On Point

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 […]

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 […]

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.

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.

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.

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.

Give thanks to Federal Defender Paul Rashkind. He just made every criminal defense lawyer’s job a whole lot easier with his United States Supreme Court Review-Preview-Overview, current through November 25, 2019. Click here.

State v. Chris K. Feller, 2019AP318, 11/27/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

This appeal poses an interesting question of law: whether the justification defense available in certain civil forfeiture actions applies where a driver exceeds the speed limit in order to get away from another driver who is dangerously tailgating him on the freeway.  See State v. Brown, 107 Wis. 2d 44, 318 N.W.2d 370. The court of appeals contorts the undisputed facts in order to duck the issue.

State v. Jonathan A. Ortiz-Rodriguez, 2018AP2401-CR, District 1, 11/26/19, (not recommended for publication); case activity (including briefs)

The State charged the defendant with repeated sexual assault of a child, which carries a 25-year minimum term of initial confinement. Trial counsel told the defendant that the State had offered to recommend 5 to 8 years if he would plead to one count of child sexual assault.  But then at sentencing the State argued for 20 years IC and 20 years ES.

Read the NYTimes new article: “Imagine Being on Trial. With Exonerating Evidence Trapped on Your Phone. Public defenders lack access to gadgets and software that could keep their clients out of jail.”