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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.
Habeas – Effective Assistance – Stun Belt
John M. Stephenson v. Levenhagen, 7th Cir No. 09-2924, 08/26/2010
7th Cir decision; petition for rehearing denied 1/14/11, 3 dissents from denial of en banc review
Habeas – Effective Assistance – Stun Belt
Counsel’s failure to object to placement of stun belt on Stephenson during trial was held by the state court to be deficient: accepting that conclusion (albeit with apparent reluctance), the federal court holds on habeas review that the deficiency wasn’t prejudicial.
Aris Etherly v. Davis, 7th Cir. No. 09-3535, 08/25/2010
7th Cir. decision; Order denying rehearing and amending opinion, 10/10/15
Habeas – Voluntary Statement – Juvenile
State court determination that juvenile’s custodial statement to police was voluntary wasn’t objectively unreasonable., notwithstanding his age (15), borderline intellectual functioning and lack of criminal background. “(I)t is the totality of the circumstances underlying a juvenile confession, rather than the presence or absence of a single circumstance, that determines whether or not the confession should be deemed voluntary.”
Incest – Sufficiency of Evidence
State v. Nick J. W., 2009AP2030-CR, District 4, 8/26/10
court of appeals decision (3-judge, not recommended for publication); for Nick J.W.: Joseph L. Sommers; BiC; Resp.; Reply
Incest – Sufficiency of Evidence
The 16-year-old complainant’s testimony that her biological father had sex with her sufficed to prove the crime of incest, the court rejecting the defense argument that, because she didn’t look at the perpetrator,
In Camera Inspection, Shiffra/Green Material
State v. Donovan L. Lewis, 2009AP2531-CR, District 4, 8/26/10
court of appeals decision (3-judge, not recommended for publication); for Lewis: Shelley Fite, SPD, Madison Appellate; BiC; Resp.; Reply
Defense access to a complainant’s privileged counseling records requires first convincing the trial court to conduct an in camera inspection to see if the records contain information material to innocence. And that requires showing a reasonable likelihood the records contain non-cumulative material information.
PAC – Burden of Proof
State v. David E. Steinke, 2009AP3207-CR, District 4, 8/26/10
court of appeals decision (1-judge, not for publication); for Steinke: Cody Wagner; BiC; Resp.; Reply
Driving with a prohibited alcohol content of .08 or more, second offense, is a crime and therefore subject to beyond-reasonable-doubt burden of proof. Sitting as trier of fact in a bench trial, the circuit arguably misapprehended the burden as greater weight of the credible evidence,
TPR – Harmless Error
Waukesha County DH&HS v. Michelle P., 2009AP1087, District 2, 8/25/10
court of appeals decision (1-judge, not for publication); for Michelle P.: Eileen A. Hirsch, SPD , Madison Appellate
Authority of the local department to suspend visitation without judicial approval is an “interesting” issue, but one that need not be reached under these facts because the error if any was harmless:
¶11 We point out that, under Wis.
Court of Appeals Publication Orders, 8/10
court of appeals publication orders, 8/25/10
On Point posts from this list:
2010 WI App 103 State v. Walter Allison, Jr.
2010 WI App 104 State v. Esteban M. Gonzalez
2010 WI App 107 State v. Tarence A. Banks
2010 WI App 113 State v. Wendy A. Brown
2010 WI App 114 Titus Henderson v.
TPR- Ineffective Assistance – Change of Placement, Warnings; Disposition, Exercise of Discretion
State v. Jesenia R., 2009AP2906, District 1, 8/24/10
court of appeals decision (1-judge, not for publication); for Jesenia R.: Mary D. Scholle, SPD, Milwaukee Appellate
No prejudice resulted from counsel’s failure to object to violation of the change-of-placement notice requirement in § 48.357. ¶¶15-16.
The background is a bit fact-intensive. Roughly: The child (Elizabeth) had been placed with a foster family, who moved to Idaho and took Elizabeth with them,
Disorderly Conduct – Sufficiency of Evidence
State v. Kurt D. Schmidt, 2010AP551-CR, District 3, 8/24/10
court of appeals decision (1-judge, not for publication); for Schmidt: Andrew John Laufers; BiC; Resp.; Reply
Conviction for disorderly conduct was established by evidence that Schmidt, following a contentious divorce, left messages on his ex-wife’s answering machine cautioning her “to question (her) own personal assurance and insurance,” and falsely reporting that her stepmother had died.
Reasonable Suspicion – Traffic Stop
County of Milwaukee v. Katherine R. Harmon, 2010AP297, District 1, 8/24/10
court of appeals decision (1-judge, not for publication); for Harmon: Basil M. Loeb; BiC; Resp.
Traffic stop supported by reasonable suspicion of impaired driving based on: driving on lane-divider lines, crossing lane-divider by half-foot, and “jerkiness in … front steer tires.”
The court notes that while “merely weaving within the confines of a driver’s traffic lane is not sufficient to support reasonable suspicion sufficient to make a traffic stop …,
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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.