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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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Hearsay – Statement Against Penal Interest, § 908.045(4) – Non-Self-Inculpatory Statement
State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07 For Jackson: Marcella De Peters Issue/Holding: ¶20 Although finding that Natisha Watkins was unavailable as a witness because it permitted her to assert her Fifth Amendment right, the trial court excluded what Natisha Watkins told Papka because it determined that her statement that Carlos […]
Authentication & Identification, § 909.01: Chain of Custody
State v. Walter William McCoy, 2007 WI App 15 For McCoy: Andrea Taylor Cornwall Issue/Holding: ¶18 … We start by acknowledging that the chain of evidence in this case is not perfect. There are substantial time gaps as pointed out by McCoy. Nonetheless, the chain of custody evidence was sufficient to support the trial court’s […]
§ 904.04(2), “Reverse Misconduct” – Felony Conviction of 3rd-Party, as Relevant to Felon-in-Possession
State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07 For Jackson: Marcella De Peters Issue/Holding: On a prosecution for felon in possession of a firearm, based on the allegation that the defendant “handled” a gun in a gun store, evidence of a 3rd-party’s prior felony conviction was admissible, where: the identity of the […]
Double Jeopardy – Multiplicity: Repeated Sexual Assault, § 948.025(1) – Different Counties
State v. Thomas A. Nommensen, 2007 WI App 224 For Nommensen: Anthony L. O’Malley Issue/Holding: Although charges of repeated sexual assault, § 948.025(1) were the same in law, they were different in fact because they : ¶8 Charged offenses are not multiplicitous if the facts are either separate in time or of a significantly different […]
SVP: Likelihood of Future Sexual Violence Satisfies Substantive Due Process & Equal Protection
State v. Scott R. Nelson, 2007 WI App 2, PFR filed 1/22/07 For Nelson: Joseph L. Sommers Issue/Holding: ¶15 … Even under the “more likely than not” standard, there must be a strong nexus between the person’s mental disorder and that person’s level of dangerousness. Under this standard, the likelihood that the person will engage in […]
SVP Commitment – Expert Misstatement of Test for Commitment – Interest of Justice Review
State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07 For Smalley: Donald T. Lang, SPD, Madison Appellate Issue/Holding: State SVP expert’s unobjected-to misstatement of test for measuring reoffense risk (“more likely than not” means “any chance greater than zero” rather then more than 50%) didn’t support reversal in the interest of justice: ¶10 First, […]
TPR – Right to Appearance by Counsel, Notwithstanding Parent’s Default in Failing to Personally Appear at Fact-Finding Phase
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55 Issue: “(W)hether a circuit court may deny a parent in a termination of parental rights proceeding the statutory right to counsel when the parent has appeared in the proceeding but failed to personally attend a hearing in contravention of a court order and […]
TPR – Right to Counsel, Waiver
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55 ¶57 The State also argues that Shirley E., a parent over 18 years of age, has waived her right to counsel by not appearing personally. We can quickly dismiss this argument. Wisconsin Stat. § 48.23(2) explicitly requires that any waiver of counsel must be […]
TPR – Default as Sanction for Failure to Appear
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55 Issue/Holding: ¶13 n. 3: The circuit court did not order a default under Wis. Stat. § 806.02(5). Shirley E. had “appeared” at the hearing by her attorney. Evelyn C.R. v. Tykila S., 2001 WI 110, ¶17, 246 Wis. 2d 1, 629 N.W.2d 768.The circuit court found […]
Substantive Due Process – Grounds for Termination – Impossible to Meet Condition for Return
Kenosha Co. DHS v. Jodi W. 2006 WI 93, reversing summary order Issue: Whether finding of parental unfitness in a TPR, grounded on a condition for the child’s return that was impossible to meet when imposed (namely that the parent set up a suitable residence within 12 months even though she was incarcerated and would […]
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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.