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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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Recusal – Judicial Bias: Prejudgment of Issue
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06 For Rodriguez: Donna L. Hintze, SPD, Madison Appellate Issue: Whether, given the trial judge’s statement at sentencing that defendant’s counsel had in fact provided competent representation, established prejudgment of the issue such that recusal was required for the subsequent postconviction assertion of ineffective assistance of […]
Judicial Bias — Test — Objective Bias
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06 For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate Issue/Holding: ¶21 The second component, the objective test, asks whether a reasonable person could question the judge’s impartiality. Franklin, 398 F.3d at 960; Walberg, 109 Wis. 2d at 106-07 (looks to whether partiality can “reasonably be questioned”). Actual […]
Judicial Bias — Prejudgment of Issue in Controversy
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06 For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate Issue: Whether a judge’s instruction to a probation agent, who asked that probation not be extended, “No—I want his probation extended,” evinced judicial bias so as to taint the judge’s subsequent extension order. Holding: While the judge’s comment […]
Search & Seizure – Applicability of Exclusionary Rule: Private / Government Search: Administration of Laxative to Arrestee at Hospital
State v. Tomas Payano-Roman, 2006 WI 47, reversing 2005 WI App 118 For Payano-Roman: Timothy A. Provis Issue: Whether the administration to an arrestee of a laxative at a hospital was under 4th amendment constraints because of the involvement of the police (including keeping the defendant handcuffed in the hospital room; police administration of the laxative; their palpable goal […]
Search & Seizure – Applicability of Exclusionary Rule: Private / Government Search, Generally
State v. Tomas Payano-Roman, 2006 WI 47, reversing 2005 WI App 118 For Payano-Roman: Timothy A. Provis Issue/Holding: ¶17 … Private searches are not subject to the Fourth Amendment’s protections because the Fourth Amendment applies only to government action. State v. Rogers, 148 Wis. 2d 243, 246, 435 N.W.2d 275 (Ct. App. 1988) ….¶18 The court of appeals in Rogers stated three […]
(State) Habeas – Enlargement of Direct Appeal Deadline Based on Ineffective Assistance of Counsel — Habeas in Court of Appeals as Exclusive Mechanism
State ex rel. Luis Santana v. Endicott, 2006 WI App 13 Pro se Issue/Holding1: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992): ¶1 […]
Federal Habeas – Procedure — Appellate — Certificate of Appealability: Ineffective Assistance of Counsel Claim
Dennis Thompson, Jr. v. Battaglia, 458 F. 3d 614 (7th Cir. No. 04-3110, 8/14/06) Issue/Holding: Because (c)ounsel’s work must be assessed as a whole,” an ineffective-assistance claim is a single ground for relief for certificate of appealability purposes, though R. 2(c), Rules Governing Section 2254 Cases, does require that the petitioner specify all grounds for relief […]
(State) Habeas Procedure — Claim of Ineffective Assistance of Appellate Counsel — Laches Bar
State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remanding summary order of court of appeals, reconsideration denied, 2006 WI 121 For Coleman: Brian Kinstler Issue/Holding: ¶28 Prihoda, Sawyer, Lohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge […]
§ 948.31, Interference with Child Custody: Elements, Generally
State v. John W. Campbell, 2006 WI 99, on certification For Campbell: Charles B. Vetzner, SPD, Madison Appellate Issue/Holding: ¶37 For Campbell to be convicted of interfering with custody of Cody, the State had to prove five elements: (1) Cody was younger than 18 years; (2) Denise had legal custody of Cody under a court order […]
Common Law Defenses – Collateral Attack on Custody Order, § 948.31
State v. John W. Campbell, 2006 WI 99, on certification For Campbell: Charles B. Vetzner, SPD, Madison Appellate Issue/Holding: To attack a custody order as void, in defense against interference with child custody, § 948.31, “the family court would have had to lack subject matter jurisdiction or personal jurisdiction, or Campbell would have had to receive inadequate […]
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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.