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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 – Issue Preclusion, Applicability of Doctrine
Brown County DHS v. Terrance M., 2005 WI App 57 Issue/Holding: Because TPR cases are generally a subset of custody cases; and because claim preclusion is available as a means of discouraging groundless requests for modification of custody, both claim and issue preclusion “may also be applied when the facts so require” in TPRs, ¶¶8-9. […]
Judicial Bias – Exposure to Relevant Information
State v. Somkith Neuaone, 2005 WI App 124 For Neuaone: Ralph Sczygelski Issue/Holding: Where the sole basis for recusal is a claim that the judge was exposed to relevant sentencing information that he was entitled to hear, the very premise for the claim is flawed, ¶17. ¶16 Whether a judge was a “neutral and detached magistrate” is […]
Judicial Bias – Test – Structural Error
Harrison Franklin v. McCaughtry, 398 F.3d 955 (7th Cir 2005), granting habeas relief in unpublished opinion of Wis COA Issue/Holding: The tripartite test for judicial bias (subjective inquiry answered by trial judge’s determination of own impartiality; objective examination as to whether reasonable person could question judge’s impartiality; and if partiality is established, whether it was harmless, see State v. Rochelt, 165 […]
Judicial Substitution – Delinquency, § 938.29(1)(m) – Review by Chief Judge
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: The chief judge has authority to review denial of a substitution request in a delinquency proceeding, under §§ 938.29(1)(m) and 801.58(2). (Because § 801.58(2) is the more specific provision, it “applies when the […]
Judicial Substitution – TPR, § 48.29
Brown County DHS v. Terrance M., 2005 WI App 57 For Terrance M.: Theresa J. Schmieder Issue/Holding: ¶11. The trial court ruled and the County now argues that Terrance’s substitution request was untimely because it was not filed before “hearing of any preliminary contested matters” under Wis. Stat. § 801.58. Terrance argues the applicable statute […]
Judicial – Substitution – § 971.20(5) – Timeliness of Request, Newly Assigned Judge
State v. Van G. Norwood, 2005 WI App 218 For Norwood: Terry Evans Williams Issue/Holding: Defendant’s withdrawal of his NGI plea prevented him from later invoking the right of judicial substitution provided by § 971.20(5), where a new judge was subsequently assigned and no prior right to substitution invoked. The court’s analysis doesn’t track the actual […]
Judicial Substitution – Review of Denial, by Writ
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 […]
(State) Habeas – Generally, Statutory vs. Common Law – Challenge to Ch. 980 Commitment
State ex rel. Frederick Lee Pharm v. Bartow, 2005 WI App 215 For Pharm: Roisin H. Bell (Pro Bono) Issue/Holding( Dicta): ¶12, n. 6: The State also draws a distinction between statutory habeas corpus and common law habeas corpus, contending that the circuit court properly ruled that Pharm was not entitled to statutory habeas corpus relief because […]
Federal Habeas – Procedure — Appellate — Certificate of Appealability: FRCP 60(b) Motion
Michael A. Sveum v. Smith, 403 F. 3d 447 (7th Cir. No. 05-1255, 3/31/05) Issue/Holding: Denial of FRCP 60(b) motion to reopen, which was in effect a “mislabeled habeas corpus petition reasserting” previously rejected claim, required certificate of appealability. Jones v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004) (district court’s dismissal of motion, on ground it […]
Possession with Intent to Deliver — Sufficiency of Evidence, Proof of Intent
State v. Sheldon C. Stank, 2005 WI App 236 For Stank: Dennis P. Coffey Issue/Holding: ¶45 We further reject Stank’s argument that insufficient evidence existed to support the “intent to deliver” element of count two. According to Peasley v. State, 83 Wis. 2d 224, 229, 231-32, 265 N.W.2d 506 (1978), the finder of fact may consider […]
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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.