On Point

Go: here.

Giles v. California, 554 U.S. 353 (2008) fundamentally altered the confrontation-forfeiture doctrine: There, the Court held in effect that the forfeiture doctrine “applie(s) only when the defendant engaged in conduct designed to prevent the witness from testifying,” although the Court also allowed that “(e)arlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry,

State v. Craig A. Swope, 2008 WI App 175
For Swope: Dianne M. Erickson

Issue: Whether an FBI agent’s expert opinion, that the simultaneous deaths of an elderly couple were the result of homicide rather than natural causes, was improperly based on hearsay, namely the opinions of two non-testifying experts who thought the likelihood of natural causes so remote as to be impossible.

Holding:

¶35      In State v.

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding: The trial court erroneously disqualified retained postconviction counsel from litigating an ineffective-assistance claim against his former law partner, the trial attorney:

¶21      Our review of the transcripts reveals little about what the circuit court feared would happen at the Machner hearing; specifically, what risk Petit’s representation posed to Peterson or to the integrity of the judicial system.

State v. Paul Dwayne Westmoreland, 2008 WI App 15, PFR filed 1/17/08
For Westmoreland: Joseph E. Redding

Issue: Whether counsel’s strategic decision to argue inconsistent theories during closing argument (the defendant wasn’t involved in the shooting, but if the jury found he was then they should find guilt only on a lesser offense) was deficient.

Holding:

¶20      We start with the proposition that strategic decisions by a lawyer are virtually invulnerable to second-guessing. 

State v. Jason K. Van Buren, 2008 WI App 26; for Van Buren: Waring R. Fincke

Issue: Whether trial counsel’s failure to adduce expert testimony on false confessions was deficient.

Holding:

¶18      Here, we do not address the prejudice prong of Strickland because we conclude that Van Buren’s counsel was not deficient. A finding of deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland,

State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se

Issue/Holding:

¶10      There are two avenues by which an indigent criminal defendant will be afforded counsel at no expense. The first is through the legislatively created Office of the State Public Defender. The legislature created Wis. Stat. ch. 977 of the Wisconsin Statutes establishing the Office of the State Public Defender “to deal with the appointment of counsel for indigent defendants.” Pirk,

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding:

¶7        … In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the Supreme Court explained that the right to counsel derived from the Sixth Amendment includes “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id. at 144.

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice:

¶9        The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. …

¶10      Martinez and Tamalini provide no guidance on the question presented.

State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification
For MacArthur: Alex Flynn
Amicus: Robert R. Henak

Issue/Holding:

¶50      Our approach to tolling is guided by United States v. Florez, a Second Circuit Court of Appeals opinion that articulated the requisite burden of proof and standard of review for the federal tolling provision. Florez,

State v. Michael G. Mertes, 2008 WI App 179, PFR filed 12/17/08
For Mertes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate

Issue: Whether finding the sleeping occupant of a vehicle parked at a gas station, with engine off but key in the ignition, along with other factors sufficiently proved the OWI element of “operating.”

Holding:

¶13      Wisconsin Stat. § 346.63(3)(b) defines “operate” as “the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” Mertes’ argument focuses almost exclusively on the definition of “operation” under Wis.