On Point

State v. Deshawn J. Driver, 2018AP870-CR, District 1, 2/26/19 (not recommended for publication); case activity (including briefs)

At the start of Driver’s restitution hearing, before hearing testimony from any witness, the judge told defense counsel on the record that the victim’s word “is more credible than your client’s words[.]” Later in the hearing, when defense counsel told the judge that Driver and his co-defendant did not see “a lot” of the items the victim claimed were in the stolen car, the trial court said it would “take that without their testimony” and added, “That’s why I didn’t give them a chance to say it.” Does that show “objective bias”? You bet it does.

State v. Ashlee A. Martinson, 2017AP1889-CR, District 3, 2/20/19 (not recommended for publication); case activity (including briefs)

Martinson was charged with two counts of first-degree intentional homicide for killing her mother and stepfather. She pled to second-degree intentional homicide based on her claim of adequate provocation, which is premised on a complete lack of self-control, § 939.44(1)(a). That mitigating defense didn’t preclude the sentencing court from basing its sentence on the conclusion the defendant “had a choice” whether to kill the victims.

State v. Kelly James Kloss, 2019 WI App 13, petition and cross petition for review granted, 6/11/19, petitions dismissed as improvidently granted, 3/6/20; case activity (including briefs)

Bad news first: Addressing an issue of first impression, the court of appeals held that Wisconsin now recognizes the crime of solicitation of 1st degree reckless injury. Good news: Solicitation of 1st degree recklessly endangering safety is a lesser included offense of solicitation of 1st degree reckless injury, which means that convicting a defendant of both violates multiplicity principles and Double Jeopardy. Defense wins!

Timothy W. Miller v. Angela L. Carroll, 2019 WI App 10, petition for review granted, 8/14/19, affirmed, 2020 WI 56; case activity (including briefs)

After a contested hearing between Miller and Carroll about custody and physical placement of their child, and before issuing a decision, the circuit judge accepted a Facebook “friend” request from Carroll. Miller argued the circuit court demonstrated objective bias by doing so. The court of appeals agrees.

State v. Esmeralda Rivera-Hernandez, 2018AP311-312-CR, 2/20/19, District 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

DAs have almost limitless discretion in deciding whether to initiate a prosecution. But their discretion to terminate a prosecution is subject to independent review by the circuit court, which must consider the public’s interest in: (1) the proper enforcement of its laws, and (2) deferring to the prosecutor’s legitimate discretion.  See State v. Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 170 (1978). In this case, the court of appeals holds the circuit court erroneously exercised its discretion when it considered (1) but not (2).

State v. Jeninga, 2019 WI App 14; case activity (including briefs)

Jeninga asserted that he would not have pled guilty to a weak child sexual assault charge if his trial counsel had filed an obvious motion to suppress child porn on his cell phone. Trial counsel, who missed the suppression issue, testified that the child porn caused to her to advise Jeninga to plead guilty, and he followed her advice. The court of appeals says trial counsel’s testimony was not enough to prove prejudice. Jeninga had to testify himself.

D.R. v. B.D., 2018AP1731 & 2018AP1732, District 3, 2/20/19 (one-judge decision; ineligible for publication); case activity

B.D.’s challenges to the order terminating his parental rights come up short.

You’ve seen the list of “most argumentative” lawyers 🙂 in SCOW. Now there’s a list of the “most argumentative” private and nonprofit firms in SCOW. Kudos to our comrades at the Remington Center, Legal Action of Wisconsin, and a number of private firms that take SPD cases for making the top 25 over the past […]

State v. C.L.K., 2019 WI 14, reversing an unpublished court of appeals opinion; 2/19/19; case activity (including briefs)

The State of Wisconsin petitioned the Milwaukee County Circuit Court to terminate C.L.K.’s parental rights, following which the matter went to trial in due course. After the State rested, the circuit court immediately  decided that Mr. K. was an unfit parent. That is, the circuit court decided the matter before giving Mr. K. an opportunity to present his case. The State concedes this was error, but says it is susceptible to a “harmless-error” review. It is not. We hold that denying a defendant the opportunity to present his case-in-chief is a structural error, the consequence of which is an automatic new trial. Opinion, ¶1.

Last June in Carpenter v. United States, SCOTUS held that phone users have a 4th Amendment right to historical cell site location records. Prof. Orin Kerr has a new paper out about how to implement Carpenter. Click here.  But why stop reading there? You can also read Prof.  Alan Rozenshtein’s new paper on 4th Amendment […]