On Point

State v. Erika Lisette Gutierrez, 2014AP1983-CR, 3/7/2017 (not recommended for publication); case activity (including briefs)

Gutierrez pleaded guilty to intentional physical abuse of a trial and had a bench trial on her plea of not guilty by reason of mental disease or defect. She asserts she should be allowed to withdraw her guilty plea because the circuit court didn’t give the full § 971.08(1)(c) immigration warning and because her plea was premised on incorrect advice from her lawyer. The court of appeals disagrees.

State v. Earnest Lee Nicholson, 2015AP2154-CR & 2015AP2155-CR, 3/7/2017, District 1 (not recommended for publication); case activity (including briefs)

Nicholson challenges the validity of the no-contact order he was convicted of violating, and also argues his rights to confrontation and to testify were violated. The court of appeals rejects his claims.

Last summer, SCOW held that, if used properly, a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate due process. See State v. Loomis and our post. Loomis filed a petition for writ of certiorari which presents this question for review:

State courts increasingly are relying on risk assessment instruments at sentencing. When the risk assessment instrument used is proprietary, as the Correctional Offender Management Profiling for Alternative Sanctions (“COMPAS”) software is, defendants have very little information about how the risk is analyzed. Is it a violation of a defendant’s constitutional right to due process for a trial court to rely on such risk assessment results at sentencing:

a.  because the proprietary nature of COMPAS prevents a defendant from challenging the accuracy and scientific validity of the risk assessment; and

b.  because COMPAS assessments take gender and race into account in formulating the risk assessment?

SCOTUS ordered the State of Wisconsin to respond to the petition, which according to this study, happens in maybe 2-3% of cases. But today SCOTUS took an even more unusual step by issuing a “CVSG”–a call for the views of the acting U.S. Solicitor General, even though the United States is not a party to Loomis v. Wisconsin.

Since July 1, 2016, circuit court clerks have been permitted to transmit documents and records electronically to the court of appeals. When that occurs, the court of appeals paginates the documents in the appellate record. Sometimes a document is shared among multiple appeals. Originally the system was designed to paginate a document permanently–one time. Therefore, in consolidated and companion cases, documents used in multiple circuit court records had incorrect pagination.

Travis Beckless v. United States, USSC No. 15-8544, 2017 WL 855781 (March 6, 2017), affirming Beckles v. United States, 616 Fed. Appx. 415 (11th Cir. 2015) (unpublished); Scotusblog page (including links to briefs and commentary)

The Supreme Court holds that provisions in the federal advisory sentencing guidelines are not subject to vagueness challenges under the Due Process Clause.

Michael Damon Rippo v. Renee Baker, Warden, USSC No. 16-6316, 2017 WL 855913 (March 6, 2017) (per curiam), reversing and remanding Rippo v. State, 368 P.3d 729 (Nev. 2016); Scotusblog page

In this per curiam decision, the Supreme Court holds the lower court erred in demanding a defendant show actual bias to satisfy his claim that his due process right to an impartial judge was violated.

The basis for much of American jurisprudence and legislation about sex offenders was rooted in an offhand and unsupported statement in a mass-market magazine, not a peer-reviewed journal.

So says Adam Liptak in his “Sidebar” column in today’s New York Times, as he explains why there is “vanishingly little evidence” for the Supreme Court’s oft-cited reference to sex offender recidivism being “frightening and high,” Smith v. Doe,

State v. David W. Howes, 2017 WI 18, on certification from the court of appeals; case activity (including briefs)

The supreme court granted certification in this case to decide an important question: Does Wisconsin’s implied consent statute create a categorical “consent” exception to the warrant requirement as to unconscious drivers, thus allowing police to collect blood without having to get a warrant or establish exigent circumstances or some other exception? But the court doesn’t answer that question, leaving the law in a muddle. On top of that, the court reverses the circuit court’s suppression order, though without a majority agreement as to why the blood draw was legal, and with some justices invoking a theory the state didn’t argue in the circuit court.

State v. Jeffrey C. Denny, 2017 WI 17, reversing a published court of appeals decision; 2015AP202-CR, 2/28/2017; case activity (including briefs)

In State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, the supreme court unanimously held that Wis. Stat. § 974.07, the postconviction DNA testing statute, provides two routes for a convicted defendant seeking exoneration: a defendant satisfying certain basic criteria may pay for his own testing of physical evidence; one making a stronger showing of potential significance may secure such testing at public expense. The court now closes off the first, self-paid route.

State v. Daniel J.H. Bartelt, 2017 WI App 23, petition for review granted 6/15/17, affirmed, 2018 WI 16, ; case activity (including briefs)

During a police interview about an attempted homicide, Bartelt made incriminating statements and then unequivocally invoked his right to counsel. A few minutes later, police arrested him. The next day, different officers advised Bartelt of his Miranda rights, which he waived before confessing to a murder. The issue is whether Bartelt was in custody when he invoked his right to counsel during the first interview.