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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.
Juror Disqualification – In-Law of Presiding Judge
State v. Sharon A. Sellhausen, 2010 WI App 175, reversed, 2012 WI 5; for Sellhausen: Byron C. Lichstein; case activity
¶1 Sharon Sellhausen appeals her jury conviction based on the presence of the presiding judge’s daughter-in-law on the panel of potential jurors. The daughter-in-law was not seated on the jury because Sellhausen’s trial counsel used a peremptory challenge to remove her.
Reasonable Suspicion for PBT
County of Sauk v. Julio Leon, 2010AP1593, District 4, 11/24/10
court of appeals decision (1-judge, not for publication); for Leon: Robert C. Raymond; Leon BiC; State Resp.; Reply
Odor of intoxicants insufficient, alone, to support administering PBT.
¶20 When an officer is not aware of bad driving, then other factors suggesting impairment must be more substantial. For example,
Reasonable Suspicion, Drug Use
State v. Joseph E. Jenamann, 2010AP1825-CR, District 4, 11/24/10
court of appeals decision (1-judge, not for publication); for Jenamann: Matthew Allen; State BiC; Jenamann Resp; Reply
Continuing detention, following routine traffic stop for loud muffler and after Jenamann passed sobriety tests, was unlawful:
¶12 The only suspicious factors suggesting drug activity were bloodshot, glassy eyes, shakiness, and a nervous suspect.
Sentencing – Inaccurate Information
State v. David Derrell Morgan, 2009AP3081-CR, District 1, 11/23/10
court of appeals decision (3-judge, not recommended for publication); for Morgan: Mary D. Scholle, SPD, Milwaukee Appellate; Morgan BiC; State Resp.; Reply
Claims that the sentencing court relied on inaccurate information with respect to Morgan’s employment history and family relationships rejected, on ground of failure to show reliance:
¶12 Morgan has not shown that the circuit court actually relied on the allegedly inaccurate information.
Ineffective Assistance: Inconsistent Defenses – “McMorris” Evidence – Prejudice; Appellate Procedure: Candor – Briefs, Record References
State v. Dekoria Marks, 2010 WI App 172 (recommended for publication); for Marks: Joel A. Mogren; Marks BiC; State Resp.; Reply
Ineffective Assistance – Inconsistent Defenses
Counsel’s choice to pursue potentially inconsistent defenses (self-defense; no involvement) was, in light of the “not uncommon practice of lawyers to argue inconsistent theories,” within the wide range of professionally competence assistance.
¶15 First,
Sentencing – Right to be Sentenced by Judge Who Took Plea / Heard Evidence of Guilt
State v. Kacey G. Johnson, 2010AP1263-CR, District 1, 11/23/10
court of appeals decision (1-judge, not for publication); for Johnson: James B. Duquette; Johnson BiC; State Resp.; Reply
Johnson forfeited his claim of a right to be sentenced by the judge who took his guilty plea, by failing to object contemporaneously. This is not a matter requiring the defendant’s personal assent.
¶11 Fundamental fairness is a general due process concept.
Court of Appeals Publication Orders, 11/10
court of appeals publication orders, 11/17/10
On Point posts from this list:
2010 WI App 146 State v. Daniel H. Hanson
2010 WI App 153 State v. Ricardo Lopez
2010 WI App 155 State v. Lee Anthony Batt
Henry Kaczmarek v. Rednour, 7th Cir No. 09-2417, 11/17/10
Habeas – Procedural Default
A federal claim procedurally defaulted in state court works foreclosure of federal habeas review. That the state court engaged plain error review doesn’t mean that the default was overlooked and the merits of the claim reached. Here, the Illinois court refused to reach the merits of Kaczmarek’s Apprendi claim because of his failure to object contemporaneously; the Illinois contemporaneous objection rule is firmly established and regularly followed,
Newly Discovered Evidence: Test – SVP Commitment – Revised Actuarial; Completeness Doctrine, § 901.07; Interest of Justice Review
State v. Richard D. Sugden, 2010 WI App 166 (recommended for publication); for Sugden: Donald T. Lang, SPD, Madison Appellate; Sugden BiC; State Resp.; Reply
Newly Discovered Evidence – Test – Generally
¶14 In order to be entitled to a new trial based on newly discovered evidence, Sugden must prove by clear and convincing evidence that (1) the evidence is,
Madison Metro. School Dist. v. Circuit Court for Dane County, 2009AP2845-W, review granted 10/27/10
decision below: supervisory writ, not posted on-line
Issue (from Table of Cases):
Whether a circuit court, pursuant to Wis. Stat. § 120.12(18) (school district has a duty to coordinate and provide continuity of educational programming for pupils receiving education services as the result of a court order under § 938.34(7d)) and § 938.45 (court may take certain actions if the district contributed to delinquency of minor) has the authority to craft an order which would override a school district’s prior determination to expel a juvenile under § 120.13(1)(c)1.
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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.