On Point

Outagamie County v. Paul S., 2011AP920, District 3, 9/27/11

court of appeals decision (1-judge, not for publication); for Paul S.: Shelley Fite, SPD, Madison Appellate; case activity

¶9        Wisconsin Stat. § 51.15(5) provides an individual may “not be detained by the law enforcement officer or other person and the facility for more than a total of 72 hours, exclusive of Saturdays, Sundays, and legal holidays” without a hearing.  Wisconsin Stat. § 51.20(7)(a) requires a probable cause hearing to be held “within 72 hours after the individual arrives at the facility, excluding Saturdays, Sundays and legal holidays.” (Emphasis added.)  Compliance with the seventy-two-hour rule is mandatory, and a court loses competency to proceed when there is noncompliance.  Dodge Cnty. v. Ryan E.M., 2002 WI App 71, ¶5, 252 Wis. 2d 490, 642 N.W.2d 592.

¶10      Here, regardless of the date listed on the emergency detention, it is undisputed Paul arrived at St. Elizabeth Hospital[2] on Saturday, October 16, and he remained at St. Elizabeth Hospital until his probable cause hearing on Thursday, October 21.  Because the seventy-two-hour time limitation begins running “after the individual arrives at the facility” and not when the statement of emergency detention is dated, see Wis. Stat. § 51.20(7)(a), we conclude Paul’s probable cause hearing fell outside the seventy-two-hour time limitation and the court lost competency to proceed.[3]

Mr. Badger burrows through the known Internets so you don’t have to …

Mike Sacks, back in the saddle, now sallying forth from HuffPost.

Effective Assistance / GPS litigation. Although recent Ohio precedent establishes that GPS surveillance isn’t a “search” or “seizure” under the 4th A warrant requirement, persuasive foreign authority holds to the contrary, namely United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) – therefore, trial counsel was ineffective in failing to seek suppression, State v. Jefferson, 2011 Ohio 4637, 2011 Ohio App. LEXIS 3849. Note that Wisconsin takes a starkly different analytical approach, State v. Jackson, 2011 WI App ¶10 (“When the law is unsettled, the failure to raise an issue is objectively reasonable and therefore not deficient performance.”). More importantly, and though you wouldn’t know it from Jefferson, cert was granted in Maynard (now: Jones), so notwithstanding that the law in this area is unsettled in Wisconsin, State v. Sveum, 2010 WI 92 ¶3, warrantless GPS tracking ought not go unchallenged. More: Adam Liptak has some fun with, um, GPS-lit (“The precedent is novel. More precisely, the precedent is a novel.”). And Daniel Solove tries to illuminate “a workable approach in the law that isn’t too vague and mush” – shorter Solove: anyone and everyone uses a flashlight but few if any use a GPS device to track someone else. (Given that anyone can get their hands on a GPS locator, you’d want some empirical proof of its usage at a bare minimum. In any event, it’s affixing the thing to someone else’s property without committing a trespass of some sort that, maybe, is problematic.) While we’re on an extrasensory kick: “Using powerful magnets … applied to the forehead so as to impact the functioning of the dorsolateral prefrontal cortex, appears to impact the ease with which a person can lie.” Maybe someday we can dispense with the GPS device and instead just put a powerful magnet to someone’s forehead and ask them where they’ve been.

First Amendment. Loud-music statute not unconstitutionally vague but is unconstitutionally overbroad,  Montgomery v. State, 2011 Fla. App. LEXIS 14662 (9/16/11). Not that it helps Montgomery: “applying the exclusionary rule in this case would deprive the State of the benefit of evidence obtained as a result of the officer’s good faith conduct.”

Fourth Amendment. Suppression granted on passenger-ID search:  although warrantless search of passenger compartment has been upheld, “the Court has never sanctioned a vehicle search simply because there was probable cause to arrest a passenger or because a passenger could not provide identification. The Fourth Amendment requires more.” United States v. Rodgers, 2011 U.S. App. LEXIS 18564 (9th Cir. 9/7/11). Compare, State v. Black, 2000 WI App 175 (officer conducting Terry stop may “perform a limited search for identifying papers”).

The ultimate in judicial outsourcing. Not ready for prime time quite yet, however. (Hmm. Maybe we can hasten that day by equipping Watson with a powerful magnet.)

Lawyers behaving badly.

• “It took no more than an after-hours birthday toast of Cabernet to plunge the office into turmoil.”
• “Jeremy Vickers, 36, allegedly billed for work days exceeding 24 hours on 173 occasions, while Christopher Bledsoe, 33, is accused of forging a judge’s signature on payment invoices and other court documents supporting inflated invoices.”
• “On several occasions, an attorney appointed to protect the interests of another lawyer’s clients…has notified the Court that the lawyer’s client files are not maintained in a sanitary and safe condition.”

