On Point

State v. Thornon F. Talley, 2015 WI App 4; case activity

A person committed as a sexually violent person under ch. 980 does not have a due process right to have the state prove at a discharge hearing that he is still a sexually violent person, so the clear and convincing evidence standard under § 980.09(3) is not facially unconstitutional.

State v. Andrew R. Geurts, 2014AP1520-CR, District 4, 12/4/14 (one-judge decision; ineligible for publication); case activity

The circuit court had no authority to expunge the record of Geurts’s criminal case after it was dismissed after his successful completion of a deferred prosecution agreement because § 973.015 applies only to the record of an offense for which the person has been found guilty.

So asks the title of an excellent article published on The Atlantic’s website, which lays bare the flaws of the reasoning and result in Youngblood v. Arizona, 488 U.S. 51 (1988), by relating the details of the case and Youngblood’s ultimate, almost happenstance, exoneration. As noted here, the Wisconsin Supreme Court is reviewing whether the Wisconsin constitution’s due process guarantee requires greater protection than that afforded under Youngblood.

Judge Posner says the NSA should have unlimited access to your personal digital information.  Read this PCWorld article for more on his views.

Being a lawyer is hard.  Being a public defender is even harder! Did you know that the challenging profession you’ve chosen will have a BIG pay off in your old age? Says so here.

Appellate courts want their processes to appear blind and balanced.  

Practitioners take note. This opinion holds the seeds of controversy.  SCOW’s ruling–that forcing a defendant to bare his teeth to the jury does not violate the 5th Amendment–is not so surprising.  But Chief Justice Abrahamson’s concurrence, which announces the elimination of “opinion conferences” and new restrictions on the preparation of concurring and dissenting opinions seems alarming.

Marathon County v. Zachary W., 2014AP955, District 3, 12/2/14 (1-judge decision; ineligible for publication); case activity

Even if the circuit court erred it provided multiple definitions of the term “drug” when instructing the jury hearing a ch. 51 commitment case.

State v. Faizel K., 2014AP2035 & 2014AP2036, District 1, 12/2/14 (1-judge decision; ineligible for publication); case activity: 2014AP2035; 2014AP2036

In this fact-intensive decision, the court of appeals holds there was sufficient evidence to support the orders terminating Faizel’s parental rights to his sons Mohammed K. and Robeul K.

State v. Myron C. Dillard, 2014 WI 123, 11/26/14, affirming a published court of appeals decision, 2013 WI App 108; majority opinion by Chief Justice Abrahamson; case activity

Dillard accepted a plea bargain under which the state dropped a persistent repeater allegation, which carried a mandatory sentence of life without the possibility of release. But Dillard was never really subject to the persistent repeater law. When he discovered this fact after he was sentenced, he moved to withdraw his plea on the ground his decision to accept the plea bargain was based on his mistaken belief—one shared by the prosecutor, his lawyer, and the court—that he was facing a mandatory life sentence if he was convicted after a trial. The supreme court holds he is entitled to plea withdrawal because his plea was not knowing and voluntary and because his trial lawyer was ineffective for failing to discover the persistent repeater law never applied to Dillard.

Questions presented:

1.  Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.

2.  Whether it was clearly established that, even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within.

State v. Ashley L. Eirich, 2014AP1901-CR, District 2, 11/26/14 (1-judge decision; ineligible for publication); case activity

Saying that “[t]raining and experience do not turn police officers into drug-detection canines,” the court of appeals holds that probable cause to search a vehicle based on the odor of raw marijuana did not extend to a search of the bill compartment of the driver’s wallet.