On Point

Oscar C. Thomas v. Marc Clements, 7th Circuit Court of Appeals No. 14-2539, 6/16/15, petition for rehearing en banc denied, 8/7/15

Thomas is entitled to a new trial for the intentional homicide of Joyce Oliver-Thomas, his ex-wife, because his trial lawyer was ineffective for failing to ask a pathology expert to review the conclusions of the state’s forensic pathologist—conclusions on which the prosecutor relied heavily in arguing that Thomas caused Oliver-Thomas’s death intentionally rather than accidentally, as Thomas claimed.

Kevin Scott Karsjens v. Lucinda Jesson, 109 F. Supp. 3d 1139 (D. Minn. 2015), reversed, Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017).

After a lengthy trial in this class-action lawsuit brought by persons committed under Minnesota’s sexually violent person law, a federal district judge concluded that Minnesota’s sexually violent person commitment law does not pass constitutional scrutiny. The 8th Circuit reverses, holding the district court applied the wrong standards of scrutiny to the Minnesota law and that under the correct standards the statute passes muster.

State v. Jesse J. Delebreau, 2015 WI 55, 6/16/15, affirming a published court of appeals decision; majority opinion by Prosser, concurrence by Roggensack, dissent by Abrahamson; case activity (including briefs)

Last time SCOW addressed a defendant’s waiver of the right to counsel after being charged with a crime, the result was 5 separate opinions. Discerning the rule of State v. Forbush required clairvoyance. Here, SCOW holds definitively that a defendant’s waiver of his right to counsel in an interrogation before he is charged (under the 5th Amendment) is sufficient to waive his  right to counsel after he is charged (under the 6th Amendment) even though he has appeared in court with a public defender. Despite being represented by an attorney, the defendant must affirmatively invoke his right to counsel. The result is the same under Article 1 §7 of the Wisconsin Constitution.

State v. Raheem Moore, 2015 WI 54, 6/16/15, affirming a published decision of the court of appeals; majority opinion by Justice Prosser; case activity (including briefs)

The supreme court affirms the court of appeals’ conclusion that 15-year-old Raheem Moore’s confession was voluntary, but it rejects the court of appeals’ reading of § 938.31, which requires juvenile confessions to be recorded unless the juvenile “refused to respond or cooperate” with the interrogation if it was being recorded, § 938.31(3)(b) and (c)1.

Steven Michael Leonard v. State of Wisconsin, 2015 WI App 57; case activity (including briefs) NOTE: This case’s analysis of whether DC is a misdemeanor crime of domestic violence is effectively overruled by Doubek v. Kaul, 2022 WI 31.

The court of appeals concludes that there’s no basis in the record for determining whether Leonard’s disorderly conduct conviction qualifies as a “misdemeanor crime of domestic violence” under the federal firearm prohibition, 18 U.S.C. § 922(g)(9), and therefore he is not barred from possessing a firearm under that statute. The court also holds that Leonard’s disorderly conduct “involv[ed] the use of” one of Leonard’s guns and therefore § 968.20(1m)(b) bars the return of that gun.

Dunn County v. Dennis M., 2014AP2579, District 3, 6/16/15 (one-judge decision; ineligible for publication); case activity

Despite the fact Dennis M. can’t possess a firearm as a result of a prior involuntary commitment order, his appeal from that order is moot because he entered into a voluntary stipulation to recommitment that has expired and not been renewed.

Review of an unpublished per curiam court of appeals decision; affirmed 2016 WI 10; case activity (including briefs)

Issue (composed by On Point)

Was a warrantless blood draw of a person suspected of having ingested heroin justified because, at the time of the search, State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993), held that the dissipation of alcohol constituted a per se exigency that allowed a warrantless search, and police could reasonably extend Bohling‘s holding to a search for any drug?

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

Issue (composed by On Point)

Did the evidence presented at Smith’s postconviction hearing establish reason to doubt that Smith was competent at the time of his trial and sentencing under the standard for retrospective determinations of competency established by State v. Johnson, 133 Wis. 2d 207, 395 N.W.2d 176 (1986)?

Question presented:

When a prisoner files more than one case or appeal in the federal courts in forma pauperis, does 28 U.S.C. § 1915(b)(2) cap the monthly exaction of filing fees at 20% of the prisoner’s monthly income regardless of the number of cases or appeals for which he owes filing fees?

State v. Andre M. Chamblis, 2015 WI 53, 6/12/15, reversing an unpublished per curiam decision of the court of appeals; opinion by Justice Crooks; case activity (including briefs)

The supreme court unanimously holds that when the parties in an OWI prosecution are disputing the number of prior offenses, the circuit court can require the dispute to be resolved before it accepts the defendant’s plea; it doesn’t have to wait till sentencing to determine the number of prior offenses. And even if the court errs in denying the state the chance to prove an additional prior OWI conviction at sentencing, it violates due process to allow the circuit court to resentence the defendant on the basis of the additional conviction if the additional conviction would increase the penalty that could be imposed.