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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.
TPR – Substantive Due Process
Dane Co. DHS v. P.P., 2005 WI 32, affirming unpublished decision
Issue: Whether § 48.424(4) (2001-02) on its face violates substantive due process, in failing to require an individualized determination of unfitness as a precondition for termination of parental rights.
Holding: A parent has a fundamental liberty interest at stake in parenting his or her children, and thus the TPR scheme must be narrowly tailored to advance the State’s interest in interfering with that right,
Mandamus — Review of Denial of Judicial Substitution
State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial
Issue/Holding:
¶15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496,
Federal Habeas: Procedure — Appellate — Standard of Review — State Court Failure to Adjudicate Merits, Effect of
Larry W. Myartt v. Frank, 7th Cir No 04-2115, 1/21/05Issue/Holding:
… AEDPA standards apply only to claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). In the instant case, the Wisconsin Court of Appeals did not address Myartt’s ineffective assistance claim, which is unsurprising because Myartt’s pro se filing failed to develop the claim or discuss relevant Sixth Amendment principles. In these circumstances,
Ambiguous Assertion of Rights — Silence
State v. Richard Allen Hassel, 2005 WI App 80
For Hassel: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding1: Hassel’s custodial statement, “I don’t know if I should talk to you” was ambiguous and therefore triggered no duty to terminate the interrogation, ¶¶16-19.
The court of appeals purported to follow Davis v. United States, 512 U.S. 452 (1994), which holds that the police have no duty to clarify an ambiguous assertion of rights made after clearly waiving them.
Miranda Waiver – Inaccurate Advice, from Counsel
State v. Xavier J. Rockette, 2005 WI App 205
For Rockette: Timothy A. Provis
Issue/Holding:
¶24 We conclude that Rockette did not waive his Miranda rights. Rockette does not argue that Chausee did anything to coerce his confession. Indeed, the purpose of Rockette’s cooperation at the interview, which his own counsel set up, was to increase his chances of securing some leniency from the State.
Noncustodial Assertion of Rights
State v. Richard Allen Hassel, 2005 WI App 80
For Hassel: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: Hassel’s noncustodial statement, “I can’t talk to you,” did not amount to a Miranda-protected assertion of rights, largely because such rights can’t be invoked “anticipatorily,” ¶¶8-15. (State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982) distinguished as a rule of evidence safeguarding against substantive use at trial of prearrest silence.)
Statements – Voluntariness – Statements to P.O.
State v. Charles W. Mark, 2005 WI App 62, affirmed, 2006 WI 78
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶14 … (I)f probationers are required to choose between answers that will incriminate them in pending or subsequent criminal prosecutions and loss of their conditional liberty as a price for exercising their right to remain silent, the statements are compelled.
Testimony in Response to Statement Obtained in Violation of Sixth Amendment
State v. Christopher Anson, 2005 WI 96, affirming, 2004 WI App 155
For Anson: Stephen J. Watson
Issue/Holding: Given a statement taken in violation of the Anson’s 6th amendment right to counsel, in which Anson admitted to facts underlying one of the charges and was prominently mentioned in the opening statements and “evidentiary phase of the trial,” and as to which he filed an unsuccessful interlocutory appeal asserting that admission of the statement would “strategically force” him to testify,
Briefs – Factual Assertions – Need for Accuracy
Arents v. ANR Pipeline Co., 2005 WI App 61
Issue/Holding: ¶5 n. 2:
Wisconsin Stat. Rule 809.19(1)(d) and (e) (2001-02) requires the parties to provide in their briefs separate sections for their “statement of facts relevant to the issues presented for review” and argument. In their appeal, the Landowners have, inappropriately, interspersed legal argument and “spin” into what should have been an objective recitation of the factual occurrences of this case.
Enlargement of NOI Deadline, Court of Appeals’ Authority / Factors to Consider
State v. Christine M. Quackenbush / State v. Michael D. Lee, 2005 WI App 2
For Quackenbush: Tyler J. Tripp
For Lee: Thomas F. Locante, SPD, La Crosse Trial
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate
Issue1: Whether, in light of State v. Iran D. Evans, 2004 WI 84, the court of appeals retains any authority under § 809.82 to extend the time for filing a notice of intent to pursue postconviction relief.
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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.