On Point

State v. Angela C. Nellen, 2017AP257-CR, District 4, 4/18/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Completely overlooking the victim’s own restitution hearing testimony that she was guessing about the number and value of the coins they believe were stolen by Nellen, the court of appeals blames Nellen for “fail[ing] to support [her] argument” that the record was insufficient to support the circuit court’s $90,000 restitution order for 30 coins at $3,000 each.

Time to challenge the previously reasonable assumption that “public gun possession” equals “criminal activity.” So argues this forthcoming law review article posted at SSRN. Here’s the abstract:

State v. Brian Grandberry, 2018 WI 29, affirming an unpublished court of appeals decision, 2016AP173; case activity (including briefs)

Here’s the upshot: the majority opinion here means that, if you don’t have a concealed carry permit, you can’t have a handgun “concealed” in your car, unless it’s out of your reach. How will you know if it’s out of your reach? Simple: you’ll consider the location of the gun and yourself, the size of your vehicle, and your ability to reach the gun, and then you’ll “find guidance in [SCOW] precedent and common sense.” (¶31). While you’re considering all these things you should maybe also consider how, say, a police officer might consider them. Or a prosecutor. Or a jury. Because if they reach a different conclusion, well, that’s gonna be a problem.

State v. Gerrod R. Bell, 2018 WI 28, 4/10/18, affirming an unpublished court of appeals opinion, 2015AP2667-2668-CR; case activity (including links)

A defendant is presumed innocent until the State proves him guilty beyond a reasonable doubt. That’s what the Constitution says. Yet, in this child sexual assault case, the State cleverly told jurors that they could not acquit the defendant unless they believed his accusers had lied about the alleged assaults and unless they had evidence of the victims’ motive for lying.  Bell argued that this prosecution strategy impermissibly shifted the burden of proof to him. In a 3-1-1 opinion, SCOW approved the strategy and ruled against him.

State v. T.G., Sr., 2017AP1715, District 1, 4/10/18 (one-judge decision; ineligible for publication); case activity

T.G. sought to withdraw his no contest plea to the grounds alleged in a TPR petition. He argued that his mental health issues prevented him from understanding the TPR proceedings and that his lawyer failed to fully explain that a no contest plea waived the right to a jury trial. The court of appeals holds that the record of the no contest plea demonstrates T.G. understood what he was doing and the consequences of his plea.

Dane County DHS v. C.B., 2018AP38 & 39, 4/9/2018, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Yes, that headline is correct: The circuit court did not terminate C.B.’s parental rights, and the court of appeals rejects the County’s challenges to the circuit court’s decision (and admonishes the County’s lawyer for an improper argument).

This new law review article by Daniel Epps examine the subject in depth. Consider this excerpt from the abstract:

Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless-error when it  analysis applies, and, most fundamentally, what harmless constitutional error even is-what source of law generates it and enables the Supreme Court to require its use by state courts. This Article offers a new theory of harmless constitutional error,

A new Hofstra Law Review article argues that there is no such things as a low-stakes misdemeanor. The sentences can be long and the collateral consequences can be worse. This article could help you help your judge engaged in informed misdemeanor sentencing. Your clients will thank you.

Kerr’s latest post considers 2 recent federal district court decisions on this subject. One raises the question of whether, under the 5th Amendment, the government may compel a suspect to enter a passcode to unlock his device.  The other considers whether the government may use a passcode obtained from a suspect in violation of Miranda to unlock his phone. Read the full post here.

State v. Collin M. Gallagher, 2017AP1403, 4/5/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Police took Gallagher’s blood by a warrant that the parties agree was supported by probable cause of operating while intoxicated. He argues, though, that the warrant did not, by its terms, authorize the subsequent testing of his blood–or, that if it did authorize testing, its failure to specify what sorts of testing were permitted rendered it an unconstitutional “general warrant.”