From the academy.

• Louis J. Virelli III, “The Unconstitutionality of Supreme Court Recusal Standards.” (“This Article … argues that any legislative interference with Supreme Court recusal decisions is an unconstitutional intrusion into the judicial power vested in the Court by Article III of the Constitution.” And Mr. Badger argues that someday we will put a powerful magnet up to the forehead of the judge or justice and simply ask whether they are biased.)
• David Bernstein, “Lochner and Constitutional Continuity.” (“But despite the calumny heaped on the due process liberty of contract decisions and the Supreme Court Justices who wrote them, modern constitutional jurisprudence implicitly (and sometimes explicitly) draws a great deal from pre-New Deal due process decisions rejecting novel assertions of government power.”) Revisionism in the best sense of the word. Substantive due process is taken entirely for granted, even as Lochner is casually trashed as a reactionary dead-end, but it turns out that you can trace the one to the other.
• Guy Padraic Hamilton-Smith & Matthew Vogel, “The Ballot as a Bulwark: The Impact of Felony Disenfranchisement on Recidivism.” (“One argument which has never been examined empirically is the notion that disenfranchisement hampers efforts to rehabilitate offenders, which is what this article does.”)
• Heidi Reamer Anderson, “Funding Gideon’s Promise by Viewing Excessive Caseloads as Conflicts of Interest.” (“Under Sullivan, the most egregious excessive caseload conflicts could be deemed unconstitutional. As a result, courts effectively could require states to do what few legislatures are willing to do on their own – finally provide adequate funding for indigent representation consistent with Gideon’s promise.”)
• Michael O’Hear, “New Evidence That Registration for Juvenile Sex Offenders Is a Bad Idea.” (“At a minimum, the study suggests that federal registration criteria are drawing arbitrary distinctions among juvenile sex offenders: those who have to register are no more dangerous than those who do not.”)

State v. Daniel R. Doyle, 2010AP2466-CR, District 4, 9/22/11

court of appeals decision (1-judge, not for publication); for Doyle: John C. Orth; case activity

Transport of drunk driving suspect 3-4 miles to local police station for purpose of administering field sobriety tests didn’t covert Terry stop into arrest, given that extreme, adverse weather conditions rendered impractical such testing at the scene.

¶11      Terry is codified in Wis. Stat. § 968.24, which provides that the police may temporarily detain and question an individual “in the vicinity where the person was stopped.”  The police may, where there are reasonable grounds for doing so, “move a suspect in the general vicinity of the stop without converting what would otherwise be a temporary seizure into an arrest.”  State v. Quartana, 213 Wis. 2d 440, 446, 570 N.W.2d 618 (Ct. App. 1997).  Thus, when a person who is temporarily detained pursuant to Terry is moved from one location to another, we conduct a two-part inquiry: (1) was the person moved within the “vicinity,” and (2) was the purpose in moving the person reasonable.  Quartana, 213 Wis. 2d at 446.

¶12      Doyle first contends that the Belleville police station was not in the vicinity of the stop.  We disagree.

¶13      The deputy testified that the police station was approximately three to four miles away from where Doyle was detained at the accident scene.  In Quartana, we concluded transporting the defendant one mile from his parent’s home to the accident scene fell within the definition of “vicinity.”  Id. at 446-47 (adopting the dictionary definition of “vicinity” as “surrounding area or district” or “locality.”).  We acknowledge that three to four miles is at the outer limits of the definition of “vicinity.”  However, we conclude that such a distance is in the vicinity where the stop occurred in a rural area, and the suspect was transported to the nearest municipality at which the investigation could reasonably take place under the circumstances. …

The court rejects the idea that “reasonable alternatives” existed, namely tests that could have been performed in the squad car. The officer’s routine involved those tests performed in the event, and “the choice of which tests to perform was the deputy’s alone acting within his professional discretion, and was not unreasonable under the circumstances,” ¶14. As for the second part of the Quartana inquiry: “We note that convenience and safety are both reasonable reasons to transport a suspect to a different location to continue an investigation.  See Quartana, 213 Wis. 2d at 448. Because of the hazardous weather, it was both safer and more convenient for the deputy to administer the field sobriety tests at the police station,” ¶15.

