Criminal

Vilas County DHS v. N.J.P., 2019AP1567, 11/17/20, District 3 (1-judge opinion, ineligible for publication); case activity In this appeal from an initial commitment, the county conceded that it had not offered clear and convincing evidence to mee the 4th standard of dangerousness. It asked the court of appeals to affirm the commitment based on the 5th standard of dangerousness.  The court of appeals rejected the county’s concession and affirmed on the 4th standard because N.J.P., who is mentally ill, had been expelled from a homeless shelter and was found dressed in tattered clothes on a bitterly cold day.  To…
State v. Richard L. Pringle, 2020AP6-CR, 11/17/20, District 3 (not recommended for publication); case activity (including briefs) No witness, expert or otherwise, may give an opinion that a mentally competent witness is telling the truth. State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984).  This case, which the court of appeals calls “close,” holds that an expert may give an opinion that a category of individuals generally lacks the sophistication to concoct a sexual assault claim. A jury convicted Pringle of sexually assaulting “Molly,” a person who suffers from a mental illness or deficiency,…
Fond du Lac County v. S.N.W., 2019AP2073, petition granted 11/19/20; case activity Issues presented: 1. Did the circuit court lack competency to adjudicate this Chapter 51 commitment proceeding due to the county’s violation of the rule requiring it to file psychiatric reports 48 hours before the final hearing? 2. If the circuit court retained competency, did it err in admitting a tardy report and the testimony of the report’s author? In recognition of the significant liberty interest an individual has in living where and under what conditions she chooses, the legislature has imposed tight time limits in connection with…
United States v. Cooley, USSC No. 19-1414, cert. granted 11-20-20 Question presented: Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search respondent, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law. Lower court decision: 919 F.3d 1135 (9th Cir. 2019) Docket Scotusblog page (including links to filings and commentary) Tribal law enforcement officers (and more specifically, those who have not been cross-deputized by a state or federal government) have limited jurisdiction…
Caniglia v. Strom, USSC No. 20-157, cert granted 11/20/20 Question presented: Whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home. Lower court decision: 953 F.3d 112 (1st Cir. 2020). Docket Scotusblog page (including links to filings and commentary) The Supreme Court announced the “community caretaking” exception to the warrant requirement in Cady v. Dombrowski, 413 U.S. 433 (1973). Cady involved the search of a towed car, and the Court took pains to emphasize the difference between the car and the home in Fourth Amendment jurisprudence. In succeeding decades, however, many courts–including our…
State v. George Steven Burch, 2019AP404-CR, certification granted 11/18/20; case activity (including briefs) Issues presented (from the certification): Did police violate Burch’s Fourth Amendment rights by: exceeding the scope of Burch’s consent to search his cell phone by downloading the phone’s entire contents, rather than only the text messages; unlawfully retaining the entire cell phone download after it completed its initial investigation and closing the case without charging Burch; and unlawfully conducting a second search of the cell phone download months after closing the initial investigation. As the certification says, this case “raise[s] novel questions regarding the application of…
State v. Frank P. Smogoleski, 2019AP1780-CR, District 2, 11/18/20 (not recommended for publication); case activity (including briefs) The state wins its appeal of two circuit court orders, one excluding the use of preliminary hearing testimony of a witness who is now dead, the other excluding other-acts evidence. Smogoleski is charged with sexual assault of “Emily,” who was under the influence of an intoxicant. The alleged assault occurred at an underage drinking party, and “Jon” was a witness to it. Jon testified at Smogoleski’s preliminary hearing, but died a month later. The circuit court denied the state’s request to use…
State v. Timothy M. Argall, 2020AP907-CR, District 2, 11/18/20 (one-judge decision; ineligible for publication); case activity (including briefs) Argall was arrested for OWI based on a plethora of evidence—viz., driving after dark without headlights, slurred speech, odor of alcohol, inability to follow questions or give direct answers, admission of drinking 4 to 6 beers, 0.201 PBT. His gripe, though, is with the pre-FST pat down that found a pot pipe in his pocket. Assuming it was invalid, the pat down certainly doesn’t invalidate the basis for detaining or arresting Argall for OWI. Nor does Argall develop any argument challenging…
