On Point

This article by Elizabeth Scott, Natashal Duell and Laurence Steinberg  is one of the top downloads about criminal law on the SSRN this week. It looks at how a juvenile’s brain development and social environment affects his or her decision to engage in risky behavior and criminal activity. It responds to critics who note that all juveniles experience brain development but most don’t commit crimes. And it offers evidence to support more lenient sanctions for juveniles.

The CrimProfBlog recently reported on 4 new papers about the use of neuroscience evidence in criminal proceedings. When do courts find neuroscience most relevant? They use it in competency proceedings, of course, but also as mitigation evidence at sentencing. Click here for more information.

State v. Faith N. Reed, 2016AP1609-CR, petition for review of an unpublished court of appeals decision granted 3/13/18; case activity (including briefs)

Issues (composed by On Point):

1. Whether an apartment dweller consented to police entry of his apartment by leading an officer to the door and going in.

2. If such consent was given, whether it was revoked by trying to close the door on the officer.

3. Whether any such consent was free and voluntary where the officer directed the resident to take him to the apartment to speak to someone.

State v. Gary Lee Wayerski, 2015AP1083-CR, petition for review of unpublished court of appeals opinion granted 3/13/18; case activity (including briefs)

Issues (composed by On Point):

Whether trial counsel was ineffective where he did not ask the testifying defendant about the purported confession he gave to a jailhouse snitch, and defendant would have denied the conversation occurred.

Whether the state violated Brady when it did not inform defense that the snitch had pending child-sex charges during the trial.

City of Chetek v. Daniel John McKee, 2017AP207, District 3, 3/15/18 (one-judge decision; ineligible for publication); case activity (including briefs)

McKee claimed he was justified in refusing to submit to a breath test under § 343.305(9)(a)5.c. because his chronic gastroesophageal reflux disorder (GERD) and resulting Barrett’s esophagus rendered him physically unable to take the test. (¶¶3-4). McKee sought to admit his medical records as evidence at the refusal hearing, but the circuit court sustained the prosecutor’s objection that they weren’t properly authenticated. (¶5). Further, based on the testimony of the arresting officer, the circuit court found McKee refused out of a concern for his job, not because of his medical condition. (¶¶6-7). The court of appeals rejects McKee’s challenges to the circuit court’s rulings.

State v. Timothy P. Gregory, 2016AP1265-CR, District 2, 3/14/18 (not recommended for publication); case activity (including briefs)

In this lengthy decision, the court of appeals rejects multiple challenges Gregory makes to his convictions for child sexual assault that occurred in 1997.

State v. Johnny K. Pinder, 2017AP208-CR, certification granted 3/14/18; case activity (including briefs)

Issue (from certification)

If a search warrant issued under Wis. Stat. § 968.12 for the placement and use of a GPS tracking device on a motor vehicle is not executed within five days after the date of issuance per Wis. Stat. § 968.15(1) is the warrant void under § 968.15(2), even if the search was otherwise reasonably conducted?

State v. Shawn T. Wiskerchen, 2016AP1541-CR, petition for review of an unpublished court of appeals opinion granted 3/14/18; affirmed 1/4/19; case activity (including briefs).

Issue (composed by On Point):

In State v. Queever, 2016 WI App 87, 372 Wis. 2d 388, 887 N.W.2d 912, the court of appeals required a defendant to pay restitution for a security system that the victim bought before the date of the crime for which the defendant was convicted.

Must Queever be overturned because it is impossible for a crime committed on a certain date to cause losses on an earlier date? If not, what are the limits of Queever and of the definition of “a crime considered at sentencing” for restitution purposes? Can the definition include alleged prior-committed crimes?

State v. C.L.K., 2017AP1414, petition for review of an unpublished court of appeals opinion granted 3/14/18; case activity
Issues:

1. Where, during the grounds phase of a TPR trial, the circuit court errs by directing a verdict in favor of the State without giving the respondent an opportunity to present evidence, has the court committed structural error, or is the error subject to a harmless error analysis?

2. If the error in this case is not structural, then was it harmless?

The latest edition of SCOWstats considers how our justices vote on 6th Amendment (fair trial) issues. Are Justice Rebecca Bradley and Justice Kelly more receptive to fair trial claims than the justices they replaced (Crooks and Prosser)? Click SCOWstats to find out.