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SCOW, error correction, and favoring the State

You’ve heard it many times. When a criminal defendant loses at the court of appeals, it’s really hard to persuade SCOW to take the case. But when the State loses and files petition for review, a grant order is pretty much a done deal. That seems true even when the State’s fails to identify an opportunity for “law development,” which, according to Wis. Stat. §809.62, is SCOW’s mission.

See examples of what we mean here, here, and here where the State lost at the court of appeals, petitioned for review, and then prevailed on “harmless error.” SCOW’s decision today in State v. Matalonis (see post above) is a different example. The State lost at the court of appeals, petitioned for review, and then obtained a majority opinion (with an interesting tie-breaking vote) that tweaks Pinkard just enough to ensure a State victory.

What some have privately suspected is now publicly confirmed. Today’s edition of SCOWstats examines the fate of petitions for review filed in criminal cases during the 2014-2015 term.  SCOW granted only 3% of the petitions filed by defendants compared with 60% of the petitions filed by the State. The big surprise is that State’s success rate wasn’t 90%. Perhaps the 60% figure will change after SCOWstats crunches additional years worth of data.

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