Criminal

Shoop v. Twyford, USSC No. 21-511, cert granted 1/14/22; SCOTUSblog page (containing links to briefs and commentary)
Questions  presented:

1.  28 U.S.C. §2241(c) allows federal courts to issue a writ of habeas corpus ordering the transportation of a state prisoner only when necessary to bring the inmate into court to testify or for trial. May federal courts evade this prohibition by using the All Writs Act to order the transportation of state prisoners for reasons not enumerated in
Continue Reading SCOTUS will decide limits on developing evidence for federal habeas claims

Forest County v. Brian M. Steinert, 2020AP1465, District 3, 1/19/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Steinert challenged his refusal citation on the ground the police didn’t have probable cause to arrest him, see § 343.305(9)(a)5.a. The court of appeals rejects his challenge.

Steinert was stopped for an equipment violation. The officers noted some possible indicia of intoxication (but no odor of intoxicants) and Steinert was in possession of a syringe and admitted to having
Continue Reading Police had Probable Cause to Arrest for Operating with a Restricted Controlled Substance

Imagine you were just charged with a criminal offense for the first time in your life.

At your initial appearance, the judge or commissioner informs you that you are presumed innocent, but sets bond at $10,000. You come from poverty, and there is no chance that you or your family could post that amount of money.

You are put onto a bus. They take your clothes and all your belongings, and in exchange give you a uniform and a
Continue Reading Protecting the Presumption: The Constitutionality of Pretrial Detention in Wisconsin

State v. Rory David Revels, 2021AP1185-CR, District 4, 1/13/21 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court held the police violated Revels’s due process rights by failing to preserve the footage from the squad car camera and body camera of the officer who stopped Revels. The court of appeals reverses, holding the circuit court’s conclusions aren’t supported by the record.
Under Youngblood v. Arizona, 488 U.S. 51 (1988), a defendant’s due process right to
Continue Reading Failure to preserve squad cam and body cam video didn’t violate due process

Dane County DHS v. J.F., 2021AP1868 & 2021AP1869, District 4, 1/13/22 (one-judge decision; ineligible for publication); case activity
The circuit court properly denied J.F.’s request for a new lawyer on the morning of the first day of her TPR grounds trial.
The court of appeals assumes without deciding that the case law governing a criminal defendant’s request to substitute appointed counsel applies to J.F.’s argument, as the “shared assumption of the parties” is that the criminal case law
Continue Reading Trial court didn’t err in denying parent’s request for new appointed lawyer on morning of trial

State v. Taras O. Haliw, 2021AP1095, District 4, 1/13/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Haliw argues his license shouldn’t be revoked for refusing a chemical test for alcohol because the police didn’t have probable cause to arrest him for OWI, see § 343.305(9)(a)5.a. The court of appeals rejects his argument.
Haliw and his friend Owerko travelled in Owerko’s truck to Haliw’s cabin, stopping at a tavern en route. They arrived at the cabin in
Continue Reading Police had probable cause to arrest for OWI for purposes of refusal statute

Rock County v. H.V., 2021AP1760-FT, 1/13/22, District 4 (1-judge opinion, ineligible for publication); case activity
This appeal concerns a recurring problem in Chapter 51 cases: the lack of objection to damaging hearsay at the final hearing. If the appellate lawyer raises ineffective assistance of counsel in the circuit court, the case will become moot before the issue is finally resolved. Here, the appellate lawyer when straight to the court of appeals, admitted the issue was forfeited, and argued
Continue Reading Admission of damaging hearsay a recommitment trial wasn’t plain error

State v.  Larry Jackson, 2020AP2119-CR, petition for review of a per curiam opinion granted   1/11/22; case activity (including briefs)
Issue (derived from Jackson’s petition for review):

When a defendant claims ineffective assistance of counsel based on his trial lawyer’s failure to investigate alibi witnesses, and the State responds that these witnesses have credibility issues, may the circuit court deny the defendant’s claim without a Machner hearing where the alibi witnesses testify?

