On Point

Question Presented:

Whether, in a federal criminal prosecution under the Hobbs Act, 18 U.S.C. §1951, the Government is relieved of proving beyond a reasonable doubt the interstate commerce element by relying exclusively on evidence that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense.

Question Presented:

Where an error in the application of the United States Sentencing Guidelines results in the application of the wrong Guideline range to a criminal defendant, should an appellate court presume, for purposes of plain-error review under Federal Rule of Criminal Procedure 52(b), that the error affected the defendant’s substantial rights?

State v. Timothy L. Finley, Jr., 2015 WI App 79, petition for review granted, 1/11/16, affirmed, 2016 WI 63; case activity (including briefs)

In an important decision addressing how to apply State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482, the supreme court’s recent muddling of plea withdrawal standards, the court of appeals holds that when a defendant is mistakenly told the maximum sentence is less than the law allows, the error “is not curable, after the fact, by ‘commutation’ of an otherwise lawful sentence down to the maximum amount of punishment the defendant was incorrectly informed he or she faced at the time of the plea.” (¶37). 

A.N. v. F.S., 2015AP1405 & 2015AP1406, District 3, 10/2/15 (one-judge decision; ineligible for publication); case activity

A circuit court handling a TPR case is not required to make an explicit finding that a parent is unfit before proceeding to the dispositional phase because a finding of unfitness automatically follows from a finding there are grounds to terminate the parent’s rights.

Questions Presented:

1. Are the Eighth and Fourteenth Amendments violated where the presiding Chief Justice of a State Supreme Court declines to recuse himself in a capital case where he had personally approved the decision to pursue capital punishment against Petitioner in his prior capacity as elected District Attorney and continued to head the District Attorney’s Office that defended the death verdict on appeal; where, in his State Supreme Court election campaign, the Chief Justice expressed strong support for capital punishment, with reference to the number of defendants he had “sent” to death row, including Petitioner; and where he then, as Chief Justice, reviewed a ruling by the state postconviction court that his office committed prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83 (1963), when it prosecuted and sought death against Petitioner?

2. Are the Eighth and Fourteenth Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive?

Question Presented:

Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful?

Maryland v. Kulbicki, USSC No. 14-848 (per curiam) (October 5, 2015) granting cert and reversing Kulbicki v. State, 99 A.3d 730, 440 Md. 33 (2014); SCOTUSblog page

This is a summary reversal of a Maryland Court of Appeal’s decision, which held that Kulbicki’s defense lawyers were constitutionally ineffective back in 1995.  A jury convicted Kulbicki of 1st-degree murder for shooting his mistress. The State’s case rested on a Comparative Bullet Lead Analysis, which the scientific community generally accepted then, but doesn’t now.

Question presented

Did the Seventh Circuit violate 28 U.S.C. § 2254 and a long line of this Court’s decisions by awarding habeas relief in the absence of clearly established precedent from this Court?

You heard about the Milwaukee County Courthouse selfie, right? So did everyone else in the blogosphere! Click here. “Why Are Lawyers So Good at Sex?” here.  If you’re having a bad day, you will laugh at the really bad puns in this article. Which SCOTUS opinions are Americans most familiar with? Click here. And, no, Gideon […]

Dane County v. T.B., 2015AP799. 10/1/15, District 4 (1-judge opinion, ineligible for publication); case activity T.B. sought to vacate an order for a Chapter 51 commitment on the grounds that the circuit court lost competency to proceed when it failed to make a verbatim record of his probable cause hearing per Wis. Stat. §51.20(5). According to […]