On Point

Renico v. Lett, USSC No. 09-338, 5/3/10

The state court’s conclusion of manifest necessity for mistrial where the foreperson reported inability to reach unanimity wasn’t unreasonable, hence grant of habeas relief is vacated:

… (T)rial judges may declare a mistrial “whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity” for doing so. Id., at 580. The decision to declare a mistrial is left to the “sound discretion” of the judge,

certification

Issue:

Can a circuit court disqualify retained counsel-of-record in a civil suit, thereby denying the client the right to representation by chosen counsel and restricting the attorney’s right to practice law in a civil action, where the attorney previously represented a nonparty witness for the opposing side?

The Ciccantellis sued a condo association for a personal injury. Turns out plaintiffs’ counsel had also represented the association’s property manager;

court of appeals decision (1-judge, not for publication); for Sporle: Robert J. Jackson; BiC; Resp.; Reply

Implied Consent Procedure, § 343.305(2)

¶12 The officer complied with her obligations to provide the “Informing the Accused” information and to make an alternative test available. The officer informed Sporle that, if he took the requested test, he could have an alternative test free of charge,

court of appeals decision (1-judge, not for publication); for Davison: Steven Cohen; BiC; Resp.; Reply

Reasonable Suspicion – OWI
Reasonable suspicion found to administer field sobriety tests, where Davison admitted drinking 4 or 5 beers, had alcohol on his breath, was in close proximity to the bar where he had been drinking, and it was bar closing time.

“Bar closing time”

court of appeals decision (1-judge, not for publication); for Miller: Dudley A. Williams; BiC; Resp.; Reply

Community Caretaker

Miller caught the attention of the police by driving very slowly, early in the morning, and pulling into the parking lot of a closed business. But he soon drove off, and neither committed any traffic violations nor engaged in suspicious behavior; his ensuing stop wasn’t supportable under a community caretaker rationale:

¶16      We conclude that Harper’s conduct was not a bona fide community caretaker activity because it did not meet the standard.

court of  appeals decision (3-judge; not recommended for publication); for Jackson: Mark S. Rosen; BiC: Resp.; Reply

Double Jeopardy – Retrial Following Mistrial
Mistrial on defendant’s motion, occasioned by prosecutorial failure to disclose that witness was cooperating with police in separate investigation of Jackson, didn’t bar retrial: there was no showing that the prosecutor was aware of the undisclosed information, or that failure to disclose was intended to provoke mistrial,

court of appeals decision (3-judge; not recommended for publication); pro se; Resp. Br.

Serial Litigation Bar
Collins’ § 974.06 motion is procedurally barred by his failure to allege a “sufficient reason” for not previously raising issues as part of his prior, no-merit appeal, ¶1.

Bit more interesting than that, in the following sense: the court not only pays lip service to the idea that it “must pay close attention to whether the no merit procedures were followed,”

State v. Carl Ralph Eichorn, 2010 WI App 70; for Eichorn: Melissa Fitzsimmons, SPD, Milwaukee Appellate; BiC; Resp.; Reply

Evidence was sufficient to support stalking conviction, though the requisite “course of conduct” occurred over short span of time:

¶9     In sum, there is more than sufficient evidence under our standard of review to support beyond a reasonable doubt Eichorn’s stalking conviction.

court of appeals decision (3-judge; not recommended for publication); for Lonski: Basil M. Loeb; BiC; Resp.

Self-Defense
Lonski’s claim of self-defense (that she was protecting herself from “unlawful” use of force by a uniformed officer) was rejected as not credible by the trial court in a bench trial, and that credibility determination wasn’t clearly erroneous.

Jury Waiver
Lonski’s jury waiver was adequately canvassed,

court of appeals decision; ror Lewis: John T. Wasielewski; Resp. Br.; Reply Br.

Appellate Procedure – Standard of Review: Government Informant

¶16      Our discussion must begin, as it almost always does, with the standard of review.  In deciding whether a person is a government informant or agent for purposes of this Sixth Amendment analysis, the determination regarding the relationship or understanding between the police and the informant is a factual determination.