On Point blog, page 70 of 133
Order on Judicial Disqualification in: State v. Dimitri Henley, 2008AP697, 5/24/10
The underlying question is whether Justice Roggensack “previously handled” Henley’s earlier appeal when she was a court of appeals judge; if so, then by statute she must be disqualified from participating in his now-pending appeal. She declined to disqualify herself in a memorandum decision, 2010 WI 12. Further background, here. And here, especially with respect to State v.
Counsel – Ethically Deficient Performance
OLR v. Joan M. Boyd, 2010 WI 41
Various derelictions warrant 12-month license suspension, consecutive to already-imposed suspensions. The Counts include various failures to act competently and to keep her client reasonably informed in a number of postconviction actions. In one instance, lack of diligence led to loss of the federal habeas statute of limitations, ¶8; and in another, to a lost state appellate deadline, ¶11. Another count, of potential interest,
State of Wisconsin v. Alan Keith Burns, Wis SCt review grant, 5/13/10
decision below: unpublished (2009AP118); for Burns: David R. Karpe
Issue:
Is the Appellant entitled to a new trial in the interests of justice where (a) the circuit court banned the Appellant from presenting evidence that the victim’s post-assaultive behavior and loss of virginity was due to her having been sexually assaulted by her grandfather rather than the Appellant, and (b) the state argued that there was no other explanation for the victim’s behavior than that the Appellant was guilty?
Misconduct in Public Office, § 946.12(3) – Venue, § 971.19(12)
State v. Scott R. Jensen, 2010 WI 38, reversing 2009 WI App 26, prior history omitted; for Jensen: Robert H. Friebert; BiC; Resp.; Reply
¶1 … The issue presented is whether Waukesha County Circuit Court is the proper venue for Jensen’s trial because it is the “circuit court for the county where the defendant resides”
Foley-Ciccantelli v. Bishop’s Grove, 2009AP688, rev. granted 4/19/10
Issue:
Can a circuit court disqualify retained counsel-of-record in a civil suit, thereby denying the client the right to representation by chosen counsel and restricting the attorney’s right to practice law in a civil action, where the attorney previously represented a nonparty witness for the opposing side?
The Ciccantellis sued a condo association for a personal injury. Turns out plaintiffs’ counsel had also represented the association’s property manager;
State v. Janet A. Conner, 2008AP1296-CR, Wis SCt review grant, 3/16/10
decision below: 2009 WI App 143; for Conner: Steven J. House
Issues:
What degree of specificity is required in charging dates of allege conduct in a criminal information to satisfy the accused’s constitutional due process rights of notice of the charged offenses?
Does Wis. Stat. § 940.32(2m)(b) require that the state prove that a “course of conduct,” constituting two or more acts, occur after the operative prior conviction in order to establish a violation of the aggravated stalking offense?
State v. Patrick R. Patterson, 2008AP1968-CR, Wis SCt review granted 3/16/10
decision below: 2009 WI App 161; for Patterson: David R. Karpe
Issues:
Is contributing to the delinquency of a child resulting in death a lesser-included offense of first-degree reckless homicide under Wis. Stat. § 939.66(2)?
Can one contribute to the delinquency of a 17-year-old individual when such individuals are no longer subject to juvenile delinquency petitions?
Was a reckless homicide jury instruction defective because it gave as an element to be proved that the deceased used and died from a substance “alleged to have been delivered by the defendant?”
Was there prosecutorial misconduct in refreshing the recollection of witnesses with the testimony and statements of other witnesses?
State v. Brad Forbush, 2008AP3007-CR, Wis SCt review granted 3/16/10
decision below: 2010 WI App 11; for Forbush: Craig Mastantuono; Rebecca M. Coffee
Issues:
Whether the right to counsel under the Wisconsin Constitution prohibits the state from interrogating a represented individual once the state is aware of the representation
Whether a suspect made an equivocal request for counsel during police questioning, thereby invoking his right to counsel under the Wisconsin Constitution and requiring suppression of his confession at trial
Whether the circuit court’s suppression order should be affirmed without reaching the viability of State v.
Failure to Comply with Sex Offender Registration, § 301.45
State v. James W. Smith, 2010 WI 16, affirming 2009 WI App 16; for Smith: Shelley M. Fite, SPD, Madison Appellate
The § 301.45 reporting requirement applicable to any violation of false imprisonment of a minor not the defendant’s child is rationally related to a legitimate government interest in protecting the public, particularly children, ¶¶27-36.
Keep in mind that Smith challenged the statute as applied to him.
State v. Gerard W. Carter, 2008AP3144-CR, Wis SCt review, 3/9/10
decision below: 2009 WI App 156; for Carter: Craig M. Kuhary
Issues:
Do violations of Illinois’ zero tolerance (absolute sobriety) law count as prior offenses for sentence enhancement purposes under Wisconsin’s Operating While Intoxicated (OWI) Law (Wis. Stat. §§ 346.63 and 346.65)?
What methodology are trial courts to employ in determining whether to count out-of-state OWI-related offenses for sentence enhancement purposes under Wis. Stat. § 343.307?