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State v. Timothy E. Dobbs, 2020 WI 64, 7/3/20, affirming an unpublished per curiam court of appeals opinion, 2018AP319; case activity (including briefs)

There’s really only one important holding here: despite adoption of the Daubert standard, Wisconsin continues to permit expert testimony in the form of “dissertation or exposition.” That is, an expert can educate the jury about the principles or findings of his or her field without talking about the facts of the case, and an expert who does so is not subject to the requirement that he or she “appl[y] the principles and methods” of that field “reliably to the facts of the case.” Though the court also decides a separate Miranda issue, the discussion is fact-intensive and breaks no legal ground. What’s notable (and regrettable) about the Miranda decision is a meandering three-justice concurrence that repeats the court’s error in State v. Bartelt, 2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684, by grafting a third step onto the familiar two-part Miranda-custody inquiry. Read more

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State v. Ryan M. Muth, 2020 WI 65, reversing a per curiam court of appeals decision; case activity (including briefs)

Muth drove while intoxicated and caused the death of T.K. About a month later T.K.’s adult children reached a settlement with Muth’s insurer under which the children received the maximum payout under Muth’s policy as settlement for all claims against Muth. (¶3). Or so Muth thought. A majority of the supreme court holds that, because Muth was later convicted of homicide by intoxicated use of a vehicle, he can also be ordered to pay more money to the children as restitution under § 973.20.

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State v. Alan M. Johnson, 2018AP2318-CR, District 2, 7/8/20 (recommended for publication); case activity (including briefs)

Johnson killed his brother-in-law, K.M., while he was in K.M.’s house, uninvited, to look to see whether K.M. had child porn on his computer. The court of appeals orders a new trial for Johnson because the trial court erred in denying Johnson’s perfect self-defense instruction and lesser-included offense instruction and in excluding evidence that there was, in fact, child porn on K.M.’s computer. Read more

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State v. Keith C. Henyard, 2019AP548-Cr, District 2, 7/8/20 (recommended for publication); case activity (including briefs)

The State charged Henyard with 8 crimes potentially leading to 157 years in prison. Commissioner Parise engaged Henyard in a colloquy, accepted his waiver of a preliminary hearing, and bound him over for trial. Parise left the bench and 5 months later sold his professional services to Henyard to get him a better deal. The majority denied Henyard’s ineffective assistance of counsel claim for lack of a prejudicial “actual conflict of interest.” Judge Reilly, in another Emperor’s New Clothes moment, dissented expressing concern about the integrity of a judiciary that obscures errors and shifts blame to defendants. Read more

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State v. Brandon Daniel Mulvenna, 201AP2341-CR, 7/9/20, District 4 , (1-judge opinion, ineligible for publication); case activity (including briefs)

Mulvenna wasn’t operating his motorcycle when an officer, responding to a call, arrived to find him trying to lift it while it was facing south on a northbound only roadway. Mulvenna had bloodshot eyes and slurred speech and smelled of alcohol. He refused field sobriety tests, so the officer cuffed him and placed him in the back of his squad car. The sole issue is whether the officer had probable cause for the arrest. The court of appeals answered “yes,” and noted some appellate rules violations. Read more

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State v. David M. Hay, 2020 WI App 35; case activity (including briefs)

Hay was pulled over in the early morning and blew a .032 on the PBT. He had several drunk-driving priors, so it would be illegal for him to drive with a BAC over .02. The officer never sought a warrant; instead he searched the car (though another officer on-scene could have done that), waited for another officer to show up to “sit” with the vehicle until a tow truck came, then headed to the hospital with Hay. Only then–about an hour after the initial stop–did the officer ask Hay whether he’d agree to a blood test. When Hay refused, the officer, in consultation with an ADA, decided the situation was exigent. The thinking was that given the low PBT result, further passage of time might reduce Hay’s BAC to .00 thus and make a blood test useless as evidence. So, the officer ordered a warrantless blood draw. Because there was only one phlebotomist in the hospital, that draw didn’t actually happen until 35 minutes had passed. Hay had no alcohol in his blood, but there was cocaine, so he was charged with the “restricted controlled substance” variety of OWI. He moved for suppression, the circuit court granted it, and the state appealed. Read more

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State v. Courtney C. Brown, 2020 WI 63, 7/3/20, affirming a published court of appeals opinion, 2017AP774-CR, case activity (including briefs)

“Supreme Court affirms wide discretion in traffic stops; dissent says implicit bias will go unchecked” That’s the JSOnline’s pithy description of SCOW’s 4-1 decision in this case. Also noteworthy, Justice R.G. Bradley filed a strident, bias-denying concurring opinion suggesting that court of appeals Judge Reilly should be disciplined for writing a strident, bias-acknowledging concurrence that dared to criticize two recent 4th Amendment decisions from SCOW. Read more

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Detection of Deception

Looking for a bit of law-related entertainment this holiday weekend? Then take a listen to this episode from the podcast series The Last Archive, featuring historian Jill Lepore. It’s about the origin of the Frye test. And how that may have led to Wonder Woman. No kidding.

Lepore has also written about Clarence Darrow, among many other things, in a book review which begins with events in Oshkosh, Wisconsin, that led to his appearance in Winnebago County Circuit Court. No kidding!

Happy Fourth of July.

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