On Point

State v. Nathaniel R. Lecker, 2020 WI App 65; case activity (including briefs)

The application of a statute to undisputed facts is a question of law. This is an incontrovertible maxim of appellate review. “Question of law” sounds so august and erudite and specialized, doesn’t it? A question of law is a question into which an astute lawyer–or judge–would have special insight; he or she could be trusted to come to the right–or at least a particularly sound–answer to such a question. But sometimes statutes are written in very ordinary terms with no particular resonance, and no special definition, in the legal world. And sometimes these ordinary terms are also rather elastic–or relative. In those instances, can the answer to a “question of law” be something other than a standardless, “know it when I see it” exercise of arbitrary will?

State v. M.E., 2019AP2228, 9/1/2020, District 1 (one-judge decision; ineligible for publication); case activity

M.E. was adjudicated delinquent after a bench trial. During the trial, the judge overheard a conversation between a state’s witness and the prosecutor that led her to believe her sequestration order had been violated. M.E. argues the judge was disqualified because she was now a witness in her own case; the court of appeals concludes she cured any problem by striking the witness’s testimony.

State v. K.A.B., 2020AP962, 9/1/20, District 1 (one-judge decision; ineligible for publication); case activity

K.A.B. appeals the termination of her parental rights to her daughter, L.B. L.B. had been with a foster family since birth, and the court found that both the continuing CHIPS and failure to assume grounds were proved.

On disposition, the court heard testimony about K.A.B.’s interactions with L.B., as well as those of K.A.B.’s mother, R.R.B. The court noted that L.B. was “a meaningful part” of both women’s lives, but ultimately found they did not have a “substantial relationship” with the child, one of the statutory disposition factors. Wis. Stat. § 48.426(3)(c).

State v. Tavodess Matthews, 2018AP2142, petition to review a published court of appeals decision granted 8/26/20; case activity (including briefs)

Issue presented:

Is an adjourned probable cause hearing under ch. 980 a “preliminary contested matter” that terminates litigants’ opportunity to request judicial substitution?

State v. D.S., 2019AP2230 through 2019AP2233, District 1, 8/25/30 (one-judge decision; ineligible for publication); case activity

D.S. challenges the orders terminating her parental rights to her children on the ground, first because her lawyer was unable to appear and represent her at a pretrial hearing because his law license was temporarily suspended, second because trial counsel didn’t obtain 400 pages of discovery until the day before the  dispositional hearing. Her challenges are rejected.

That’s the title of a recent N.Y. Times article about Washington state’s internet “sex predator” stings. It tells stories that will sound familiar to all of our readers who’ve handled similar cases in Wisconsin.

State v. Adam W. Vice, 2018AP2220-CR, petition for review of a published, split opinion granted August 20, 2020, case activity

Issue for review: (State’s petition for review; Vice’s response)

During a post-polygraph interview, police repeatedly referenced Vice’s polygraph test results and failed to inform him that the results would be inadmissible in court. Did the court of appeals give undue weight to these factors in assessing the voluntariness of Vice’s confession to sexual assault of a four year old?

State v. Morgan E. Geyser, 2020 WI App 58; case activity (including briefs)

Morgan Geyser, one of the two 12 year old defendants in the Slenderman case, was charged in adult court with attempted 1st degree intentional homicide. At her preliminary hearing, the court found probable cause that she committed a crime for which it had exclusive jurisdiction. On appeal, Geyser argued that the adult court had found the facts necessary to mitigate attempted 1st degree homicide to attempted 2nd degree homicide and thus it lost jurisdiction. She also argued that her custodial statements to police should have been suppressed because her Miranda waiver was not knowing, intelligent and voluntary. The court of appeals rejected both arguments.

Portage County v. E.R.R., 2019AP2033, petition for review of an unpublished dismissal order granted 8/20/20; case activity

Issues presented:

Whether an appeal from a Wis. Stat. §51.20(1)(am) recommitment order may properly be dismissed as moot.

Whether the County met its burden to prove by clear and convincing evidence that Mr. R. was currently dangerous as required by Wis. Stat. §51.20(1)(am).

State v. Jordan Alexander Lickes, 2020 WI App 59; case activity (including briefs); review granted 11/18/2020, affirmed, 2021 WI 60

This is not much of a surprise after State v. Ozuna, but the court of appeals here reverses a grant of expunction, holding in a to-be-published decision that any noncompliance with conditions of probation–even those that are not ordered by the court, but are imposed by DOC rule–makes expunction unavailable.