Explore in-depth analysis

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.

Juror who admitted to being “friends back in the day” with alleged victim not objectively biased

State v. Heather L. Westrich, 2022AP2001-CR, District 4, 05/25/23 (one-judge opinion, not eligible for publication); case activity (including briefs)

In State v. Lindell, 2001 WI 108, ¶¶42-43, 245 Wis. 2d 689, 629 N.W.2d 223, the court held a prospective juror to be objectively biased because she knew the victim for 20 years, her parents knew the victim for about 47 years, and she described the victim as a “close friend.” Apparently, a friend “back in the day” isn’t a close friend and doesn’t render a juror objectively biased. (Op., ¶¶14-15).

Read full article >

Defense win! TPR court lost competency by holding dispo hearing immediately after default and waiver of counsel finding

State v. R.A.M., 2023AP441, 6/6/23, District 1 (one-judge decision; ineligible for publication); petition for review granted 9/26/23; affirmed 6/25/24 case activity

R.A.M. was defaulted on grounds after she missed a single hearing. While the “hearing” was the fourth day of her TPR court trial, she had appeared at every prior hearing, including the first three days of trial.  As all too commonly happens, the circuit court determined that R.A.M.’s single non-appearance was “egregious and in bad faith and without justification” without ever hearing from her, and held that she had waived her right to counsel under Wis. Stat. § 48.23(2)(b)3. The court of appeals notes the paucity of grounds for this decision in a footnote, but as R.A.M. doesn’t challenge the finding of egregiousness, the opinion doesn’t otherwise address it. It does address what came next: rather than waiting the two days the same statute requires to hold a dispositional hearing after a counsel waiver, the court held the hearing on the same day and terminated R.A.M.’s rights.

Read full article >

Photo array was not impermissibly suggestive

State v. Brandon B. Smiley, 2022AP1522-CR, District 4, 6/2/23 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals rejects Smiley’s claim that the photo array shown to A.B., the complaining witness, was impermissibly suggestive and, therefore, her (not very confident) identification of him after looking at the array should have been suppressed.

Read full article >

Termination of parental rights affirmed despite some missteps

Columbia County DHS v. K.D.K., 2022AP1835, 5/25/23, District 4 (1-judge opinion, ineligible for publication); case activity

K.D.K. challenged an order terminating his parental rights to C.A.K. on 3 grounds: (1) the judge was not properly assigned to preside over his case; (2) the circuit court refused to give a special verdict question asking whether it had been impossible for K.D.K. to meet the conditions for return set forth in the CHIPS dispositional; and (3) trial counsel was ineffective in several respects. The court of appeals rejected all claims.

Read full article >

May 2023 publication list

On May 31, 2023, the court of appeals ordered publication of the following criminal law related decisions:

Read full article >

Defense win! Multiple convictions in same case on same date don’t require lifetime sex offender registration

State v. Corey T. Rector, 2023 WI 41, 5/23/23 affirming a case certified by the court of appeals, 2020AP1213; case activity (including briefs)

Rector pleaded to five counts of possessing child pornography in a single case. He’d never been convicted of anything before. The sentencing judge ordered that he be placed on the sex offender registry until 15 years after the end of his sentence or supervision. The Department of Corrections then wrote the judge to say that, in its view, any two or more convictions of registry-eligible sex offenses trigger mandatory registration for life. The judge stuck to his guns and reiterated the 15-year registry requirement. The state appealed, and the court of appeals certified the case. The state supreme court now holds, 4-3, that Rector is not required to register as a sex offender for the rest of his life.

Read full article >

That ChatBot AI thingee might not make your job easier (or take it away completely) after all….

A word to the wise: When you have ChatGPT write a brief for you, and in response to your query it tells you that the cases it is citing “are real and can be found in reputable legal databases,” don’t trust it without verification. So a New York lawyer has learned to his chagrin (and possibly worse than that). The story is covered here and here.

Read full article >

Police had probable cause to search car, so didn’t unlawfully extend stop to wait for drug dog

State v. Warner E. Solomon, 2022AP634-CR, District 2, 5/24/23 (not recommended for publication); case activity (including briefs)

The court of appeals rejects Solomon’s argument that the police unlawfully extended a traffic stop to wait for a drug dog to arrive to do a thorough search of his car.

Read full article >

Defense win: year-long wait for initial appearance requires dismissal w/o prejudice

State v. Christopher S. Butler, 2021AP177, 5/9/23, District 3 (not recommended for publication); case activity (including briefs)

The state charged Butler with multiple sexual assaults of children. These charges resulted in a probation hold that lasted about four months; the ALJ did not revoke Butler and the hold was terminated. But Butler’s new charges were still pending, and he remained in jail for about another seven months while the public defender tried to find a lawyer to represent him. When that lawyer finally came on board, Butler had his initial appearance and then his prelim–about 11 months after he’d been arrested. Butler pleaded not guilty and his new attorney moved to dismiss the charges, arguing that the long delay had deprived the circuit court of personal jurisdiction. The trial court denied the motion, but the court of appeals granted Butler’s petition for interlocutory appeal. It now reverses and requires dismissal of the charges without prejudice.

Read full article >

SCOW DIGs case; justices dispute whether they should say why

State v. Jackson, 2023 WI 37, 5/12/23, dismissing as improvidently granted review of an unpublished court of appeals opinion, 2019AP2383; case activity (including briefs)

Our post on the grant of review in this case said SCOW might use it to “expound on State v. Cooper, 2019 WI 73, 387 Wis. 2d 439, 929 N.W.2d 192 (IAC claims where counsel has been disciplined), Hill v. Lockhart, 474 U.S. 52 (1985)(prejudice prong in the plea context); Lafler v. Cooper, 566 U.S. 156 (2012) and Missouri v. Frye, 566 U.S. 134 (2012)(failure to communicate plea offer). There will be no expounding on those cases. Instead, SCOW dismisses the case as improvidently granted. That doesn’t mean there’s not any expounding to be had, though: Justices R.G. Bradley (in concurrence) and A.W. Bradley (in dissent) write to state their views on whether SCOW should explain itself when it DIGs.

Read full article >

On Point is sponsored by Wisconsin State Public Defenders. All content is subject to public disclosure. Comments are moderated. If you have questions about this blog, please email [email protected].

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.