On Point: B. Opinions

State v. Kevin L. Nash, 2020 WI 85, 11/19/20, affirming a per curiam court of appeals decision; case activity (including briefs)

Before accepting a plea entered under North Carolina v. Alford, 400 U.S. 25 (1970), a circuit court must determine whether there is “strong proof of guilt” sufficient to “substantially negate” the defendant’s claims of innocence. State v. Garcia, 192 Wis. 2d 845, 859-60, 532 N.W.2d 111 (1995); State ex rel. Warren v. Schwartz, 219 Wis. 2d 615, 645, 579 N.W.2d 698 (1998).  The supreme court declines to exercise its superintending authority to require circuit courts to employ a specific procedure to establish a sufficient factual basis for an Alford plea.

State v. Timothy E. Dobbs, 2020 WI 64, 7/3/20, affirming an unpublished per curiam court of appeals opinion, 2018AP319; case activity (including briefs)

There’s really only one important holding here: despite adoption of the Daubert standard, Wisconsin continues to permit expert testimony in the form of “dissertation or exposition.” That is, an expert can educate the jury about the principles or findings of his or her field without talking about the facts of the case, and an expert who does so is not subject to the requirement that he or she “appl[y] the principles and methods” of that field “reliably to the facts of the case.” Though the court also decides a separate Miranda issue, the discussion is fact-intensive and breaks no legal ground. What’s notable (and regrettable) about the Miranda decision is a meandering three-justice concurrence that repeats the court’s error in State v. Bartelt, 2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684, by grafting a third step onto the familiar two-part Miranda-custody inquiry.

State v. Ryan M. Muth, 2020 WI 65, reversing a per curiam court of appeals decision; case activity (including briefs)

Muth drove while intoxicated and caused the death of T.K. About a month later T.K.’s adult children reached a settlement with Muth’s insurer under which the children received the maximum payout under Muth’s policy as settlement for all claims against Muth. (¶3). Or so Muth thought. A majority of the supreme court holds that, because Muth was later convicted of homicide by intoxicated use of a vehicle, he can also be ordered to pay more money to the children as restitution under § 973.20.

State v. Courtney C. Brown, 2020 WI 63, 7/3/20, affirming a published court of appeals opinion, 2017AP774-CR, case activity (including briefs)

“Supreme Court affirms wide discretion in traffic stops; dissent says implicit bias will go unchecked” That’s the JSOnline’s pithy description of SCOW’s 4-1 decision in this case. Also noteworthy, Justice R.G. Bradley filed a strident, bias-denying concurring opinion suggesting that court of appeals Judge Reilly should be disciplined for writing a strident, bias-acknowledging concurrence that dared to criticize two recent 4th Amendment decisions from SCOW.

Miller v. Carroll, 2020 WI 56, 6/16/20, affirming a published court of appeals opinion, 2017AP2132, case activity (including briefs)

You’ve surely read about this case in NY Times, the Journal Sentinel, on Wisbar.org or on On Point here or here. A judge’s Facebook friendship with one of the litigants in a child custody case before him created a serious risk of actual bias and resulted in a due process violation. Justice A.W. Bradley filed an interesting concurrence arguing that this decision is at odds with  State v. Henley, 2011 WI 67, 338 Wis. 2d 610, 802 N.W.2d 175, which readers may recall, concerned a motion to disqualify then Justice Roggensack.

State v. Alfonso Lorenzo Brooks, 2020 WI 60, 6/25/20, reversing a per curiam court of appeals decision, 2018AP1774, case activity (including briefs)

The police stopped Brooks for speeding in Milwaukee. Specifically, they pulled him over to the side of a residential/commercial road. The police quickly learned Brooks had a suspended license and was a convicted felon. They wrote him tickets for the speeding and operating on a suspended license. Brooks wasn’t arrested then, but he couldn’t drive away either, on account of the license issue. So, police told him, they were towing his car to impound–even though he told them his girlfriend (to whom the car was registered) was nearby and could pick it up. The police said no, that was against department policy, and then did an inventory search of the car. That search turned up a gun, which Brooks, as a felon, could not have. Then he was arrested.

State ex rel. Milton Eugene Warren v. Michael Meisner, 2020 WI 55, 6/11/20, reversing and remanding an unpublished order of the court of appeals, 2019AP567; case activity (including briefs)

Seven years ago, the supreme court decided State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146. That opinion contained a couple of erroneous statements about the procedure for raising claims that postconviction counsel was ineffective. Both parties moved for reconsideration of these statements, which the court inexplicably denied more than a year later. Now with this decision, the court unanimously cleans up the misstatements in Starks, and gives the defendant his day in court.

State v. Mose B. Coffee, 2020 WI 53, 6/5/20, affirming a published court of appeals decision, 2018AP1209; case activity (including briefs)

Under Arizona v. Gant, 556 U.S. 332, 335 (2009), police can search a vehicle after arresting a recent occupant “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” But how do courts decide when it’s “reasonable to believe” this: is it a typical totality-of-the-circumstances analysis examining all the facts around an arrest? Or, as many courts have concluded, do the elements of the crime suspected–the “offense of arrest”–determine categorically when a search is permitted and when it isn’t? A majority of justices in this case would adopt the former view, but, as we’ve often seen lately, their votes are split between the lead and dissenting opinions. This arguably means there’s no binding holding on the question of law; the only thing we know for sure is that the search in this case is upheld.

State v. David Gutierrez, 2020 WI 52, reversing in part a published court of appeals opinion, 6/3/20; case activity (including briefs)

In a 5-0 decision, SCOW affirms all parts of this published court of appeals decision but one. The court of appeals held that the circuit court erred in refusing to admit evidence that excluded Gutierrez as the source of male DNA in the underwear and around the mouth of a victim of child sexual assault. The assaults involved oral sex and attempted vaginal intercourse. SCOW reversed the court of appeals on that point.

Langlade County v. D.J.W., 2020 WI 41, reversing an unpublished court of appeals opinion, 4/24/20; case activity

Wisconsin’s involuntary commitment rate is higher than that of any other state–by a long shot. According to a report for the Substance Abuse and Mental Health Services, the annual commitment rate among states ranges from 0.23 to 43.8 per 1,000 adults with serious mental illness. The average is 9.4 per 1,000, with Wisconsin at 43.8. SCOW’s decision in this case can reduce the number of fait accompli commitment hearings–but only if defense lawyers invoke it and trial courts take it seriously.