On Point

Bernard McKinley v. Kim Butler, 7th Circuit Court of Appeals Case No. 14-1944, 1/4/16

McKinley failed to raise an Eighth Amendment claim in his state court challenges to the sentence he received for a murder he committed at the age of 16. That means he procedurally defaulted the claim for purposes of his federal habeas challenge to the sentence. But instead of affirming the district court’s dismissal of McKinley’s habeas petition, a majority of this Seventh Circuit panel stays the habeas proceeding and, based on reasoning that could be useful to other juveniles seeking to challenge long sentences, gives McKinley a chance to go back to state court to challenge his sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012).

If you haven’t heard, on December 18th Netflix released a new documentary series called Making a Murderer.  The first season (10 one-hour parts) recounts the riveting story of  Wisconsin’s own Steven Avery, a man who was imprisoned for sexual assault and attempted murder, and who was later exonerated. He filed a $36 million lawsuit against Manitowoc County and then found himself accused of a murder there. On Point fans will recognize most, maybe all, of the lawyers in the documentary’s cast: Steve Glynn, Walt Kelly, Mike Griesbach, Reesa Evans, Rob Henak, Dean Strang, Jerry Buting, and former DA Ken Kratz--to name a few. Public Defenders Suzanne Hagopian and Martha Askins make cameo appearances in the film.

Public records have been in the press a lot lately. Think transitory records like, texts, emails or Facebook messages.  Often it’s a court that decides whether or not Wisconsin’s public records law allows access to such information. In an interesting twist, a few of the final arbiters of the law–Wisconsin’s Supreme Court justices–recently received open records requests. According to the Journal Sentinel, the recipients have been slow to respond. This prompted SCOWstats to investigate how justices themselves vote on open records requests.

Gregory Jean-Paul v. Timonty Douma, 7th Circuit Court of Appeals No. 14-3088, 12/31/15

The Wisconsin Court of Appeals reasonably concluded that Jean-Paul validly waived his right to appellate counsel based on the waiver form he signed and his correspondence with his appellate lawyer.

United States v. Antonio West, 7th Circuit Court of Appeals Case No. 14-2514, 12/30/15

The trial court erroneously excluded expert evidence that West sought to admit regarding factors that made him susceptible to making an unreliable confession to a crime.

Tempest Horsley v. Jessica Trame, 7th Circuit Court of Appeals Case No. 14-2846, 12/14/15

Illinois law requires a person over the age of 18 but under the age of 21 to get a parent’s or guardian signature on an application for a firearm owner’s identification (FOID) card, which is generally necessary to lawfully possess or acquire a firearm. The Seventh Circuit rejects the challenge an 18-year-old brought against the law under the Second Amendment and District of Columbia v. Heller, 554 U.S. 570 (2008).

State v. Caroline D. Prieto, 2016 WI App 15; case activity (including briefs)

Nearly three years after the defense demand, and a year after the first (of two) court orders to produce a witness list, the state still hadn’t done so. The circuit court’s response? No list, no witnesses. The state appeals and…

State v. Brian I. Harris, 2016 WI App 2, petition for review granted 4/6/16, affirmed 2017 WI 31; case activity (including briefs)

Incriminating statements Harris made while he was in custody were admissible despite the lack of Miranda warnings because the statements were either sufficiently attenuated from the taint of police questioning or were not made in response to police interrogation.

New Richmond News v. City of New Richmond, 2015 WI 106, 12/18/15 (per curiam); case activity (including briefs)

We take note of this decision not because of the issue presented (does the federal Drivers’ Privacy Protection Act restrict access to records that would otherwise be subject to inspection under Wisconsin’s open records law?) but because of what it may portend for a handful of criminal cases briefed and argued in—but not decided by—the Wisconsin Supreme Court before the death of Justice N. Patrick Crooks in September 2015.

State v. Keith D. McEvoy, 2015AP1262, District 4, 12/30/2015 (one-judge decision; ineligible for publication); case activity (including briefs)

Under the facts of this case, the temporary suspension of McEvoy’s license based on his blood alcohol content didn’t equitably estop the State from seeking to revoke his license based on his refusal to submit to a chemical test of his blood.