On Point: 45. WI Supreme Court

State v. Lemberger, 2017 WI 39, April 20, 2017, affirming a one-judge court of appeals decision; 2017AP1452; case activity (including briefs)

The supreme court declares Lemberger’s legal claim “unsettled,” and thus holds his trial counsel did not perform deficiently by not raising it. The court’s opinion, however, fails to present the actual substance of the claim.

Review of a published court of appeals decision; case activity (including briefs)

Issue:

Whether a defendant may, by voluntary absence or other conduct, waive the statutory right to be present at trial before the trial has begun?

Review of a per curiam court of appeals decision; case activity (including briefs)

Issues (composed by On Point based on the petition for review and the state’s response to petition for review)

Is the “greater latitude” rule created by case law regarding admission of other acts evidence in child sex cases codified by § 904.04(2)(b)1., which applies to admission of other acts evidence in cases involving an array of crimes in addition to child sex offenses?

Is evidence of a defendant’s criminal acts committed against a person other than the victim admissible under § 904.04(2)(b)1. to show a generalized motive or purpose by a defendant to “control” a person with whom he is in a relationship?

State v. Brian Harris, 2017 WI 31, 4/7/17, affirming a published court of appeals opinion, 2016 WI App 2; case activity (including briefs)

“This freedom from compelled self-incrimination is one of the nation’s ‘most cherished principles.’ Miranda, 384 U.S. at 458. We are sufficiently solicitous of this protection that we guard it by patrolling a generous buffer zone around the central prohibition.” Majority Op. ¶12. That’s the principle in theory. Here’s how it applies in practice.

State v. Stanley J. Maday, Jr., 2017 WI 28, 4/5/17, reversing a per curiam court of appeals decision, 2015AP366-CR; case activity (including briefs)

This “he said, she said” case resulted in a verdict finding Maday guilty of child sexual assault.  Catherine Gainey, the social worker who conducted a “cognitive graphic interview” of K.L., the alleged victim, testified at trial that there “was no indication” that K.L. had been coached or was being dishonest. Maday claimed ineffective assistance of counsel because his lawyer did not object to this Haseltine evidence. SCOW, voting 5-1-2, nixed that claim. The majority, written by Gableman, says Haseltine does not bar “observations of indications of coaching and deceit” that a social worker makes during the course of a forensic interview.  It only bars an expert’s subjective opinions about a child’s truthfulness. So expect prosecutors to invoke the magic word “indications” early and often. If you feel like shouting “mayday! mayday!” don’t. The majority may have slammed a door on certain objections to Haseltine evidence, but it has unwittingly flung open a window for defense lawyers.

State v. Glenn T. Zamzow, 2017 WI 29, 4/6/17, affirming a published court of appeals decision; case activity (including briefs)

“The Sixth Amendment guarantees that a defendant whose guilt or innocence is at stake at trial may employ the ‘greatest legal engine ever invented for the discovery of truth.’ …. But the Sixth Amendment does not mandate that statements considered at a suppression hearing face the crucible of cross-examination. Nor does the Due Process Clause demand this. Accordingly, we conclude that the circuit court did not deny Zamzow his rights under the Sixth and Fourteenth Amendments to the Constitution by relying on an audio recording of a deceased officer’s statement at the suppression hearing.” (¶31).

State v. Jeffrey P. Lepsch, 2017 WI 27, 3/31/17, affirming a per curiam court of appeals opinion, case activity (including briefs)

This appeal primarily concerns whether trial counsel was ineffective for failing to: (a) object to the seating of biased jurors, and (b) ensure that the trial court properly administered the oath to the venire panel in Lepsch’s presence.  SCOW holds that none of Lepsch’s jurors were biased, and the venire panel was properly sworn. Thus, no ineffective assistance of counsel occurred. Justice Abrahamson’s concurrence acknowledges Wisconsin law governing juror bias appears inconsistent both internally and with federal case law and strives to harmonize it for the bench and the bar.

Ten weeks ago SCOW issued Seifert v. Balink, its first decision interpreting and applying §907.02, the Daubert test for the admissibility of expert testimony. The court split 2-1-2-2 (as in Abrahamson/AW Bradley–Ziegler–Gableman/Roggensack–Kelly/RG Bradley). That generated two On Point posts here and here,  an Inside Track article here and a Wisconsin Lawyer article here.  Today SCOW split 3-3 in Smith v. Kleynerman, which raised two issues regarding the law governing LLCs and a Daubert issue. Click here to see Kleynerman’s brief.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. Whether the prosecutor’s closing argument impermissibly shifted the burden of proof by telling the jury that in order to acquit the defendant they would have to believe the complaining witnesses were lying, that there would have to be evidence of a reason for them to lie, and that the defendant had presented no reason to believe they were lying.
2. Whether the defendant was deprived of the right to effective assistance of counsel because trial counsel did not object to the jury being given unredacted exhibits containing inadmissible information that one complainant had not had sexual intercourse before the assault alleged in this case.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. Was trial counsel ineffective for failing to move to dismiss on First Amendment free speech grounds a disorderly charge that was based on Breitzman’s use of foul language toward her son inside their home?
2. Did the court of appeals misapply the standards for reviewing ineffective assistance of counsel claims by deferring to the legal conclusions in the circuit court’s postconviction ruling?