State v. George Steven Burch, 2021 WI 68, on certification from the court of appeals, affirming the judgment of conviction; case activity (including briefs)
We said in our post on the court of appeals’ certification that this case presented novel and important issues about searches of cell phones and their data. So we anticipated a decision addressing the parameters of police searches of digital devices. But the majority doesn’t address those issues or decide whether Burch’s Fourth Amendment
Continue Reading SCOW: No “sufficiently deliberate and sufficiently culpable” police misconduct, so no exclusion of evidence
SCOW: Evidence from Fitbit Device is Admissible Without Expert Testimony on Foundation, Reliability
State v. George Steven Burch, 2021 WI 68, 6/29/21, on certification from the court of appeals, affirming a judgment of conviction; case activity (including briefs)
The circuit court properly exercised its discretion in allowing the state to introduce evidence relating Fitbit with requiring expert testimony on the reliability of the device.
After Nicole VanderHeyden was found murdered, police focused their suspicion on her boyfriend, Douglass Detrie. But they shifted focus from Detrie in part because his Fitbit device
Continue Reading SCOW: Evidence from Fitbit Device is Admissible Without Expert Testimony on Foundation, Reliability
Defense win: Evidence at recommitment hearings was insufficient to prove dangerousness
Rusk County v. A.A., 2019AP839 & 2020AP1580, District 3, 7/20/21 (not recommended for publication); case activity (2019AP839; 2020AP1580)
A.A. appeals two recommitment orders, raising multiple constitutional issues as to both and challenging the sufficiency of the evidence of dangerousness as to one of the cases and the admission of hearsay evidence regarding the other. The court of appeals acknowledges that A.A.’s constitutional claims raise “important” and “thorny” issues about recommitment petition pleading requirements and the
Continue Reading Defense win: Evidence at recommitment hearings was insufficient to prove dangerousness
Consent to Voluntary TPR was Valid
C.W. v. M.M., 2021AP330 & 2021AP331, District 3, 7/21/21 (one-judge decision; ineligible for publication); case activity
M.M.’s consent to voluntary termination of parental rights was valid and can’t be withdrawn.
C.W. filed a TPR petition alleging various grounds. The circuit court granted summary judgment on abandonment grounds and found M.M. unfit as a parent. At the disposition hearing, M.M. decided, after consultation with counsel, to consent to voluntary termination. This had the effect of removing the unfitness finding,
Continue Reading Consent to Voluntary TPR was Valid
Disorderly Conduct Charges Precluded by First Amendment
State v. Aaron Matthew Oleston, 2020AP952-CR, District 4, 7/15/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Olseston was charged with five counts of disorderly conduct for “hurling profanities and personal insults” (¶14) at Janesville police officers as they came and left the police station, as well as filming some of the encounters. Three of the five counts can’t be prosecuted because Oleston’s conduct was protected by the First Amendment; the other two can be, because
Continue Reading Disorderly Conduct Charges Precluded by First Amendment
Court didn’t rely on inaccurate info at sentencing and wasn’t biased
State v. Alexandrea C.E. Throndson, 2020AP1081-CR, District 4, 7/15/21 (not recommended for publication); case activity (including briefs)
Throndson raises two due process challenges to her sentencing: that the judge relied on inaccurate information and was objectively based. The court of appeals rejects both.
Both claims arise out of the circuit court’s independent review of her prior record on CCAP before sentencing, where the judge discovered she was involved in 23 various cases. (¶4). The inaccurate information claim appears to
Continue Reading Court didn’t rely on inaccurate info at sentencing and wasn’t biased
Evidence presented at commitment hearing sufficient to prove dangerousness
Outagamie County DHHS v. M.D.H., 2020AP86, District 3, 7/13/21 (one-judge decision; ineligible for publication); case activity
The evidence at M.D.H.’s final commitment hearing proved he was dangerous under § 51.20(1)(a)2.d.
Under that statute, an individual is dangerous if he or she has engaged in recent acts or omissions that show that, because of mental illness, he or she is “unable to satisfy basic needs for nourishment, medical care, shelter, or safety” and that without prompt and adequate treatment “a
Continue Reading Evidence presented at commitment hearing sufficient to prove dangerousness
Defense win: Continuing denial of physical placement ground unconstitutional as applied in case involving indigent parent
B.W. v. S.H., 2021AP43 & 2021AP44, District 3, 6/29/21 (one-judge decision; ineligible for publication); case activity
Under the facts of this case, terminating S.H.’s parental rights on continuing denial of physical placement grounds under § 48.415(4) violated his right to substantive due process because his indigency precluded him for seeking changes in the physical placement order.
