On Point

Jackson County DHS v. M.M.B., 2021AP98 & 2021AP99, District 4, 4/1/21 (one-judge decision; ineligible for publication); case activity

M.M.B. stipulated that there were grounds for terminating her parental rights to her two children, but argued at the disposition phase that termination wasn’t in the best interest of the children. At that hearing, the County presented the testimony of a psychologist who had assessed M.M.B.’s “psychosocial functioning, including issues related to parenting and substance abuse.” M.M.B. objected, arguing the psychologist’s evaluation was not contemporaneous to the dispositional hearing, but had been conducted two years earlier, and thus wasn’t relevant to the issue of the children’s best interests. (¶¶3-6). The circuit court didn’t err in admitting this testimony.

Winnebago County v. A.A.L., 2020AP1511, 3/24/2021, District 2 (one-judge decision; ineligible for publication); case activity

A.A.L. appeals her commitment under ch. 51. She claims the county didn’t give her adequate notice of which statutory forms of dangerousness it intended to prove, and that in any event it didn’t prove any of them. The court of appeals finds the notice argument forfeited (though it goes on to say it’s also unconvincing). And though it admonishes the county for presenting a bare-bones case and calls the question “close,” the court also holds the evidence of dangerousness sufficient for commitment.

Fond du Lac County v. J.L.H., 2020AP2049, 3/24/21, District 2 (one-judge decision; ineligible for publication); case activity

Wisconsin Stat. § 51.20(1)(a)e. lays out the “fifth standard” for dangerousness; a person can be committed under it if his or her mental illness prevents him or her from understanding the advantages and disadvantages of treatment, and a lack of treatment will cause a substantial probability that the person will be harmed and become unable to function. But there’s a limitation on this standard that the other standards lack: a person can’t be dangerous under it if care is available, either in the community at large or through ch. 55, that diminishes the threat of harm so that it is not substantial.

State v. A.M.-C., 2021AP94 & 2021AP95, 3/30/21, District 1 (one-judge decision; ineligible for publication); case activity

The state petitioned to terminate A.M.-C.’s rights to two of her children on failure-to-assume and continuing-CHIPS grounds. After being told (apparently via interpreter, as Spanish is her first language) that she had to attend all hearings, A.M.-C. moved to New York City. The circuit court rejected her request to attend by telephone, found her in default, and after prove-up, found her unfit. It later found termination of her rights to be in the children’s best interest.

Torres v. Madrid, USSC No. 19-292, 2021 WL 1132514, 3/25/21, reversing 769 Fed. Appx. 654 (10th Cir. 2019); Scotusblog page (including links to briefs and commentary)

Fans of dueling citations to ancient cases will want to savor the entirety of the majority and the somewhat heated dissent in this case; the serjeants-at-mace shew their mace at one point. Everybody else just needs to know this: a police officer who applies physical force to the body of a person seizes that person if the objective circumstances show an intent to restrain. This seizure occurs during the application of that force even if the intended restraint doesn’t succeed; that is, if the person gets away. And that force can be communicated by means of a projectile, like a bullet.

State v. Mark D. Jensen, 2021 WI 27, 3/18/21, affirming a court of appeals summary disposition; case activity (including some briefs)

Julie Jensen died by poisoning in 1998. The state eventually charged her husband, Mark, with having killed her; the defense was that she had died by suicide. Before her death Julie had made oral and written statements to the effect that Mark would be responsible if something happened to her. She wasn’t available to testify at the trial, of course, and Mark moved to exclude these statements on Confrontation grounds. Our supreme court now holds that, when it held these statements testimonial in a prior appeal (in 2007), it established the law of the case; it further concludes that SCOTUS has not altered the law so much since then that the law-of-the-case doctrine should give way. So, it remands for a new trial, without the statements.

State v. Chardez Harrison, 2019AP2151, 3/23/21, District 1 (not recommended for publication); case activity (including briefs)

Harrison was arrested on suspicion of some armed robberies and carjackings. While he was in custody, a detective read him the Miranda warnings. The version of the warnings printed on cards for the Milwaukee police to use apparently concludes with a question: “Realizing that you have these rights, are you now willing to answer some questions or make a statement?” (¶6). Harrison responded to this question by saying “I don’t want to make no statement right now.” Pretty clear invocation, right? Wrong, says the court of appeals.

The Supreme Court’s most recent orders list denied cert in a whole lot of cases; one of those denials drew a written dissent from Justice Sotomayor. She would have granted certiorari and summarily reversed an Eighth Circuit decision denying habeas relief to the defendant.

State v. Wilson P. Anderson, 2020AP819-Cr, 3/16/21, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs)

A few weeks ago, District 4 issued a to-be-published decision regarding the State’s burden of proof on a motion for involuntary medication to restore a defendant’s competence for trial. See State v. Green. It held that to satisfy Sell v. U.S., 539 U.S. 166 (2003), the State must file an individualized treatment plan specifying the medications and dosages it wants to administer to the defendant, and the circuit court must approve it. In Anderson’s case, District 1 holds that the State can file a psychologist’s report that simply indicates the defendant’s diagnosis, treatment history, and a need for medication (without specifying drugs, dosages, etc.). District 1’s decision in Anderson seems oblivious to, and contradicts, Green and a new District 4 decision in State v. Engen as well as Sell itself and substantial federal case law.

State v. Eric Engen, 2020AP160-CR, 3/18/21, District 4, (not recommended for publication); case activity (including briefs)

This is the third court of appeals decision on Sell v. United States in three weeks. As in State v. Green, District 4 here again holds that the State must file an individualized treatment plan to support a motion for involuntary medication to restore a defendant’s competence for trial. A psychiatrist’s report simply opining that medication is necessary to restore competency does not satisfy Sell. Green and Engen conflict with District 1’s decision this week in State v. Anderson, which holds that a report by a psychologist (who cannot prescribe medication) simply opining that the defendant needs medication to regain competence, satisfies Sell. The Engen decision is important for several other reasons as well.