State v. Heather L. Westrich, 2022AP2001-CR, District 4, 05/25/23 (one-judge opinion, not eligible for publication); case activity (including briefs)

In State v. Lindell, 2001 WI 108, ¶¶42-43, 245 Wis. 2d 689, 629 N.W.2d 223, the court held a prospective juror to be objectively biased because she knew the victim for 20 years, her parents knew the victim for about 47 years, and she described the victim as a “close friend.” Apparently, a friend “back in the day”…
Continue Reading Juror who admitted to being “friends back in the day” with alleged victim not objectively biased

State v. Brandon B. Smiley, 2022AP1522-CR, District 4, 6/2/23 (one-judge decision; ineligible for publication); case activity (including briefs)
The court of appeals rejects Smiley’s claim that the photo array shown to A.B., the complaining witness, was impermissibly suggestive and, therefore, her (not very confident) identification of him after looking at the array should have been suppressed.
Photo arrays may be suggestive “in several ways—the manner in which the photos are presented or displayed, the words or actions of…
Continue Reading Photo array was not impermissibly suggestive

State v. Corey T. Rector, 2023 WI 41, 5/23/23 affirming a case certified by the court of appeals, 2020AP1213; case activity (including briefs)

Rector pleaded to five counts of possessing child pornography in a single case. He’d never been convicted of anything before. The sentencing judge ordered that he be placed on the sex offender registry until 15 years after the end of his sentence or supervision. The Department of Corrections then wrote the judge to say that,…
Continue Reading Multiple convictions in same case on same date don’t require lifetime sex offender registration

State v. Warner E. Solomon, 2022AP634-CR, District 2, 5/24/23 (not recommended for publication); case activity (including briefs)
The court of appeals rejects Solomon’s argument that the police unlawfully extended a traffic stop to wait for a drug dog to arrive to do a thorough search of his car.
After stopping Solomon for speeding and detecting the odor of marijuana from the vehicle generally and the passenger (Solomon’s brother) specifically, the officer decided he would search the interior of…
Continue Reading Police had probable cause to search car, so didn’t unlawfully extend stop to wait for drug dog

A word to the wise: When you have ChatGPT write a brief for you, and in response to your query it tells you that the cases it is citing “are real and can be found in reputable legal databases,” don’t trust it without verification. So a New York lawyer has learned to his chagrin (and possibly worse than that). The story is covered here and here.
Continue Reading That ChatBot AI thingee might not make your job easier (or take it away completely) after all….

State v. Christopher S. Butler, 2021AP177, 5/9/23, District 3 (not recommended for publication); case activity (including briefs)
The state charged Butler with multiple sexual assaults of children. These charges resulted in a probation hold that lasted about four months; the ALJ did not revoke Butler and the hold was terminated. But Butler’s new charges were still pending, and he remained in jail for about another seven months while the public defender tried to find a lawyer to represent…
Continue Reading Defense win: year-long wait for initial appearance requires dismissal w/o prejudice

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 …
Continue Reading SCOW DIGs case; justices dispute whether they should say why

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…
Continue Reading SCOW majority overrules Shiffra/Green

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…
Continue Reading Essential reading: Dallet’s concurrence in the Marsy’s law case

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.…
Continue Reading Application of “best evidence rule” Results in Reversal of Ch. 51 Commitment

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).
After the county filed a motion for summary judgment on grounds, N.D.’s trial counsel moved…
Continue Reading Defense Win! Invalid waiver of right to counsel leads results in invalid TPR order

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…
Continue Reading Defense win! Courts can’t apply §939.62(1) and §961.48 enhancers at the same time