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SCOW does away with Dubose

December 5, 2019

State v. Stephan I. Roberson, 2019 WI 102, 12/3/19, affirming a per curiam court of appeals opinion, 2017AP1894, case activity (including briefs) The result here is simple, and expected, given the current makeup of the court: a five-two majority to overturn State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. Dubose held that “show up” identifications–those […]

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COA rejects “as applied” challenge to amended TPR law, notes §893.825(1) requiring service on legislature

Dane County D.H.S. v. J.R., 2019AP820-182, District 4, 11/27/19 (not recommended for publication); case activity J.R.’s children were placed outside the home pursuant to two CHIPS cases. During the placement, the legislature changed the 4th element for the “continuing CHIPS” ground for termination of parental rights. When the County petitioned to terminate J.R.’s rights, it […]

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SCOW: 7 misdemeanor retail thefts can =1 felony theft

November 30, 2019

State v. Autumn Marie Love Lopez, 2017AP913-CR, State v. Amy J. Rodriguez, 2017AP914-CR, 11/27/19, 2019 WI 101, affirming a published court of appeals decision, 2019 WI App 2, case activity (including briefs) This appeal asked whether the State may charge multiple acts of misdemeanor retail theft under §943.50  as one felony under §971.36(3)(a).  The justices split 3-2-2. […]

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An outline of all criminal issues recently decided by or pending in SCOTUS

Give thanks to Federal Defender Paul Rashkind. He just made every criminal defense lawyer’s job a whole lot easier with his United States Supreme Court Review-Preview-Overview, current through November 25, 2019. Click here.

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Court of appeals affirms circuit court’s fabrication of “oh shit” moment in speeding case

State v. Chris K. Feller, 2019AP318, 11/27/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs) This appeal poses an interesting question of law: whether the justification defense available in certain civil forfeiture actions applies where a driver exceeds the speed limit in order to get away from another driver who is dangerously […]

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COA: No Machner hearing on trial counsel’s misstatement of DA’s plea offer

State v. Jonathan A. Ortiz-Rodriguez, 2018AP2401-CR, District 1, 11/26/19, (not recommended for publication); case activity (including briefs) The State charged the defendant with repeated sexual assault of a child, which carries a 25-year minimum term of initial confinement. Trial counsel told the defendant that the State had offered to recommend 5 to 8 years if […]

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The tech gap: law enforcement can access communications but public defenders can’t

November 24, 2019

Read the NYTimes new article: “Imagine Being on Trial. With Exonerating Evidence Trapped on Your Phone. Public defenders lack access to gadgets and software that could keep their clients out of jail.”

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Putting Strickland’s “ineffective assistance of counsel” test in its place

Appellate lawyers, this one’s for you! According to a new article in Stanford Law Review, there are 4 types of ineffective assistance of counsel claims, and Strickland‘s two-part test applies to only one (that’s right one) of them. Read this article and help our courts put Strickland in its proper place.

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