On Point

By Adam Plotkin, SPD Legislative Liaison

With the budget and compensation plan through the legislature, and recently signed by the Governor, I wanted to recap the major provisions affecting the SPD in those two packages. Future articles will focus on other changes affecting the SPD’s legal practice; this is a review of those issues specific to our agency and its employees.

One of the most significant areas addressed by the budget and compensation plan is employee compensation.

State v. Neumann, 2011AP1044 and 2011AP1105, on certification from the court of appeals; case activity; majority opinion by C.J. Abrahamson.

In a 94-page decision, including a lone dissent by Justice Prosser, the Supreme Court of Wisconsin has affirmed the 2nd degree reckless homicide convictions of Dale and Leilani Neumann for the death of their 11-year old daughter, Kara, who died of diabetic ketoacidosis caused by untreated juvenile onset diabetes mellitus.  

State v. Samuel Curtis Johnson, III, 2013 WI 59 (per curiam), affirming, as modified, an unpublished court of appeals opinion; reconsideration granted, 2014 WI 16 (per curiam); Justices Prosser and Gableman not participating; case activity

(Note: On July 22, 2013, both Johnson and the state filed motions for reconsideration of the court’s original decision;

State v. Ladarius Marshall, 2012AP140-CR, District 1, 7/2/13; court of appeals decision (not recommended for publication); case activity

The trial court properly denied Marshall’s motion to suppress his statements to police made during on-again off-again interrogation lasting from 10:45 a.m. to 9:00 p.m. The court first rejects Marshall’s argument he didn’t invoke his right to remain silent:

¶21      The circuit court found that Marshall never unequivocally and unambiguously invoked his right to remain silent.

State v. Robert T. Warriner, 2012AP244-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity

Instruction on first degree child sexual assault as lesser-included of repeated child sexual assault

At trial the child testified that Warriner sexually assaulted her on only two occasions, so the trial court agreed, over Warriner’s objections, to read the instruction for first-degree sexual assault of a child, § 948.02(1).

State v. Haven Pettigrew, 2012AP1860-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity

Reference to right against self-incrimination

Defense counsel revealed her theory of defense for the first time in her opening statement. During direct examination of the lead detective if that was the first time he had heard that theory. Defense counsel objected before the question was even finished, and the court sustained the objection,

Question presented:

What, if any, causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. § 2259?

Lower court opinion: In re: Amy Unknown: United States v. Paroline, 701 F.3d 749 (5th Cir. 2012)

Docket

Scotusblog page

This is an important case for anyone handling federal possession of child pornography cases,

Questions presented:

1. Whether the Sixth Circuit violated 28 U.S.C. §2254(d)(1) by granting habeas relief on the trial court’s failure to provide a no adverse inference instruction even though this Court has not “clearly established” that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances.

2. Whether the Sixth Circuit violated the harmless error standard in Brecht v.

Questions presented:

1.     Massachusetts has a law that makes it a crime for speakers other than clinic employees or agents acting within the scope of employment to “enter or remain on a public way or sidewalk” within 35 feet of an entrance, exit, or driveway of  “a reproductive health care facility.” Did the First Circuit err in upholding this law under the First and Fourteenth Amendments, on its face and as applied to petitioners?

State v. Constance Ilene Osborne, 2012AP2540-CR, District 4, 6/27/13; court of appeals decision (1-judge; ineligible for publication); case activity

The results of a blood draw done by an EMT at the jail after Osborne was arrested for OWI were admissible because the method and manner of the blood draw were reasonable and the EMT was acting under the direction of a physician, as required by § 343.305(5)(b).