On Point

Some interesting posts on this subject have popped up around the blogosphere. In this “introductory post” on EDTA testing, evidence professor Colin Miller explains the flaw in the State’s contention that the FBI’s EDTA testing proved that the blood in Halbach’s car did not come from the tube of Avery’s blood that someone tampered with. And […]

Village of Bayside v. Ryan Robert Olszewski, 2015AP1033-34; 1/12/15; District 1 (not recommended for publication); case activity, including briefs

After Heien v. North Carolina and State v. Houghton, everyone predicted lots of litigation about law enforcement’s “reasonable mistakes of law” during traffic stops. This case marks the beginning of it.

State v. Gregory Tyson Below, 2014AP2614-2616-CR, 1/12,16, District 1 (not recommended for publication); case activity, including briefs

This was a high profile case in Milwaukee. Below was convicted of 29 charges of kidnapping, strangulation and suffocation, sexual assault, battery, reckless injury and solicitation of prostitutes. He appealed and asserted 4 claims for a new trial. The court of appeals rejected all of them.

State v. Marguerite Alpers, 2015AP1784-CR, 1/12/16, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court erroneously exercised its discretion in ordering Alpers to install an ignition interlock device “on [her] husband’s car” as a condition of probation in her OWI cases because the record didn’t establish the condition was a reasonable and appropriate means of advancing the goals of rehabilitation and public protection, State v. Miller, 2005 WI App 114, 11, 283 Wis. 2d 465, 701 N.W.2d 47.

Barron County DHHS v. J.H., 2015AP1529, District 3, 1/13/16 (one-judge decision; ineligible for publication); case activity

J.H.’s claims that her trial counsel was ineffective are rejected because trial counsel’s actions were either not deficient or not prejudicial.

K.C. v. B.S.-S., 2015AP1702, District 2, 1/13/16 (one-judge decision; ineligible for publication); case activity

B.S.-S.’s single conviction for intentionally causing harm to a child in violation of § 948.03(2)(b) does not demonstrate “a pattern of physically … abusive behavior” under § 48.415(5), so the circuit court erred in terminating B.S.-S.’s parental rights based on that conviction.

State v. Joseph C. Risse, 2015AP586, District 3, 1/12/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Risse pled to an OWI, but was it his first or second? The state, armed with a Wisconsin Certified Driving Record, says he had a 2008 chemical test refusal in Connecticut. Risse, bearing a collection of documents from Connecticut and elsewhere, submits that they prevent the state from showing the prior beyond a reasonable doubt.

Hurst v. Florida, USSC No. 14-7505, 2016 WL 112683 (January 12, 2016); reversing and remanding Hurst v. State, 147 So.3d 435 (Fla. 2014); Scotusblog page (includes links to briefs and commentary)

In Florida the jury makes a recommendation as to whether to impose the death penalty, but the judge then holds a separate sentencing hearing and decides whether there are sufficient aggravating circumstances to justify the death penalty. This sentencing scheme is unconstitutional because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” (Slip op. at 1).

Bruce v. Samuels, USSC No. 14-844, 2016 WL 112684 (January 12, 2016), affirming Pinson v. Samuels, 761 F.3d 1 (D.C. Cir. 2014); Scotusblog page (includes links to briefs and commentary)

Under 28 U.S.C. § 1915(b)(2) of the federal Prisoner Litigation Reform Act, a prisoner proceeding in forma pauperis must pay 20% of his or her existing income toward the filing fee of a case he or she files until the fee is paid. The federal circuit courts were split when it came to applying this requirement to prisoners who owed fees for more than one case. Some treated the 20% as a cap, so that the 20% would be taken out and applied to one case at a time till each fee was paid. Others assessed 20% per case, so that an inmate with, for example, three filing fees to pay would have 60% of his or her income taken. The Supreme Court unanimously adopts the second approach.

On January 11th, SCOW granted petitions for review in 3 more cases: State v. Finley, 2014AP2488-CR, Wisconsin Carry, Inc. City of Madison, 2015AP146, and Regency West Apartments LLC v. City of Racine, 2014AP2947. What all 3 grant orders have in common is a harsh, 18-paragraph concurrence/dissent by Justice Abrahamson. She writes: “The efforts of one member of the court to unilaterally issue the grant orders threatened to contravene the court’s internal procedures and raises the scent of lawlessness in this court.” ¶1 (emphasis supplied). See the the grant orders for yourselves.