On Point

Julie C. Valadez v. Hon. Michael J. Aprahamian, 2021AP994, 2021AP1186, and 2021AP1436; 2/2/22, District 2 (1-judge opinions, ineligible for publication); case activity for 2021AP994, 2021AP1186, and 2021 AP1436 (including briefs)

In a child custody battle, the circuit court found Valadez, pro se, in contempt of court for: (1) sending it ex parte emails after being told not to, (2) repeatedly objecting and asking questions during a hearing, (3) failing to sign a release giving the GAL access to her confidential DHHS records; and (4) failing to stipulate to the release of additional, confidential DHHS records. The court of appeals, rejecting the judge’s claim that he wields inherent contempt powers beyond Chapter 785, reversed 3 of his 4 contempt findings.

Hemphill v. New York,  USSC No. 20-637, 142 S.Ct. 681, 1/20/22 reversing and remanding People v. Hemphill, 150 N.E.3d 356; Scotusblog page (including links to briefs and commentary)

New York charged Hemphill with a homicide; a stray 9mm bullet fired after a fight in the street had killed a child. Hemphill’s defense was that another man, Morris, had fired the shot. Police had searched Morris’s room and found both 9mm and .357-magnum ammunition, and the state had, in fact, originally charged Morris with the murder. Hemphill was able to introduce evidence of Morris’s possession of the 9mm ammo by cross-examination of a state’s witness. In response the state sought to introduce portions of a transcript of Morris’s ultimate plea–in which he admitted to possessing a .357 revolver, rather than the 9mm pistol that had killed the child. Morris was out of the country and thus not available for cross-examination, but the New York courts ruled the transcripts were admissible under state law allowing such evidence where it is “reasonably necessary” to “correct” a “misleading impression.” The Supreme Court reverses, declaring in an 8-1 decision that “Hemphill did not forfeit his confrontation right merely by making the plea allocution arguably relevant to his theory of defense.” (Slip op. at 2).

On January 27, 2022, the court of appeals ordered the publication of the following criminal law related decision:

State v. Nakyta V.T. Chentis, 2022 WI App 4 (knowing possession of heroin could be imputed from needle tracks and paraphernalia possession)

The main issue in Waity v. Lemahieu, 2022 WI 6 (January 27, 2022), involves the legislature’s power to hire lawyers to deal with redistricting issues, but along the way a majority of the court addresses a matter of interest to all appellate and postconviction lawyers: the proper application of the standard for a circuit court to apply in deciding whether to issue a stay pending appeal. While seeking a stay in a criminal case is often a futile endeavor for the defense, what the court says here might be useful next time you consider doing so.

Dunn County Human Services v. N.R., 2021AP129 & 2021AP1830, District 3, 1/28/22 (one-judge decision; in eligible for publication); case activity

The circuit court properly exercised its discretion in allowing the foster parent of N.R.’s children to testify at the grounds trial in N.R.’s TPR proceeding.

State v. Octavia W. Dodson, 2022 WI 5, 2018AP1476, 1/26/22, affirming an unpublished per curiam court of appeals decision; case activity (including briefs)

Dodson pleaded guilty to second-degree homicide. He’d shot and killed Freeman, who he (apparently erroneously) believed had earlier rear-ended his car. Dodson had pursued Freeman’s car and Freeman pulled over. Dodson said Freeman had run at him shouting racial epithets; that’s when Dodson shot him.

State v. O.G., 2021AP1642-CR, 1/25/22, District 1 (1-judge opinion; ineligible for publication; case activity

O.G. appealed a juvenile court order waiving him into adult court. He argued that the judge was objectively biased and requested a new waiver hearing before a different judge. His appendix included 3 affidavits alleging that during a break in the waiver hearing, the judge received a call about another child’s case, became upset, started swearing, and said he was “so done” and couldn’t “wait to get out of the juvenile system.” The judge showed a noticeable change in behavior. Then he waived O.G. into adult court.

SCOWstats.com’s latest post looks at which justices joined or didn’t join other justices’ separate opinions from the 2016-17 term through the 2020-21 term. Sure, liberal justices usually joined the other liberals. Ditto for the conservatives. But this data point might come as a surprise:  While Kelly joined separate opinions by Roggensack or Ziegler over 80% of the time, neither Roggensack nor Ziegler ever joined a separate opinion by Kelly.

State v. S.C.M., 2019AP430, 1/25/22, District 3 (1-judge opinion; ineligible for publication); case activity

A petition for writ of coram nobis must show that (1) a court of record contains a factual error that, if known, would have prevented the court from entering judgment, and (2) petitioners has no other remedy at law such as  an appeal. See State ex rel. Patel v. State, 2012 WI App 117, ¶13, 344 Wis. 2d 405, 824 N.W.2d 862. These writs are rare. Defendants sometimes seeks them when they are out of custody and cannot bring a §974.06 motion. In this case, “Seth” petitioned one 10 years after the circuit court adjudicated him delinquent and sent him to Lincoln Hills.

Many agree on the need for criminal justice reform for drug crimes. This new paper, forthcoming in the Cardozo Law Review, argues that reform is also needed for child pornography crimes–especially when it comes to sentencing. Might be worth skimming for ideas before heading into your next sentencing hearing.