On Point

Rashaad A. Imani v. William Pollard, 7th Circuit Court of Appeals No. 14-3407, 2016 WL 3434673, 6/22/16

Imani tried to exercise his right to self-representation under Faretta v. California, 422 U.S. 806 (1975), but the Wisconsin trial judge prevented him from doing so. In State v. Imani, 2010 WI 66, 326 Wis. 2d 179, 786 N.W.2d 40, the Wisconsin Supreme Court held that the trial judge properly found Imani wasn’t competent to represent himself and that he hadn’t made a knowing and voluntary choice to represent himself. The Seventh Circuit now holds that even under the stringent standard for federal habeas relief, SCOW’s decision was wrong, and Imani is entitled to a new trial.

Last week SCOWstats posted data showing that the Wisconsin Supreme Court is more polarized than the Minnesota Supreme Court. This week SCOW goes head-to-head with SCOTUS. Find out which supreme court wins the polarization contest here.

State v. Joshua J. Hams, 2015AP2656-CR, 6/30/16, District 4; (1-judge opinion; ineligible for publication); case activity (including briefs)

Don’t look down! If you do–and stutter nervously in response to questioning–the police have reasonable suspicion to extend a stop of your car for a traffic violation. So says the court of appeals in a decision that veers across the constitutional line and runs into federal case law heading the opposite direction.

State v. McKellips, 2016 WI 51, 6/28/16, reversing a published court of appeals decision, 2015 WI App 31; case activity (including briefs)

SCOW here defines the phrase “computerized communication system” by separately defining each word, and then lumping together those definitions to conclude that text messages sent with a flip phone constitute “use of a computerized communication system.” It concludes that Wis. Stat. §948.075 is understood by persons of ordinary intelligence, and is therefore not unconstitutional; and that the circuit court’s jury instructions, while not perfect, were close enough. Additionally,  SCOW reminds the court of appeals that discretionary reversals under §752.35 are only for “exceptional cases.”

State v. James D. Heidke, 2016 WI App 55; case activity (including briefs)

The state charged Heidke with one count of use of a computer to facilitate a child sex crime. Heidke moved to dismiss the penalty enhancer in §939.617(1) because it violates the Equal Protection Clause of the Fourteenth and Eighth Amendments in that it has no rational basis to that crime and it is unconstitutional as applied to him.

The answer depends on how you define “polarized” and your reference point. Today’s edition of SCOWstats presents Part 2 of “Wisconsin v. Minnesota–Comparing the Supreme Courts.” Find out whether the Badgers or the Gophers win this battle here.

Questions presented:

Johnson v. United States, 135 S. Ct. 2551 (2015) found the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(B)(ii)(defining “violent felony”) unconstitutionally vague. That clause is identical to the residual cause in the career-offender provision of the United States Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2)(defining “crime of violence”)

(1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”);

(2) whether Johnson‘s constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and

(3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

State v. Tory C. Johnson, 2015AP1322-CR, 6/28/2016, District 1 (not recommended for publication); case activity (including briefs)

Tory Johnson raises various challenges to his jury-trial conviction for resisting an officer causing substantial bodily harm.

Voisine v. United States, USSC No. 14-10154, 2016 WL 3461559, 579 U.S. ___ (June 27, 2016), affirming United States v. Voisine, 778 F.3d 176 (1st Cir. 2015); Scotusblog page (includes links to briefs and commentary)

Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U.S.C. § 922(g)(9). That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use … of physical force.” 18 U.S.C. § 921(a)(33)(A). Resolving a question that United States v. Castleman, 134 S. Ct. 1405, 1414 n.8 (2014), left unanswered, the Court, by a 5-to-2 vote, holds that misdemeanor assault convictions for reckless conduct (as contrasted to knowing or intentional conduct) trigger the statutory firearms ban.

McDonnell v. United States, USSC No. 15-474, 2016 WL 3461561 (June 27, 2016), reversing United States v. McDonnell, 792 F.3d 478 (4th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

While he was governor of Virginia, Bob McDonnell, along with his wife, accepted gifts and favors worth about $175,000 from a businessman who was trying to get the state medical schools to run studies on a nutritional supplement his company had developed. As discussed in our post on the cert grant, a jury convicted McDonnell of various honest services fraud and extortion counts in relation to various actions he undertook related to the supplement, including arranging and attending meetings with other government officials about the supplement and hosting a private lunch with the businessman at which checks were given to university researchers.