On Point

Looking for a bit of law-related entertainment this holiday weekend? Then take a listen to this episode from the podcast series The Last Archive, featuring historian Jill Lepore. It’s about the origin of the Frye test. And how that may have led to Wonder Woman. No kidding.

Lepore has also written about Clarence Darrow, among many other things, in a book review which begins with events in Oshkosh,

On June 24, 2020, the court of appeals ordered publication of the following criminal law related cases:

State v. Tavodess Matthews, 2020 WI App 33 (motion to adjourn a probable cause hearing is a “preliminary contested matter” under judicial substitution statute)

State v. Adam W. Vice, 2020 WI App 34 (confession given after polygraph ordered suppressed)

State v.

State v. Dawn J. Levanduski, 2020 WI App 53; case activity (including briefs)

This published decision resolves an issue arguably left open by Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).  The court of appeals holds that when an officer reads Wisconsin’s “Informing the Accused” form to an OWI suspect, and she refuses a blood draw, her refusal can be used against her at her OWI trial.

The percentage of opinions that the court of appeals publishes is going down, down, down. That’s the subject of SCOWstats new post. One might suppose that the rule change allowing the citation of unpublished opinions is to blame, but the data does not support that conclusion. What’s really surprising is that SCOW publishes roughly the same number of opinions as the court of appeals. Does the court of appeals lacks confidence in the guidance it has to offer the bench,

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.

Guess which justice has the highest approval rating? We’re talking SCOTUS justices. A recent Economist/YouGov survey found that Justice Ginsburg had the highest favorability rating. Justice Kavanaugh came in last. He was literally the only justice who failed achieve a positive net favorability in the survey. Wouldn’t it be interesting to see a similar poll on SCOW justices?

OLR v. Kovac, 2020 WI 58, 6/23/2020, per curiam; case activity 

“Attorney Kovac’s habit of procrastination and dilatory practices continue,” says SCOW. So it has again suspended his license to practice law in Wisconsin for 5 months, concurrent to another 5-month suspension. Plus he must pay the full costs of his OLR proceeding. In one case, Kovac failed to respond to successor counsel’s requests for the client file and failed to file a timely response to a client’s grievance.

State v. Dawn M. Prado, 2020 WI App 42, cross petitions for review granted, 10/21/20, affirmed, 2021 WI 64; case activity (including briefs)

They must have gotten tired of waiting. After SCOW failed (or refused) to decide the question in Howes, Brar, Mitchell, and Hawley, and SCOTUS likewise punted in Mitchell v. Wisconsin, the court of appeals now does what those higher courts could or would not: it rules on the constitutionality of Wis. Stat. § 343.305‘s provisions that permit police to withdraw blood from an incapacitated or unconscious motorist on the theory that they’ve “consented” to this by driving. And, like the vast majority of jurisdictions to consider similar questions, our court holds this provision unconstitutional, rejecting the state’s argument that statutorily-imputed consent is the type of “consent” that provides an exception to the warrant requirement. But the court also says the statute was not, at the time of Prado’s arrest, so plainly unconstitutional that the officer could not rely on it in good faith. Thus the court declines to suppress the test results.

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 v. Russell L. Wilson, 2019AP49, 6/23/20, District 3 (not recommended for publication); case activity (including briefs)

Wilson was charged with repeated second-degree sexual assault of a child under Wis. Stats. §§ 948.02(2) and 948.025(1)(e). That’s a Class C felony carrying a max of 25 in and 15 out. But the state alleged that he also qualified for the repeater enhancer in Wis. Stat. § 939.618(2)(b). That would change the max to life without the possibility of parole or ES. Everybody–Wilson, his lawyer, and the judge–apparently believed the repeater applied, but, after Wilson pleaded and was sentenced, DOC informed the court that it did not. So the correct max IC term for the crime Wilson pleaded to was 25 years, not life. He moved to withdraw his plea, alleging the error meant it wasn’t knowing, voluntary and intelligent. The circuit court denied the motion, and the court of appeals now reverses.