On Point

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. Answer: 50%. Click here. And in SCOW? 7%! Click here. Almost makes you wonder if it’s worth filing a petition for review on Fourth-Amendment issues,

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).

State v. Jeffrey L. Elverman, 2015 WI App 91; case activity (including state’s brief)

The court rejects all challenges to a conviction of theft of more than $10,000. The issues mostly spring from the state’s use of Wis. Stat. § 971.36(4), which permits, under certain circumstances, the aggregation of multiple thefts into a single count.

Question presented:

Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided.

Seriously! The public is urged to send cards, gifts and flowers to their favorite lawyers and judges to show their appreciation for their good work. No lawyer bashing allowed today! Read all about it here. On Point can’t send you all flowers, but we do appreciate the challenging, noble work you do day in and day out. #whoneedspublicdefenders? We all do because, as Judge Brown notes (right), “the alternative would be disastrous!”

On review of a court of appeals certification; case activity

Issue (from certification)

Does a defendant’s right to due process prohibit a circuit court from relying on COMPAS assessments when imposing sentence, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account.