On Point

Much has changed since that last time you read On Point.  Defying all expectations, long-time beat reporter Bill Tyroler has actually retired.  After writing some 5,000 case summaries and On Point posts between 1995 and 2013, who could blame him?

Fear not, staff and private bar attorneys.  The State Public Defender will continue to help you defend your clients through updates on indigent defense law.  But we’ve made a few changes:

New Authors. 

State v. Jonathan A. Herr, 2013 WI App 37; case activity

In a case arising from a high-speed chase and subsequent arrest for OWI, the court holds that the use of unreasonable force to arrest the defendant does not require the suppression of evidence that was not a product of, or causally related to, the alleged unreasonable force.

Police saw Herr driving erratically and attempted to stop him.

Review of unpublished summary disposition; case activity

Issues (composed by SCOW):

(1) Does Wisconsin recognize the “mature minor doctrine,” a common law rule providing that a minor may consent or refuse to cosent to medical treatment upon a showing of maturity, intelligence and sufficient understanding of the medical condition and treatment alternatives?

(2) Does Wisconsin recognize a mature adolescent’s due process right to refuse unwanted medical treatment?

State v. Edward C. Lefler, 2013 WI App 22; case activity

Probable cause found to search trunk of vehicle for evidence of burglary-related crimes, after an indisputably lawful stop for drunk driving:

¶11      …  “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”  United States v.

State v. Adam W. Gilmour, 2011AP878-CR, District 2, 6/20/12

court of appeals decision (not recommended for publication); case activity

The trial court’s rejection, as lacking credibility, Gilmour’s claim that his acceptance of a deferred prosecution agreement was coerced by financial considerations (in that he had been unable to afford the costs associated with jury trial) is affirmed:

¶10      On review, we note that while Gilmour testified that he decided to take the DPA because he could not afford the trial retainer,

As the legislature is still in the process of winding up for session, there is currently more anticipation than legislation.  Only a few bills affecting the criminal justice system have been discussed at this point.  Probably most notable is a proposal that would criminalize most, if not all, first offense operating while intoxicated penalties.  Aside from research that shows treatment as a more effective option than criminal sanctions; without additional funding and staff resources, the SPD will be hard pressed to absorb 17,000 additional misdemeanor cases per year.

Henderson v. United States, USSC No. 11-9307, reversing 646 F.3d 223 (5th Cir. 2011)

When is plain really plain? That’s the plain and simple issue in this case.  During trial, the district court decided a substantive legal question against the defendant.  But while the case was on direct appeal, SCOTUS, in a separate case, settled the legal question in the defendant’s favor, thus prompting a question about whether the district court’s decision in Henderson qualified as “plain error.”

Issue:  “Is the time for determining “plainness” the time when the error is committed,

Chaidez v. United States, USSC No. 11-820, affirming 655 F.3d 684 (7th Cir. 2011)

Issue:  We know that Padilla v. Kentucky, 559 U.S. 356 (2010) requires counsel to advise a defendant about the risk of deportation arising from a guilty plea.  The question presented by Chaidez is whether or not that rule applies retroactively so that a person whose conviction became final before Padilla can benefit from it. 

On review of published decision; case activity

Confrontation — bases of expert opinion as “testimonial” hearsay

Issue (Composed by On Point)

When a State Crime Lab technician concludes there is a DNA match between defendant and assailant based in part on a report of a DNA profile prepared by an outside lab, is the outside lab report “testimonial” for Confrontation Clause purposes, thus requiring the outside lab technician who prepared the report to testify?

On review of certification request; case activity

Invocation of the right to counsel

Issues (Composed by On Point)

1. Does the Wisconsin Constitution provide more protection than Maryland v. Shatzer, ___U.S. ___, 130 S. Ct. 1213 (2010) (holding that, even if a defendant has invoked his or her right to counsel, law enforcement may give the Miranda warnings again so long as the defendant has been released from custody for at least fourteen days)?