On Point

It happens. Even worse, some trial courts just say “for the reasons set forth in the State’s response, motion denied.” Turns out Judge Posner hates this practice too. Click here for more on his views.

It happens all the time, and it’s been dubbed an art. This new article,  Extending Miranda: Prohibition on Police Lies Regarding the Incriminating Evidence (54 San Diego Law Review 611 (2017), argues that police lies increase the risk of false confessions and infringe upon the defendant’s right to remain silent, the presumption of innocence, and the […]

Waukesha v. S.L.L., 2017AP1468, 5/2/18, District 2 (1-judge opinion, ineligible for publication), petition for review granted 8/15/18, affirmed, 2019 WI 66; case activity

No Wisconsin case addresses how a circuit court acquires personal jurisdiction over the subject of a Chapter 51 petition. Neither Chapter 51 nor any case authorizes a circuit court to enter a default commitment against a person whom the County failed to serve with the petition. Nor does any authority authorize doctors who have not “personally examined” the subject of a Chapter 51 petition to opine that she is mentally ill, dangerous, and the proper subject for treatment.  Yet that is what is what happened in this case.  The subject of a Chapter 51 petition could be dead, living at the North Pole, or thriving under the care of a private physician in another county, yet according to the circuit court it can still, without service, issue a default commitment against her and writ of capias to detain her next time she enters the county.

Sauk County v. R.M.C., 2017AP1860, May 3, 2018, District 4 (not recommended for publication); case activity

To appoint a guardian of the person or estate, the circuit court has to find 4 elements by clear and convincing evidence. This appeal focuses on §54.10(3)(a)2–the second element, which states:

[B]ecause of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety. WIS. STAT. § 54.10(3)(a)2.

Portage County v. J.W.K., 2017AP2429, 4/26/18, District 4, (1-judge opinion, ineligible for publication); case activity

J.W.K. appealed the extension of his Chapter 51 mental commitment arguing that the County failed to present sufficient evidence that he would be the proper subject for treatment if treatment were withdrawn. He argued that Dr. Persing’s testimony on this point “was too conclusory to be probative.” The court of appeals held that it was “sufficiently on point and clear.” Opinion ¶8.

Dahda v. United States, USSC No. 17-43, 2018 WL 2186173 (May 14, 2018), affirming United States v. Dahda, 853 F.3d 1101 (10th Cir. 2017); Scotusblog page (including links to briefs and commentary)

This decision will be important to federal criminal defense practitioners dealing with evidence obtained with wiretap orders issued under 18 U.S.C. § 2510 et seq, as a unanimous Court clarifies the application of United States v. Giordano, 416 U.S. 505 (1974), to suppression challenges under 18 U.S.C. § 2518(10)(a)(ii).

Adams County HHS Dep’t v. M.J.A., 2018AP249, District 4, 4/26/18 (one-judge decision; ineligible for publication); case activity

The circuit court granted the Department’s motion for summary judgment and terminated M.J.A.’s parental rights on continuing CHIPS grounds. The court should not have done that, because the parties’ summary judgment submissions show there is a genuine issue of material fact for trial.

State v. Harlan L. Schultz, 2017AP2185, 4/26/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Schultz moved under § 974.06 to withdraw his no contest plea to OWI 4th. He argues that his trial lawyer was ineffective for failing to file a motion challenging the traffic stop and that he didn’t understand everything he was giving up when he entered a plea. The court of appeals rejects both claims.

Byrd v. United States, USSC No. 16-1371, 2018 WL 2186175 (May 14, 2018), vacating United States v. Byrd, 679 Fed. Appx. 146 (3rd Cir. 2017); SCOTUSblog page (includes links to briefs and commentary)

Terrence Byrd was pulled over while driving a rental car with no passengers. Officers quickly realized the rental agreement for the car did not name him as the renter or an authorized driver. Though Byrd told the officers his friend had rented it, they decided he had “no expectation of privacy” and searched the car, finding body armor and heroin.

Both the district court and Third Circuit agreed with the officers: a driver not on the rental contract has no standing to complain about the search of a rental car. But all nine members of the Court conclude to the contrary: at least where a driver’s possession of the vehicle is not akin to having stolen the car (a murky caveat the Court does not today clarify), mere breach of the rental contract does not negate a reasonable expectation of privacy.

County of Fond du Lac v. William A. Tavs, 2017AP2405, 4/18/18, District 2 (one judge decision; ineligible for publication) case activity (including briefs)

William Tavs was cited for driving with an invalid license as a civil forfeiture offense. By the time he appeared in court, he had gotten his license reinstated, and the County moved to amend to a less-significant forfeiture. The circuit court, however, saying Tavs had already “gone through quite a bit” in getting his license back, sua sponte dismissed the case. The county appealed, and the court of appeals now reverses.