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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.
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TPR-elements, grounds of continuing need or protection and services
Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification Issue/Holding: ¶6 There are four elements to this ground for termination. First, the child must have been placed out of the home for a cumulative total of more than six months pursuant to court orders containing the termination of parental rights notice. Second, the […]
TPR – Withdrawal of Element (Parental Unfitness) from Jury Consideration Amounted to Denial of Jury Trial
Manitowoc County HSD v. Allen J., 2008 WI App 137 Issue/Holding: ¶1 Allen J. appeals from orders terminating his parental rights to his children, Brandon [1] and Stephanie J. He argues that he was deprived of his right to a jury trial because the court, rather than the jury, answered one of the verdict questions […]
TPR – No Contest Plea, Withdrawal of – Prima Facie Showing re: Grounds and Potential Disposition
Oneida Co. DSS v. Therese S., 2008 WI App 159 Grounds Issue/Holding: Informing the parent of potential “dispositions in a general sense” is not enough to satisfy § 48.422(7)(a): ¶16 Thus, at the very least, a court must inform the parent that at the second step of the process, the court will hear evidence related to […]
Federal Habeas: Procedure — Appellate – Standard of Review — “Clearly Established” Precedent — Supreme Court Reservation of Ruling on Issue
Donald Calloway v. Montgomery, 512 F. 3d 940, No. 07-1148, 1/14/08 Issue/Holding: Where the Supreme Court has expressly declined to rule on the issue (or on one in a very similar) context) to the issue on habeas review, there is no clearly established precedent within the meaning of AEDPA. Andrew Lockhart v. Chandler, 446 F.3d 721 […]
Prior Assertion of Right to Counsel
State v. Willie B. Cole, 2008 WI App 178 For Cole: Scott A. Szabrowicz Issue/Holding: “Under the above case law, it is clear that, if Cole did invoke his Fifth Amendment/Miranda right to counsel when he was arrested on the battery charge, then the statement he gave Officer Riley while still in custody is inadmissible even […]
Suppression Hearing Procedure – Burden of Proof Re: Prior Assertion of Right to Counsel as Invalidating Subsequent Waiver
State v. Willie B. Cole, 2008 WI App 178 For Cole: Scott A. Szabrowicz Issue/Holding: ¶38 The parties have not provided, and we have not discovered, any case that addresses the burden of proof in a factual context similar to this—where the defendant asserts he previously invoked his right to counsel as a basis for […]
Suppression Hearing Procedure – Burden of Proof, Generally
State v. Willie B. Cole, 2008 WI App 178 For Cole: Scott A. Szabrowicz Issue/Holding: The State bears the burden of proof, by preponderance of evidence, of a valid waiver of Miranda rights, ¶27. ¶35 As we have stated above, it is the State’s burden to prove by a preponderance of the evidence that the defendant validly waived […]
Statements – Voluntariness – Post-Stress Test (“Honesty Testing”) Statement
State v. Keith A. Davis, 2008 WI 71, on Certification For Davis: Chris A. Gramstrup Issue/Holding: ¶38 In the case at hand, we conclude, as did the circuit court, that the defendant’s statement was voluntary. The record contains no evidence that would give rise to any concerns regarding his personal characteristics. Davis, at the time this occurred, […]
Involuntary Statement (Due to Immunity Grant) – Derivative Evidence: Experts’ Opinions
State v. Danny G. Harrell, 2008 WI App 37 For Harrell: Patrick M. Donnelly, SPD, Madison Appellate Issue/Holding: Expert opinion that Harrell is sexually violent was derived from his compelled, incriminatory statement and therefore also inadmissible, ¶¶14-35. The court essentially tracks the discussion in Mark, which therefore won’t be repeated, and applies it to the particular facts. […]
Involuntary Statement – Derivative Evidence – Admissibility of Subsequent Statement
State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90 For Mark: Glenn L. Cushing, SPD, Madison Appellate Issue/Holding1: ¶20 When an individual has given an involuntary statement, a subsequent statement is also considered involuntary unless it can be “separated […]
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