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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.

Double Jeopardy – Prosecutorial Misconduct: Vindictiveness – Adding New Charges After Postconviction Relief

State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007)
For Williams: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding: Issuing new charges for “a completely separate and distinct criminal episode” after the grant of appellate relief does not give rise to a presumption of vindictiveness:

¶45 … As Humphrey [v.

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Double Jeopardy: “Manifest Necessity” for Mistrial Where “Counsel Aired Improper and Highly Prejudicial Evidence Before Jury”

State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007)
For Williams: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding:

¶22. We begin by addressing Williams’ double jeopardy claim. He submits that the trial court failed to exercise “sound discretion” in declaring a mistrial after his counsel had asked a State witness,

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Double Jeopardy – Remedy: Partial Acquittal on Multi-Count Trial

State v. Daniel Wyatt Henning, 2004 WI 89, reversing 2003 WI App 54, 261 Wis. 2d. 664, 660 N.W.2d 698
For Henning: Steven D. Phillips, SPD, Madison Appellate

Issue: “¶41. Thus, the critical question is this: When a jury, in a multicount trial, both convicts and acquits, and an appellate court then overturns the conviction or convictions, do the acquitted charges pose any direct bar to retrial of the reversed convictions?” (In this case,

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Due Process – Exculpatory Evidence – Deferred-Judgment Probationary Status, Prosecutorial Duty to Disclose, § 971.23(1)(f)

State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz

Issue/Holding:

¶23. Under Wis. Stat. § 971.23(1)(f), a prosecutor must, upon request, disclose to the defense “[t]he criminal record of a prosecution witness which is known to the district attorney.” A prosecutor, however, has an affirmative duty to make reasonable inquiry and may not assert that he or she did not know of those things within the ambit of § 971.23 that could have been reasonably discovered. 

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Due Process – Exculpatory Evidence – Generally

State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813
For Harris: Steven A. Koch

Issue/Holding:

¶12 In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment,

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Enhancer — TIS-I – Calculation (Unclassified Felony)

State v. Michael D. Jackson, 2004 WI 29, affirming unpublished decision of court of appeals
For Jackson: Joseph E. Schubert

Issue/Holding:

¶42 Applying the rule of lenity, we conclude that Wis. Stat. § 973.01(2)(b)6 should be read together with Wis. Stat. § 973.01(2)(c) in calculation of the maximum term of confinement for unclassified felonies with penalty enhancers under TIS-I. We apply the 75% rule of Wis.

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Enhancers, § 939.62(2m)(b)2 – Not Cruel and Unusual Punishment

State v. Michael D. Lewis, 2004 WI App 211
For Lewis: Timothy A. Provis

Issue/Holding: Sentence of life imprisonment without possibility of parole, as persistent repeater due to prior conviction for sexual assault of a child, on a current conviction for child enticement isn’t cruel / unusual punishment under the 8th amendment. ¶¶16-18.

 

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DNA Collection, § 973.047, and Surcharge, § 973.046 — Prior Collection

State v. Franciollo L. Jones, 2004 WI App 212, PFR filed 11/11/04
For Jones: Syovata Edari; Ellen Henak (on PFR), SPD, Milwaukee Appellate

Issue: Whether the trial court properly ordered Jones to pay a DNA surcharge even though he had already provided a DNA sample in an earlier case.

Holding:

¶5 WISCONSIN STAT. § 973.047 obligates the trial court to require anyone convicted of a felony to provide a DNA specimen.

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Due Process – Judicial Intervention in Presentation of Case

State v. Johnnie Carprue, 2004 WI 111, reversing 2003 WI App 148
For Carprue: Stephanie G. Rapkin

Issue/Holding:

¶58. Carprue contends that he was denied his due process right to a fair trial because Judge Schellinger was not impartial. His evidence consists of the judge’s actions in calling and questioning Morrow and in questioning Carprue.¶59. “A fair trial in a fair tribunal is a basic requirement of due process.”

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Due Process – Defendant’s Right to Testify – Waiver

State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz

Issue:Whether the defendant’s explicit waiver of his right to testify was conditional (on the outcome of two defense witnesses) such that another colloquy should have been conducted; or, if the waiver is deemed binding, whether the trial court nonetheless erroneously exercised discretion in refusing the defendant’s request, after the close of evidence,

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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.