On Point

Milwaukee County v. K.M., 2019AP1166, 4/13/21, District 1; (1-judge opinion ineligible for publication); case activity

The saga continues. Portage County v. E.R.R. 2019AP20133 presented the question of whether appeals from recommitment orders are ever moot due to their collateral effects. When SCOW split 3-3 in that case, it granted review in Sauk County v. S.A.M., 2019AP1033 and ordered the parties to brief whether it may order the court of appeals to decide commitment appeals before they expire. See our post here. Some might see the S.A.M. order as a red flag signaling “proceed with caution” on mootness. But, like a bull, the court of appeals charges ahead to dismiss another recommitment appeal as moot.

Appellate lawyers, take note. Several recent press reports have observed that Justice Hagedorn has become the powerful swing vote on the Wisconsin Supreme Court. Yesterday’s SCOWstats post provides the data. “In 2020-21, with Justice Kelly now supplanted by Justice Karofsky, the remaining three conservatives can no longer win without Justice Hagedorn, and, with him, they have prevailed in three of the seven 4-3 decisions so far this term—a ‘victory total’ no greater than that of the three liberal justices joined by Justice Hagedorn.”

State v. Richard Michael Arrington, 2021 WI App 32; review granted 9/14/21, reversed, 2022 WI 53; case activity (including briefs)

Arrington was being held at the Brown County Jail for 1st-degree homicide when another inmate, Miller, began chatting with him about his case. Turns out Miller was a snitch for State. With the assistance of police, Miller recorded his conversations with Arrington. Then the State used Arrington’s statements to obtain a homicide conviction. The court of appeals held that the State’s use of the snitch violated Arrington’s 6th Amendment right to counsel, and his trial lawyer was ineffective for failing to move to suppress the evidence.

Rock County Department of Human Services v. J.E.B., 2020AP1954-FT, 4/7/21, District 4 (1-judge opinion, ineligible for publication); case activity

Good news/bad news. It’s terrific that the court of appeals is going to enforce the new requirement that circuit courts ground their recommitment orders on factual findings tied to a specific standard of dangerousness in §51.20(1)(a)2.a-e.  See Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277. However, J.E.B. requested reversal. Period. Without any objection by the county or briefing by the parties, the court of appeals decided to remand the case for the circuit court to make the missing factual findings. But published case law suggests that the circuit court lacks competency to act on an expired commitment.

State v. Kevin M. Jereczek, 2021 WI App 30; case activity (including briefs)

Police suspected Jereczek’s son in a sexual assault and thought there might be evidence on the family desktop computer. They asked Jereczek if they could search the machine; he agreed but limited his permission to the son’s account. The examiner, Behling, didn’t adhere to this restriction: he instead began his search in the recycle bin, which contains files deleted from any of the computer’s accounts. There he found child pornography apparently associated with Jereczek’s account, which led him to seek a warrant to search the entire computer. Execution of this warrant turned up more images, leading to the charges against Jereczek. Jereczek moved to suppress the images, saying the initial search had exceeded the scope of his consent. The circuit court denied suppression; Jereczek pleaded no contest to one count and appealed.

Village of Grafton v. Elizabeth A. Wesela, 2020AP1416, District 2, 4/7/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Wesela concedes police had reaonsable suspicion to make the initial stop of the car she was driving, but complains, fruitlessly, that the officer didn’t have reasonable suspicion to extend the stop to conduct field sobriety tests or to ask for preliminary breath test.

State v. V.S., 2021AP136, District 1, 4/6/21 (one-judge decision; ineligible for publication); case activity

The record shows the circuit court considered all of the § 48.426(3) factors relevant to determining the best interests of the child and properly applied them to the facts in deciding whether to terminate V.S.’s parental rights to D.D.S.

State v. Markell Hogan, 2021 WI App 24; case activity (including briefs)

A police officer who has experience investigating human trafficking cases and who has training from various prosecutorial and law enforcement conferences about the methods traffickers use may testify as an expert under §907.02 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

Brown v. Davenport, No. 20-826, cert. granted 4/5/21; Scotusblog page

Question presented: May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?

On March 31, 2021, the court of appeals ordered the publication of the following criminal law related opinions: