On Point blog, page 87 of 104
Right to Silence During Pendency of Direct Appeal
State ex rel. Gary Tate v. Schwarz, 2002 WI 127, reversing 2001 WI App 131
For Tate: Jerome F. Buting, Pamela S. Moorshead, Buting & Williams
Issue/Holding: The Evans-Thompson rule — “the state may compel a probationer to answer self-incriminating questions from his probation or parole agent, or suffer the consequence of revocation for refusing to do so, only ‘if he is protected by a grant of immunity that renders the compelled testimony inadmissible against the [probationer] in a criminal prosecution’”
Briefs — Appendix — Composition
State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: ¶8 n. 4:
The State moves to strike Williams’ appendix to his brief. It asserts that the inclusion of excerpts from the BNA Criminal Practice Guide and copies of articles pertaining to drug analysis and crime labs are outside the scope of what is permissible in an appendix.
Guilty Plea Waiver Rule: Double Jeopardy Issue
State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89
For Davison: Keith A. Findley, UW Law School
Issue/Holding: A guilty plea doesn’t waive a facially valid multiplicity claim. ¶13.The supreme court subsequently stated: “Because Davison’s multiplicity objection fails on the merits, we need not and do not decide whether, by pleading guilty, he waived his right to raise this claim,”
SVP – Trial – Jury Instructions – Acts of Sexual Violence
State v. John Lee Laxton, 2002 WI 82, affirming unpublished court of appeals decision
(Affirmed on other grounds, habeas review, John L. Laxton v. Bartow, 421 F.3d 565 (7th Cir 2005))
For Laxton: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether the trial court adequately instructed the jury on “acts of sexual violence.”
Holding:
¶28.
Harsh and Excessive – Post-Sentencing Reduction of Maximum Penalty
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265, 258 Wis. 2d 473, 654 N.W.2d 446
For Gallion: Randall E. Paulson, SPD, Milwaukee Appellate
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding: Subsequent legislative reclassification of offense, which substantially reduced maximum penalty, didn’t make Gallion’s sentence harsh and excessive. ¶¶73-74.
Sentencing Review – Factors – Minimum Custody
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding:
¶23. McCleary further recognized that “[t]he sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public,
Defense of Self, § 939.48 – Interplay with Imperfect Self-Defense
State v. Debra Ann Head, 2002 WI 99, reversing 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9
For Head: John D. Hyland, Marcus J. Berghan
Issue/Holding:
¶84. To raise the issue of perfect self-defense, a defendant must meet a reasonable objective threshold. The trial evidence must show: (1) a reasonable belief in the existence of an unlawful interference;
Due Process – Right to Present Defense — Rape-Shield Bar
State Charles A. Dunlap, 2002 WI 19, reversing, 2000 WI App 251, 239 Wis. 2d 423, 620 N.W.2d 398
For Dunlap: Jack E. Schairer, SPD, Madison Appellate
Issue: “(W)hether a defendant who is charged with sexual assault should be allowed to present evidence of sexual behavior exhibited by the child complainant prior to the alleged assault, even though the evidence would normally be barred by the rape shield law,
Expunction, § 973.015 — Application to Prosecutor and Law Enforcement Records
State v. Anthony J. Leitner, 2002 WI 77, affirming 2001 WI App 172, 247 Wis. 2d 195, 633 N.W.2d 207
For Leitner: Jefren Olsen, SPD, Madison Appellate
Issue: Whether the expunction statute, § 973.015, requires prosecutors and law enforcement agencies to expunge their records documenting the facts underlying an expunged conviction.
Holding:
¶38. Although the Wisconsin legislature has not explicitly set forth the purpose of Wis.
Double Jeopardy – Multiplicity: Waiver – Guilty Plea Rule
State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89
For Davison: Keith A. Findley, UW Law School
Issue/Holding: A guilty plea doesn’t waive a facially valid multiplicity claim. ¶13.
The supreme court took review on this threshold issue: “First, does a criminal defendant who pleads guilty to several crimes in a negotiated plea agreement waive the right to raise a multiplicity claim against one of the resulting convictions?” ¶2.