This is a fact-intensive 1st-degree homicide
Continue Reading SCOW will address denying ineffective assistance counsel claims without a hearing

State v. Oscar C. Thomas, 2020AP32, petition for review of a published decision granted 1/11/2022; case activity (including briefs)
Issues presented (from the petition):
Whether the Court of Appeals applied the wrong standard in determining that admission of DNA evidence in violation of [Thomas’s] right of Confrontation was harmless?
Whether the Court of Appeals erred in determining that [Thomas’s] confession to a sexual assault was corroborated by a significant fact?
As to harmlessness, Thomas levels an accusation at the
Continue Reading SCOW will address confrontation, harmlessness, and corroboration rule

Jan. 14, 2022 – T​he state Department of Public Instruction (DPI) impermissibly inquired into religious doctrine in determining that two private schools in Washington County were affiliated with the Roman Catholic Church, the U.S. Court of Appeals for the Seventh Circuit has ruled.In

St. Augustine School v. Underly, 2021 WL 5998534 (Dec. 20, 2021), a three-judge panel held that by relying on a profession of Catholic affiliation on one of the school’s websites, DPI violated the First Amendment’s
Continue Reading Reliance on Label ‘Catholic’ to Find Schools’ Attendance Areas Overlapped Was Unconstitutional

Jan. 14, 2022 – A Wisconsin appellate court has ruled that a prosecutor who repeatedly argued that a victim’s testimony was “uncorroborated” violated the constitutional right of a criminal defendant who did not testify during the trial.In

State v. Hoyle, 2020AP187-CR, (Jan. 11, 2022), the Court of Appeals District III held that the multiple mentions of the uncorroborated testimony constituted improper references to the defendant’s decision not to testify and violated his Fifth Amendment right against self-incrimination.‘Someone is
Continue Reading Mention of ‘Uncorroborated’ Testimony Violated Defendant’s Right Against Self Incrimination

Jan. 14, 2022 – A presumption against granting custody to an abusive parent can only be overcome with proof that the parent has completed treatment for batterers from a certified program or from a certified provider, the Wisconsin Court of Appeals has ruled.In

Valadez v. Valadez, 2020AP1006 (Dec. 29, 2021), the Court of Appeals District II held that a circuit court erred in concluding that an abusive parent had overcome the presumption against granting him custody by completing
Continue Reading Court Erred by Ruling That Non-Certified Treatment Overcame Custody Presumption

State v. Tomas Jaymithcell Hoyle, 2020AP1876-CR, 1/11/22, District 3 (recommended for publication); case activity (including briefs)
Hoyle chose to remain silent at his trial for child sexual assault. During closing arguments, the DA repeatedly argued that the testimony from “Hannah” (the alleged victim) was “uncontroverted” and the jury “heard no evidence disputing her account of the sexual assault.” In a published decision, the court of appeals holds that the DA’s arguments violated Hoyle’s 5th Amendment rights.
The State
Continue Reading Defense win! DA’s closing argument violated the 5th Amendment

Jan. 12, 2022 – The Wisconsin Supreme Court will hear oral arguments on a lawsuit filed over the decennial re-drawing of the state’s congressional and legislative districts at 9 a.m. Wednesday, Jan. 19. The date and time were set in an order issued on Jan. 11.​
Redistricting must take place every 10 years to account for shifts in population, and comply with other federal and state laws. The Republican-controlled Wisconsin Legislature drew new maps after the 2020 census, but
Continue Reading Wisconsin Supreme Court Will Hear Arguments in Redistricting Lawsuit on Jan. 19

Jan 12, 2022 – A company that repossessed a car from an apartment building garage violated the Wisconsin Consumer Act (WCA), the Wisconsin Supreme C​​​ourt has ruled.

In Duncan v. Asset Recovery Specialists, Inc., 2019AP1365, (Jan. 06, 2022) the supreme court held that for purposes of the WCA’s prohibition against a creditor entering a residential dwelling to repossess collateral or leased goods, the garage was included within the term “dwelling used by the customer as a residence.”
The decision
Continue Reading Company Violated Consumer Protection Law by Repo’ing Car From Attached Apartment Garage