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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.

SCOW to decide whether “mandatory” DNA surcharges can be waived

State v. Michael L. Cox, 2016AP1745-CR, certification granted 10/17/17; case activity (including briefs)

Issue (from certification):

This case raises a single question: whether a sentencing court retains any discretion under Wis. Stat. § 973.046 (2015-16), to waive DNA surcharges for crimes committed after January 1, 2014.

SCOW will review how court of appeals decide prejudice under Strickland in multi-count cases

State v. Lamont Donnell Sholar, 2016AP987, petition for review granted 10/17/17; case activity (including briefs)

Issues (composed by On Point)

1. When assessing the prejudice of defense counsel’s deficient performance in a multiple-count jury trial, may a court divide the prejudice analysis on a count-by-count basis, finding prejudice warranting relief on some counts from the single trial but not others?

2. If a party fails to file a petition for review following an unfavorable Court of Appeals ruling on a particular argument, may the party re-litigate the same question in a second appeal of the same case?

“The Supreme Court Is Allergic To Math”

The Supreme Court does not compute. Or at least some of its members would rather not. The justices, the most powerful jurists in the land, seem to have a reluctance — even an allergy — to taking math and statistics seriously.

Circuit court may consider foster parents’ intent to allow contact with children after TPR is final

State v. M.P., 2016AP2104 & 2016AP2105, District 1, 10/17/17 (one-judge decision; ineligible for publication); case activity

At the dispositional hearing on the petition to terminate M.P.’s parental rights to his two children the court heard evidence that the foster parents intended to allow M.P. to continue to have contact with the children if his parental rights were terminated. (¶8). The court of appeals rejects M.P.’s contention that trial counsel was ineffective for failing to object to this evidence.

Stop, frisk for weapons justified

State v. Marcellous D. Tally-Clayborne, 2016AP1912-CR, District 1, 10/17/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Tally-Clayborne challenges his carrying a concealed weapon conviction, arguing he was unlawfully stopped, detained and searched because police had no information suggesting he was involved in any illegal activity. The court of appeals holds both the stop and pat-down search were justified.

SCOTUS will decide whether agreeing to severance means giving up issue preclusion

Currier v. Virginia, USSC No. 16-1348, certiorari granted 10/16/17

Question presented:

Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

SCOTUS will address suppression of wiretap evidence

Dahda v. United States, USSC No. 17-43, certiorari granted 10/16/17

Question presented:

Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

SCOTUS will decide whether Microsoft has to provide emails sought under warrant when the emails are stored overseas

United States v. Microsoft Corp., USSC No. 17-2, certiorari granted 10/16/17

Question presented:

Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.

A provocative new study on state court criminal appeals

Does your client’s chance of success on appeal depend on the crime he allegedly committed? On whether you challenge the sentence or the conviction? On whether you challenge a guilty plea, a suppression decision, or jury selection? On whether you file a reply brief? You may think the answers to these questions are obvious, but […]

Justice Kelly a maverick? An update on on 4th Amendment cases in the Wisconsin Supreme Court

According to the latest edition of SCOWstats, the Wisconsin Supreme Court has been taking more 4th Amendment cases then ever. How are the justices voting? You might be surprised. Click here.

On Point is sponsored by Wisconsin State Public Defenders. All content is subject to public disclosure. Comments are moderated. If you have questions about this blog, please email [email protected].

On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.