State v. Jackson, 2023 WI 37, 5/12/23, dismissing as improvidently granted review of an unpublished court of appeals opinion, 2019AP2383; case activity (including briefs)
Our post on the grant of review in this case said SCOW might use it to “expound on State v. Cooper, 2019 WI 73, 387 Wis. 2d 439, 929 N.W.2d 192 (IAC claims where counsel has been disciplined), Hill v. Lockhart, 474 U.S. 52 (1985)(prejudice prong in the plea context); Lafler v. Cooper, 566 U.S. 156 (2012) and Missouri v. Frye, 566 U.S. 134 (2012)(failure to communicate plea offer). There will be no expounding on those cases. Instead, SCOW dismisses the case as improvidently granted. That doesn’t mean there’s not any expounding to be had, though: Justices R.G. Bradley (in concurrence) and A.W. Bradley (in dissent) write to state their views on whether SCOW should explain itself when it DIGs. [continue reading…]
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State & T.A.J. v. Alan S. Johnson, 2023 WI 39, 05/16/2023, reversing a published court of appeals decision, case activity (including briefs)
As the dissent aptly describes it, “[t]his case has traveled a long and winding road to this point, and Johnson’s trial has not yet begun.” (Opinion, ¶110, Bradley, A.W., dissenting). As discussed in On Point’s prior posts, here and here, this case was originally about whether “Marsy’s Law” gave crime victims standing to intervene in Shiffra–Green litigation. After the court appeals held that it did and after Johnson petitioned for review, the supreme court took up the case. Then, in a footnote in its response brief, the state asserted that, “Shiffra is incorrect to the extent that it holds that Ritchie applies to records outside the State’s possession.” (Op., ¶110, Bradley, A.W., dissenting). Thereafter, the supreme court ordered supplemental briefing on a new question: “Should the court overrule State v. Shiffra…?” (Op., ¶4). And, now the majority has done just that.
[continue reading…]
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Wisconsin Justice Initiative, Inc. v. Wisconsin Elections Commission, 2023 WI 38, 5/16/23, on certification from the court of appeals; case activity (including briefs)
In a 6-1 opinion, SCOW held that the ballot question for Marsy’s law complied with Wis. Const. art. XII §1. That’s the old news. The new and BIG news is Justice Dallet’s concurrence. It is essential reading for lawyers arguing constitutional or statutory construction issues to SCOW. She, Karofsky, and A.W. Bradley say that they are not bound by “methodologies” for interpreting constitutions and statutes–specifically “originalism” or strict adherence to the “plain language”–that SCOW has used in some past cases. If Justice-elect Protasiewicz agrees, we may soon see some defense-friendly constructions of our constitution and statutes. [continue reading…]
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Dane County v. D.F.B., 2022AP1852, District 4, 05/11/2023 (1-judge opinion, ineligible for publication); case activity
A jury found D.F.B. dangerous under the second standard, which required evidence of a “substantial probability of physical harm to other individuals as manifested … by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm.” See Wis. Stat. § 51.20(1)(a)2.b. At trial, two witnesses testified about threats D.F.B. allegedly made by email to a University of Wisconsin-Madison employee. The circuit court overruled D.F.B.’s objection that the testimony was not the “best evidence” of the contents of the emails. The court of appeals disagrees, holding that the circuit court admitted testimony about the contents of D.F.B.’s alleged emails contrary to Wis. Stat. § 910.02 and that the error was not harmless. (Opinion, ¶¶ 1-2). [continue reading…]
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Winnebago County Department of Human Services v. N.J.D., 2023AP75, 05/03/2023 (District 2) (one-judge opinion, ineligible for publication); case activity
Presented with two strong bases to reverse, the court of appeals picks one and holds that because the record “fails to demonstrate that N.D. waived his right to counsel,” the order terminating his parental rights to his daughter is reversed. (Opinion, ¶1). [continue reading…]
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State v. Tracy Laver Hailes, 2021AP1339-CR, 5/9/23, District 1, (recommended for publication); case activity (including briefs)
In a decision recommended for publication, the court of appeals holds that under §973.01(2)(c) a circuit court may apply either §939.62(1) (governing habitual criminality) or §961.48 (governing second or subsequent offenses) to enhance a penalty, but it may not apply both. While the circuit court erroneously applied both enhancers in this case, the court of appeals nevertheless denied Hailes’s claims for plea withdrawal, sentence modification, and resentencing. [continue reading…]
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State v. Jonathan M. Mark, 2022AP001739-CR, 5/10/23, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
While at a Kwik Trip investigating an unrelated incident, an officer spotted Mark whom he believed to be the subject of an outstanding warrant. When the officer conducted a Terry stop, Mark resisted and wound up pleading guilty to obstructing an officer. On appeal, he argued–unsuccessfully–that the officer lacked reasonable suspicion to stop him, and he received ineffective assistance of counsel. [continue reading…]
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Price County v. T.L., 2022AP1678, 4/25/2023, District 3 (1-judge opinion, ineligible for publication); case activity
The law governing default TPRs is messy. Click here. This decision makes it messier. [continue reading…]
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