On Point

Fortunately, Wisconsin does not have the death penalty. However, On Point readers might find this SCOTUS decision Madison v. Alabama, interesting. The government cannot execute a prisoner who is insane or is so mentally ill that he can’t understand the State’s rationale for executing him. Ford v. Wainwright, 477 U.S. 399 (1986) and Panetti v. Quarterman, 551 U.S. 930 (2007).

State v. Michael Wade, 2018AP614-CR, 3/5/19, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs)

Wade challenged his convictions for misdemeanor intimidation of a witness and violating a domestic abuse injunction on the grounds that his trial lawyer had a conflict of interest: he had previously represented the victim in other criminal matters. The court of appeals held that Wade waived the conflict.

State v. Kevin Ian End, 2018AP1437, 3/6/19, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

An anonymous caller told police about a vehicle swerving in her lane and having difficulty with speed control. She provided no license late number. An officer proceeded to the area and saw a vehicle make an assortment of traffic violations. When the vehicle eventually went over a curb, the officer activated his lights and conducted a stop. The driver, End, was charged with OWI and PAC as second offenses. On appeal he challenged the stop.

Brown County Human Services v. B.P and T.F., 2019 WI App 18; case activity

T.F. argued that when the Department seeks to terminate parental rights on the grounds of abandonment in a case where the child is out of the home and a CHIPS order is in place, it must proceed under §48.415(1)(a)2., rather than (a)3. T.F. also argued that allowing the Department to proceed under (a)3 would result in an Equal Protection violation. The court of appeals rejected these arguments but held that the circuit court erred in granting summary judgment with respect to T.F. because material facts were in dispute over whether she had good cause for abandoning her daughter, Allie.

State v. Christopher Deshawn McGinnis, 2017AP2224-CR, 3/5/19, District 1 (not recommended for publication); case activity (including briefs)

The court of appeals found certain hearsay statements admissible under the “statement against penal interest” and “prior inconsistent statement” exceptions to the hearsay rule. It also held that part of a detective’s testimony qualified as hearsay, but its admission was harmless error.

Marquette County v. Christopher Patrick Bray, 2018AP665, 2/28/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs).

Bray was convicted of OWI. He argued that the circuit court should have suppressed statements he made to a sergeant during a traffic stop because he wasn’t Mirandized. The court of appeals held that Bray wasn’t in custody so no Miranda warning was necessary.

Ozaukee County v. R.T.H., 2018AP1317, 2/27/19, District 2, (1-judge opinion, ineligible for publication); case activity; Marathon County v. C.M.L., 2017AP2220, 2/26/19, District 3 (1-judge opinion, ineligible for publication); case activity

These two, unrelated decisions highlight a recurring due process violation at Chapter 51 hearings. For an original commitment, the county must prove that the person is “dangerous” under 1 of 5 standards of dangerousness. §51.20(1)(a)2.a-e. Some counties don’t bother identifying any particular standard of dangerousness before or during the hearing. Others give notice of one standard and then prove a different standard of dangerousness at the hearing. Makes it hard to prepare a defense, no?

State v. Blake Lee Harrison, 2017AP1811, District 3, 2/26/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Harrison’s due process and void-for-vagueness challenges to § 346.63(1)(am) (prohibiting driving with a detectable amount of restricted controlled substance) go up in smoke.

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.