On Point: 45. WI Supreme Court

State v. Derik J. Wantland, 2014 WI 58, 7/11/14, affirming a published court of appeals decision; majority opinion by Justice Ziegler; case activity

A four-justice majority of the supreme court holds that a police officer lawfully searched a briefcase found in a vehicle during a traffic stop because the driver consented to a search of the car and the passenger did not unequivocally withdraw the consent given by the driver. Three dissenting judges take a very different view, concluding that under the totality of the circumstances, a reasonable officer should have realized that Wantland was withdrawing consent to a search of the briefcase.

State v. Rafeal Lyfold Myrick, 2014 WI 55, 7/10/14, affirming a published court of appeals decision; majority opinion by Justice Roggensack; case activity

When does negotiation become agreement? In State v. Myrick, the Wisconsin Supreme Court’s resolution of this question was critical in determining whether the State could use incriminating statements that the defendant had made at a co-defendant’s preliminary hearing. The issue arose because the plea negotiations (one theory) or the plea agreement (alternate theory) fell apart, leading to the defendant’s trial on the original homicide charge.  On Point’s Special Guest Michael Tobin, Deputy SPD, offers his take on the issues.

 State v. O’Brien, et al., 2014 WI 54, 7/9/14, affirming published court of appeals decision; majority opinion by Justice Bradley; case activity

The defendants challenged the constitutionality of recently enacted WI Stat. s. 970.038, which permits the use of hearsay at preliminary hearings, and allows a court to base a finding – that probable cause exists to hold a defendant for trial on a felony charge – entirely on hearsay. The Wisconsin Supreme Court cursorily rejected arguments that the new statute, as applied, violated their rights to confrontation, compulsory process, effective assistance of counsel and due process. Special Guest Marla Stephens, Director of the SPD’s Appellate Division, authored this post about the decision.

State ex re. Lorenzo D. Kyles v. William Pollard, 2013 WI 38, reversing an unpublished court of appeals decision; case activity

Settling a somewhat obscure but still important point of appellate procedure, the supreme court unanimously holds that when a defendant seeks to reinstate the deadline for filing a notice of intent to pursue postconviction relief under § 809.30(2)(b) based on an allegation that counsel was ineffective for failing to file a timely notice, he should file a habeas petition in the court of appeals as provided under State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).

On review of an unpublished court of appeals decision; case activity

Issue (composed by On Point)

Was there sufficient evidence to establish Michael H. was “dangerous” under § 51.20(1)(a)2.a. or c., based either on his “threats” of suicide or a pattern of acts or omissions showing such impaired judgment that there is a substantial probability of physical impairment or injury?

On review of an unpublished court of appeals decision; case activity

Issue (composed by On Point)

Did the inclusion in the PSI of statements Alexander made to his probation agent, and the trial court’s consideration of the statements at sentencing, violate Alexander’s right against self-incrimination?

State v. Jacqueline Robinson, 2014 WI 35, affirming an unpublished court of appeals decision; case activity

From the majority opinion, this looks like an open and shut case. When sentencing Robinson, the trial judge said he misunderstood the sentence she had received in another matter. One day later, he recalled the case and increased the sentence. No double jeopardy violation here, says the majority, Robinson could not yet have had a legitimate expectation of finality in her sentence. The 28-page concurrence and 20-page dissent suggest this case isn’t so simple.

Office of Lawyer Regulation v. Peter J. Thompson, 2014 WI 25; case activity

The supreme court rejects OLR’s attempt to discipline a lawyer who disclosed confidential client information in advance of a Machner hearing, finding the context in which the disclosure was made to be “of critical importance” to its determination (¶26) while also reminding lawyers to “proceed with caution when considering disclosure of confidential client information in response to a claim of ineffective assistance of counsel” (¶1).

Office of Lawyer Regulation v. Daniel W. Johns, Jr., 2014 WI 32; case activity

Because OLR was actually informed of an attorney’s felony conviction, the attorney’s failure to notify OLR of the conviction in writing under SCR 21.15(5) is “too technical” a violation to justify discipline. In addition, the nature of the conviction didn’t adversely reflect on the attorney’s honesty, trustworthiness, or fitness as a lawyer, so discipline was not merited under SCR 20:8.4(b).

On review of published court of appeals decision; case activity

Issue (composed by On Point)

Did the good-faith exception to the exclusionary rule apply to a search of a home conducted in reliance on a search warrant that was itself based on a search by a drug-sniffing dog that violated Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013)?