I. Present defense

SCOTUS: State court misapplied Atkins standard for determining intellectual disability

June 21, 2015

Brumfield v. Cane, USSC No. 13-1433, (June 18, 2015), reversing Brumfield v. Cain, 744 F.3d 918 (5th Cir. 2014); SCOTUSblog page (including links to briefs and commentary); Majority opinion by Sotomayor; dissenting opinion by Thomas (joined in part by Roberts, Scalia and Alito) Brumfield was convicted of murder and sentenced to […]

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SCOW tightens test for admission of 3rd-party perpetrator evidence

May 13, 2015

State v. General Grant Wilson, 2015 WI 48, reversing an unpublished court of appeals summary disposition; opinion by Prosser; concurrence by Ziegler; dissent by Abrahamson; case activity (including briefs) If this portly opinion had been placed on 40-page reducing plan, it would have gained clarity and exposed its inner motive: […]

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Defendant must prove by clear and convincing evidence that amnesia affected his ability to mount a defense

December 18, 2014

State v. Geoffrey A. Herling, 2014AP565-CR, District 4, 12/18/14 (not recommended for publication); case activity The circuit court did not err by requiring Herling to prove by clear and convincing evidence that he had amnesia that prevented him from mounting an adequate defense.

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Kevan Brumfield v. Burl Cain, Warden, USSC No. 13-1433, cert. granted 12/5/14

December 8, 2014

Questions presented: I.   Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia, 536 U.S. 304 (2002), has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2). II.   […]

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Exclusion of expert testimony and of prior, unsubstantiated accusations of child sexual assault affirmed

July 31, 2014

State v. Ricky H. Jones, 2013AP1731-CR, District 2, 7/30/14 (unpublished); case actvity Exclusion of expert testimony about defendant’s lack of propensity toward child sexual assault In defending Jones against two counts of 1st-degree sexual assault of a child, his lawyer wanted to elicit expert testimony that Jones posed a low risk […]

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State v. General Grant Wilson, 2011AP1803-CR, petition for review granted 1/19/14

February 23, 2014

Review of a summary disposition, case activity Issues (lifted from the State’s PFR here) Did Wilson satisfy the opportunity requirement for presenting third-party-perpetrator evidence under State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984) with respect to Willie Friend? If the answer to the first question […]

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Metrish v. Lancaster, USSC No. 12-547, cert granted 1/18/13

March 11, 2013

Questions presented: 1. Whether the Michigan Supreme Court’s recognition that a state statute abolished the long-maligned diminished-capacity defense was an “unexpected and indefensible” change in a common-law doctrine of criminal law under this Court’s retroactivity jurisprudence. See Rogers v. Tennessee, 532 U.S. 451 (2001). 2. Whether the Michigan Court of […]

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State v. Samuel Curtis Johnson, III, 2011AP2864-CRAC, WSC review granted 11/14/12

November 15, 2012

on review of unpublished decision; case activity Issues (composed by On Point)  1. Whether the defendant made the requisite showing for in camera review of the complainant’s privileged therapy records. 2. Whether, given necessity for in camera review, the complainant’s refusal to authority release of the records mandates suppression of her testimony. […]

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Adequate Provocation Defense, §§ 939.44(1), 940.01(2)(a): Test for Admissibility; Counsel: No Right to Participate, in camera Hearing

September 5, 2012

State v. Scott E. Schmidt, 2012 WI App 113 (recommended for publication); case activity Adequate Provocation Defense, §§ 939.44(1),  940.01(2)(a) – Test for Admissibility The “some evidence,” rather than Schmidt’s proposed less stringent “mere relevance,” standard controls admissibility of evidence of adequate provocation that would reduce first- to second-degree intentional homicide: […]

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Shiffra-Green Procedure – Privileged Records – Remedy

April 18, 2012

State v. Samuel Curtis Johnson, III, 2011AP2864-CRAC, District 2, 4/18/12, WSC rev granted 11/14/12 court of appeals decision (not recommended for publication), supreme court review granted 11/14/12; for Johnson: Mark D.   Richards, Michael F. Hart, Craig S. Powell, Geoffrey R. Misfeldt; case activity Shiffra-Green Procedure – Privileged Records – Remedy Where Witness […]

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