State v. Christopher J. Vaaler, 2019AP2174, 8/6/20, District 4 (one-judge decision; ineligible for publication); case activity (including briefs) An officer pulled Vaaler over in the very early morning for not having his headlights on. Per the court of appeals, Vaaler’s unusual manner of speech, the odor of intoxicants, and the fact of an open beer next to him were enough for the officer to conduct the OWI investigation that ultimately led to Vaaler’s arrest and conviction: One indicia that Vaaler was driving while intoxicated was the odor of intoxicants emanating from Vaaler’s vehicle. See, e.g., State v. Krause,…
State v. William Francis Kuehn, 2018AP2355, 7/28/20, District 1 (not recommended for publication); case activity (including briefs) Kuehn pleaded to 5 counts of possession of child pornography; 10 more were dismissed and read-in. The court of appeals rejects Kuehn’s three challenges to his conviction and sentence. It holds trial counsel wasn’t deficient in deciding a third-party-perpetrator (Denny) defense wasn’t viable at trial. It says the circuit court properly assessed the $500 per-image surcharge for the 10 images that made up the read-ins. And, it finds not overbroad the circuit court’s imposition of an ES condition that Kuehn…
On July 29, 2020, the court of appeals ordered publication of the following criminal law related cases: State v. Dawn M. Prado, 2020 WI App 42 (striking down implied consent law for unconscious drivers) State v. Mark J. Bucki, 2020 WI App 43 (dog sniff evidence need not be corroborated to be admissible) Winnebago County v. S.H., 2020 WI App 46 (addressing sufficiency of evidence for ch. 51 recommitment hearings)
On June 25, 2020, the Wisconsin Court of Appeals decided State v. Prado, which significantly changed Wisconsin’s implied consent law.  For decades, it has been the law in Wisconsin that when an unconscious driver is arrested for drunk driving, law enforcement officers could take a blood sample from the driver without a warrant.  Under Prado, if a law enforcement officer obtains a blood draw from an unconscious driver without a warrant, unless an exception to the warrant requirement is present, it will be an infringement of the driver’s rights under the Fourth Amendment to the United States Constitution to be free…
In the immediate aftermath of the coronavirus pandemic, Congress passed the Families First Coronavirus Response Act (“FFCRA”) in order to provide relief to American workers. The FFCRA generally requires employers to offer two (2) weeks of paid sick leave and emergency family and medical leave to employees who are unable to work or telework because of specific qualifying reasons related to the pandemic. The leave provisions of the FFCRA are set to expire on December 31, 2020. Shortly after the FFCRA was passed, the United States Department of Labor (“DOL”) promulgated its Final Rule interpreting and implementing the FFCRA. In…
In the fall of 1875, Judge Harmon Conger—the same judge who admitted Lavinia to the Rock County bar—changed the course of her legal career. She was sitting in her office drafting a client’s will when a sheriff popped in to announce that the judge had just appointed her to defend two criminals. One, James Tolan, was charged with stealing a watch from someone. The other, Harrison Cramer, had allegedly stolen spoons, jackknives, and a black silk belt from a store. The appointments surprised Lavinia.  Continue reading → The post “What shall we do with our criminals?” appeared first on Lavinia
Michael Gilbreath v. Dan Winkleski, Case No. 19-cv-728-jdp (W.D. Wis. Aug. 4, 2020) Witness credibility was the key issue at Gilbreath’s trial, and his counsel’s failure to present evidence that would have undermined [the complaining witness’s] credibility and bolstered Gilbreath’s defense deprived Gilbreath of a fair trial. The Wisconsin Court of Appeals unreasonably concluded that the failure to present the credibility evidence was a matter of reasonable trial strategy and that the evidence was merely cumulative. Gilbreath is entitled to habeas relief. Habeas wins and ineffective assistance of trial counsel victories are both rare as hen’s teeth, so this…
Danny Wilber v. Michael Thurmer, Case No. 10-C-179 (E.D. Wis., Aug. 4, 2020). It’s said that defendants having meritorious postconviction claims are more likely to win relief on a habeas petition in federal court than on direct appeal in Wisconsin’s appellate courts. This decision could be a poster child for that theory.  On Point last reported on Danny Wilber’s case in 2018 when the court of appeals rejected seven §974.06 claims and affirmed his conviction for 1st degree homicide. Judge Griesbach just granted Wilber’s habeas petition and ordered a new trial. Wilber argued that there was insufficient evidence to…
