On Point

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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State v. Chardez Harrison, 2019AP2151, 3/23/21, District 1 (not recommended for publication); case activity (including briefs) Harrison was arrested on suspicion of some armed robberies and carjackings.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…
The moment Chapter 51 lawyers have been waiting for has . . . been postponed.  This term SCOW was set to decide whether appeals from expired recommitment orders are ever moot. See our post on Portage County v. E.R.R., 2019AP20133. After briefing and oral argument (in which Justice Anne Walsh Bradley did not participate), SCOW split 3-3 on the issue.  This means that the order dismissing E.R.R.’s appeal as moot stands. That’s the bad news.  Here’s the good news. SCOW recently granted review on the same issue in Sauk County v. S.A.M. Then in conjunction with the demise…
State v. Greg Douglas Griswold, 2020AP1598, District 4, 3/4/21 (one-judge decision; ineligible for publication); case activity (including briefs) Griswold was convicted of violating § 26.12(5)(b) by starting a fire in an “extensive forest protection area” without a permit. The statute excepts fires started for warmth, and Griswold claimed that’s what he was doing. When evidence supports more than one reasonable inference, the reviewing court accepts the inference drawn by the trier of fact, see, e.g., State v. Poellinger, 153 Wis. 2d 493, 504, 451 N.W.2d 752 (1990), and under that standard the trial court reasonably rejected Griswold’s defense.…
State v. Donald P. Coughlin, 2019AP1876-CR, District 4, 3/4/21 (not recommended for publication); case activity (including briefs) In 2010 Coughlin was charged with over 20 counts of having sexual contact with three different children during various periods between 1989 and 1994. The court of appeals holds the evidence was insufficient to convict him of the counts involving  two of the children. Each child (John Doe 1, 2, and 3) testified that Coughlin engaged him in various “sexual activities” over multiple time periods over many years, including: the charged conduct (Coughlin touching the child’s penis); conduct that falls within the…
State v. Patrick A. Keller, 2019AP1573-CR, 3/3/21, District 2, (recommended for publication); case activity (including briefs) Keller was convicted of causing mental harm, as a party to a crime, to his stepdaughter, who has autism. During his trial, the circuit court admitted statements made by non-testifying confidential reporters to Child Protective Services access workers. In a published decision, the court of appeals holds that these statements were not made for the primary purpose of gathering evidence to prosecute Keller, so the Confrontation Clause does not apply. A defendant’s 6th Amendment confrontation right is violated when the circuit court admits…