaving the subpoena at her abode?

2. Whether trial counsel was ineffective for failing to argue that he had properly served the witness with a subpoena per §885.03? If not, then whether trial counsel was ineffective for failing to attempt to serve the witness personally before leaving the subpoena at her abode as required by §801.11.