On Point

State v. Derik J. Wantland, 2014 WI 58, 7/11/14, affirming a published court of appeals decision; majority opinion by Justice Ziegler; case activity

A four-justice majority of the supreme court holds that a police officer lawfully searched a briefcase found in a vehicle during a traffic stop because the driver consented to a search of the car and the passenger did not unequivocally withdraw the consent given by the driver. Three dissenting judges take a very different view, concluding that under the totality of the circumstances, a reasonable officer should have realized that Wantland was withdrawing consent to a search of the briefcase.

Dane County DHS v. Mable K., 2014AP398 & 2014AP399, District 4, 7/10/14 (1-judge; ineligible for publication); case activity: 2014AP398; 2014AP399

Mable K. is not entitled to a new grounds trial based on two alleged evidentiary errors—the admission of evidence about her lack of contact with her children after the period of alleged abandonment, and the admission of evidence of specific instances of her prior untruthful conduct—because there was overwhelming evidence supporting the jury’s verdict.

Remember the post about the judge who punched a public defender?  The judge has returned to the bench, and the PD has resigned in protest.  More here.

What was it like to practice law in 1981?  There were no computers.  Smoking was allowed and so was little sexual harassment.  Check out this article and video capturing life as lawyer before most of us started practicing.

Two public defenders fired over “hate speech”

State v. Rafeal Lyfold Myrick, 2014 WI 55, 7/10/14, affirming a published court of appeals decision; majority opinion by Justice Roggensack; case activity

When does negotiation become agreement? In State v. Myrick, the Wisconsin Supreme Court’s resolution of this question was critical in determining whether the State could use incriminating statements that the defendant had made at a co-defendant’s preliminary hearing. The issue arose because the plea negotiations (one theory) or the plea agreement (alternate theory) fell apart, leading to the defendant’s trial on the original homicide charge.  On Point’s Special Guest Michael Tobin, Deputy SPD, offers his take on the issues.

 State v. O’Brien, et al., 2014 WI 54, 7/9/14, affirming published court of appeals decision; majority opinion by Justice Bradley; case activity

The defendants challenged the constitutionality of recently enacted WI Stat. s. 970.038, which permits the use of hearsay at preliminary hearings, and allows a court to base a finding – that probable cause exists to hold a defendant for trial on a felony charge – entirely on hearsay. The Wisconsin Supreme Court cursorily rejected arguments that the new statute, as applied, violated their rights to confrontation, compulsory process, effective assistance of counsel and due process. Special Guest Marla Stephens, Director of the SPD’s Appellate Division, authored this post about the decision.

City of Antigo v. M.K., 2013AP2627, District 3, 7/8/14 (1-judge; ineligible for publication); case activity

The circuit court held there was reasonable suspicion to stop the vehicle M.K. was driving because the court found the officer knew the vehicle’s registration was expired before he made the stop. The court’s finding of fact was not clearly erroneous, even though the officer’s testimony was equivocal as to whether he learned that fact as part of the original dispatch or after he spotted the vehicle and called in the license plate.

State v. Rickey V., 2014AP334, District 1, 7/8/14 (1-judge; ineligible for publication); case activity

Father’s failure to appear at two scheduled evidentiary hearings on whether there were grounds for termination of parental rights was sufficiently “egregious” to justify a default judgment against him under Dane County DHS v. Mable K., 2013 WI 28, ¶70, 346 Wis. 2d 396, 828 N.W.2d 198 (circuit court may find a parent in default if the parent’s unintentional failure to follow court orders is “‘so extreme, substantial and persistent’ that the conduct may be considered egregious”).

State v. Thomas G. Smith, 2013AP2516-CR, District 4, 7/3/14 (1-judge; ineligible for publication); case activity

The profane comments Smith posted on a police department’s Facebook page are not “fighting words” because that category of unprotected speech only covers statements made in the context of a face-to-face communication.

State v. Andre Durand Reggs, 2013AP2367-CR, District 4, 7/3/14 (1-judge; ineligible for publication); case activity

Applying State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, the circuit court properly concluded that Reggs failed to make a prima facie showing that he did not knowingly, intelligently, and voluntarily waive the right to counsel for an earlier OWI conviction.

Marquette County v. Thomas J. Wagenaar, 2013AP2454, District 4, 7/3/14 (1-judge; ineligible for publication); case activity

A long delay in filing the notice of intent to revoke after Wagenaar refused a chemical test under § 343.305 didn’t deprive the circuit court of jurisdiction. In addition, police had probable cause to believe Wagenaar was operating a motor vehicle while under the influence of an intoxicant.