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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
Guest Post: Rob Henak on 974.06 and SCOW’s new standard for ineffective assistance of appellate counsel
State v. Tramell Starks, 2013 WI 69, affirming an unpublished court of appeals decision, case activity. Majority opinion by Justice Gableman, with a dissent by Justice Bradley and joined by Chief Justice Abrahamson and Justice Crooks
On Point is pleased to present this guest post by Attorney Rob Henak, an expert on Wis. Stat. § 974.06 postconviction motions and ineffective assistance of appellate counsel.
Court of Appeals upholds statute making hearsay admissible at preliminary hearings and allowing bindover based solely on hearsay
State v. Martin P. O’Brien, State v. Kathleen M. O’Brien, and State v. Charles E. Butts, 2013 WI App 97; consolidated court of appeals decision; case activity: Martin O’Brien; Kathleen O’Brien; Charles Butts.
¶1 The newly enacted Wis. Stat. § 970.038 (2011-12) makes hearsay evidence admissible at a criminal defendant’s preliminary examination and permits the probable cause determination and bindover decision at a preliminary examination to be based “in whole or in part” on hearsay evidence.
Wisconsin Supreme Court adopts rule that assertion of right to counsel expires after a 14 day break in custody
State v. Andrew M. Edler, 2013 WI 73, on certification of the court of appeals; majority opinion by Justice Crooks; case activity
Maryland v. Shatzer, 559 U.S. 98 (2010), allows police to reinitiate interrogation of a defendant who invoked his right to counsel if the defendant has been released from custody for at least 14 days. The Wisconsin Supreme Court now adopts the Shatzer rule,
SCOW curtails defendant’s right to be present when a judge questions jurors during trial
State v. Alexander, 2013 WI 70, affirming an unpublished court of appeals decision, 2011AP394-CR; case activity; majority opinion by Justice Gableman; concurrences by Justice Crooks (joined by Chief Justice Abrahmason and Justice Bradley), Justice Ziegler, and separately by Chief Justice Abrahamson.
This decision is alarming. During Alexander’s 1st-degree intentional homicide trial, concerns surfaced about whether, due to possible bias, 2 different jurors should continue serving on the case.
Wisconsin Supreme Court addresses the standard for deciding competency to refuse medication
Outagamie County v. Melanie L., 2013 WI 67, reversing unpublished court of appeals decision; majority opinion by Justice Prosser; case activity
In an important case for lawyers handling ch. 51 cases, the supreme court concludes there was insufficient evidence to prove a person subject to a commitment order was incompetent to refuse medication. Along the way, the court provides a “detailed interpretation of the statutory language”
SCOW: Not all transfers of patients to more restrictive settings are subject to review within 10 days under § 51.35(1)(e)
Manitowoc County v. Samuel J.H., 2013 WI 68, on certification from court of appeals; majority opinion by Justice Ziegler; case activity
Transfer of a person committed under ch. 51 to a more restrictive setting within an inpatient placement, or from outpatient to inpatient placement, is subject to § 51.35(1). The statute recognizes two different bases for transfer: reasonable medical or clinical judgment;
SCOW says circuit courts lack inherent authority to order destruction of inaccurate PSI
State v. Melton, 2013 WI 65, reversing published court of appeals decision; case activity; opinion by Justice Prosser; concurrence by Justice Ziegler and joined by Chief Justice Abrahamson and Justice Bradley
Melton pled guilty to 2 felonies, and the court ordered a PSI for sentencing. Turns out the PSI contained errors (info re uncharged offenses), so the court ordered a 2nd PSI and the destruction of the 1st PSI.
Are you this dedicated?!
Here’s a fun story copied in from this week’s ABA Journal blawg!
Lawyer leaves $200K Ferrari in floodwaters to make it to hearing on time
Posted Jul 10, 2013 5:30 PM CDT
By Molly McDonough
Quite a buzz was created in Toronto this week when after torrential rains, a silver Ferrari was left stranded in a flooded underpass. Click here.
Who would leave their $192,000 Italian sports car soaking in murky floodwaters?
Plea withdrawal motion was insufficient to merit an evidentiary hearing, Wisconsin Supreme Court rules
State v. Julius C. Burton, 2013 WI 61, affirming unpublished court of appeals decision; unanimous opinion by Justice Prosser; case activity
In a case of interest primarily, if not exclusively, to lawyers handling postconviction proceedings in state courts, the supreme court holds Burton’s plea withdrawal motion was insufficient to merit an evidentiary hearing because it failed to allege sufficient facts to support either the ineffective assistance of counsel claim or the claim Burton’s plea was invalid because of a defective plea colloquy.
Next up in the Supreme Court of Wisconsin
Tomorrow look for decisions in:
Outagamie County v. Melanie L., 2012AP99,
Manitowoc County v. Samuel J.H., 2012AP665,
State v. Brandon M. Melton, 2011AP1770-CR/2100AP1771-Cr,
On Friday SCOW will release decisions in:
State v. Starks, 2010AP425
State v. Alexander, 2011AP394-CR
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.