On Point

Attorney Thomas L. Potter v. Circuit Court for Milwaukee County, the Honorable Kori Ashley, Presiding, 2022AP1396-CR, 10/17/23, District I (not eligible for publication); case activity

Although the prosecutor in this case may have conceptualized his decision to defy a court order as an act of civil disobedience necessary to preserve a challenge for appeal, COA disagrees and therefore affirms the circuit court’s order finding him in contempt.

Sauk County D.H.S. v. R.K.M., 2023AP912, 10/12/23, District 4 (one-judge decision; ineligible for publication); case activity

R.K.M. raised a variety of arguments seeking to challenge the often cited “decompensation” theory for extending a chapter 51 commitment where the subject has (1) made substantial progress while under commitment, (2) engaged in no recent dangerous behavior, and (3) is generally compliant with medication and treatment provided under commitment. However, his challenge runs into the buzzsaw of fears of decompensation and “recurrence of his symptoms.” (Op., ¶¶6-7).

State v. John J. Drachenberg, 2022AP2060-CR, 10/12/23, District IV (recommended for publication); case activity

In a decision recommended for publication, COA clarifies that the “execution” of a search warrant does not include forensic analysis that can occur weeks or months later. Accordingly, even though those activities may occur outside the statutory window, this does not create a statutory (as opposed to constitutional) argument for suppression.

State v. Morris V. Seaton, 2023 WI 69, 10/10/23, on certification from the court of appeals; case activity (including briefs)

State v. Donte Quintell McBride, 2023 WI 68, 10/10/23, affirming a decision of the court of appeals; case activity (including briefs)

(See our prior posts on Seaton here and here; posts on McBride here and here).

Two tie votes result in a defense-friendly outcome in one case and keep litigation alive in another.

State v. S.A., 2023AP1288-1292, 10/10/23, District I (one-judge decision; ineligible for publication); case activity

In a fact-dependent decision, COA affirms the circuit court’s order terminating parental rights with respect to 5 children.

State v. Marqus G. Phillips, 2023AP450, 10/4/23, District 2 (one-judge decision, ineligible for publication); case activity (including briefs)

That the Constitution does not guarantee an “error-free trial” is an unnecessary response to a straw man when a defendant seeks a new trial after it is discovered that the second of two state’s witnesses was found to have violated the circuit court’s witness sequestration order. It’s also an easy out where the circuit court’s lack of prejudice determination in denying a mistrial claim is reviewed under the “clearly erroneous” standard of review.

On September 27, 2023, the court of appeals ordered publication of one criminal law related decision: State v. John R. Brott, 2023 WI App 45 (mandatory minimum sentence for possession of child pornography is mandatory)

State v. Bryson Keith Williams, 2023AP838, 10/4/23, District II (one-judge decision; ineligible for publication); case activity

Applying the familiar test for assessing the adequacy of the officer’s reading of the implied consent warnings, COA agrees that Williams’ refusal was unlawful.

State v. T.H., Jr., 2023AP285, 10/3/23, District III (one-judge decision; ineligible for publication); case activity

In yet another juvenile waiver appeal demonstrating the power of the discretionary standard of review, COA affirms the circuit court’s order despite the potential internal inconsistencies of that ruling.

Smith v. Arizona, U.S.S.C. No. 22-899, cert. granted 9/29/23; Scotusblog page (containing links to briefs and commentary)

Question presented:

Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.