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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.
Complaint – Probable Cause, Generally; Complaint, Violating Foreign Protection Order, § 813.128(2) – Sufficiency
State v. Timothy Jon Eloe, 2011AP1970-CR, District 2, 2/29/12
court of appeals decision (1-judge, not for publication); for Eloe: John C. Orth; case activity
¶5 To be sufficient, a criminal complaint need only be minimally adequate in setting forth essential facts establishing probable cause. State v. Adams, 152 Wis. 2d 68, 73, 447 N.W.2d 90 (Ct. App. 1989). Further, the adequacy of the complaint is to be evaluated “in a common sense rather than a hypertechnical manner.” Id.
Court of Appeals Publication Orders, 2/12
court of appeals publication orders, 2/29/12
On Point posts from this list:
2012 WI App 14 State v. Demian Hyden McDermott
2012 WI App 15 State v. Anrietta M. Geske
2012 WI App 21 State v. James Lee Johnson
2012 WI App 25 State v. Dylan S. / Renee B.
Judicial Estoppel – Generally
State v. Basil E. Ryan, Jr., 2012 WI 16, reversing 2011 WI App 21; case activity
¶32 We begin by addressing the circuit court’s application of the equitable doctrine of judicial estoppel. Judicial estoppel is intended “to protect against a litigant playing ‘fast and loose with the courts’ by asserting inconsistent positions” in different legal proceedings. State v. Petty,
Ineffective Assistance – Sentencing; Failure to Request Substitution
State v. Miller X. Lark-Holland, 2011AP791-CR, District 1, 2/28/12
court of appeals decision (not recommended for publication); for Lark-Holland: Byron C. Lichstein; case activity
¶7 Lark-Holland’s first complaint is that his trial lawyer did not emphasize the mitigating factor that he said he was forced into committing the robbery, and also made several comments that he says undercut his character. … These comments, however, when read in full context,
Ineffective Assistance – Prejudice; Trial Court Exercise of Discretion – Over-Reliance on Party’s Submission
State v. Juan Angel Orengo, 2011AP137, District 1, 2/28/12
court of appeals decision (not recommended for publication); for Orengo: Robert R. Henak; case activity
Counsel’s failure to attempt severance, from a drug charge, of a felon-in-possession-of-weapon count, didn’t amount to ineffective assistance.
¶8 Wisconsin law recognizes that guns and drug dealers go together. See State v. Guy, 172 Wis. 2d 86,
Attorney-Client Confidentiality: “Self-Defense” Disclosure in Response to IAC Claim
David M. Siegel, “What (Can) (Should) (Must) Defense Counsel Withhold from The Prosecution in Ineffective Assistance of Counsel Proceedings?,” The Champion, Vol. 18, No. 35, December 2011
Must-read exegesis of ABA Formal Opinion 10-456, for anyone litigating, or on the business end of, an ineffective-assistance claim. Some highlights:
- “The attorney-client privilege and the obligation of confidentiality continue beyond the representation, and while a former client’s IAC claim impliedly waives the privilege with respect to allegations concerning lawyer-client communications,
State v. Brian K. Avery, 2011 WI App 148, rev. granted 2/23/12
on review of published opinion; for Avery: Keith A. Findley, Tricia J. Bushnell; case activity; prior post
Newly Discovered Evidence / Interest of Justice – New Forensic Method
Issues (composed by On Point):
1. Whether new scientific photogrammetric analyses by expert witnesses, indicating that the suspect in video surveillance was shorter than Avery, entitles him to a new trial on the ground of newly discovered evidence.
TPR – Default Judgment as to Grounds – Sufficiency of Evidence; § 48.415(6) – Constitutional Challenge, Vagueness
Dane Co. DHS v. Sophia S., 2011AP2639, District 4, 2/23/12
court of appeals decision (1-judge, not for publication); for Sophia S.: Faun M. Moses; case activity
Although the parent isn’t required to object to the sufficiency of evidence adduced in support of a default judgment on grounds for termination (the court rejecting the County’s argument on this point), there was a sufficient factual basis for the default.
Habeas – Brady Claim
Wetzel v. John Lambert, USSC No. 11-38, 2/21/12, vacating and remanding 633 F.3d 126 (3rd Cir. 2011)
Lambert claimed that state prosecutors withheld exculpatory information: a “police activity sheet” that arguably suggested someone other than, or perhaps in addition to, himself committed the offense (robbery and murder); and that could have been used to impeach the principal state’s witness. The state (Pennsylvania) court deemed the information too ambiguous to show that someone else had committed the robbery,
Carrying Concealed Weapon: Definition of “Dangerous Weapon” re: “Operated by Force of Gunpowder”
State v. Sean T. Powell, 2012 WI App 33 (recommended for publication); for Powell: Richard L. Kaiser; case activity
Conviction for CCW, § 941.23, requires proof of a “dangerous weapon,” which is in turn defined under § 939.22(10) to include “any firearm.” The pattern instruction, Wis JI-Criminal 910 embellishes the definition: “A firearm is a weapon that acts by force of gunpowder.” Powell argues that, because the State failed to show that his loaded,
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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.