The 4th Amendment requires that a judicial officer determine probable within 48 hours of a warrantless arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Milwaukee County complies with this mandate by having the judicial officer review a sworn affidavit from law enforcement and set initial bail. This procedure does not require the accused to appear in person. The judicial officer simply conducts a paper review and completes a CR-215 form. Does this procedure trigger the accused’s right to counsel?
“Yes!” says the Eastern District of Wisconsin in at least 5 different cases. See our post on the COA’s certification. The Eastern District most recently ruled for the defense in Nelson Garcia v. Brian Foster, 20-cv-335 (E.D. Wis. 11/9/21) after SCOW split 3-3 on the issue. Justices Abrahamson and Kelly were on the court then. Abrahamson withdrew from participation. Now Justices Hagedorn and Karofsky are on the court.
SCOW’s order granting certification states that it is taking jurisdiction over all issues raised in the court of appeals. It did the same when it granted certification in State v. Corey t. Rector earlier this term. Robinson was convicted of robbery of a financial institution contrary to §943.87. In the court of appeals, he raised 5 issues in addition to the issue certified by the court of appeals. The additional issues are:
2. Was trial counsel ineffective for not presenting the testimony of two bank employees who witnessed the robbery but who did not identify Robinson as the robber?
3. Was trial counsel ineffective for not presenting evidence that two other men had also been identified as the robber?
4. Was trial counsel ineffective for not utilizing an expert on eyewitness identification evidence?
5. Is the robbery of a financial institution statute facially unconstitutional because it does not require proof that the defendant had an intent to steal?
6. Was the evidence sufficient to convict Robinson?