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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
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The “progressive prosecutor” movement is good, but funding public defenders is better
So argues Premal Dharia in this new article on Salon.com. Yay for ending cash bail, increasing diversion programs, and dropping prosecution of minor cases. But these changes won’t have nearly as much impact on the nation’s indigent defense crisis as simply adequately funding public defenders.
SCOW will clarify the “strong proof of guilt” requirement for an Alford plea
State v. Kevin L. Nash, 2018AP731-CR, petition for review of a per curiam opinion granted 12/10/19, case activity (including briefs)
Issue presented:
When accepting a guilty plea under Alford v. North Carolina, 400 U.S. 25 (1970), a circuit court may find there is a factual basis for the plea only if there is “strong proof of guilt.” May a court find “strong proof of guilt” based only on the information contained in the criminal complaint, or must the court hear additional evidence before it can make that finding?
SCOW to address interplay between restitution statute, marital property statute, and contract law
State v. Ryan M. Muth, 2019AP875-CR, petition for review of per curiam opinion granted 12/11/19; case activity (including briefs)
Issues presented (based on petition and cross-petition for review):
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Wisconsin’s marital property statutes provide that income accrued during marriage belongs to both spouses. Wisconsin’s restitution statute permits crime victims to recover “income lost” from the “filing of charges or cooperating in the investigation and prosecution of the crime.” Where a crime causes a person’s death, can the deceased person’s adult children recover their spouse’s lost income as restitution?
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Where crime victims accept a civil settlement for lost wages and expenses, and the victims also seek restitution for lost wages and expenses, and where the defendant asserts “accord and sanctification,” does the defendant have to produce “extrinsic evidence” showing that the wages and expenses the victim received in the civil settlement are the same wages and expenses the victim seeks as criminal restitution?
SCOW will decide if cops can tow, search a legally parked car after giving ticket
State v. Alfonso Lorenzo Brooks, 2018AP1774, review of a per curiam decision granted 12/10/2019; reversed 6/25/20; case activity (including briefs)
Issue presented:
Whether the community caretaker exception permits law enforcement to inventory and tow a vehicle after discovering that the driver does not have a valid license, when the vehicle is lawfully parked and not obstructing traffic?
Racial disparity in Wisconsin’s prosecution of cannabis cases
In case you missed it, the Wisconsin Justice Initiative and the American Constitution Society have a “pot page” showing the number of cannabis cases each Wisconsin County prosecuted in 2019 and the race of the defendants. Spoiler alert: African Americans comprise 7% of Wisconsin’s population but 21% of defendants in cannabis cases.See the Dec. 3rd […]
DA argues: “Defense attorneys’ jobs are to manipulate the truth”
Actually, the DA argued: “My job is to show the truth. On the other hand, the defense attorneys’ jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to—without regard for the truth—to get a not guilty verdict.” The […]
More on using algorithms to predict risk in criminal cases
You’ve read a lot about the use of algorithms at the sentencing stage of criminal proceedings, but they are also used at the bail and parole stages. This new paper looks at the bias embedded in algorithms (including the STATIC-99R) and zeroes in on our own State v. Loomis.
SCOW does away with Dubose
State v. Stephan I. Roberson, 2019 WI 102, 12/3/19, affirming a per curiam court of appeals opinion, 2017AP1894, case activity (including briefs)
The result here is simple, and expected, given the current makeup of the court: a five-two majority to overturn State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. Dubose held that “show up” identifications–those where the police present a witness with only one suspect–were inherently suggestive, and identifications so obtained would be inadmissible unless circumstances rendered the procedure “necessary.” So, now, Wisconsin courts will review claims that a show-up identification should be excluded under the test of State v. Wolverton, 193 Wis. 2d 234, 264, 533 N.W.2d 167 (1995): a defendant must carry the initial burden to show the procedure was impermissibly suggestive, and if he or she does, the state must then prove that the identification is nevertheless reliable under the totality of the circumstances.
COA rejects “as applied” challenge to amended TPR law, notes §893.825(1) requiring service on legislature
Dane County D.H.S. v. J.R., 2020 WI App 5; case activity
J.R.’s children were placed outside the home pursuant to two CHIPS cases. During the placement, the legislature changed the 4th element for the “continuing CHIPS” ground for termination of parental rights. When the County petitioned to terminate J.R.’s rights, it proceeded under the amended statute. J.R. objected to the retroactive application of the amended statute on statutory and due process grounds.
SCOW: 7 misdemeanor retail thefts can =1 felony theft
State v. Autumn Marie Love Lopez & State v. Amy J. Rodriguez, 2019 WI 101, 11/27/19, affirming a published court of appeals decision; case activity (including briefs)
This appeal asked whether the State may charge multiple acts of misdemeanor retail theft under §943.50 as one felony under §971.36(3)(a). The justices split 3-2-2. Five of them answered “yes,” but did not fully agree on a rationale for that mandate. The justices also disagreed over the role titles play in statutory construction and over whether both appellants in a consolidated appeal must file a petition for review.
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.