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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.
OWI – Collateral Attack on Priors
State v. David J. Bucknell, 2010AP833-CR, District 3, 9/30/10
court of appeals decision (1-judge, not for publication); for Bucknell: Rebecca M. Coffee; BiC; Resp.; Reply
A prior conviction, used to enhance a pending charge, may be collaterally attacked on the basis of denial of the 6th amendment right to counsel. Because “it is clear from Bucknell’s testimony at the hearings on his motion that he was aware of his right to be represented by an attorney at the prior proceeding and that he knowingly and intelligently relinquished that right,”
Evidence – Moving Radar
Village of Marathon City v. Jenny L. Nowak, 2010AP462, District 3, 9/30/10
court of appeals decision (1-judge, not for publication); Resp. Br.
¶11 The five-factor Hanson/Kramer test is used to determine the accuracy of moving radar.[4] See Washington Cnty. v. Luedtke, 135 Wis. 2d 131, 133 n.2, 399 N.W.2d 906 (1987). “If there is compliance with the Hanson/Kramer criteria,
TPR – Right to Subpoena Parent’s Child
Jeffrey J. v. David D., 2010AP1717, District 3, 9/28/10
court of appeals decision (1-judge, not for publication); for David D.: Shelley Fite, SPD, Madison Appellate
Parent’s right to confrontation was satisfied by in-chambers discussion between judge and children during which they spoke in favor of termination, where their father killed their mother and grandparents, and the judge reasonably determined that they would suffer emotional harm if required to submit to face to face confrontation.
OWI / Refusal – Informed Consent Law
Door County v. Andrew M. LaFond, 2010AP976, District 3, 9/28/10
court of appeals decision (1-judge, not for publication); for LaFond: Robert C. Raymond; BiC; Resp.; Reply
The court rejects an argument that a driver has a due process right to be informed that a blood sample can be taken forcibly upon refusal to consent to a blood draw.
¶8 Our supreme court has held that the information required by what is now WIS.
Plea Bargain – Prosecutorial Compliance
State v. Christopher Jones, 2009AP2761-CR, District 1, 9/28/10
court of appeals decision (3-judge, not recommended for publication); for Jones: Jeremy C. Perri, SPD, Milwaukee Appellate; BiC; Resp.; Reply
The court rejects a claim of an “end-run” around the plea bargain, which limited the State’s recommendation to 10 years imprisonment while leaving the “configuration” of confinement and supervision to judicial discretion, based on prosecutorial comments:
- the “whole matter was “aggravated by the defendant’s record,”
Kentucky v. King, USSC No. 09-1272, cert. grant 9/29/10
Decision below (KY supreme court)
Question Presented (from USSC docket post):
Police officers entered an apartment building in hot pursuit of a person who sold crack cocaine to an undercover informant. They heard a door slam, but were not certain which of two apartments the trafficker fled into. A strong odor of marijuana emanated from one of the doors, which prompted the officers to believe the trafficker had fled into that apartment.
Court of Appeals Publication Orders, 9/10
court of appeals publication orders, 9/29/10
On Point posts from this list:
2010 WI App 124 State v. Donald L. Schultz
2010 WI App 129 State v. Adamm D.J. Linton
2010 WI App 132 State v. Jacquese Franklin Harrell
2010 WI App 133 State v. Christopher D. Jones
2010 WI App 134 State v.
Bullcoming v. New Mexico, USSC No. 09-10876, cert grant 9/28/10
Decision Below (New Mexico supreme court)
Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.
Cert. Petition
Follow-up to Melendez-Diaz v.
Henry Griffin v. Pierce, 7th Cir No. 09-3138, 9/22/10
7th circuit court of appeals decision
Habeas – Napue Issue
The Supreme Court has held that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269 (1959) …. Thus, a new trial is required if a petitioner establishes that (1) the prosecution presented false testimony or failed to disclose that false testimony was used to convict,
Blogging, Interrupted
Posting will be light to non-existent, 9/27 – 10/5.
Expect, during this time frame, Wisconsin court of appeals decisions and September publication orders, and the first USSC cert grants of OT ’10 (which might include an important good-faith issue; see this Orin Kerr post).
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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.