On Point

United States Supreme Court decision (or, here)

Criminalizing depictions of animal cruelty, 18 U.S.C. §48, held “substantially overbroad,” therefore violative of First Amendment.

First Amendment restrictions on speech are permitted “in a few limited areas” (obscenity, crime facilitation, et al.), and despite long-standing abhorrence of animal cruelty, depictions of same will not be added to that list.

… The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.

court of appeals decision (1-judge; not for publication); for Able: Francesco G. Mineo; BiC; Resp.; Reply

Reasonable Suspicion, Stop
Police had reasonable suspicion for temporary detention: after business hours, car pulled into parking lot of fitness club that had been subject of recent burglaries.

Conclusion unremarkable save perhaps court’s inexplicable emphasis that event occurred “close to bar closing time,” ¶12.

court of appeals decision (3-judge; not recommended for publication); for Jackson: Byron C. Lichstein; BiC; Resp.; Reply

Hearsay, Child Sexual Assault, Residual Exception
Statements by youthful sex assault complainants admissible under residual hearsay exception, court rejecting idea that it’s thereby allowing exception to swallow general rule against hearsay admissibility; confrontation objection forfeited).

Counsel – Strategic Basis for Failing to Adduce Alibi Witness
Counsel’s failure to have potential alibi witnesses testify was reasonable strategy,

court of appeals decision (1-judge; not for publication); for Cochran: Michael J. Schmidt; BiC; Resp.

Probation Extension
Extension of probation due to failure to discharge restitution obligation upheld, against argument Cochran had made good-faith effort to pay but lacked ability to do so.

court of appeals decision (1-judge; not for publication); for Schlapper: Owen R. Williams; BiC; Resp.; Reply

Probable Cause Based Search of Car, After Arrest of Passenger
Police had probable cause to search car, after passenger threw marijuana out window; search-incident limitations imposed by Arizona v. Gant therefore inapplicable.

court of appeals decision (3-judge; not recommended for publication); pro se; Resp.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

Forfeiture
Refusal of request to return seized cash upheld, where Morton was convicted of drug offenses: separate forfeiture action was unnecessary (Leonard L. Jones v. State, 226 Wis.2d 565, 594 N.W.2d 738 (1999), controlling); trial court forfeiture decision is discretionary, and Morton’s failure to provide transcript of trial court reasoning dooms attack.

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

Postconviction Motion, IAC Claim
Denial of Machner hearing upheld: defendant’s affidavit in support of motion “conclusory,” and claims otherwise contradicted by contemporaneous record.

State v. Kyle Lee Huggett, 2010 WI App 69; for Huggett: Craig A. Mastantuono; BiC; Resp; Reply

The State forfeited a potential appellate argument by conceding it in the trial court, in response to Huggett’s postconviction motion, ¶14.

Unmentioned by the court: the State is the appellant. Why does that matter? Because the general rule is that the respondent on appeal may raise any argument,

7th circuit decision; on appeal after remand, Eric D. Holmes v. Buss, 506 F.3d 576 (7th Cir 2007)

Competency of Petitioner, While Pursuing Habeas Relief

Given that petitioner is clearly incompetent (“He is deeply confused, obsessed, and delusional”) court orders habeas proceeding suspended until state shows his condition sufficiently improved.

This is a death penalty case, and the decision in the prior appeal indicated that it had “found no noncapital case in which such a claim (petitioner’s incompetency,

court of appeals decision (i-judge; not for publication); for Rice: Tracey A. Wood; BiC; Resp.; Reply

Search & Seizure – Denial of Motion to Suppress without Evidentiary Hearing

¶6        Regarding the applicability of [State v.] Garner [, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996) to the present case, we find no published cases applying Garner’s modified Nelson test to a pretrial motion to suppress anything other than witness identification evidence.