On Point

Larry H. Dunn v. Cathy Jess, 7th Circuit Court of Appeals No. 20-1168 (Nov. 24, 2020)

Dunn was charged with felony murder and other offenses based on the fact he had struck the victim, who was later found dead from a head injury. In a rare case that clears the high hurdles of both AEDPA and Strickland v. Washington, 466 U.S. 668 (1984), the Seventh Circuit holds his trial lawyer was ineffective for failing to call an expert witness to support his defense that his acts did not cause the victim’s death. [continue reading…]

On November 19, 2020, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Manuel Garcia, 2020 WI App 71 (voluntary statement obtained in violation of Miranda can’t be used in state’s case-in-chief—period)

State v. Alan S. Johnson, 2020 WI App 73 (“Marsy’s Law” gives alleged victim standing to intervene in opposition to defendant’s Schiffra/Green motion)

City of Oshkosh v. Brian D. Hamill, 2020AP867, District 2, 12/2/20 (1-judge opinion; ineligible for publication); case activity (including briefs)

The facts are just that simple. At 2:38 a.m. (bar closing time) an officer observed Hamill’s Jeep drifting to the right line of its lane, then to the center for 30-40 feet, then to the left centerline, and then to the right line of its lane. It was undisputed that Hamlin’s Jeep never crossed over either lane marker. And yet the circuit held that these facts gave the officer reasonable suspicion to conduct an investigator traffic stop. [continue reading…]

State v. D.A.M., 2020AP821, District 2, 11/25/20 (one-judge decision; ineligible for publication); case activity

The evidence at D.A.M.’s trial was sufficient to show his conduct constituted a terrorist threat under § 947.019. [continue reading…]

City of New Berlin v. Eric John Dreher, 2020AP850, District 2, 11/25/20 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer testified he observed Dreher cut across lanes while turning, deviate from his lane, and travel at a high rate of speed. This led the officer to believe the driver was impaired, as “it was some of the worst driving that [he] observed in over 250 drink driv[ing] arrests.” The circuit court found there was reasonable suspicion to believe the driver was impaired, as well as that he committed some traffic law violations (speeding, lane deviation, improper turn). Dreher argues there wasn’t sufficient specific evidence to prove the traffic law violations (e.g., the officer didn’t use radar), but even if that’s the case, the officer’s observations—none of which was refuted—provided ample reasonable suspicion to believe Dreher was impaired. Enough said.

State v. Michael Anthony Dotson, 2019AP1082-CR, District 3, 11/24/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Though this is a “close case” (¶28), the objectively reasonable inferences from the totality of the facts and circumstances known to the officer who stopped Dotson’s car did not provide reasonable suspicion to believe that Dotson’s blood alcohol level exceeded the legal limits or that his ability to operate his vehicle was impaired. Thus, the officer’s detention of Dotson to conduct field sobriety tests was unlawful. [continue reading…]

State v. Kevin L. Nash, 2020 WI 85, 11/19/20, affirming a per curiam court of appeals decision; case activity (including briefs)

Before accepting a plea entered under North Carolina v. Alford, 400 U.S. 25 (1970), a circuit court must determine whether there is “strong proof of guilt” sufficient to “substantially negate” the defendant’s claims of innocence. State v. Garcia, 192 Wis. 2d 845, 859-60, 532 N.W.2d 111 (1995); State ex rel. Warren v. Schwartz, 219 Wis. 2d 615, 645, 579 N.W.2d 698 (1998).  The supreme court declines to exercise its superintending authority to require circuit courts to employ a specific procedure to establish a sufficient factual basis for an Alford plea. [continue reading…]