On Point

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.

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,

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. 

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. 

court of appeals decision (not recommended for publication); Resp Br.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

State v. Clifford D. Bvocik, 2010 WI App 49; for Bvocik: James C. Murray

Prosecutorial Misconduct – Closing Argument

Improper prosecutorial closing argument—encouraging jury to draw false inference—requires new trial in interest of justice; State v. Robert H. Weiss, Jr., 2008 WI App 72, controlling:

¶1        State v. Weiss, 2008 WI App 72, ¶¶15-17, 312 Wis. 2d 382,

court of appeals decision (not for publication); BiC; Resp Br; Reply

Transport in Squad Didn’t Convert Stop to Arrest
Temporary detention for OWI not converted to arrest by transport, in squad while handcuffed, to police station where field sobriety tests could be performed safely; court notes that officer expressly told Krahn detention was temporary and that handcuffs and transport were for safety,

court of appeals decision, affirmed, 2011 WI 27; for Beauchamp: Martin E. Kohler, Craig S. Powell; case activity

Dying Declaration, § 908.045(3)

¶8        …  dying declaration, codified in Wisconsin Stat. Rule 908.045(3): “A statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant’s impending death.” Under established law,

Go: here.

court of appeals decision (not recommended for publication)

Probable Cause to Arrest
Probable cause to arrest Howell, where he showed up at drug house after police were executing search warrant and had found photo of him throwing gang signs plus he matched description of drug dealer in warrant application.