On Point

State v. Chrystul D. Kizer, 2022 WI 58, affirming a published court of appeals opinion, 2021 WI App 46, 7/6/22, case activity (including briefs)

There’s been a lot of press on this case, so we’ll skip the facts. Kizer is charged with 1st-degree intentional homicide and other felonies in connection with the death of a man she says trafficked her. She asserts §939.46(1), which provides “an affirmative defense for any offense committed as a direct result” of human or child sex trafficking. In a split decision, SCOW decided two questions of statutory interpretation. Now the circuit court must apply the clarified statute and decide whether Kizer gets a jury instruction on this defense at trial.

State v. Westley D. Whitaker, 2020AP29-CR, 2022WI 54, 7/5/22, affirming a publisher court of appeals opinion, 2021 WI App 17; case activity (including briefs)

As a teenager, Whitaker repeatedly sexually assaulted his sisters. Though aware of the assaults, neither his parents nor the Amish elders reported them to the authorities. Whitaker pleaded to one count of 1st-degree sexual assault of a child. On appeal, he argues that the circuit court improperly sentenced him by referencing his Amish faith and stating an intent to send a message to the Amish community. SCOW affirmed, but the majority and concurrences highlight concerns about how “improper sentencing factor” claims are evaluated.

State v. C.G., 2022 WI 60, 7/7/22, affirming a published court of appeals decision, 2018AP2205; case activity

C.G. has the masculine legal name her parents gave her when she was born. When she was 15 years old she committed a sexual assault. At the time she was identifying as a male, but during and after the pendency of her juvenile case she began to transition to female. She wants to change her legal name to reflect her gender. But in Wisconsin, those on the registry are forbidden to change their names. C.G.–who is primarily identified by the pseudonym “Ella” in this confidential juvenile case–argued that forcing her to retain a masculine legal name violates her First Amendment right to free speech, and her Eighth Amendment right to be free from cruel and unusual punishment. Four justices disagree.

State v. A.T., 2022AP544, 6/28/22, District 1, (1-judge opinion, ineligible for publication); case activity

Guys, if you have unprotected sex, call or text your partner after. And “Wisconsin law does not require courts to consider race or culture when determining whether to terminate parental rights.” Opinion, ¶29. Those are the two main takeaways from this TPR opinion.

State v. S.A., 2021AP1917-1919, 7/6/22, District 1, (1-judge opinion, ineligible for publication); case activity

The State petitioned to terminate Sarah’s parental rights to her three children because she had failed to assume parental responsibility and her kids were in continuing need of protective services.  According to the State, Sarah had trouble controlling her anger and mental health. She left her kids home alone, and she and the children’s father had a history of domestic violence.

State v. Sergio Moises Ochoa, 2022 WI App 35; case activity (including briefs)

Ochoa, charged with two counts of first degree intentional homicide, claimed self defense. The court of appeals rejects his claims that the circuit court violated his right to present his defense by excluding certain evidence he wanted to present. The court also rejects his claim that the circuit court erred by refusing to modify the pattern jury instruction applicable to his case.

Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 2022 WL 2276808, June 24, 2022, reversing 945 F.3d 265 (5th Cir. 2019); Scotusblog coverage

As you all know, Dobbs overruled Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), which held that a woman has a constitutional right to an abortion under the 14th Amendment of the United States Constitution. Dobbs has implications for SPD clients. This post highlights a few.

State v. Richard M. Arrington, 2022 WI 53, reversing a published court of appeals opinion, 2021 WI App 32, 7/1/22, case activity (including briefs)

In a majority opinion written by Roggensack, SCOW holds that the State did not violate Arrington’s 6th Amendment right to counsel by using a jailhouse snitch to help cinch a 1st-degree homicide conviction against him. Thus, Arrington’s lawyer did not perform deficiently by failing to file a suppression motion. Dallet wrote a concurrence joined by A.W. Bradley and Karofsky arguing that a 6th Amendment violation did occur and that Arrington’s lawyer performed deficiently by not moving to suppress the snitch evidence. The concurrence agrees, however, that Arrington was not prejudiced by counsel’s conduct.

State v. Scott William Forrett, 19AP1850, 2022 WI 37, 6/3/2022, affirming a published court of appeals decision; case activity (including briefs)

In 1996, the state revoked Scott Forrett’s driver’s license under Wis. Stat. § 303.305(10) because he refused a blood test for alcohol. Under the state’s statutory scheme of progressive punishment for OWIs, that revocation counts the same as a prior conviction for drunk driving would. The state supreme court now holds this statutory scheme unconstitutional, saying it imposes increased criminal penalties on those who assert their Fourth Amendment right to refuse a warrantless blood draw. This means that Forrett’s conviction in the case before the court–for an OWI from 2017–is a sixth, not a seventh, offense.

State ex rel. DeLorean Bryson v. Kevin Carr, 2022 WI App 34; case activity (including briefs)

A few months ago the court of appeals decided Ortiz v. Carr, holding (with a number of important caveats) that DOC may not take a greater percentage of an inmate’s wages for restitution than the circuit court has ordered–if the circuit court has ordered a specific percentage. Here, the court applies similar logic to obligations other than restitution. It holds that DOC has the authority to set a percentage rate for the crime lab surcharge and the DNA surcharge, but that the circuit court has the authority to set a different rate for collection of court fees. It does not decide who has authority over the victim-witness surcharge, because DOC did not appeal the circuit court’s determination of that question (which was that DOC has the authority to set the percentage, but that its new policy of taking 50 percent violates the administrative rules it earlier promulgated).