On Point: 2020-21 Term

State v. Manuel Garcia, 2021 WI 76, 9/24/21, affirming a published decision of the court of appeals; case activity (including briefs)

As explained in our post on the published decision, the court of appeals held that a defendant’s voluntary statement obtained in violation of Miranda can’t be used in the state’s case-in-chief, even for impeachment if the defendant elects to testify.

State v. George Steven Burch, 2021 WI 68, on certification from the court of appeals, affirming the judgment of conviction; case activity (including briefs)

We said in our post on the court of appeals’ certification that this case presented novel and important issues about searches of cell phones and their data. So we anticipated a decision addressing the parameters of police searches of digital devices. But the majority doesn’t address those issues or decide whether Burch’s Fourth Amendment rights were violated. Instead, the majority holds that, regardless of the lawfulness of the search of Burch’s cell phone data, “there was no police misconduct to trigger application of the exclusionary rule.” (¶26). The majority’s approach bodes ill for the future of Fourth Amendment litigation and the freedom the Fourth Amendment is intended to protect—as illustrated by this case, given that a majority of the justices (one concurring, three dissenting) concludes the search of Burch’s phone data violated the Fourth Amendment.

State v. George Steven Burch, 2021 WI 68, 6/29/21, on certification from the court of appeals, affirming a judgment of conviction; case activity (including briefs)

The circuit court properly exercised its discretion in allowing the state to introduce evidence relating to Fitbit data without requiring expert testimony on the reliability of the device.

State v. Anthony M. Schmidt, 2021 WI 65, 6/18/21, on bypass from the court of appeals; case activity (including briefs)

“We also conclude that the child pornography surcharge applies to images of child pornography that form the basis of read-in charges of sexual exploitation of a child or possession of child pornography, so long as those images of child pornography are connected to and brought into relation with the convicted individual’s offense of sexual exploitation of a child or possession of child pornography.” (¶61). What does it mean for images to be “brought into relation with” an offense? What kind of inquiry is it? Factual? Legal? We don’t know, the partial dissent doesn’t know, and as it observes, the majority seems also not to know, as they refrain from addressing any facts but the ones before them. The most reliable SCOW imperative–upholding criminal sanctions–seems once again to have made the “law development” function an afterthought.

Cheyne Monroe v. Chad Chase, 2021 WI 66, 6/22/21, on certification from the court of appeals and reversing a circuit court judgment; case activity (including briefs)

One of the elements of a claim for malicious prosecution is that the baseless prior action must have terminated in favor of the party asserting malicious prosecution. The supreme court holds this element may be met even when the party accused of malicious prosecution voluntarily dismissed the allegedly baseless proceeding before it was decided on the merits.

State v. Alan M. Johnson, 2021 WI 61, 6/16/21, affirming in part and reversing in part a published decision of the court of appeals; case activity (including briefs)

In a case presenting a highly unusual set of facts, the supreme court agrees with the court of appeals that Johnson is entitled to a new trial because the circuit court erred in refusing to instruct the jury on perfect self-defense. However, the supreme court reverses the court of appeals’ decision as to the admissibility of other-acts evidence relating to the victim.

State v. Adam W. Vice, 2021 WI 63, 6/16/21, reversing a published decision of the court of appeals; case activity (including briefs)

The circuit court and court of appeals held Vice’s post-polygraph confession was involuntary because the police officers interrogating him referred multiple times to Vice’s polygraph results (he failed), told him that proved he remembered the crime despite his denials, but never told him the polygraph results were inadmissible as evidence. As we predicted, the state petitioned for review, the supreme court took the case, and, in an opinion essentially devoid of law development, holds Vice’s confession wasn’t coerced.

State v. Dawn Prado, 2021 WI 65, 6/18/21, affirming a published court of appeals decision; case activity (including briefs)

Third try wasn’t a charm, and we’ve lost track of what try this is, but SCOW has finally achieved a majority decision on the constitutionality of Wis. Stat. § 343.305(3)(b), which permits the police to take the blood of an unconscious OWI suspect without a warrant. As the court of appeals held below, it’s unconstitutional.

State v. Jordan Alexander Lickes, 2021 WI 60, affirming a published court of appeals opinion, 2019AP1272-CR, 6/15/21, case activity (including briefs)

In State v. Ozuna, SCOW held that a young offender’s violation of any court-imposed conditions of probation renders expungement unavailable. Here, Lickes argued that: (1) the same rule does not apply to conditions imposed by the DOC, and (2) the circuit court has the discretion to find that an offender has satisfied the DOC’s conditions even if he has violated one or more of them and especially when, as in this case, the DOC itself requests expungement. In a split decision, SCOW rejects both arguments, making expungement a pipe dream for most young offenders.

State v. Jacob Richard Beyer, 2021 WI 59, 6/15/21, on certification from the court of appeals; case activity (including briefs)

On Point is proud to present a guest post by Tom Aquino of the Madison appellate office: