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

Latest from On Point - Page 2

On March 31, 2021, the court of appeals ordered the publication of the following criminal law related opinions: State v. James A. Jones, 2021 WI App 15 (return of bond on charges that are dismissed and read in at sentencing and for which the court doesn’t order restitution). State v. Gregory F. Atwater, 2021 WI App 16 (circuit court failed to properly exercise discretion in denying defense request for remote testimony of trial counsel at Machner hearing) State v. Westley D. Whitaker, 2021 WI App 17 (affirming sentence aimed at deterring Amish from covering up child sexual…
Winnebago County v. A.A.L., 2020AP1511, 3/24/2021, District 2 (one-judge decision; ineligible for publication); case activity A.A.L. appeals her commitment under ch. 51. She claims the county didn’t give her adequate notice of which statutory forms of dangerousness it intended to prove, and that in any event it didn’t prove any of them. The court of appeals finds the notice argument forfeited (though it goes on to say it’s also unconvincing). And though it admonishes the county for presenting a bare-bones case and calls the question “close,” the court also holds the evidence of dangerousness sufficient for commitment. Pretty…
Torres v. Madrid, USSC No. 19-292, 2021 WL 1132514, 3/25/21, reversing 769 Fed. Appx. 654 (10th Cir. 2019); Scotusblog page (including links to briefs and commentary) Fans of dueling citations to ancient cases will want to savor the entirety of the majority and the somewhat heated dissent in this case; the serjeants-at-mace shew their mace at one point. Everybody else just needs to know this: a police officer who applies physical force to the body of a person seizes that person if the objective circumstances show an intent to restrain. This seizure occurs during the application of that force…
State v. A.M.-C., 2021AP94 & 2021AP95, 3/30/21, District 1 (one-judge decision; ineligible for publication); case activity The state petitioned to terminate A.M.-C.’s rights to two of her children on failure-to-assume and continuing-CHIPS grounds. After being told (apparently via interpreter, as Spanish is her first language) that she had to attend all hearings, A.M.-C. moved to New York City. The circuit court rejected her request to attend by telephone, found her in default, and after prove-up, found her unfit. It later found termination of her rights to be in the children’s best interest. On appeal A.M.-C. argues that the default…
Fond du Lac County v. J.L.H., 2020AP2049, 3/24/21, District 2 (one-judge decision; ineligible for publication); case activity Wisconsin Stat. § 51.20(1)(a)e. lays out the “fifth standard” for dangerousness; a person can be committed under it if his or her mental illness prevents him or her from understanding the advantages and disadvantages of treatment, and a lack of treatment will cause a substantial probability that the person will be harmed and become unable to function. But there’s a limitation on this standard that the other standards lack: a person can’t be dangerous under it if care is available, either in…
State v. Mark D. Jensen, 2021 WI 27, 3/18/21, affirming a court of appeals summary disposition; case activity (including some briefs) Julie Jensen died by poisoning in 1998. The state eventually charged her husband, Mark, with having killed her; the defense was that she had died by suicide. Before her death Julie had made oral and written statements to the effect that Mark would be responsible if something happened to her. She wasn’t available to testify at the trial, of course, and Mark moved to exclude these statements on Confrontation grounds. Our supreme court now holds that, when…
State v. Chardez Harrison, 2019AP2151, 3/23/21, District 1 (not recommended for publication); case activity (including briefs) Harrison was arrested on suspicion of some armed robberies and carjackings. While he was in custody, a detective read him the Miranda warnings. The version of the warnings printed on cards for the Milwaukee police to use apparently concludes with a question: “Realizing that you have these rights, are you now willing to answer some questions or make a statement?” (¶6). Harrison responded to this question by saying “I don’t want to make no statement right now.” Pretty clear invocation, right?…
The Supreme Court’s most recent orders list denied cert in a whole lot of cases; one of those denials drew a written dissent from Justice Sotomayor. She would have granted certiorari and summarily reversed an Eighth Circuit decision denying habeas relief to the defendant. Before trial, he’d sought further review and clarity about an evidentiary ruling excluding some evidence he wished to adduce; the court cleared the courtroom–over defense objection–for these proceedings on the theory that they might taint potential jurors. Everybody–all reviewing courts–agree this ruling didn’t and couldn’t satisfy the requirements set out in Waller v. Georgia, 467…
