On Point

Terance Martez Gamble v. United States, USSC No. 17-646, certiorari granted 6/28/18

Question presented:

Whether the Court should overrule the “separate sovereigns” exception to the Double Jeopardy Clause.

State v. Dion Lashay Byrd, 2017AP1968, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Byrd was convicted of making a bomb threat to the Fox 6 TV station in Milwaukee. He claims the sentencing court relied on two improper factors in imposing the maximum sentence for this Class I felony. First, he says the court coerced him into making self-incriminating statements during his sentencing allocution–statements that could not be used against him at sentencing under the Fifth Amendment. Second, he contends the court should not have based its sentencing decision on its stated dissatisfaction with the statutory maximum.

State v. Delano Maurice Wade, 2017AP1021, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Wade appeals his jury-trial conviction of sexual assault and false imprisonment. He argues that certain of his accuser’s statements, related by police officers on the stand, were hearsay, and that the court erred in addressing a jury question when he was absent.

On June 27, 2018, the court of appeals ordered the publication of the following criminal law related decision: State v. Dylan D. Radder, 2018 WI App 36 (“boilerplate” motion to suppress didn’t contain sufficient allegations to merit an evidentiary hearing)

Marathon County v. P.X., 2017AP1497, 6/26/18, District 3, (1-judge opinion, ineligible for publication); case activity

P.X. is autistic, non-verbal, intellectually and developmentally disabled and has obsessive compulsive disorder and pica. The question is whether he is capable of “rehabilitation,” which would make him a proper subject for treatment on Chapter 51. If not, then he should be placed under Chapter 55. The court of appeals held that even though P.X.’s disabilities cannot be cured and he can never function in society, his OCD and pica could be controlled with medication, so Chapter 51 applies. Under Chapter 51, a person can be committed to a mental institution for years, but Chapter 55 bars protective placement in a unit for the acutely mentally ill. See §55.12(2). This decision seems to let the county accomplish through Chapter 51 what it cannot do through Chapter 55. Let’s hope P.X. petitions SCOW for review.

On Point is sorry to report that on Monday SCOTUS denied Brendan Dassey’s petition for writ of certiorari. Click here. This means that the 7th Circuit’s decision en banc stands and Dassey remains in custody. Dassey’s cert petition and the many amicus briefs supporting it make great arguments. With different facts, they might prevail. So […]

State v. Ronald Lee. Gilbert, 2016AP1852-CR, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Congratulations to Quarles & Brady, which took this appeal pro bono, for scoring a defense win! Gilbert, who was convicted trafficking a child and related crimes, argued that his trial counsel was ineffective for failing to (1) challenge the admission of cellular phone data testimony, (2) demand discovery before trial, (3) impeach the State’s star witnesses with prior inconsistent statements, and (4) strike a biased juror. Gilbert further alleged that his trial counsel made improper statements during his closing. The court of appeals granted a Machner hearing on all claims except the one regarding juror bias.

Carpenter v. United States, USSC No. 16-402, 2018 WL 3073916, reversing United States v. Carpenter, 819 F.3d 880 (6th Cir. 2016); Scotusblog page (includes links to briefs and commentary)

This one is a big deal. It’s impossible to say just where the law will go from here, but it’s clear there will be a lot of cases citing this one in the coming years, both because cell-site location is already a widely-used law enforcement tool, and because the majority opinion has a lot to say about what Fourth Amendment “privacy” might mean now that we all share, often unwittingly, so much information about ourselves with the entities that enable our digital lives.

Currier v. Virginia, USSC No. 16-1348, 2018 WL 3073763, June 22, 2018, affirming State v. Currier, 779 S.E.2d 834 (Va. App. 2015), reasoning adopted by 798 S.E.2d 164 (Va. 2016); Scotusblog page (includes links to briefs and commentary)

A defendant who agrees to have overlapping charges considered in two separate trials cannot invoke the doctrine of issue preclusion adopted in Ashe v. Swenson, 397 U.S. 436 (1970), and argue that an acquittal in the first trial bars a second trial on the remaining charges.

Rosales-Mireles v. United States, USSC No. 16-9493, 2018 WL 3013806, 6/18/18, reversing United States v. Rosales-Mireles, 850 F.3d 246 (5th Cir. 2017); SCOTUSblog page (includes links to briefs and commentary)

As we noted in our prior post, this case is primarily of interest to federal practitioners, dealing as it does with the federal sentencing guidelines and the doctrine of plain error, which is little-used in Wisconsin’s courts. Nevertheless, the seven-justice majority has some ringing language exhorting courts, in the interest of their own legitimacy, to cop to their own errors when those errors lead to unwarranted consequences for criminal defendants.