On Point

State v. Robert K. Nietzold, Sr., 2021AP21-CR, petition for review of an unpublished court of appeals decision granted 4/13/22; case activity (including briefs and PFR)

Issue presented (composed by On Point based on the state’s PFR)

Was the state’s breach of its plea agreement with Nietzold remedied by the prosecutor’s withdrawal of the erroneous recommendation and restatement of the correct recommendation?

State v. Jeffrey L. Hineman, 2020AP226-CR, petition for review of a per curiam opinion granted 4/13/22; reversed 1/10/23; case activity (including briefs)

Issues (from the State’s petition for review)

1. In cases involving credibility contests between a complaining witness (here, S.S.) and the defendant (Hineman), to what extent can a reviewing court reweigh the witnesses’ credibility in assessing whether, based on omitted evidence, there was a reasonable likelihood of a different result under the Brady materiality or Strickland prejudice standards?

2. The court of appeals also reached an abandoned Shiffra/Green issue and ordered in camera review of S.S.’s therapy files from his private therapist because the therapist acted as a mandatory reporter.

Walworth County v. P.S., 2021AP2090-FT, 4/13/22, District 2, (1-judge opinion, ineligible for publication); case activity

The circuit court entered an initial commitment order against P.C. without specifying a standard of dangerousness. The court of appeals shrugged. It did not matter because the circuit court’s findings “were specific, tracked the statutory criteria, and are supported by the record.” Opinion, ¶10 n.2.

Waupaca County v. H.I.B., 2021AP2026, 4/7/22, District 4 (1-judge opinion ineligible for publication); case activity

It is uncontested that “Hazel” has done well for three commitments in a row. Yet the court of appeals has affirmed her 4th Chapter 51 recommitment  because the jury could have inferred a “substantial probability” of death or serious injury from evidence that was “only suggestive” and that “lacked details such as dates and clear descriptions of conduct.”

State v. Daniel J. Van Linn, 2022 WI 16, 3/24/22, affirming an unpublished court of appeals decision; case activity (including briefs)

After Van Linn refused to consent to a blood draw, police ordered one to be taken even though they didn’t have a warrant or exigent circumstances. After the circuit court suppressed the results of the test of this illegal blood draw, the state obtained the same evidence using a subpoena for Van Linn’s medical records. The supreme court holds that, under the “indepedent source” doctrine, the evidence obtained with the subpoena should not be suppressed even though the state sought the subpoena after the suppression of the same evidence obtained with the illegal blood draw.

Dane County DHS v. A.D., 2022AP76 & 2022AP77, District 4, 3/31/22 (one-judge decision; ineligible for publication); case activity

Another case showing that in TPR proceedings, “egregious” conduct is coming to mean “missing one hearing.”

We recently published a post on the court of appeals decision in State v. Hoyle, No. 2020AP1876-CR, which ordered a new trial for a defendant convicted of child sexual assault (and was recommended for publication). The court held that the state violated Hoyle’s Fifth Amendment right to remain silent at trial with its repeated arguments during closing that the alleged victim’s testimony was “uncontroverted” and there was “no evidence disputing her account of the sexual assault.”

Under 42 U.S.C. §1983, our clients may file a claim for damages arising from a violation of their constitutional rights during the criminal justice process. For example, maybe the State violated their 4th Amendment rights or engaged in malicious prosecution. This week, SCOTUS issued a decision clarifying that in order to bring such a claim the client would not have to show “some affirmative indication of innocence.” Rather, client only has to show that their prosecution ended without a conviction.

City of Rhinelander v. Zachary Tyler LaFave-LaCrosse, 2020AP1466-1467, 4/5/22, District 3 (1-judge appeal, ineligible for publication); case activity (including briefs)

This case needs a motion for reconsideration. LaFave-LaCrosse, an unemployed student, appealed convictions for OWI 1st and refusal to take a breath test and moved the circuit court for waiver of transcript fees due to his indigency. The circuit court denied his motion, so he appealed that decision. The court of appeals held that the circuit court made an error of law. But then the court of appeals applied the wrong legal standard to affirm.

State v. E.L.C., 2021AP1624, 4/5/22, District 1, (1-judge opinion, ineligible for publication); case activity

In 2016, 13-year-old E.L.C. pled to 4th-degree sexual assault of his 7-year-old sister. The juvenile court deferred the issue of sex offender reporting until E.L.C. had a chance to participate in counseling. Five years later, it ordered him to register as a sex offender based on his conduct during supervision and his failure to fully engage with treatment. The court of appeals affirmed.