On Point

On Point is sponsored by the Wisconsin State Public Defender. All content is subject to public disclosure. If you have questions about this blog, please email Colleen Ball at ballc@opd.wi.gov or Jefren Olsen at olsenj@opd.wi.gov.
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By: Wisconsin State Public Defender

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Wisconsin State Public Defender

Latest from On Point

Sheboygan County v. M.J.M., 2020AP1744, 6/9/21, District 2 (1-judge opinion, ineligible for publication); case activity This is new. M.J.M. appealed a recommitment order which expired during the course of his appeal. The usual kerfuffle regarding mootness ensued but this time (unlike here and here) the court of appeals acknowledged that the issue of whether recommitment may be dismissed as moot was pending before SCOW in Sauk v. S.A.M, and so reached the merits of this case. It then found sufficient evidence of dangerousness based on threats M.J.M. made during his expiring commitment and because of what he…
Eau Claire County DHS v. S.E., 2021 WI 56, affirming a published court of appeals opinion, 2019AP894, 6/10/21, case activity In a 4-3 decision, SCOW holds that a 2018 amendment to the TPR statute, which imposed a more exacting timeframe for parents to preserve their parental rights, applied to a CHIPS order entered in 2016 when the statutory timeframe was more lenient. So much for the plain language of the statute and due process. In August 2016, a circuit court found “Tyler” to be a child in need of protective services. As required by §48.356(2), the circuit…
State v. Daniel J. Rejholec, 2020AP56, 6/9/21, District 2 (recommended for publication); case activity (including briefs) Police arrested Rejholec on suspicion of sexual assault of a minor. After receiving the Miranda admonitions, Rejholec agreed to speak with a detective. The interrogation was recorded on video. That video reveals the detective’s aggressive deployment of the so-called Reid technique: a method of extracting confessions (be they true or false). The detective bullies, cajoles and wheedles until he gets what he’s after: a confession. Oh, the detective also lies, floridly. The court of appeals has no problem with most of…
State v. M.D.M., 2017AP138-139, 6/8/21, Distrct 1, (recommended for publication); case activity In 2014, the State filed petitions charging M.D.M., a juvenile, with multiple counts of delinquency. He was found incompetent but likely to regain, so the court suspended these cases. In 2016, the State filed a new petition charging M.D.M. with 1 count of delinquency. This time M.D.M. was found competent to proceed, so the State wanted to resume prosecution of his 2014 case as well. This published opinion establishes the procedure for recalling a case after a juvenile regains competency. The supreme court recently held that a…
According to the ABA, the Arkansas Supreme Court has suspended a judge for his impatient, discourteous, and rude behavior toward public defenders.  He left the bench in the middle of questioning by a PD, refused to allow a PD to make her record regarding an objection, made alarming faces in court, and generally bullied them. The supreme court not only suspended him without pay for 30 days, it ordered him to hire a life coach to help address his intimidating behavior. Read more here.…
State v. Chrystul D. Kizer, 2020AP192-CR, District 2, 6/2/21 (recommended for publication); case activity (including briefs) The court of appeals gives the affirmative defense in § 939.46(1m) for victims of human trafficking and child sex trafficking its ordinary, common-sense meaning, and rejects the crabbed reading given the statute by the circuit court. Kizer was charged with multiple felonies, including first-degree intentional homicide for killing the man who she said had been trafficking her in violation of § 940.302. Pretrial, she asserted she would raise the defense under § 939.46(1m), which provides an affirmative defense for victims of…
United States v. Cooley, USSC No. 19-1414, 2021 WL 2194835, 6/1/21, vacating 919 F.3d 1135 (9th Cir. 2019) Cooley’s truck, parked on the side of a US highway running through the Crow Reservation in Montana, attracted the attention of a Crow Police Department officer. The officer said that when he approached the truck, he found Cooley “appeared to be non-native” and showed signs of intoxication; he also had two semiautomatic rifles on his front seat. The officer eventually ordered Cooley out of the truck and patted him down; eventually he would discover methamphetamine and paraphernalia in the vehicle. Tribal…
