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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.
SCOW: Burglary locations are modes, not elements
United States v. Dennis Franklin and Shane Sahm, 2019 WI 64, 6/6/19, answering a question certified by the Seventh Circuit; case activity (including briefs)
For state practitioners, the most interesting thing about Franklin is that it happened at all. Certified questions to the Wisconsin Supreme Court are rare, and a certified question presented in a federal criminal case regarding a matter of state criminal law is unheard of.
COA clarifies summary judgment procedure and the “continuing denial of visitation” grounds for TPR
Juneau County D.H.S. v. S.G.M., 2019AP553-556, 6/6/19, District 4 (1-judge opinion; ineligible for publication); case activity
This appeal presents two issues of TPR law: (1) Whether a county must file an affidavit in support of its summary judgment motion; and (2) Whether Juneau County satisfied the requirement of §48.415(4)(a), which governs the “continuing denial of visitation.”
COA: Paper copies didn’t satisfy open records request for emails
Bill Lueders v. Scott Krug, 2019 WI App 36; case activity (including briefs)
Here’s a non-criminal case that may nevertheless prove useful to your criminal practice, if you seek information via the open-records law. Lueders (a reporter) sent an open records request to Krug (a state legislator)’s office, asking for emails referring to a particular set of subjects. Krug’s office responded by supplying paper printouts of the requested emails; Lueders replied that he specifically wanted an electronic version of the emails, which Krug’s office refused to give him. The court of appeals now upholds the circuit court’s ruling that Lueders was entitled to the electronic data.
COA reinforces Wisconsin’s elimination of 4th Amendment protections in traffic stops
State v. Courtney C. Brown, 2019 WI App 34, petition for review granted, 10/15/19, affirmed, 2020 WI 63; case activity (including links to briefs)
This is a published, split decision with a vigorous, showstopping “concurrence” by Reilly. Neubauer and Hagedorn hold that after writing Brown a ticket for a seatbelt violation, an officer’s request that he exit his car and consent to a search (where he was looking for drugs and weapons) was part of the traffic stop’s original mission. Reilly “concurs” only because he can’t defy SCOW’s recent opinions in State v. Floyd and State v. Wright, which he regards as intellectually dishonest and akin to the Dred Scott decision.
How Cars Transformed Policing
Apropos today’s decision in State v. Courtney Brown, The Boston Review has just published an excerpt from a new book by a legal historian who argues that the mass adoption of the automobile revolutionized policing in the United States:
Study shows court reporters transcribe testimony by African Americans incorrectly
The study is called “Testifying while black: An experimental study of court reporter accuracy in the transcription of African American English.” The certified court reporters in the study were able to record African American English with 82.9 % accuracy. In 31% of the 2,241 transcriptions analyzed the errors changed the content of the speaker was saying. Consider the implications! Read about it here.
SCOW: Courts taking guilty pleas needn’t cover each constitutional right being waived
State v. Javien Cajujuan Pegeese, 2019 WI 60, 5/31/19, review of an unpublished court of appeals decision; case activity (including briefs)
Pegeese pleaded guilty to a robbery and received probation. He later sought plea withdrawal, asserting the circuit court’s colloquy had been deficient because it didn’t inform him of the constitutional rights he was waiving, and further alleging that he actually did not understand those rights–that is, he asserted a Bangert-type plea-withdrawal claim. The supreme court now holds the colloquy not deficient, because the court referred to the plea questionnaire form on which the rights were listed, asked Pegeese’s attorney whether he believed Pegeese understood the questionnaire, and asked Pegeese himself whether he understood “the Constitutional Rights you give up when you enter a plea” and confirmed that Pegeese had no questions about those rights.
More on Trammell and JI-140
Attorney Michael Cicchini, one of the authors of the studies Emmanuel Trammell cited in his challenge to Wis. JI–Criminal 140, has published a post about the supreme court’s decision on his blog, The Legal Watchdog. He focuses his attention on the court’s perfunctory brush-off of the studies (in a footnote, no less) and responds to the court point-by-point. You will want to read it if you are litigating the issue based on the Cicchini and White studies.
SCOTUS resolves issue regarding tolling of supervised release under federal law
Mont v. United States, USSC No. 17-8995, June 3, 2019, affirming United States v. Mont, 723 Fed. Appx. 325 (6th Cir. 2018); Scotusblog page (includes links to briefs and commentary)
Under 18 U.S.C. § 3624(e), the period of supervised release imposed as part of a federal sentence is “tolled” during “any period the person is imprisoned in connection with a conviction for a crime….” In a decision of interest to federal practitioners, the Supreme Court holds that the period the person is imprisoned includes pretrial custody in a case that is later credited toward the sentence imposed for a new conviction.
SCOTUS to decide whether defendant must challenge length of his sentence to preserve the issue for appeal
Holguin-Hernandez v. United States, USSC No. 18-7739, cert granted 5/30/19
Whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.
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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.