S.H. stipulated in his child support case to a temporary denial of periods of placement of his children until a reunification plan
Continue Reading Defense win: Continuing denial of physical placement ground unconstitutional as applied in case involving indigent parent
Advancing misinformed defense wasn’t prejudicial
State v. David Wayne Ross, 2020AP261, 6/29/21, District 1 (not recommended for publication); case activity (including briefs)
Over a dissent, the court of appeals holds that, even if Ross is right that his trial lawyer performed deficiently in certain respects, Ross’s defense wasn’t prejudiced.
Ross was charged with sexually assaulting D.D.W. His defense was that they had consensual sex, and that’s what he said on the stand. (¶¶2-12). So credibility was the key issue.
Ross and
Continue Reading Advancing misinformed defense wasn’t prejudicial
No error in excluding text message containing purported apology for getting defendant in trouble
State v. Salar Zangana, 2020AP1228-CR, District 1, 6/29/21 (one-judge decision; ineligible for appeal); case activity (including briefs)
At his trial on battery and disorderly conduct charges, Zangana tried to introduce a text message he received that purported to be an apology one of the complaining witnesses. (¶¶2-4). The message was properly excluded as hearsay and evidence about what the message meant was inadmissible because it involved privileged communication between spouses.
Zangana offered the text as a
Continue Reading No error in excluding text message containing purported apology for getting defendant in trouble
A Pandemic Positive: Changes in Courtroom Practice Increases Access
My law partner and I stared out our office windows on a blustery day in March 2020. Gazing upon an eerily deserted Capitol Square in Madison, we digested what living in a pandemic meant.We were not able to wrap our minds around it at the time. The virus was a spring snowstorm bearing down on Wisconsin in the early days. We wrestled with tasks that had been mundane. How does a person safely go grocery shopping and why
My law partner and I stared out our office windows on a blustery day in March 2020. Gazing upon an eerily deserted Capitol Square in Madison, we digested what living in a pandemic meant.We were not able to wrap our minds around it at the time. The virus was a spring snowstorm bearing down on Wisconsin in the early days. We wrestled with tasks that had been mundane. How does a person safely go grocery shopping and why
Continue Reading A Pandemic Positive: Changes in Courtroom Practice Increases Access
Evidence sufficient to support ch. 51 dangerousness finding
Marathon County v. T.A.T., 2019AP1709, District 3, 6/29/21 (one-judge decision; ineligible for publication); case activity
The testimony of the the three witnesses called by the County provided sufficient evidence to support the court’s finding that T.A.T. (“Travis”) was dangerous under § 51.20(1)(a)2.a.
Travis was emergently detained after he was found on the ground near a lake, apparently intoxicated, saying he “just wanted to be by the lake and die.” At his commitment hearing, the County called two court-appointed examiners
Continue Reading Evidence sufficient to support ch. 51 dangerousness finding
No erroneous exercise of discretion in denying chance at expunction
State v. Larry A. Brown, 2021AP12-CR, District 1, 6/29/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Brown was charged with theft by embezzlement and accepted a deferred prosecution agreement for the charge. He subsequently picked up new charges of THC possession and carryng a concealed weapon, for which he was given probation. That of course led to revocation of the DPA and sentencing on the theft. Brown asked for expunction of the theft conviction, which the
Continue Reading No erroneous exercise of discretion in denying chance at expunction
Cell and Fitbit Data: Supreme Court Upholds Use of Evidence in Murder Trial
July 15, 2021 – A series of digital data discoveries implicated Steven Burch in a murder case. Recently, the Wisconsin Supreme Court rejected Burch’s claim that police obtained the digital data in violation of his Fourth Amendment rights.
In State v. Burch, 2021 WI 68 (June 29, 2021), the supreme court (4-3) upheld the trial court’s decision to allow incriminating cell phone data and (6-1) evidence from a Fitbit device that the murder victim’s boyfriend was allegedly wearing
Continue Reading Cell and Fitbit Data: Supreme Court Upholds Use of Evidence in Murder Trial
Supreme Court: DNR Erroneously Interpreted the Law on High Capacity Wells
July 14, 2021 – The Wisconsin Supreme Court recently held (4-2) that the state’s Department of Natural Resources (DNR) erroneously interpreted the law in concluding that it had no authority to consider the environmental impacts of high-capacity wells.
In 2014 and 2015, the DNR received eight high-capacity well applications. High capacity wells are often used for agricultural irrigation.
At the time, an environmental impact review was required for some wells and not others. However, the DNR sometimes conducted an
Continue Reading Supreme Court: DNR Erroneously Interpreted the Law on High Capacity Wells
Missing one court date justified default TPR judgment
State v. M.R.K., 2021AP141, District 1, 6/22/21 (one-judge decision; not recommended for publication); case activity
The Latin word grex means “flock,” “herd,” or “group,” and is the root of several English words. Gregarious originally meant “tending to live in a flock, herd, or community rather than alone” but has become a synonym for “sociable.” Egregious literally meant “out of the herd” in Latin — something that stands apart. Its first meaning in English was consequently “outstanding” or “remarkable
Continue Reading Missing one court date justified default TPR judgment