State v. Roy C. O’Neal, 2020AP1270, 6/2/21, District 3 (not recommended for publication); case activity (including briefs) A person who’s been indefinitely committed under ch. 980 is entitled to a discharge trial if he can show … well, er, nobody really knows what he has to show. In State v. Hager, our supreme court failed to reach a majority for any view on the statute (while arguably striking down the court of appeals’ attempt at a gloss). Given the absence of an ascertainable rule, it’s not too surprising that we get incoherent decisions like this one. What is a…
On May 26, 2021, the court of appeals ordered the publication of the following criminal law related opinions: State v. Blong Simba Vang, 2021 WI App 28 (search of car of non-student in school parking lot was reasonable) State v. Kimberly Dale Crone, 2021 WI App 29 (cops may extend traffic stops to ask drivers about their medications) State v. Kevin M. Jereczek, 2021 WI App 30 (police exceeded scope of consent to search computer) State v. Scott W. Forrett, 2021 WI App 31 (COA strikes down statute permitting the refusal of warrantless blood tests to…
State v. Keandrae J. Reed, 2020AP1921-CR, District 1, 6/2/21 (one-judge decision; ineligible for publication); case activity (including briefs) After being convicted of misdemeanor theft, Reed was placed on probation and given the chance for expungement. While he successfully discharged from probation, he isn’t entitled to expungement because he didn’t do enough to pay restitution to have “successfully completed” his sentence as required by § 973.015(1m)(b). Reed’s probation conditions included no new criminal conduct, 10 hours of community service, and, of course, restitution, for which he was given a payment plan. Because he didn’t comply with the payment plan,…
Justice R.G. Bradley seems bent on challenging Justice Abrahamson’s status as SCOW’s dissenter in chief. She has begun matching Abrahamson’s rate of dissent (even while conservatives hold the majority on SCOW). But to reach Abrahamson’s total she will have to keep getting re-elected. Read more on SCOWstats.…
State v. James Timothy Genous, 2021WI 50, reversing an unpublished court of appeals opinion, 2019AP435-CR, 6/4/21; case activity (including briefs) An officer saw Genous sit in a parked car, engine running and headlights on, in a residential neighborhood at 3:36 a.m.  A woman emerged from a house, entered the car for 10 to 15 seconds, and returned to the house.  Although the officer could not see what happened inside the car, the woman appeared to match the description of a female drug user who was known to live in the house. Plus the officer had heard that this…
State v. Heather Van Beek, 2021 WI 51, 2019AP447-CR, on certification from the court of appeals, 6/4/21; case activity (including briefs) In a splintered opinion, a majority of SCOW holds that an officer does not necessarily “seize” a driver when he takes her license to run a records check. Seizure depends on the totality of the circumstances. In this case, a seizure occured when the officer continued holding a license and questioning the driver until a drug-sniff dog arrived. And the seizure was unlawful because the officer lacked reasonable suspicion that criminal activity was afoot. Roggensack wrote the…
State v. Billy Joe Cannon, 2019AP2296-CR, District 1, 5/25/21 (not recommended for publication; case activity (including briefs) In 2009, the State charged Cannon with conspiracy to deliver cocaine on Nov. 10, 2005. In 2011, a jury acquitted him. Six weeks later, the State filed new charges alleging that Cannon conspired to deliver cocaine on March 4, 2008 through March 24, 2008. This time, a jury found him guilty. On appeal, Cannon argued that the 2009 and 2011 conspiracy charges concerned a single, continuous conspiracy so the second prosecution violated his to be free from double jeopardy. He also argued…
State v. Alijouwon T. Watkins, 2019AP1996-CR, 5/27/21, District 4 (recommended for publication); case activity (including briefs) The state charged Watkins with several crimes stemming from a domestic violence call: these included escape and battery to one of the police officers who arrested him. While Watkins was in jail, the state charged him with three more crimes related to his alleged attempts to secure perjured testimony about the earlier incident and, the state said, have the arresting officer/alleged victim killed. The state moved to join all the counts. Watkins objected, but the circuit court concluded joinder was proper. On appeal,…
State v. Nhia Lee, 2019AP221-CR, petition for review granted 5/19/21; case activity (including briefs) Issues: Whether a circuit court is required to appoint counsel at the county’s expense when the SPD is unable to do so within 10 days of the defendant’s initial appearance? Whether Lee’s rights to due process, to counsel, and to a speedy trial were violated by his protracted pretrial confinement as he waited for the State Public Defender to find counsel for him. This case arose in 2018 when Wisconsin private bar lawyers were unwilling to take public defender appointments at the abysmal rate of $40/per…