On Point

This week Pacific Standard magazine reported on some interesting new research. Jurors are more likely to convict a person accused of a gruesome crime if they are shown color photographs of the victim rather than black and white photographs. Read more here.

This week Wired ran an op-ed arguing that courts should stop using algorithms to set bail and sentence defendants until some ground rules are set. Yes, it discusses Compas and State v. Loomis. But beyond that it describes what could happen if courts move from using simple algorithms to using deep learning algorithms known as neural […]

State v. Steven T. Delap, 2016AP2196-CR, 4/20/17, District 4 (one-judge decision; ineligible for publication), petition for review granted 7/18/17, affirmed, 2018 WI 64; case activity (including briefs)

Police tried to arrest Delap outside his home on warrants for fleeing from a couple of traffic stops, but when they approached and said “stop, police,” Delap fled into his home. The police followed and arrested him inside. (¶¶3-6). Delap’s challenge to his arrest is no more successful than his attempt to flee.

State v. Joel Maurice , 2016AP633-CR, 4/18/17, District 1 (unpublished); case activity (including briefs)

Maurice presented 7 issues for review, which the court of appeals rejected with a scant tablespoon of law. This 32-page opinion reads like a summary of trial testimony and is probably not worth your time unless you happen to be working on one of the issues or you want to see how many ways the court of appeals can reformulate the “prejudice” prong of Strickland’s test for ineffective assistance of counsel. First, here is a rundown of the issues:

State v. Brandon Arthur Millard, 2016AP1474-CR, 4/20/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs) ¶10     This court has previously rejected arguments that Daubert applies to a law enforcement officer’s testimony regarding HGN. See State v. VanMeter, No. 2014AP1852, unpublished slip op. (WI App Nov. 24, 2015), and State v. […]

Manrique v. United States, USSC No. 15-7250, 2017 WL 1390728 (April 19, 2017), affirming United States v. Manrique, 618 Fed. App. 579 (11th Cir. 2016); Scotusblog page (including links to briefs and commentary)

Lawyers handling federal criminal appeals, take note: This decision holds that, to challenge a deferred restitution order under the Mandatory Victim Restitution Act, 18 U.S.C. § 3664(d)(5), that is entered in an amended judgment issued after the defendant has filed a notice of appeal, the defendant must file a second notice of appeal from the amended judgment containing the restitution amount.

State v. C.G.B., 2017 WI App 32; case activity

While the juvenile code gives a judge the authority to dismiss a juvenile delinquency petition and refer the case for a deferred prosecution agreement (DPA) over the district attorney’s objection, State v. Lindsey A.F., 2003 WI 63, 262 Wis. 2d 200, 663 N.W.2d 757, the code does not give the judge the authority to dismiss a petition and order a consent decree over the DA’s objection.

State v. Thomas G. St. Peter, 2016AP683-CR, District 1, 4/18/17 (one-judge decision; ineligible for publication); case activity (including briefs)

St. Peter is entitled to a new sentencing hearing because the judge violated his due process rights when it relied on inaccurate information to jump the parties’ joint recommendation for time served and impose more jail time. State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1 (sentencing based on inaccurate information violates due process). Not only that, but the judge erroneously exercised his sentencing discretion by failing to link the relevant facts and factors of the case to the standard sentencing objectives. —And you thought an erroneous exercise of sentencing discretion was as mythical a beast as a unicorn!

State v. Kenneth William Jaworski, 2016AP5, District 1, 4/18/17 (not recommended for publication); case activity (including briefs)

The state filed a ch. 980 commitment petition against Jaworski shortly before the mandatory release (MR) date the Department of Corrections had calculated for him. But DOC later realized it had miscalculated Jaworski’s MR date, which was actually about two months earlier than the date the petition was filed. DOC’s miscalculation (whether negligent or, as Jaworski argues, made in “bad faith”) doesn’t mean the petition was untimely because a ch. 980 petition may be filed anytime before the person is released or discharged from his predicate sexual offense sentences.

Marathon County v. P.X., 2016AP1490, 4/18/17, District 3 (1-judge opinion, ineligible for publication); case activity

P.X., who has longstanding diagnoses of autism, obsessive-compulsive disorder, and intellectual disabilities, was the subject of a Chapter 54 guardianship and a Chapter 55 protective placement, when the County sought to extend his Chapter 51 civil commitment. P.X. argues that he is not a “proper subject for treatment” under Chapter 51 because he is not “capable of rehabilitation” under Fond du Lac County v. Helen E.F., 2012 WI 50, 340 Wis. 2d 500, 814 N.W.2d 179. Instead, the county is using medication to “control” his behavior.