On Point

State v. Brian L. Zieglmeier, 2016AP1815-CR, 4/25/17, District 3 (1-judge opinion, ineligble for publication); case activity (including briefs)

What are the odds that a driver who had been drinking beer would get pulled over by an Officer Pilsner? That’s what happened to Zieglmeier, who had been going 42 in a 25 mph zone. While he didn’t seem disoriented when he spoke to Pilsner, he also didn’t pass the “smell test.”

State v. J.J.S., 2016AP1519, 4/25/17, District 3 (1-judge appeal; ineligible for publication); case activity

The case appears to be an issue of first impression: Whether §938.34(5)(c), which provides that juveniles under 14 can’t be required to pay more than $250 in restitution, refers to the juvenile’s age when the State filed the delinquency petition or the juvenile’s age at the time of disposition. The court of appeals, choosing the time of disposition, upholds the $1,600 restitution award against J.J.S., even though he was just 13 when the filed its petition.

State v. John A. Augoki, 2016AP231-CR, 4/25/17, District 1 (not recommended for publication); case activity (including briefs)

Augoki raises two claims on appeal of his jury-trial conviction of three sexual assaults: that the jury heard other-acts evidence it should hot have heard (raised here as plain error) and that the court unconstitutionally limited his cross-examination of a state expert. The court of appeals rejects both in a fact-intensive opinion.

State v. K.C., 2017AP32, District 1, 4/25/17 (one-judge decision; ineligible for publication); case activity

The trial court properly exercised its discretion when, as a sanction for “egregious” behavior, it defaulted K.C. at the grounds-phase of the trial on the TPR petition filed against her.

Justice Gorsuch’s nomination generated a lot of press about the Chevron doctrine–the idea that, under federal law, courts must defer to an agency’s reasonable interpretation of a statute that it is charged with enforcing. See e.g. this SCOTUSblog post and this NYTimes article.  With Gorsuch confirmed, pundits expect SCOTUS to take on the “administrative state” soon.  Looks like SCOW will beat it to the punch at least with respect to courts and administrative agencies in Wisconsin. 

State v. Lemberger, 2017 WI 39, April 20, 2017, affirming a one-judge court of appeals decision; 2017AP1452; case activity (including briefs)

The supreme court declares Lemberger’s legal claim “unsettled,” and thus holds his trial counsel did not perform deficiently by not raising it. The court’s opinion, however, fails to present the actual substance of the claim.

Nelson v. Colorado, USSC No. 15-526, (April 20, 2017), reversing and remanding Colorado v. Nelson, 364 P.3d 866 (2015); SCOTUSblog page (inlcuding links to briefs and commentary).

This decision establishes that a State cannot force an exonerated defendant to file a civil suit and prove his innocence by clear and convincing evidence in order to recover costs, fees, and restitution he paid upon conviction.

So asks Orin Kerr in a post at the Volokh Conspiracy about a decision from the Fifth Circuit, Alexander v. City of Round Rock, 2107 WL 1393702 (April 18, 2017), involving a § 1983 lawsuit against police alleging violations of the First, Fourth, Fifth, and Fourteenth Amendments.

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 networks to sentence someone. Here is an excerpt from the article:

Consider a scenario in which the defense attorney calls a developer of a neural-network-based risk assessment tool to the witness stand to challenge the “high risk” score that could affect her client’s sentence.