On Point

Much has changed since that last time you read On Point.  Defying all expectations, long-time beat reporter Bill Tyroler has actually retired.  After writing some 5,000 case summaries and On Point posts between 1995 and 2013, who could blame him?

Fear not, staff and private bar attorneys.  The State Public Defender will continue to help you defend your clients through updates on indigent defense law.  But we’ve made a few changes:

New Authors.  Jefren Olsen (SPD Madison Appellate) will write most of the On Point posts, and Colleen Ball (Milwaukee Appellate) will assist.  You did not receive On Point updates while the site has been in “maintenance mode,” but rest assured that we continued to summarize, analyze, and post cases during the hiatus.  They’re ready and waiting for you to read.

New Archive.  We’re merging “case summaries” into On Point, which means it will be easier than ever to get your fill of Bill’s summaries (and now Jefren’s too).  Our new Archive page is a detailed outline of legal issues.  Each topic is a hyperlink.  Click the link and it will pull up the posts/summaries relating to that topic, presenting them in chronological order (most recent first).  You might want  to scroll through the outline a few times to familiarize yourself with the taxonomy.  The integration of “case summaries” and On Point is over half way done.  Click here to see which “case summaries” have been merged into On Point and which remain on the “to do” list.

Issue Tracking.  If you are wondering which cases and issues relating to your practice are pending in the Supreme Court of Wisconsin (SCOW) or the Supreme Court of the United States (SCOTUS), we’ve got it covered.  Visit the “Pending in SCOW” and “Pending in SCOTUS” pages.

SCOW watching.  Plus, we have some new features for those of you who appear in (or just enjoy watching) SCOW.  The calendar to the right is a simple way to see when indigent defense cases will be argued, decisions will be released, and the next petitions conference will occur.  Click on the blue date and the event for details.  No more drilling down on the WSCCA website for that information.  In addition, the SCOW Stats page provides historical statistical information on questions like:  How often do pairs of justices vote together?  How long, on average, does it take each justice to issue an opinion?  How many opinions does each justice write?  You will find those answers on SCOW Stats.

On Point is a work in progress.  If you have comments or suggestions, please don’t hesitate to email them to [email protected] and/or [email protected].

Thank you for your patience.  We hope that you continue to read On Point and encourage your colleagues to subscribe too.

P.S.  We’re counting down the days to the 50^th anniversary of Gideon v. Wainwright.  Watch for a special guest post on March 18^th!

State v. Jonathan A. Herr, 2013 WI App 37; case activity

In a case arising from a high-speed chase and subsequent arrest for OWI, the court holds that the use of unreasonable force to arrest the defendant does not require the suppression of evidence that was not a product of, or causally related to, the alleged unreasonable force.

Police saw Herr driving erratically and attempted to stop him. He fled at high speed, ran stop signs, and avoided a stop strip, but was eventually boxed in. (¶¶2-3). When he did not follow police commands to get out his car, an officer opened the car door and, deploying his taser, took Herr into custody. (¶4). Without deciding whether the police used excessive force (¶11 n.1), the court noted that Wisconsin has not yet addressed application of the exclusionary rule to the excessive use of force, the court looks to federal law—specifically United States v. Watson, 558 F.3d 702 (7th Cir. 2009), which held that even if police use excessive force, a defendant’s remedy is a civil suit for damages rather than exclusion of the evidence in the defendant’s criminal trial. The court adopts this approach in light of the policy that “[t]he penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve.” Hudson v. Michigan, 547 U.S. 586, 593 (2006). The court concludes:

¶11      As there is no causal relationship between the alleged use of unreasonable force and the evidence sought to be suppressed, Herr’s suggested remedy would ill serve our legal system.  Deterring police misconduct is an important goal, but not one that should necessarily be pursued at the expense of bringing criminals to justice.  See [State v.] Felix, [2012 WI 36,] 339 Wis. 2d 670, ¶39[, 811 N.W.2d 775].  The exclusionary rule is an extraordinary remedy that exacts “substantial social costs,” including potentially releasing guilty and dangerous criminals into our communities and impairing the truth-seeking objectives of our legal system.  See Hudson, 547 U.S. at 591.  “Suppression of evidence … has always been our last resort, not our first impulse.”  Id.  Even though the threat that evidence may be suppressed may deter some police officers from using unreasonable force in carrying out otherwise lawful seizures, “[t]he Fourth Amendment does not require courts to exclude all evidence or forgo prosecuting a defendant following unlawful police conduct.”  Felix, 339 Wis. 2d 670, ¶40.  As the evidence Herr seeks to suppress was not causally related to the alleged use of unreasonable force, we affirm the decision of the circuit court and Herr’s conviction.

