On Point

Curtis J. Pidgeon v. Judy P. Smith, Warden, 7th Circuit Court of Appeals No. 14-3158, 5/13/15

In a federal habeas case, the Seventh Circuit has confirmed that the Machner hearing, like New Glarus beer and squeaky cheese curds, is a Wisconsin anomaly. State v. Machner, 92 Wis. 2d 797 (Ct. App. 1979.) Special guest Shelley Fite (SPD alum turned Federal Defender staff attorney) explains what this federal court decision could mean for state court IAC claims.

“Recommended Reading on Prosecutorial Misconduct.” Boy those DAs get away with a lot! Click here for more. Are underpaid public defenders happier than their wealthy counterparts in private practice? This article says “yes.” Check out UWLS Professor Cecilia Klingele’s new article on deterrence-based correctional programs here. “Anatomy of a Contempt: Just keep telling the judge […]

Steven D. Johnson v. Brian Foster, 7th Circuit Court of Appeals No. 13-2008, 5/6/15

Johnson’s failure to file a petition for review in the Wisconsin Supreme Court means he failed to complete a full round of state-court review, which in turn means his federal habeas petition is barred under the doctrine of “procedural default.” This default could be excused if Johnson shows that prison officials interfered with his ability to comply with the state court’s procedural rules. Johnson argues the prison wrongful denied his request for a litigation loan under § 301.328(1m), and that should excuse his failure to petition the state supreme court for review. The court rejects the argument, holding the loan denial wasn’t an external impediment to Johnson filing a petition for review.

Ralph D. Armstrong v. Karen D. Daily, et al., 7th Circuit Court of Appeals Nos. 13-3424 & 13-3482, 5/11/15

Ralph Armstrong was imprisoned for 29 years for the 1980 rape and murder of Charise Kamps—a crime that he maintains he did not commit. His conviction was set aside in 2005, State v. Armstrong, 2005 WI 119, 283 Wis. 2d 639, 700 NW 2d 98, and in 2009 a circuit court judge dismissed the charges entirely because the prosecution had destroyed key exculpatory evidence, rendering a fair trial impossible. In 2012 Armstrong filed a civil suit under 42 U.S.C. § 1983 against the prosecutor and state crime laboratory technicians who, he alleges, deprived him of liberty without due process of law by destroying exculpatory evidence to frame him for Kamps’s murder. The Court of Appeals rejects the defendant’s qualified immunity claims and holds Armstrong’s case can proceed.

State v. Royce L. Hawthorne, 2014AP1566/67, 5/12/15, District 1 (not recommended for publication); click here for briefs

Hawthorne filed a pro se appeal from the denial of his §974.06 postconviction motion, which raised 9 claims of ineffective assistance of postconviction counsel and 3 claims of ineffective assistance of appellate counsel. The court of appeals dispensed with on and all in short order. Two aspects of the decision may be of interest.

State v. Brandon L. P-D., 2014AP2785, District 4, 5/14/15 (one-judge decision; ineligible for publication); case activity

The court of appeals rejects Brandon’s arguments that the evidence was insufficient to support his delinquency adjudication for incest because of the victim’s inconsistent testimony. The court also rejects his arguments that the circuit court erred in denying his motion for in camera review of the victmi’s medical records and in excluding evidence of a previous sexual assault of the victim.

State v. Juan Francisco Rosas Vivar, 2014AP2199-CR, District 4, 5/14/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Vivar wasn’t seized for Fourth Amendment purposes when an officer “called out” to Vivar in as he walked across a parking lot, saying “Juan, can you come talk to me?”

State v. General Grant Wilson, 2015 WI 48, reversing an unpublished court of appeals summary disposition; opinion by Prosser; concurrence by Ziegler; dissent by Abrahamson; case activity (including briefs)

If this portly opinion had been placed on 40-page reducing plan, it would have gained clarity and exposed its inner motive: ensuring that a 22-year old conviction sticks. In Wisconsin, even when the case against a defendant is overwhelming, he still has the right to present evidence that a 3rd party committed the crime of which he is accused per State v. Denny. To do so, he must show that the 3rd party had a motive and an opportunity to commit, and a direct connection to, the crime charged. SCOW here reaffirms Denny but “engineers” a more stringent “opportunity” test for certain cases.

Click here for certification order; circuit court order affirmed, 2016 WI 1; click here for case activity

Issue (composed by the court of appeals):

This appeal raises an important issue of first impression regarding the constitutionality of a mental health treatment statute related to inmates within the Wisconsin state prison system.  The question presented is whether Wis. Stat. § 51.20(1)(ar) (2013-14) is facially unconstitutional on substantive due process grounds because it does not require that a court find an inmate dangerous prior to ordering the inmate civilly committed for treatment and authorizing the involuntary medication of the inmate.  A definitive answer to this question from the Wisconsin Supreme Court, along with a clear statement as to the appropriate level of constitutional scrutiny to apply in such a case, would be of great value to the bench, the bar, the legislature, and the citizenry.  Thus, we certify this appeal to the Wisconsin Supreme Court pursuant to Wis. Stat. Rule 809.61.

State v. Mastella L. Jackson, 2015 WI App 49, petition for review granted, 10/8/15, affirmed, 2016 WI 56; click here for briefs

This decision is SCOW bait. Police in Outagamie County engaged in what the court of appeals called “reprehensible” actions while interrogating the defendant. “Outraged” the circuit court suppressed the defendant’s statements to police and the physical evidence obtained during the search of her home. The court of appeals reversed the suppression of physical evidence on the theory that the untainted evidence described in the officers’ search warrant established probable cause and that the physical evidence was admissible via the inevitable discovery doctrine.