State v. Daniel J. Van Linn, 2019AP1317, 11/17/20, District 3 (not recommended for publication); case activity (including briefs) Police found Van Linn injured and intoxicated near the scene of an accident, and an ambulance took him to the hospital for treatment. At the hospital Van Linn refused an officer’s request that consent to a blood draw; the officer, claiming exigency, ordered blood taken anyway. Van Linn moved to suppress and the court held there was no exigency, and accordingly suppressed the BAC results. Shortly thereafter, the district attorney asked the court to approve a subpoena of Van Linn’s treatment…
State v. Jacob Richard Beyer, court of appeals certification granted 11-18-20, 2019AP1983; case activity (including briefs) Issue presented (from the certification): [W]hether the guilty-plea waiver rule applies when a defendant pleads not guilty to an offense, but stipulates to the inculpatory facts supporting each element of the offense, and explicitly agrees to a finding of guilt at a hearing before the circuit court at which no witness testifies. Beyer litigated and lost on a discovery issue in the circuit court. He wanted to appeal that issue, but it would be waived if he pleaded guilty. So he, the state, and…
State v. Jordan Alexander Lickes, review of a published court of appeals decision granted 11/18/20; case activity (including briefs) Issues presented (from the PfR): Does the expungement statute’s requirement that a probationer have “satisfied the conditions of probation” also mean that the probationer must perfectly comply at all times with each and every rule of probation set by the probation agent? When a circuit court chooses to hold a hearing and exercise discretion to determine whether a probationer who violated a rule set by his agent has nevertheless “satisfied the conditions of probation” so as to qualify for expungement, should…
The insurance world is quickly becoming online. While most towns still have a local State Farm agent, you are more likely to see dozens of insurance apps and Internet advertisements. Many of these sites and apps advertise they can find you the best price on a wide variety of insurance products including life, car and home insurance policies. According to J.D. Power, about 75% of people seeking insurance now shop online. How many people have heard the radio commercials for Big Lou or social media ads for price comparison apps like Gabi and the Zebra? While on some apps…
How to Stop Nuisance Calls in Texas How to Stop Those Annoying Telemarketers and Get an Award of Monetary Damages Too (Texas Robocall Lawyer Post) Americans received 58.9 billion robocalls  last year. And that total is up 22% from the year before!  President Trump signed into law the TRACED  Act in late December 2019 that gives greater enforcement power to the FCC but thus far, we haven’t seen a big decrease in illegal telemarketing calls. And the state that receives the most spam and unsolicited calls? Texas (actually California has the dubious honor of being tied for first). Those calls…
After a plea is entered the District Attorney provides discovery, which includes police reports, witness statements, photographs and any audio or video recordings taken during the course of the criminal investigation. It is not uncommon for supplemental reports to be exchanged during the course of the case. When reviewing the police reports, it is important keep in mind the perspective of the author and the information known at the time of the investigation. Often times the reports are one-sided, which requires taking time to speak with clients and get their side of the story. During investigations important pieces of information…
Dr. Javaid Perwaiz Faces 465 Years in Prison after Jury Convicts Him in Case Involving Medically Unnecessary Hysterectomies (Booking Photo) We get a chill up our spine when people say Medicare fraud is a victimless crime. It’s not just taxpayers that get ripped off. Very often patients are harmed by the very doctors they trust with their care. In this post we examine a 70 year old obstetrician-gynecologist now facing 465 years in prison after performing dozens of medically unnecessary surgeries… surgeries that are also irreversible. Dr. Javaid Perwaiz is a long time physician in the Hampton Roads area of…
Waukesha County v. E.J.W., 2020AP370, 11/4/20, District 2 (1-judge opinion; ineligible for publication); case activity Section 51.20(11)(a) provides that an individual or his counsel must demand a jury trial at least 48 hours before the time set for his final commitment hearing. At the start of his hearing, E.J.W requested a substitution of trial counsel and a jury trial. The court granted the substitution of counsel and postponed the trial 7 days, but it would not reset the clock for demanding a jury. The court of appeal affirmed. The court of appeals held that it was bound by Marathon