State v. Brian Anthony Taylor, 2019AP1770-CR,  District 1, 7/28/20 (not recommended for publication); case activity (including briefs) What a frustrating decision. Taylor filed a pre-sentencing motion to withdraw his plea for repeated sexual assault of a child, but the circuit court denied it applying the more stringent post-sentencing plea withdrawal standard. “No problem,” says the court of appeals, “we’ll apply the correct standard for you and affirm.” When a defendant moves for pre-sentencing plea withdrawal he must show by a preponderance of the evidence “a fair and just reason” for his motion. Circuit courts should liberally grant plea withdrawal…
State v. L.C., 20AP796, District 1, 7/28/20 (one-judge decision; ineligible for publication); case activity Whether to grant a default judgment in a TPR proceeding as a sanction for a parent’s egregious conduct is left to the circuit court’s discretion, and the circuit court properly exercised its discretion in defaulting L.C. After L.C. missed two depositions dates, the state filed a motion for default judgment on the grounds of the TPR petition filed against her. The circuit court ultimately didn’t grant that motion out of concern for her emotional, psychological, and competency issues, but told her she needed to attend…
RETIREMENT PLAN DEVELOPMENTS Second Circuit Allows IBM Stock-Drop Case to Proceed (Again) On remand from the Supreme Court, the Second Circuit Court of Appeals reinstated its original judgment in the stock-drop case Retirement Plans Committee of IBM v. Jander. The case will go back down to the district court for further proceedings. As we reported earlier this year, the Supreme Court vacated the Second Circuit’s decision and remanded the case after the plan fiduciaries and the federal government raised arguments not presented to the Second Circuit. The Supreme Court had agreed to review what it takes for stock-drop plaintiffs…
SCOWstats recently posted a three-part analysis of the 2019-2020 term. The first post noted the plunge in SCOW’s output this year. It issued only 45 opinions. The record low is 43. Indeed, since 1971 the number of opinions is, à la a certain Bruce Springsteen refrain, going down, down, down down. Then there’s this shocker: Justice Hagedorn actually voted with Justices A.W. Bradley and Dallet more often than he did with R.G. Bradley! Will this trend continue now that Karofsky is in and Kelly is out? The second post, per usual, tallies the number of split decisions, frequency…
State v. Leonard D. Kachinsky, 2020AP118-CR, 7/29/20, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs) In 2018, the circuit court imposed a harassment injunction against Kachinsky (then a municipal judge) based on his conduct toward M.B., the municipal court manager. This appeal concerns his conviction and sentence for violating that order by hanging a sexual harassment poster by M.B.’s desk and highlighting the term “sexual” each time it appeared. Here are the terms of the harassment injunction: All communications between [Kachinsky] and [M.B.] shall be limited to what is necessary to perform the functions of the…
State v. Darrin Stingle, 2019AP491, District 3, 7/28/20 (1-judge opinion, ineligible for publication); case activity (including briefs) Stingle is not the typical subject of an On Point post. He owns farmland in Outagamie County, and the DNR cited him for discharging fill material into wetlands on it. At a 1-day bench the trial judge twice made comments suggesting that he had prejudged Stingle’s guilt. The court of appeals reversed and remanded for a new trial before a different judge. It also admonished (but did not sanction) the State’s appellate lawyer for requesting an extension two weeks after its deadline…
Recognizing the importance of protected leave for employees, the U.S. Department of Labor (DOL) has improved its Family and Medical Leave Act (FMLA) notice and certification forms. The changes are intended to address frequent problems the DOL confronts in exercising its enforcement authority. Although use of the new forms remains optional, the revisions do provide simpler formatting and greater clarity regarding the information an employer needs to process a leave request. For example, the Notice of Eligibility/Rights and Responsibilities form (WH-381) articulates in greater detail employers’ and employees’ rights and obligations associated with FMLA leave and potential consequences if…
Here we are. We know our company has value and so does the trademark.  That means I often look at it through a final set of lenses.  Those are succinctly put: Offense Defense Increase value Other third party considerations (a/k/a Amazon told me to) Offense:  Are we wanting to swat down people trying to pretend they are us? Those darned SCRUBBIEDUB imposters begone!  If yes, that means we are going to take proactive measures to do so including take-down demands and maybe even sue.  Yes, we will spend the money to do it – sometimes a lot of money.  Beware,…