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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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Counsel – Ineffective Assistance – Deficient Performance – failure to investigate, based on defendant’s version
State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126 For Leighton: Daniel Snyder Issue: Whether defendant’s first counsel was ineffective for failing to file formal discovery demand and investigate various matters. Holding: Because counsel withdrew before the prelim, and because there is no right to discovery before prelim, counsel […]
Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate Expert – Non-Pursuit of NGI Defense After Rejection by Expert Who Misunderstood Correct Test
State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207 For Oswald: Jerome F. Buting, Kathleen B. Stilling Issue: Whether counsel was ineffective for rejecting an NGI defense, where two defense experts rejected the defense but after trial one acknowledged that he misunderstood the correct test and that his opinion was […]
Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate
Vonaire T. Washington v. Smith, 219 F.3d 620 (7th Cir. 2000) For Washington: Robert R. Henak Issue/Holding: Trial consel’s performance was deficient in three respects: Last-minute issuance of subpoena for hard-to-find witness, on theory that trials are often adjourned at last minute anyway. (“(P)lacing witness convenience above the vital interests of his client does not make […]
Right to Counsel – Judicial Appointment, Discretion to Continue on Appeal
Juneau County DHS v. James B., 2000 WI App 86, 234 Wis. 2d 406, 610 N.W.2d 144 For Appellant; James L. Boardman; Chris R. Velnetske Issue: Whether judicial appointment of counsel in a CHIPS case necessarily terminates after disposition, or may be continued for appeal. Holding: Judicial appointment of counsel in a CHIPS case doesn’t […]
Defenses – Claim Preclusion – Revocation Hearing Determination of Insufficient Proof of Element of New Offense No Bar to Prosecution of That Offense
State v. Samuel Terry, 2000 WI App 250, 239 Wis. 2d 519, 620 N.W.2d 217 For Terry: Richard D. Martin, SPD, Milwaukee Appellate Issue/Holding: ¶1 … Terry argues that, under the doctrine of issue preclusion, the State was precluded from criminally prosecuting him for possession of cocaine with intent to deliver because the Administrative Law […]
Double Jeopardy – Multiplicity: Sexual Assaults, Single Incident
State v. David J. Cleveland, 2000 WI App 142, 237 Wis. 2d 558, 614 N.W.2d 543 For Cleveland: Suzanne L. Hagopian, SPD, Madison Appellate Issue: Whether multiple sexual assault counts arising during a single incident violated double jeopardy. Holding: Though the offenses weren’t separated in time, each required separate volitional acts and were therefore significantly […]
Double Jeopardy – Multiplicity: Attempted Child Sexual Exploitation and Child Enticement
State v. Gabriel Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, affirming State v. DeRango 229 Wis. 2d 1, 599 N.W.2d 27 For Derango: Robert G. LeBell Issue: Whether conviction for both attempted child sexual exploitation and child enticement as a result of a single act is multiplicitous. Holding: The two offenses are elementally distinct […]
Double Jeopardy – Prosecutorial Misconduct: Retrial Following Mistrial at Defense Request — Necessity of prosecutorial overreaching
State v. Rovaugn Hill, 2000 WI App 259, 240 Wis.2d 1, 622 N.W.2d 34 For Hill: Gerald P. Boyle Issue: Whether reprosecution should be barred on double jeopardy grounds, because prosecutorial overreaching had caused a mistrial. Holding: “[D]ouble jeopardy bars a retrial when the defendant has successfully moved for a mistrial, if the prosecutor acted […]
Double Jeopardy – Prosecutorial Misconduct: Vindictiveness – increased charge following hung jury
State v. Hayes Johnson, 2000 WI 12, 232 Wis. 2d 679, 605 N.W.2d 846, reversing State v. Johnson, 223 Wis. 2d 85, 588 N.W.2d 330 For Johnson: Russell D. Bohach Issue1: Whether a presumption of prosecutorial vindictiveness arises from an increase in the charge following grant of mistrial due to hung jury. Holding: No presumption of prosecutorial […]
Enhanced Penalties — Proof: Prior Need Not Be Part of Appellate Record
State v. Thomas W. Koeppen, 2000 WI App 121, 237 Wis.2d 418, 614 N.W.2d 530 For Koeppen: Richard L. Zaffiro Issue: Whether the repeater-qualifying convictions were inadequately proved merely because they weren’t made part of the appellate record. Holding: “Even if the trial court did not include these documents in the appellate record, the documents’ […]
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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.