State v. Eric Engen, 2020AP160-CR, 3/18/21, District 4, (not recommended for publication); case activity (including briefs) This is the third court of appeals decision on Sell v. United States in three weeks. As in State v. Green, District 4 here again holds that the State must file an individualized treatment plan to support a motion for involuntary medication to restore a defendant’s competence for trial. A psychiatrist’s report simply opining that medication is necessary to restore competency does not satisfy Sell. Green and Engen conflict with District 1’s decision this week in State v. Anderson, which holds…
State v. Wilson P. Anderson, 2020AP819-Cr, 3/16/21, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs) A few weeks ago, District 4 issued a to-be-published decision regarding the State’s burden of proof on a motion for involuntary medication to restore a defendant’s competence for trial. See State v. Green. It held that to satisfy Sell v. U.S., 539 U.S. 166 (2003), the State must file an individualized treatment plan specifying the medications and dosages it wants to administer to the defendant, and the circuit court must approve it. In Anderson’s case, District 1 holds that…
City of Cedarburg v. Katherine D. Young, 2020AP1848, District 2, 3/17/21 (one-judge decision; ineligible for publication); case activity (including briefs) Young was prosecuted for an OWI 1st offense that did not arise out of a traffic stop or involve police collecting blood or breath samples or even testifying at trial. Can that be done? Sure, it can. And the evidence that was presented at trial was sufficient to convict her, too. When Young entered the high school where she worked co-workers immediately suspected she was intoxicated. Her speech was slurred and incoherent speech, her walking was unsteady, she exuded…
State v. Theophilous Ruffin, 2019AP1046-CR, District 1, 3/9/21 (not recommended for publication); case activity (including briefs) Ruffin raises three challenges to how the jury was instructed at his trial. Two are rejected in all respects, but one—regarding trial counsel’s decision to withdraw a self defense instruction—gets him a Machner hearing. Ruffin was charged with mayhem and sexual assault causing injury, § 940.225(2)(b). The state (mistakenly, one assumes) asked for the jury to be instructed on sexual assault by use or threat of force or violence, § 940.225(2)(a). The judge didn’t spot the mistake. Neither did defense counsel,…
State v. Robert Daris Spencer, 2018AP942-CR, District 1, 3/9/21 (not recommended for publication); case activity (including briefs) Spencer challenges the trial court’s decision to dismiss a juror for cause just before deliberations began, but over a dissent the court of appeals holds his claims are forfeited or that any error was harmless. However, Spencer is entitled to a Machner hearing on his claim that trial counsel was ineffective for failing to object to hearsay evidence. Before the start of the last day of Spencer’s trial the only Black juror complained she was feeling ill. The judge questioned the juror…
State v. Kenyon D. Grant, 2020AP785, 3/9/21, District 1 (not recommended for publication); case activity (including briefs) McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018) held that trial counsel cannot concede guilt over his client’s express objection. This would deny the client his 6th Amendment right to determine the objective of his defense and require an automatic new trial. Grant raised a McCoy claim in this case. It failed because trial counsel testified that Grant did not oppose his concession strategy and objected only after hearing the State’s evidence against him. The State charged Grant…
State v. Anthony James Jendusa, 2021 WI 24, affirming a court of appeals order denying interlocutory appeal; case activity (including briefs) This litigation has been procedurally weird, as we’ve discussed before, but SCOW’s decision on the merits may turn out to be a momentous one for the future of ch. 980. Commitment trials commonly turn on the application of tools called actuarial instruments. These are tests of a sort: an examiner gathers a certain set of facts about the respondent. The examiner then compares a “score” derived from those facts with the scores of various groups of other…
Jefferson County v. S.M.S., 2020AP814, 3/11/21, District 4 (1-judge opinion, ineligible for publication); case activity It is blackletter law that the probable cause hearing for a Chapter 51 commitment must be held within a statutorily-prescribed time from the subject individual’s detention or the circuit court must dismiss the proceeding for lack of competency to adjudicate it. See §51.20(7)(a) and Dodge Cnty. v. Ryan E.M., 2002 WI App 71, ¶5, 252 Wis. 2d 490, 642 N.W.2d 592. In this case, the court of appeals held that the Ryan E.M. rule did not apply because the individual’s conduct (he was…