On Point

Langlade County v. D.J.W., 2017AP1313-FT, District 3, 11/7/17 (one-judge decision; ineligible for publication); case activity

There was sufficient evidence at D.J.W.’s commitment trial to establish he met the standard for dangerousness under § 51.20(1)(a)2.d.

State v. Shawn T. Wiskerchen, 2016AP1541-CR, 11/1/17, District 2 (not recommended for publication), petition for review granted 3/14/18; affirmed 1/4/19; case activity (including briefs)

“If you start off on the wrong foot, the footer you go, the wronger it gets.” So said Hank the Cowdog and so, essentially, argues the dissenting opinion in this case.  Section 973.20(1r) allows a sentencing court to order a defendant to make full or partial restitution to any victim of a “crime considered at sentencing,” which means “any crime for which the defendant was convicted and any read-in crime.” §973.20(1g)(a). Before ordering restitution, the court must first find a “causal nexus” between the “crime considered at sentencing” and the victim’s alleged damages. Here, the court of appeals finds a “causal nexus” between the lone burglary considered at sentencing and possible losses caused by possible, uncharged prior burglaries that were never considered or read in at sentencing. It does so based upon a series of restitution decisions that have incrementally produced a result the dissent finds absurd.

State v. A.L., 2017 WI App 72, petition for review granted 6/11/18, affirmed, 2019 WI 20; case activity; review granted 6/11/18

The court of appeals holds that § 938.30(5) permits a juvenile court to order the re-evaluation of competency of a juvenile previously found not competent to proceed even though the juvenile was also found not likely to regain competence within the relevant statutory time frame (12 months, or the maximum criminal sentence for the offense, whichever is less).

State v. Micah Nathaniel Reno, 2016AP1371-CR, District 1 (not recommended for publication); case activity (including briefs)

Reno’s trial lawyer wanted to call A.A. as a witness at trial. But A.A. had a pending case and A.A.’s lawyer told Reno’s lawyer not to talk to her. Thinking he was barred by the ethics rules from talking to a represented person, Reno’s lawyer didn’t attempt to talk to A.A. or call her as a witness. Trial counsel was ineffective because he was not attempting to talk to A.A. about the subject matter of her case, but only about the subject matter of Reno’s case, and therefore counsel wasn’t barred under the rules of ethics from trying to talk to or call A.A. as a witness.

State v. Gary Lee Wayerski, 2015AP1083-CR, District 3, 10/31/17 (not recommended for publication), petition for review granted 3/13/18, and modified, and afford as modified, 2019 WI 11; case activity (including briefs)

Rejecting Wayerski’s argument to the contrary, the court of appeals holds that a police officer alleged to have sexually assaulted two teenage boys could be convicted under § 948.095(3)(a), which prohibits a person over age 21 “who engages in an occupation or participates in a volunteer position that requires him or her to work or interact directly with children” from having sexual contact or sexual intercourse with a child “whom the person works or interacts through that occupation or volunteer position.” The court also rejects the challenges Wayerski makes to the conduct of his trial.

State v. Eric L. Moore, 2016AP1292-CR, District 1, 10/31/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Moore’s right to confrontation wasn’t violated by the admission of the recording of a 911 call about an incident in which Moore was alleged to have committed battery against A.J. Nor was Moore’s lawyer ineffective for deciding not to elicit information that A.J. later recanted that allegation of battery.

On October 27, 2017, the court of appeals ordered the publication of the following criminal law related decision:

State v. Guy S. Hillary, 2017 WI App 67 (anonymous, barely corroborated tip was sufficient to establish probable cause to search home)

The Marshall Project recently reported on a study of over 30,000 plea deals in misdemeanor cases in Wisconsin. It found that white people were 74% more likely than black people to have all charges carrying potential prison time dropped, dismissed or reduced. Read more here.

These days it seems there’s an algorithm for almost every stage of litigation. Voltaire combs public records about and social media posts of prospective jurors for information to help predict how they will vote in your case. Wouldn’t that be handy during voir dire? But what if the prosecution had it and the defense didn’t? Would that be a level playing field? Read about Voltaire here.

It’s called “Clerk,” Right now it’s only available in California. But Peter Thiel plans to expand it to other state and federal jurisdictions soon. Read about it here.