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B. Prosecutorial misconduct

State v. Darius Kavonta Smith, 2019AP642 & 643-CR, 8/6/19, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs) During closing arguments, the DA made a sarcastic, belittling reference to public defenders who line up empty chairs to emphasize that the State neglected to call witnesses to prove guilt beyond a reasonable doubt. The… Read More

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State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06 For Jaimes: Joseph L. Sommers Issue/Holding: Retrial is ordinarily not barred when the defendant successfully requests mistrial, except where prosecutorial overreaching, comprised of the following elements, has been shown: the prosecutor’s has “ a culpable state of mind in the nature of an awareness that… Read More

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State v. Jose M. Jaimes, 2006 WI App 93, PFR filed 5/11/06 For Jaimes: Joseph L. Sommers Issue/Holding: ¶11      Next, Jaimes argues that the prosecutor’s responsibility to avoid provoking a mistrial must extend to the law enforcement officers who testify at trial …. In effect, Jaimes argues that the officer’s testimony must be imputed to the… Read More

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State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007) For Williams: Margaret A. Maroney, SPD, Madison Appellate Issue/Holding: Issuing new charges for “a completely separate and distinct criminal episode” after the grant of appellate relief does not give rise to a presumption of vindictiveness: ¶45… Read More

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State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02 For Tkacz: Mark S. Rosen Issue/Holding: Even assuming that the law of vindictive prosecution (presumption of vindictiveness attaches to less favorable prosecutorial action following successful appeal) applies to failure to re-offer same plea bargain following reversal of conviction, the facts would not support vindictiveness. The… Read More

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State v. Rovaugn Hill, 2000 WI App 259, 240 Wis.2d 1, 622 N.W.2d 34 For Hill: Gerald P. Boyle Issue: Whether reprosecution should be barred on double jeopardy grounds, because prosecutorial overreaching had caused a mistrial. Holding: “[D]ouble jeopardy bars a retrial when the defendant has successfully moved for a mistrial, if the prosecutor acted… Read More

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State v. Hayes Johnson, 2000 WI 12, 232 Wis. 2d 679, 605 N.W.2d 846, reversing State v. Johnson, 223 Wis. 2d 85, 588 N.W.2d 330 For Johnson: Russell D. Bohach Issue1: Whether a presumption of prosecutorial vindictiveness arises from an increase in the charge following grant of mistrial due to hung jury. Holding: No presumption of prosecutorial… Read More

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State v. Lettice (II), 221 Wis. 2d 69, 585 N.W.2d 171 (Ct. App. 1998) (prior history: State v. John A. Lettice (I), 205 Wis. 2d 347, 556 N.W.2d 376 (Ct. App. 1996); subsequent history: BAPR v. Steven M. Lucareli, 2000 WI 55) For Lettice: John Allan Pray, UW Law School Issue/Holding: We conclude that (1) Lettice is… Read More

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