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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.

Marcus A. Wellons v. Hall, USSC No. 09–5731, 1/19/10

US Supreme Court decision

Habeas – Discovery
Hall entitled to discovery and evidentiary hearing as to what prompted jury members to give “the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts.”

From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect. The disturbing facts of this case raise serious questions concerning the conduct of the trial,

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Julian Lopez v. Thurmer, 7th Cir No. 08-2110, 2/5/10

7th Circuit decision, denying relief in: Wis COA No. 2003AP1885

Habeas – Effective Assistance of Counsel – Lesser Included Instruction
Given state court conclusion that Lopez was not entitled to lesser offense instruction on felony-murder, counsel could not have been ineffective for failing to request the instruction. Nor was the absence of the instruction “a fundamental miscarriage of justice,” because there is no showing “that Lopez probably would have been acquitted of first-degree intentional murder.”

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Elliot D. Ray v. Boatwright, 7th Cir No. 08-2825, 4/1/10

7th Circuit decision; granting habeas relief in: Wis App Nos. 2002AP791 and 2006AP2708 (earlier decision, 1/21/10, now amended); appeal following remand, 11-3228

Habeas – Confrontation
“Because it was error for the state court to admit the co-actors’ statements through the police detective’s testimony at trial, violating Ray’s right of confrontation, we reverse and remand.”

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Holly Wood v. Allen, USSC NO. 08-9156, 1/20/10

US Supreme Court decision

Habeas – Effective Assistance of Counsel
The state court finding that counsel made a strategic decision not to pursue mitigation of sentence on a theory of mental limitations was “not unreasonable,” and thus not subject to reversal.

The Antiterrorism and Effective Death Penalty Act of 1996 contains two provisions governing federal-court review of state-court factual findings. Under 28 U. S. C. §2254(d)(2),

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First Amendment – Overbreadth: Sexual Assault of Child, § 948.02, Not Unconstitutionally Overbroad re: “Proper Medical Purpose”

State v. Christopher J. Lesik, 2010 WI App 12, PFR filed
For Lesik: Anthony Cotton

Issue/Holding: Sexual assault (intercourse) of a child, § 948.02, isn’t unconstitutionally overbroad, against a theory that it criminalizes acts undertaken for “proper medical purpose.” Although the statute is silent with respect to medical conduct, potential overbreadth may be cured through judicial construction and the court therefore “conclude(s) here that ‘sexual intercourse’ as used in the sexual assault of a child statute does not include ‘bona fide medical,

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Eric Pressley v. Georgia, USSC No. 09–5270, 1/19/10

US Supreme  Court decision

Public Trial – Closing Courtroom for Voir Dire
Sixth Amendment right to a public trial in criminal cases extends to jury selection phase. Failure to consider alternatives to closure violated this right (“trial courts are required to consider alternatives to closure even when they are not offered by the parties”). Nor did the lower court identify any “overriding” interest in favor of closure:

There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire.

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Briscoe v. Virginia, USSC No. 07-11191, 1/25/10

Confrontation – Lab Report
USSC decision. An order, really, not an opinion, tantamount to a “GVR” (Grant, Vacate, Remand):

PER CURIAM. We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).

Significance, as explained by Briscoe’s attorney and leading Confrontation Clause expert Richard Friedman: “the critical point confirmed by Melendez-Diaz remains the law: A prosecution witness must testify live,

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State v. Jermichael James Carroll, 2010 WI 8, affirming 2008 WI App 161

supreme court decision; court of appeals decision; for Carroll: Michael K. Gould, SPD, Milwaukee Appellate

Frisk – Demand that Suspect Drop Object
Frisk analysis applies to police demand that suspect drop object in hand, ¶22.

¶23      Here, Carroll led officers on a high-speed chase in a car that the officers had been observing in connection with an armed robbery investigation, and exited his car quickly while holding an unknown object. 

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State v. Richard M. Fischer, 2010 WI 6, affirming 2008 WI App 152

supreme court decision; court of appeals decision; for Fischer: James M. Shellow, Robin Shellow, Urszula Tempska

Note: federal habeas relief was subequently granted, Richard M. Fischer v. Ozaukee Co. Circ. Ct., ED Wis No. 10-C-553, 9/29/10.  Federal appellate and district court cases don’t bind Wisconsin courts, which therefore needn’t follow this habeas decision, e.g., State v. Mechtel, 176 Wis. 

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State v. John C. Berard, 2008AP 3187-CR, Dist II, 2/3/10

court of appeals decision (not recommended for publication); Resp Br. (Berard)Reply (State)

Counsel – Conflict of Interest – Prior Representation in Unrelated Case
“Berard’s postconviction showing that Peter B. was Attorney Smith’s former client in an unrelated case and that he wanted to pin his charged crimes on Peter B. does not equate to a showing of an actual conflict of interest. 

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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.