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7. Discovery violation

How to beat the “harmless error” rap

For the 2015 SPD conference, Judge Sankovitz and Attorneys Rob Henak and Melinda Swartz prepared an excellent outline on a problem that plagues many defense lawyers on appeal.  They have a great issue. They win it, but then the court of appeals or supreme court finds the error harmless.  This detailed, well-researched outline walks you… Read More

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State v. Joel Joseph Lobermeier, 2012 WI App 77 (recommended for publication); for Lobermeier: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity Appellate Procedure – Waiver – Jury Instructions  Failure to object to a jury instruction amounts to a failure to preserve for review an asserted objection, which must therefore be reviewed in the context… Read More

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State v. Joseph Hammer, 2010AP3019-CR, District 1, 11/22/11 court of appeals decision (not recommended for publication); for Hammer: Rex Anderegg; case activity The State’s conceded discovery violation (failure to produce reports or photographs related to a trajectory rod investigation) prejudiced the defense and therefore entitles Hammer to a new trial on two counts of attempted… Read More

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State v. Daniel E. Krueger, 2011AP571-CR, District 3, 8/2/11  court of appeals decision (1-judge, not for publication); for Krueger: Ana Lyn Babcock; case activity Prosecutorial failure to disclose a police report containing his statements that “were incriminating and any reasonable prosecutor would have planned on using them at trial” violated Krueger’s right to discovery, ¶23, citing State… Read More

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State v. William Nielsen, 2001 WI App 192, PFR filed For Nielsen: Waring R. Fincke Issue/Holding: ¶20. Our review of a claimed discovery violation under Wis. Stat. § 971.23 is subject to a harmless error analysis. See State v. Koopmans, 202 Wis. 2d 385, 396, 550 N.W.2d 715 (Ct. App. 1996). The test of harmless… Read More

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