On Point

Walworth County v. M.R.M., 2023 WI 59, 6/29/23, on certification from the court of appeals; case activity (briefs not available)

In a case with potentially far-reaching implications for Chapter 51 appeals, the Wisconsin Supreme Court issues a narrow holding that leaves a major D.J.W. issue for another day.

On June 28, 2023, the court of appeals ordered publication of one criminal law related decision: State v. Tracy Laver Hailes, 2023 WI App 29 (circuit court can’t apply § 939.62(1) and § 961.48 penalty enhancers at the same time)

Department on Aging v. R.B.L., 2022AP1431, District I, 6/27/23 (one-judge decision; ineligible for publication); case activity (briefs not available)

In this protective placement appeal raising two interesting issues related to the circuit court’s competency, the court of appeals reverses with instructions to dismiss the underlying petition.

State v. Cedric Tung, 2021AP1705-CR, 6/20/23, recommended for publication; case activity (including briefs)

In a factually complicated ineffectiveness case that does not involve the usual Strickland analysis, the court of appeals affirms based primarily on a messy factual record.

Counterman v. Colorado, USSC No. 22-183, 6/27/2023; Scotusblog page (with links to briefs and commentary)

In a case with possible implications for Wisconsin law, SCOTUS holds that in a criminal prosecution involving “true threats,” the State must prove the person “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

State v. Eric J. Debrow, 2023 WI 54, 6/23/23, reversing an unpublished court of appeals decision; case activity (including briefs)

In yet another reversal of a defense win, SCOW defers to the circuit court’s decision denying a motion for mistrial but slightly muddies the waters as to the proper legal analysis when assessing mistrial claims on appeal.

State v. Quaheem O. Moore, 2023 WI 50, 6/20/23, reversing an unpublished court of appeals decision; case activity (including briefs)

As many surrounding states continue to legalize marijuana–and with the explosion of CBD and other legal hemp-derived products throughout Wisconsin–some observers have questioned the continued viability of Fourth Amendment rules permitting intrusive law enforcement action when officers smell what they believe to be THC. However, because THC remains illegal under Wisconsin law, these arguments fail in light of well-settled Fourth Amendment principles.

State v. Julie A. Minnema, 2022AP446-CR, District 4, 6/8/23 (one-judge decision, not eligible for publication); case activity (including briefs)

In an unusually lengthy OWI second appeal, the court rejects Minnema’s ineffective assistance of counsel claims either because Minnema failed to establish deficient performance or because Minnema failed to establish prejudice. (Opinion, ¶1).

Pugin v. Garland, USSC Nos. 22-23 & 22-331, 2023 WL 4110232 (June 22, 2023), affirming Pugin v. Garland, 19 F.4th 437 (4th Cir. 2021) and reversing Garland v. Cordero-Garcia, 44 F.4th 1181 (9th Cir. 2022); Scotusblog page (including links to briefs and commentary

Noncitizens convicted of an “aggravated felony” may be deported from the United States. The definition of “aggravated felony” includes federal or state offenses “relating to obstruction of justice.” 8 U. S. C. §1101(a)(43)(S). The question in these consolidate cases is whether an offense “relat[es] to obstruction of justice” even if the offense does not require that an investigation or proceeding be pending at the time of the defendant’s acts. In a 6 to 3 ruling, the Supreme Court holds that an investigation or proceeding need not be pending for the offense to be an aggravated felony.

Smith v. United States, USSC No. 21-1576, 2023 WL 4002949 (June 15, 2023), affirming United States v. Smith, 22 F. 4th 1236 (11th Cir. 2022); Scotusblog page (including links to briefs and commentary).

A unanimous Supreme Court holds that the Constitution does not bar retrial of a defendant whose conviction is reversed because the prosecution occurred in the wrong venue and before a jury drawn from the wrong location.