Review of unpublished summary disposition; case activity

Issues (composed by SCOW):

(1) Does Wisconsin recognize the “mature minor doctrine,” a common law rule providing that a minor may consent or refuse to cosent to medical treatment upon a showing of maturity, intelligence and sufficient understanding of the medical condition and treatment alternatives?

(2) Does Wisconsin recognize a mature adolescent’s due process right to refuse unwanted medical treatment?

(3) Did the circuit court violate an adolescent’s common law and constitutional right to refuse medical treatment when it appointed a temporary guardian to consent to treatment over the adolescent’s objection?

(4) Should the exceptions to the mootness doctrine be utilize to address the above issues?

State v. Edward C. Lefler, 2013 WI App 22; case activity

Probable cause found to search trunk of vehicle for evidence of burglary-related crimes, after an indisputably lawful stop for drunk driving:

¶11      …  “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”  United States v. Ross, 456 U.S. 798, 825 (1982). There is no dispute that Lefler’s vehicle was lawfully stopped.  Ross allows a search of the vehicle’s trunk if probable cause exists to believe the vehicle contains evidence of a crime and that evidence is capable of being concealed in the trunk.

¶12      The elements required for a conviction for possession of burglarious tools are:  (1) possession of a tool or device, (2) the tool or device is suitable for use in breaking into a building, and (3) intent to break into a building and steal movable property.  Wis JI—Criminal 1431.  Tools suitable for breaking into a building include “common” tools.  Id.  Based on the testimony at the suppression hearing from the officer who arrested Lefler, the officer had sufficient evidence against Lefler on two of the three elements for possession of burglarious tools after spotting the “prying-type” tools on Lefler and in plain view within his vehicle.

¶13      In addition, Lefler was a known suspect in recent burglaries.  The officer had prior dealings with Lefler and believed that Lefler had monetary issues that would motivate him to commit the burglaries.  The officer also knew that Lefler was not employed in an occupation that would require him to possess such tools, and he had reason to doubt the story that Lefler gave him for why he was carrying such tools late at night.  Considering the totality of the circumstances, a reasonable person could have an honest belief that evidence of burglary-related crimes might be found in Lefler’s vehicle.  Therefore, the officer had probable cause to search Lefler’s trunk, and the circuit court was correct in declining to suppress evidence recovered as a result of the lawful search.  See State v. Baudhuin, 141 Wis. 2d 642, 648, 416 N.W.2d 60 (1987) (a correct holding should be sustained on appeal, even on a theory not presented to the circuit court).

State v. Adam W. Gilmour, 2011AP878-CR, District 2, 6/20/12

court of appeals decision (not recommended for publication); case activity

The trial court’s rejection, as lacking credibility, Gilmour’s claim that his acceptance of a deferred prosecution agreement was coerced by financial considerations (in that he had been unable to afford the costs associated with jury trial) is affirmed:

¶10      On review, we note that while Gilmour testified that he decided to take the DPA because he could not afford the trial retainer, he did not present any evidence in support of his claim.  Gilmour did not testify as to his income, financial status, or ability to borrow or raise funds at the time of the plea negotiations.  Bellin testified that while Gilmour was concerned with the cost of a trial, he was also concerned about the effect of a trial on him, the victim’s family, and Gilmour’s own family and friends.  Clearly, the circuit court rejected Gilmour’s testimony in support of his claim of financial coercion.  See State v. Canedy, 161 Wis. 2d 565, 585-86, 469 N.W.2d 163 (1991) (this court will not disturb a circuit court’s exercise of discretion where the defendant’s testimony is the only support for plea withdrawal and the circuit court disbelieves that testimony).

¶11      As noted above, the circuit court is in the best position to evaluate witness credibility and, accordingly, we defer to the circuit court’s credibility determinations.  See Wis. Stat. § 805.17(2) (2009-10) (due regard shall be given to the opportunity of the circuit court to judge the credibility of the witnesses).  Here, the only evidence supporting Gilmour’s claim was his testimony, which the circuit court found incredible.  Given that Gilmour otherwise failed to establish he was coerced into pleading no contest due to the cost of going to trial, weconclude that the circuit court appropriately exercised its discretion in denying Gilmour’s motion for plea withdrawal.

