On Point

State v. A.S.W./State v. J.P.W., 2015AP2119 & 2015AP2120, District 2, 10/5/16 (one-judge decision; ineligible for publication); case activity

Douglas Yanko was convicted of sexually assaulting a child. Postconviction, he sought access to the juvenile court records of the child’s brothers, A.S.W. and J.P.W., who were also charged with sexually assaulting the child. Yanko asserts there may be exculpatory evidence in the records—in particular, evidence the child is untruthful or otherwise incredible—because the delinquency petitions were amended to charge misdemeanor battery and A.S.W. and J.P.W. were given in-home placement. (¶¶2-4). The court of appeals rejects all Yanko’s arguments for getting access to the records.

State v. Ali Garba, 2015AP1243-CR, District 2, 10/5/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Garba wanted to present testimony from two expert witnesses about possible reliability problems with the gas chromatography tests of his blood, but the circuit court wouldn’t let him. The court of appeals holds the circuit court properly exercised its discretion and rejects Garba’s claim the ruling violated his right to present a defense.

State v. Matthew Allen Lilek, 2014AP784-CR, 10/4/16, District 1 (not recommended for publication); case activity (including briefs)

Lilek’s trial counsel raised his competency to stand trial and the court-appointed expert found him incompetent and unlikely to become so. The state, dissatisfied with that result, requested another evaluation, and the court obliged. This new evaluation reached the opposite conclusion, and Lilek was eventually found competent. Is this OK?

State v. Christopher E. Masarik, 2015AP194-CR, District 1, 10/4/16 (not recommended for publication); case activity (including briefs)

Masarik didn’t unequivocally assert his right to have counsel present while he was being questioned about an arson that resulted in the death of another, and his statement wasn’t involuntary despite his mental health difficulties.

State v. J.B., 2016AP483, 484 & 485, 10/4/2016, District 1 (1-judge decision; ineligible for publication); case activity

2013 Wis. Act 337 created Wis. Stat. § 48.23(2)(b)3., which permits a TPR court in some circumstances to find that a parent who has defaulted as to grounds by failing to appear has also waived his or her right to counsel. The statute then imposes a two-day waiting period before the court proceeds to disposition. But what if the court finds a parent in default but does not find counsel waived?

Question presented:

Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

Dane County DHS v. C.N., 2016AP1472-1473, District 4, 9/29/16 (1-judge opinion, ineligible for publication); case activity

C.N. argued that in considering the best of her children the circuit court placed too much weight on her lengthy separation from her children and not enough weight on the progress she had made toward meeting the conditions of return. Unfortunately, the standard of review–whether the circuit court erroneously exercised its discretion–doomed her appeal.

Question presented:

Colorado, like many states, imposes various monetary penalties when a person is convicted of a crime. But Colorado appears to be the only state that does not refund these penalties when a conviction is reversed. Rather, Colorado requires defendants to prove their innocence by clear and convincing evidence to get their money back.

The Question Presented is whether this requirement is consistent with due process.

State v. Kenneth M. Asboth, Jr., 2015AP2052-CR, 9/29/16, District 4 (not recommended for publication); petition for review granted 1/9/17; affirmed 2017 WI 76; case activity (including briefs)

Police suspected Kenneth Asboth in a bank robbery. They received a tip that he would be at a storage facility, and converged there, where they arrested him. They also decided to seize the car he had been driving, which was parked in the lane between storage sheds. Once the car was at the police station, officers searched it, finding evidence linking Asboth to the robbery. The trial court denied suppression, holding that the car was validly impounded, and that an inventory search was thus permitted. 

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