On Point

State v. Walter Allison, Jr., 2010 WI App 103; for Allison: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply Summary judgment in favor of discharge isn’t an available option under § 980.09. ¶18 Applying the principles governing statutory interpretation to Wis. Stat. § 980.09, it is clear that the legislature explicitly prescribed a different procedure from those […]

court of appeals decision (3-judge, not recommended for publication); for Brock: Michael K. Gould, SPD, Milwaukee Appellate; BiC; Resp.; Reply Statement – Coercion Threatened action against defendant’s girlfriend didn’t support suppression of his resulting statement: ¶11 Brock argues that Lynumn v. Illinois, 372 U.S. 528 (1963), requires suppression of his statement. Lynumn held that threats […]

State v. James Robert Thomas, No. 2010AP332-CR, District III, 7/27/10 court of appeals decision (1-judge, not for publication); for Thomas: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply The sentencing court exhibited objective bias, requiring resentencing, when it imposed the maximum on sentencing after revocation, given the court’s threat when it placed Thomas on […]

Alan Ward v. Deppisch, 7th Cir No. 08-2809, 07/23/2010 7th circuit decision, review of unpublished court of appeals decision Habeas – Procedural Default The state argues that Ward procedurally defaulted his claim because he failed to fairly present the Wisconsin courts with a federal issue, and the state courts ruled against Ward based on adequate […]

seventh circuit decision; denial of rehearing and en banc, 10/28/10 Habeas – Filing Deadline For purposes of the federal habeas 1-year statute of limitations, a state court’s decision to accept an untimely filing makes the postconviction review “properly filed” but it doesn’t make it retrospectively “pending” so as to toll the limitation period. Griffith seeks […]

State ex rel. Titus Henderson v. Raemisch, 2010 WI App 114; pro se; Resp. Br. Partial dismissal of a prisoner lawsuit doesn’t counts as a “strike” within the meaning of the  § 801.02(7)(d) “three-strike” provision of the Wisconsin Prisoner Litigation Reform Act. The PLRA regulates “prisoner” lawsuits. Typically, these relate to conditions of confinement, something the SPD doesn’t provide representation for, […]

State v. Tarence A. Banks, 2010 WI App 107; for Banks: Scott D. Obernberger; BiC; Resp.; Reply Evidence – Comment on Refusal to Provide DNA – Ineffective Assistance Prosecutorial use of Banks’ refusal, after arrest, to provide a warrantless DNA sample penalized him for exercising a constitutional right. Because no contemporaneous objection was made, the […]

State v. Donald L. Schultz, 2010 WI App 124 (decision originally issued 7/20/10, subsequently withdrawn; reissued 8/17/10); for Schultz: Margaret A. Maroney, Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply Venue – Instruction ¶12 Although venue is not an element of a crime, it nonetheless must be proved beyond a reasonable doubt. State v. […]

court of appeals decision (3-judge, not recommended for publication); for Oswald: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply Evidence – Consciousness of Guilt Testimony from the Oswald’s parole agent, that Oswald missed an appointment shortly after the incident in question and that he seemed nervous when they later met, was relevant as “consciousness of […]

State v. Carl Morgan, 2009AP74-CR, District III, 7/20/10 court of appeals decision (3-judge, not recommended for publication); for Morgan: Ralph Sczygelski; BiC; Resp.; Reply Sufficiency of Evidence Review Review of a denied motion for dismissal at the close of the prosecutor’s case-in-chief is waived where the defendant proceeds to put in a defense. All the […]