On Point: 41. Trial Procedures

State v. Gerrod R. Bell, 2018 WI 28, 4/10/18, affirming an unpublished court of appeals opinion, 2015AP2667-2668-CR; case activity (including links)

A defendant is presumed innocent until the State proves him guilty beyond a reasonable doubt. That’s what the Constitution says. Yet, in this child sexual assault case, the State cleverly told jurors that they could not acquit the defendant unless they believed his accusers had lied about the alleged assaults and unless they had evidence of the victims’ motive for lying.  Bell argued that this prosecution strategy impermissibly shifted the burden of proof to him. In a 3-1-1 opinion, SCOW approved the strategy and ruled against him.

State v. Timothy P. Gregory, 2016AP1265-CR, District 2, 3/14/18 (not recommended for publication); case activity (including briefs)

In this lengthy decision, the court of appeals rejects multiple challenges Gregory makes to his convictions for child sexual assault that occurred in 1997.

State v. C.L.K., 2017AP1414, petition for review of an unpublished court of appeals opinion granted 3/14/18; case activity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

State v. Deandre D. Rogers, 2017AP670-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

Evidence that Rogers was identified as a passenger in a vehicle reported stolen was properly admitted in his armed robbery trial because it provided “context” and “background” to one of the robbery charges for which he was on trial. And while the prosecutor made in improper argument in rebuttal closing because it wasn’t based on any evidence whatsoever, the argument wasn’t prejudicial.

State v. Michael L. Washington, 2018 WI 3, 1/9/18, affirming a published court of appeals decision; case activity (including briefs)

The supreme court determines that, despite the absence of any colloquy, a defendant who was not present for his trial waived his statutory right to be there.

State v. A.S., 2017AP1349, District 1, 1/9/18 (one-judge decision; ineligible for publication); case activity

The circuit court properly exercised its discretion in refusing to adjourn the disposition hearing in A.S.’s termination of parental rights proceeding after A.S. failed to appear, and the subsequent termination order didn’t violate A.S.’s rights to be present and to participate in the hearing.

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.

Marquette County v. T.F.W., 2017AP5, 6/8/17, District 4 (1-judge opinion, ineligible for publication); case activity

T.F.W. objected to the having his treating psychiatrist testify by telephone at his Chapter 51 extension hearing. He cited both §885.60 and “due process.” He did not specifically cite §807.13(2)(c), which outlines 8 factors a trial court should consider before allowing telephonic testimony. The court of appeals held that T.F.W. forfeited his §807.13(2)(c) argument perhaps without realizing (or perhaps not acknowledging) that the statute was enacted to protect due process rights.

The 9th Circuit, en banc, just issued a blockbuster 6-5 decision in United States v. Sanchez-Gomez, Appeal No. 13-50562.  Routine shackling of defendants in the courtroom violates the 5th Amendment. It doesn’t matter whether there is a jury present or not. The trial court must make an individualized finding of dangerousness. Judge Kozinski, author of the majority opinion, wrote:

Crawford County v. E.K., 2016AP2063, 5/18/17, District 4 (1-judge opinion, ineligible for publication); case activity

This case presents multiple SCOW-worthy issues. One is an interesting constitutional dilemma. The County sought to extend E.K.’s commitment and involuntary medication order and, as evidence, offered threatening emails that E.K. had allegedly sent. Defense counsel objected because the emails had not been authenticated. So the County called E.K. to the stand to authenticate them. Defense counsel objected on 5th Amendment grounds. This prompted E.K. to say: “I’ll waive that. Yes, those are my emails.”