On Point

Timothy W. Miller v. Angela L. Carroll, petition to review a published court of appeals decision granted 8/14/19; case activity (including briefs)

Issues (based on Carroll’s Petition for Review)

1. Does a judge’s acceptance of one party’s Facebook “friend” request by itself overcome the presumption that a judge is fair, impartial, and capable of ignoring any biasing influences, given the absence of any allegation of subjective bias or of facts showing the judge treated the other party unfairly, and when there were no electronic social media (“ESM”) communications between the judge and the party regarding the merits of the case?
2. Does the fact a party “liked” a judge’s Facebook posts unrelated to the pending litigation or commented on a Facebook post unrelated to the pending litigation constitute an ex parte communication between a party and a judge?

We’re a bit slow to report this (we blame the dog days of summer), but on July 31, 2019, the court of appeals ordered the publication of the following criminal law related decisions: State v. Courtney C. Brown, 2019 WI App 34 (extension of stop for seat belt violation to conduct search of car was lawful) […]

State v. Justin W. Paull, 2017AP1210, 8/15/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Mr. Paull was found bloody and semi-conscious after a motorcycle accident. He smelled of intoxicants and had slurred speech. Police arrested him, and he was taken to the hospital. An officer read the informing the accused form to the now-unconscious Mr. Paull, then drew his blood.

State v. Yunus E. Turkmen, 2018AP1673-CR, District 3, 8/13/19 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer stopped Turkmen after he made a U-turn in the middle of an intersection and squealed his tires loudly. (¶3). Based on that conduct and information obtained and observations made after the stop, there was a reasonable basis to extend the stop to conduct field sobriety tests.

SCOWstats has been tracking how Wisconsin Supreme Court justices vote in 4th Amendment cases for years. Its last update was in 2017 when Justice Gableman was still on the court and Justices R.G. Bradley and Kelly had recently joined. Today SCOWstats posted another update through the end of the 2019 term, which included Justice Dallet. Surprise! […]

County of Dunn v. Cashe L. Newville, 2018AP1167, 8/6/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Newville was pulled over by a sheriff’s deputy who observed that, among other things, his license plate lamps weren’t working. An arrest on suspicion of operating under the influence of methamphetamine followed. The court of appeals blesses every step in the investigation that led to that arrest.

State v. Malcolm J. Sanders, 2019 WI App 52; case activity (including briefs)

Sanders is black, and the DA struck the only black jurors from serving on his case because, even though they said they could be fair, they had had prior bad experiences with police, including being the subjects of racial profiling. Judges Gundrum and Neubauer held that the DA did not discriminate. But in another “must read” dissent, Judge Reilly said:

It is a perversion of justice to accept the reasoning that because we have unfairly treated blacks (or any class of people), we can then use our wrongful acts to prevent blacks from serving on juries. Utilizing our unfair treatment of blacks as a valid “race neutral” reason to keep blacks off juries is itself discrimination. Dissent, ¶16.

Ozaukee County v. R. C.J. Y., 2019AP297, 8/7/19, District 1 (1-judge opinion, ineligible for publication); case activity

Many Chapter 51 cases are resolved through 90-settlement agreements entered just before or just after the circuit court holds a probable cause hearing. These settlement agreements are governed by §51.20(8)(bg),(bm) and (br).

State v. Darius Kavonta Smith, 2019AP642 & 643-CR, 8/6/19, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

During closing arguments, the DA made a sarcastic, belittling reference to public defenders who line up empty chairs to emphasize that the State neglected to call witnesses to prove guilt beyond a reasonable doubt. The DA also commented on witnesses whom Smith had not called. Defense counsel moved for a mistrial because the DA’s belittling of public defenders stigmatized their clients, and his comment about her failure to call witnesses improperly shifted the burden to the defense. The circuit court granted  the mistrial.

State v. Robert E. Hammersley, 2018AP1022, District 3, 7/30/19 (one-judge decision; ineligible for publication); case activity (including appellant’s brief)

Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), doesn’t provide a basis to void the revocation of Hammersley’s driver’s license back in 1995 for refusing a blood alcohol test after his OWI arrest.