13. Due Process

State v. Jason L. Miller, 2011 WI App 34; for Miller: Shelley Fite, SPD, Madison Appellate; case activity; Miller BiC; State Resp.; Reply If the stun belt (or other restraint) isn’t visible to the jury, the trial court need not consider its necessity before requiring that the defendant wear it during trial. “Because there is… Read more

Swarthout v. Damon Cooke, USSC No. 10-333, 1/24/11 Review under 28 U.S.C. § 2254 of a state’s decision to deny parole is limited to whether the inmate was provided an opportunity to be heard and a statement of reasons why parole was denied. The federal court simply has no authority to scrutinize the merits of the… Read more

certification; for Spaeth: Shelley Fite, SPD, Madison Appellate; case activity; Spaeth BiC; State Resp.; Reply Review granted 2/8/11 ISSUE In Kastigar v. United States, 406 U.S. 441, 453, 460 (1972), the United States Supreme Court held that the government may compel incriminating testimony so long as it comes with a grant of use and derivative use immunity—that… Read more

State v. Kevin M. Moore, 2009AP3167-CR, District 2, 12/15/10  court of appeals decision (3-judge, not recommended for publication); for Moore: Jeffrey W. Jensen; Moore BiC; State Resp.; Reply Evidence – Frequenting “Gentleman’s Club” as Source of Friction with Deceased Evidence that Moore spent much time and money at a local “gentleman’s club,” offered by the… Read more

Jefferson County v. Joseph S., 2010 WI App 160 (recommended for publication); for Joseph S.: Margaret A. Maroney, SPD, Madison Appellate Failure of trial court to warn guardianship respondent of possibility of removal from courtroom for disruptive behavior prior to ordering his removal deprived court of competency to proceed. ¶5        A determination that a person “is… Read more

State v. Joshua Lashawn Munford, 2010 WI App 168 (recommended for publication); for Munford: Joseph L. Sommers; Munford BiC; State Resp.; Reply Munford’s claim that police destruction of his van violated due process is rejected, because the van didn’t have apparent exculpatory value. His defense against the homicide charge was that someone else fired shots that went… Read more

federal habeas decision (pdf file: here), granting relief in State v. Fischer, 2010 WI 6; respondent’s Rule 59 motion to amend judgment denied 1/7/11 Habeas Review – Right to Present Defense – Expert Opinion, Based PBT Preventing Fisher from adducing expert opinion he wasn’t driving with a prohibited alcohol content based on analysis of his PBT… Read more