On Point blog, page 29 of 104
Under “unique facts of this case,” failure to report felony conviction to OLR in writing “too technical to justify imposition of legal consequences”
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).
SCOW: Circuit courts must decide expunction at sentencing
State v. Andrew J. Matasek, 2014 WI 27, 5/23/14, affirming a published court of appeals decision; case activity
Section 973.015 provides that a circuit court “may order at the time of sentencing that the record be expunged upon successful completion of the sentence . . .” SCOW now clarifies that a court must decide expunction at sentencing. Circuit court practices varied, so this decision clarifies the law and sets the stage for (possibly) a bigger battle over Wisconsin’s expunction statute.
SCOW: Defendants can’t rely on DOC’s discharge certificate and repeated assurances that probation has ended
State ex rel. Ardonis Greer v. Wayne J. Widenhoeft, 2014 WI 19, affirming a published court of appeals decision; case activity; Majority opinion: Justice Ziegler; Dissent: Justice Bradley and C.J. Abrahamson
The DOC assured Greer his probation was over and issued a discharge certificate to that effect. In truth, his probation term hadn’t yet expired. So when he committed new crimes, the DOC revoked his probation. The Majority rejects Greer’s claims that the DOC: (1) lacked jurisdiction to revoke probation, (2) denied due process, and (3) is subject to equitable estoppel.
SCOW: State would suffer “substantial prejudice” where pre-sentence plea withdrawal means loss of admissibility of child victim’s audiovisual statement
State v. Minerva Lopez, 2014 WI 11, reversing an unpublished summary disposition of the court of appeals (available here: MINERVA LOPEZ ORDER 3 8 13); case activity
Allowing the defendant to withdraw her no contest pleas would cause substantial prejudice to the state because it would mean the defendant’s trial would occur after the child victim turned 16 and would thus preclude state from presenting video statements of child under § 908.08.
SCOW: Jury need not unanimously agree on the location of an alleged sexual assault
State v. Darryl J. Badzinski, 2014 WI 6, reversing unpublished court of appeals decision; case activity
Badzinski was charged with sexually assaulting his niece, A.R.B., during a family gathering at the home of his parents. (¶¶8-9). A.R.B. testified the assault occurred in a specific room–the basement laundry room. (¶11). But there was also testimony from multiple defense witnesses that it was not possible for the assault to have happened in the laundry room.
Wisconsin Supreme Court: When a defendant raises self-defense, evidence of a victim’s reputation for violence is admissible to show who was the first aggressor even if the defendant was unaware of that reputation
State v. Curtis L. Jackson, 2014 WI 4, affirming an unpublished court of appeals decision; majority opinion by Justice Ziegler; Justice Bradley concurs; Chief Justice Abrahamson dissents; case activity
In a decision that clarifies the rules regarding evidence of the victim’s character in cases involving self-defense, the supreme court holds that a defendant may present evidence about the victim’s reputation for violence even if the defendant was not aware of that reputation at the time of the offense.
Wisconsin Supreme Court: Discretionary authority to dismiss refusal charges is limited to cases in which defendant pleads guilty to underlying OWI
State v. Brandon H. Bentdahl, 2013 WI 106, reversing an unpublished court of appeals decision; opinion for a unanimous court by Justice Crooks; case activity
In State v. Brooks, 113 Wis. 2d 347, 348-49, 335 N.W.2d 354 (1983), the supreme court held that a circuit court has discretionary authority to dismiss a refusal charge under § 343.305 after the defendant has pleaded guilty to the underlying OWI.
SCOW: Six-person jury for involuntary mental commitment survives equal protection challenge
Milwaukee County v. Mary F.-R., 2012AP958, affirming an unpublished court of appeals opinion; case activity
Majority opinion by Justice Crooks; concurrence by Chief Justice Abrahamson; additional concurrence by Justice Ziegler (joined by Justices Roggensack and Gableman)
The issues in this case spring from State v. Post, 197 Wis. 2d 279, 318-319, 541 N.W.2d 115 (1995)(“persons committed under Chapters 51 and 980 are similarly situated for purposes of equal protection comparison) and State v.
Wisconsin Supreme Court finds review of Chapter 54 guardianship case was improvidently granted
Steve P. v. Maegan F., 2013 WI 89, dismissing review of an unpublished court of appeals decision; per curiam (Justice Prosser did not participate); case activity
This is every appellate lawyer’s nightmare–pouring your heart into an emotionally charged case presenting a provocative legal issue briefed by 5 different parties and amici and then having the supreme court declare that review was improvidently granted.
The record for this case is confidential so On Point’s explanation of what happened may be imprecise.
Wisconsin Supreme Court: Ethics rule governing prosecutor’s duty to disclose information to defense is not more demanding than the constitutional duty to disclose
Office of Lawyer Regulation v. Sharon A. Riek, 2103 WI 81 (per curiam), affirming referee’s dismissal of disciplinary complaint; case activity
The supreme court holds that a prosecutor’s duty to disclose information to the defense under SCR 20:3.8(f)(1) does not impose a broader duty to disclose than the constitutional duty imposed under Brady v. Maryland, 373 U.S. 83 (1963).