On Point

Lawyers tracking how Wisconsin’s appellate courts are interpreting Wis. Stat. § 907.02(1), governing the admissibility of expert testimony, might be interested in this development. Seifert v. Balnik, the first Daubert case to reach SCOW was on track to be decided this term. It was twice listed for, and twice removed from, the oral argument schedule. According to the clerk’s office, SCOW has finished oral arguments for this term. The argument in Seifert has been pushed off to next term.

State v. M.K., 2015AP2098, District 1, 4/19/16 (one-judge decision; ineligible for publication); case activity

While the second (and final) extension of M.K.’s original CHIPS dispositional order listed only one of the three conditions M.K. had to meet for return of her son, the original order and first extension listed all three, and that’s good enough in the eyes of the court of appeals to satisfy the requirements of § 48.356(2).

State v. Gary F. Lemberger, 2015AP1452-CR, 4/14/2016, District 4 (one-judge decision; ineligible for publication), petition for review granted 10/11/2016, affirmed, 2017 WI 39; case activity (including briefs)

A breathalyzer test is a Fourth Amendment search, and state case law holds that the state may not invite a jury to view a defendant’s refusal to consent to a search as evidence of guilt. So, can a prosecutor argue that a defendant’s refusal to take a breathalyzer shows his guilt? Don’t look to this case for an answer.

SCOW watchers might find today’s 3-3 split in Yasmine Clark v. American Cyanamid Company, 2014AP775 interesting.  The appeal raises an important constitutional issue in the context of a lead paint products liability case. The court of appeals’ certification asks:

Jefferson County Department of Human Services v. J.V., 2015AP2622, 2623, & 2624, 4/14/2016, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

J.V. appeals the termination of her parental rights to her three younger children, arguing the circuit court erred in excluding evidence that she had succeeded in having her eldest child returned to her.

State v. Andrew G. Chitwood, 2016 WI App 36; case activity (including briefs)

In theory, Wisconsin’s new test for the admissibility of expert testimony “is flexible but has teeth.” State v. Giese, ¶19. In practice, it’s flexible and has dentures. Literally every Daubert challenge litigated on appeal since Wis. Stat. §907.02 became effective has failed. The court of appeals has held that expert testimony regarding the retrograde extrapolation of a person’s blood alcohol concentration passes Daubert (See Giese). So does a doctor’s testimony based solely on his personal experience with prenatal and delivery case (see Seifert). So does a social worker’s testimony based solely on her observations of behavior in child abuse victims (see Smith). And now with Chitwood so does expert testimony by a drug recognition evaluator.

State v. C.R.R./State v. M.R., 2015AP1771 & 2015AP1772, District 3, 4/13/16 (one-judge decision; ineligible for publication); case activity

The court of appeals rejects various challenges to orders terminating the parental rights C.R.R. and M.R., the mother and father, respectively, of A.M.R.

State v. Lazaro Ozuna, 2015AP1877-CR, 4/13/16, District 2 (one-judge decision; ineligible for publication), petition for review granted 9/13/16, affirmed 2017 WI 64, ; case activity (including briefs)

Even though DOC discharged Ozuna from probation, he didn’t successfully complete his sentence for purposes of the expungement statute because he was cited for underage drinking while he was on probation and therefore violated the court-imposed probation condition that he not consume any alcohol.

United States v. Lonnie Whitaker, 7th Circuit Court of Appeals Nos. 14-3290 & 14-3506, 4/12/16

Taking a drug-sniffing dog into the locked, second-floor hallway of an apartment building where there were at least six to eight apartments without first obtaining a warrant violated the Fourth Amendment under Florida v. Jardines, 133 S. Ct. 1409 (2013), and Kyllo v. United States, 533 U.S. 27 (2001).

Brian K. Boulb v. United States, 7th Circuit Court of Appeals No. 15-1383, 4/4/16

Boulb filed a § 2255 habeas petition challenging his federal conviction 16 months after the conviction was final. That was four months too late. Boulb argued he was entitled to equitable tolling of the 12-month filing deadline because of his mental incompetence, but his allegations aren’t sufficient to justify an evidentiary hearing on the question.