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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.
PLRA – Partial Dismissal as Strike
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, but our courts in their infinite wisdom apply the strictures of the PLRA to matters of SPD concern such as cert review of revocations,
Evidence / IAC: Comment on Refusal to Provide DNA; Instruction: Recording Policy Interrogation; Impeachment: Prior Convictions
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 issue is raised as ineffective assistance of counsel,
Venue: Instruction, Proof; Obstructing: Proof; Instruction: Recently Stolen Property
State v. Donald L. Schultz, 2010 WI App 124 (decision originally issued 7/20/10, subsequently withdrawn; reissued 8/17/10); for Schultz: Margaret A. Maroney, Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply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.
State v. Daniel Perry Oswald, No. 2009AP2455-CR, District I, 7/20/10
court of appeals decision (3-judge, not recommended for publication); for Oswald: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply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 guilt.” Admissibility wasn’t substantially outweighed by danger of unfair prejudice,
Sufficiency of Evidence Review; Reverse Waiver; Sentence – Exercise of Discretion
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 evidence, including the defense presentation,
Post-Appeal Interest-of-Justice Litigation
State v. Dimitri Henley, 2010 WI 97, on certification; prior history: unpublished decision; related: disqualification litigation; for Henley: Keith A. Findley, John A. Pray, Byron Lichstein; Amicus: SPD
“Wisconsin circuit courts do not have the inherent authority to order a new trial in the interest of justice when a case is not before the court under a proper procedural mechanism,”
Statute of Limitations – § 939.74(3) – Constitutionality; Pre-Charge Delay; Effective Assistance of Counsel – Investigation
Donald J. McGuire, 2010 WI 91, affirming unpublished decision; for McGuire: Robert R. Henak; BiC; Resp.; Reply
Statute of Limitations – § 939.74(3) – Constitutionality
Under § 939.74(3), the statute of limitations is tolled during “the time during which the actor was not publicly a resident within this state.” McGuire wasn’t a Wisconsin resident, but allegedly committed criminal acts in Wisconsin approximately 36 years before charges were issued.
Search Warrant – GPS Tracking Device
State v. Michael A. Sveum, 2010 WI 92, affirming 2009 WI App 81; for Sveum: Dean A. Strang, Marcus J. Berghahn; BiC; Resp.; Reply; Amicus (ACLU); Resp. to Amicus
A circuit court “order” authorizing law enforcement to place and monitor a GPS tracking device on Sveum’s vehicle satisfied 4th amendment Warrant Clause (all warrants must be validly issued) and Reasonableness Clause (warrants must be reasonably executed) requirements.
Reverse Waiver, §§ 938.183(1), 970.032(1) & (2); Comment on Truthfulness; Self-Incrimination – Waiver – Examination by Expert
State v. Corey Kleser, 2010 WI 88, affirming in part, reversing in part, 2009 WI App 43; for Kleser: Devon M. Lee, SPD, Madison Appellate; BiC; Resp.; Reply
Reverse Waiver, §§ 938.183(1), 970.032(1) & (2) – Generally
¶69 Nothing in § 970.032(2) places a limitation on the evidence at a reverse waiver hearing so long as the evidence is admissible under the rules of evidence and is relevant to one or more of the three elements set out in the subsection.
Exclusionary Rule – Good-Faith Rule – Void ab initio Warrant
State v. Michael R. Hess, 2010 WI 82 affirming 2009 WI App 105; for Hess: George M. Tauscheck; BiC; Resp.; Reply
Exclusionary Rule – Good-Faith Rule – Void ab initio Warrant
¶2 We conclude that the good-faith exception to the exclusionary rule does not apply to a situation in which: (1) no facts existed that would justify an arrest without a warrant;
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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.