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41. Trial Procedures

County of Milwaukee v. Roosevelt Cooper, Jr., 2021AP1224, 5/17/21, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs) Cooper wins a new trial because the trial court improperly amended the charge against him and denied him an opportunity to present evidence regarding the amended charge. Cooper was also denied the opportunity to cross-examine… Read more

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State v. Ryan L. Bessert, 2021AP1062-CR, District 3, 5/3/22 (not recommended for publication); case activity (including briefs) The circuit court properly applied § 972.11(2m)(a) under the circumstances of this case when allowing the complaining child witness to testify via closed circuit television, so Bessert’s right to confrontation was not violated. In addition, assuming without deciding… Read more

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Fond du Lac County v. John Anthony Hettwer, 2020AP 1422, 7/21/21, District 2 (one-judge decision; ineligible for publication); case activity (including briefs) The county charged Hettwer with OWI- and PAC-first. At the first attempted trial, the jury was sworn, but before opening statements could begin, the county told the court that the phlebotomist it intended… Read more

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State v. Gregory F. Atwater, 2021 WI App 16; case activity (including briefs) The circuit court denied Atwater’s request to have trial counsel testify at a Machner hearing by telephone rather than in person, as trial counsel had moved out of state and returning to testify would be onerous and logistically difficult. The court then… Read more

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State v. Raymond R. Barton, 2019AP1990, 9/24/20, District 4 (one-judge decision; ineligible for publication); case activity (including briefs) Barton was convicted at trial of three counts involving battery of his adult stepson. He argues the trial court should have granted the mistrial he asked for when his daughter testified she was afraid that something had… Read more

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Danny Wilber v. Michael Thurmer, Case No. 10-C-179 (E.D. Wis., Aug. 4, 2020). It’s said that defendants having meritorious postconviction claims are more likely to win relief on a habeas petition in federal court than on direct appeal in Wisconsin’s appellate courts. This decision could be a poster child for that theory.  On Point last… Read more

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Challenges to TPR rejected

Racine County HSD v. S.M.F., 2019AP2346 & 2019AP2347, District 2, 7/15/20 (one-judge decision; ineligible for publication); case activity S.M.F.’s challenges the order terminating her parental rights, alleging trial counsel was ineffective and that the circuit court should have granted her mistrial motion. The court of appeals affirms. The TPR petition alleged, and the jury found… Read more

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Many thanks to Mike Tobin, retired Deputy State Public Defender and co-author of Wisconsin Criminal Practice and Procedure for today’s thoughtful and timely guest post: Two main resources are available to assist attorneys in preparing for hearings conducted by video or telephone: Section 885.50-885.64, Wis. Stats, setting forth both authority for and limitations on video court… Read more

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