On Point

In Heien v. North Carolina, SCOTUS held that an officer’s “reasonable” mistake of law can give rise to the reasonable suspicion needed to justify a traffic.  And SCOW followed suit in State v. Houghton. If you are researching this issue, you might want to take a look at this new case note in Harvard Law […]

For the 2015 SPD conference, Judge Sankovitz and Attorneys Rob Henak and Melinda Swartz prepared an excellent outline on a problem that plagues many defense lawyers on appeal.  They have a great issue. They win it, but then the court of appeals or supreme court finds the error harmless.  This detailed, well-researched outline walks you […]

Dane County DHS v. J.D., 2015AP1800, District 4, 11/19/2015 (one-judge decision; ineligible for publication); case activity

One of the statutory grounds for a finding of unfitness leading to termination of parental rights is the court-ordered denial of placement or visitation for at least one year. Wis. Stat. § 48.415(4). In Dane County DHS v. P. P., 2005 WI 32, 279 Wis. 2d 169, 694 N.W.2d 344, the supreme court rejected a facial challenge to this ground but left open the possibility that, as applied, it might violate substantive due process in a particular case. Per the court of appeals, this is not that case.

At last week’s annual State Public Defender conference Barry Scheck, co-founder of the Innocence Project, did a presentation about new challenges to forensic science evidence that could be brought using Wisconsin’s recently adopted changes to the rules governing expert opinion testimony. He noted that so-called “pattern matching” analyses—which involve comparison of, for example, fingerprints, hair, bite marks, tool marks on bullets, and handwriting samples—are ripe for challenge. He recommended an article by Karen Kafadar about statistical issues in evaluating forensic evidence. Below are links to that article, along with other resources that might help practitioners contemplating a challenge to various types of forensic evidence.

Vernard Crockett v. Kim Butler, 7th Circuit Court of Appeals Case No. 14-2320, 11/17/15

Crockett procedurally defaulted his insufficient evidence and confrontation clause claims by failing to preserve the claims at various stages of his direct appeals in state court.

Bet you think the answer is obvious–it’s Abrahamson, right? Wrong! Click SCOWstats.com for the answer.  While you’re at it, note the startling difference between how  Sixth-Amendment arguments fare in SCOW compared with Fourth-Amendment arguments. Orin Kerr of Volokh Conspiracy fame recently did a post on the chances of a Fourth Amendment argument winning in SCOTUS. […]

Review of a published court of appeals decision; case activity (including briefs)

In this case the supreme court will address an important issue about the offense of using a computer to facilitate a child sex crime, § 948.075(1r). The court of appeals granted McKellips a new trial on a charge under that statute, holding the jury was erroneously instructed to decide whether McKellips’s cell phone constituted a “computerized communication system” when it should have been instructed to decide whether McKellips’s uses of the phone constituted communication via a “computerized communication system.” The supreme court might also address another issue that has implications beyond § 948.075: Namely, whether instructional error that isn’t objected to at trial can be a basis for a new trial in the interest of justice.

State v. Patrick K. Kozel, 2015AP656-CR, District 4, 11/12/15 (one-judge decision; ineligible for publication), petition for review granted 3/7/16, reversed, 2017 WI 3; case activity (including briefs)

The results of a blood draw done by an EMT after Kozel was arrested for OWI were inadmissible because the State failed to prove that the blood draw was conducted by a “person acting under the direction of a physician,” as required by § 343.305(5)(b).

State v. N.J., 2015AP1477 & 2015AP1478, District 1, 11/12/15 (one-judge decision; ineligible for publication); case activity

The order terminating N.J.’s parental rights based on her failure to assume parental responsibility under § 48.415(6) was not invalidated by any failures by the Milwaukee Child Welfare Bureau to make reasonable efforts to reunite N.J. with her two children.

Seifert v. Balink, 2015 WI App 59, petition for review granted 11/4/15; affirmed, 2017 WI 2; case activity (including briefs)

While this case involves a medical malpractice claim rather than an issue of criminal law, On Point thought it worth noting because it will be the first time the Wisconsin Supreme Court will address the admissibility of expert opinion evidence since § 907.02(1) was revamped to adopt Federal Rule of Evidence 702 and, by extension, the interpretation of FRE 702 by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).