As the legislature is still in the process of winding up for session, there is currently more anticipation than legislation.  Only a few bills affecting the criminal justice system have been discussed at this point.  Probably most notable is a proposal that would criminalize most, if not all, first offense operating while intoxicated penalties.  Aside from research that shows treatment as a more effective option than criminal sanctions; without additional funding and staff resources, the SPD will be hard pressed to absorb 17,000 additional misdemeanor cases per year.

The Governor is expected to introduce the 2013-2015 biennial budget following a speech to a joint convention of the legislature on February 20.  Kelli and I have been meeting with key legislators in leadership, on the Joint Committee on Finance, and justice related standing committees to give them information on the current status of the agency and a summary of our agency budget request.  If you have any information regarding a legislator that would prove useful in a meeting like this, please contact me at 608-264-8572 or by e-mail.

 Finally, the Legislative Council study committees on which we had staff as committee members are near the end of their work and close to introducing bills to go through the regular legislative process.  Briefly, the Special Committee on the Supervised Release and Discharge of Sexually Violent Persons created legislation that essentially makes supervised release easier to obtain and discharge more difficult.  The Special Committee on Legal Interventions for Persons with Alzheimer’s Disease and Related Dementias created a new subchapter within Chapter 55 that contains provisions specific to the care and rights of persons with dementia who may also have a co-occuring medical or mental health need.  The Special Committee on Permanency for Young Children in the Child Welfare System is in the process of consolidating fifteen separate drafts into three omnibus bills.  One significant change is an elimination of the right to a jury trial in both CHIPS and TPR proceedings.  There is also a proposal for a pilot program that authorizes the SPD to provide representation for adults in CHIPS proceedings.

 While not every proposal that came out of these committees is ideal for the SPD or our clients, it is important to note that, by having a seat at the table, the SPD had a significant impact on the final recommendations.  Another significant benefit to our work on these committees was an ability to demonstrate our agency’s value as a knowledgeable, experienced, thoughtful partner in the justice system.  Our members on the committees – Tony Rios (Madison), Tom Reed (Milwaukee), and Mark Gumz (Baraboo) – saw an increasing awareness of, and even reliance on, the expertise the SPD has to offer policymakers.  And many thanks to practice area experts who helped with the policy contained in these proposals – Larry Peterson, Vincent Rust, Dennis Purtell, Blanche Kushner, Diane Rondini-Harness, Katie Holtz, Devon Lee, Eileen Huie, Seily Joshi and Marla Stephens.

Henderson v. United States, USSC No. 11-9307, reversing 646 F.3d 223 (5^th Cir. 2011)

When is plain really plain? That’s the plain and simple issue in this case.  During trial, the district court decided a substantive legal question against the defendant.  But while the case was on direct appeal, SCOTUS, in a separate case, settled the legal question in the defendant’s favor, thus prompting a question about whether the district court’s decision in Henderson qualified as “plain error.”

Issue:  “Is the time for determining “plainness” the time when the error is committed, or can an error be “plain” if it is not “plain” until the time the error is reviewed?”  (Slip.  op. at 5).

No, that’s not like asking how many angels can dance on the head of a pin, and the answer is not as plain as the nose on a justice’s face.  (After all, Scalia, Thomas and Alito dissented in this case.)  The question is important because a federal appellate court will not normally correct a legal error made in a criminal trial unless the defendant objected, thereby alerting the trial court to the error.  Rule 52(b) of the Federal Rules of Criminal Procedure, however, makes an exception for a “plain error.”  “Plain” as of when?

Holding:  According to the majority,”plain” means plain at the time of appellate review.  This interpretation furthers the principle that an appellate court must apply the law in effect at the time it renders its decision, works little if any harm to the contemporaneous objection rule, and promotes Rule 52(b)’s purpose of creating a fairness-based exception to the rule.  (Slip op. at 8).

In a dissent that is more “rocky road” than  “plain vanilla,” Justice Scalia says “plain” means plain at the time of trial:

The Court sees no harm in its evisceration of the contemporaneous-objection rule, disbelieving that a lawyer would “deliberately forgo objection now because he perceives some slightly expanded chance to argue for ‘plain error’ later” . . . It is hard to say whether this conclusion springs from a touching faith in the good sportsmanship of criminal defense counsel or an unkind disparagement of their intelligence.    (Slip op., at 14).

You get the picture.  While this decision interprets and applies a federal rule of criminal procedure, Wisconsin also has a “plain error” rule.  See Wis. Stat § 901.03(4). If you find your client in a Henderson-like situation, this decision might come in handy.  Click here for previous On Point posts re § 901.03(4) and “plain error.”