Separately: the court rejects a Miranda argument (that Doyle was in custody when placed in the squad car, therefore was entitled to warnings before being questioned). The court acknowledges that the conclusion Doyle was not under arrest at this point isn’t dispositive, ¶17: “Even during a Terry stop, a defendant may be considered in custody for Fifth Amendment purposes and thus be entitled to Miranda warnings.  See State v. Morgan, 2002 WI App 124, ¶16, 254 Wis. 2d 602, 648 N.W.2d 23.” Nonetheless, the statements subject to challenge were merely cumulative to statements lawfully obtained, therefore Doyle couldn’t have been “prejudiced by this information,” ¶18. Doyle pleaded no contest, ¶7. Most likely, then, the court’s conclusion is in the nature of harmless error analysis – even assuming error, the refusal to suppress didn’t affect Doyle’s plea decision – though the court isn’t explicit on the point. E.g., State v. Semrau, 2000 WI App 54, ¶¶22, 26, 233 Wis. 2d 508, 608 N.W.2d 376 (“In a guilty plea situation following the denial of a motion to suppress, the test for harmless error on appeal is whether there is a reasonable possibility that the erroneous admission of the disputed evidence contributed to the conviction. … We hold there is no reasonable probability that, but for the trial court’s failure to suppress the disputed evidence, Semrau would have refused to plead and would have insisted on going to trial.”).

State v. Anastasia A. Lusty, 2010AP2827-CR, District 2, 9/21/11

court of appeals decision (not recommended for publication); for Lusty: Chandra N. Harvey, SPD, Madison Appellate; case activity

Independent police investigation sufficiently corroborated enough details of tips from anonymous informants to support probable cause for a search warrant.

¶9        We reject Lusty’s argument.  Based on our reading of the record, we are more than satisfied that the facts before the magistrate, viewed in totality, supported the issuance of the search warrant.  First, independent police work corroborated details given by the tipsters, see id.: police independently confirmed that Lusty lived at the address given by the tipsters and that there was short-term traffic at Lusty’s residence; second, police found—in garbage left on the curb directly outside of Lusty’s residence—drugs and evidence of dealing along with mail addressed to Lusty; third, police determined that Lusty had a drug-related arrest.  Therefore, there is a direct connection between the tips and the evidence corroborating the tips, which evidence in turn connected Lusty to the sale of drugs.

Test for reviewing search warrant recited, ¶7.

seventh circuit court of appeals decision

Habeas – Ineffective Assistance, State Court Failure to Reach – Standard of Review 

… When “no state court has squarely addressed the merits” of a habeas claim, however, we review the claim under the pre-AEDPA standard of 28 U.S.C. § 2243, under which we “ ‘dispose of the matter as law and justice require.’ ” Id. at 326 (quoting § 2243). This is “a more generous standard,” George v. Smith, 586 F.3d 479, 484 (7th Cir. 2009): “we review the petitioner’s constitutional claim with deference to the state court, but ultimately de novo,” Kerr, 639 F.3d at 326 (citing Harrington, 131 S. Ct. at 788 (“Even under de novo review, the standard for judging counsel’s representation is a most deferential one.”)).

…

As the district court found, no state court had “assessed the combined prejudice resulting from Callahan’s unreasonable performance vis-à-vis Katrina and Thomas Scimone.” Morales, 2010 WL 748203, at *36. Because no state court “fully considered” the prejudice prong of the ineffective assistance claim, we apply the pre- AEDPA standard of review. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“[O]ur review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis.”); George, 586 F.3d at 485 (“[W]e hesitate to apply a stricter standard of review without a clearer indication that Wisconsin fully considered [petitioner’s] claim on the merits.”). Regardless of the standard of review, this claim fails.

Habeas – Ineffective Assistance – Lack of Prejudice 

Counsel’s deficient failure to fully investigate potential alibi wasn’t prejudicial, given strength of eyewitness testimony and infirmities of alibi:

The two eyewitness identifications were substantial evidence against Morales and negated any possibility of Strickland prejudice from Callahan’s errors respecting Katrina and Thomas. See, e.g., Allen v. Chandler, 555 F.3d 596, 602 (7th Cir. 2009) (holding state court did not unreasonably apply Strickland in concluding that petitioner was not prejudiced by counsel’s elicitation of his postarrest silence where there was reliable and strong singlewitness identification of defendant at trial—store clerk observed the robber at close range, identified him without hesitation in photo array and at trial, and identified him as a frequent store customer, and surveillance video corroborated her account of the robbery). The record reveals that Crawford and Nevarro had sufficient opportunity to view Morales and they were paying attention to him during the shooting. In addition, Morales was no stranger to them; they knew him by name or sight. As Morales acknowledges, Callahan attempted to discredit Crawford’s and Nevarro’s testimony. And although their testimony was strong proof of Morales’s guilt, it was not the only evidence.

…

As for Morales’s alibi, the district court held an evidentiary hearing, observed Morales’s and Thomas’s demeanors, and concluded that their alibi testimony was not credible. This determination is a factual finding to which we accord great deference and “must not be set aside unless clearly erroneous.” Fed. R. Civ. P. 52(a)(6) ….

Habeas – Procedural Default – “Actual Innocence” Exception 

Procedural default may be excused to avoid a “fundamental miscarriage of justice,” such as conviction of an “actually innocent” petitioner. Morales’ conceded default of a claim of knowing prosecutorial use of perjured testimony doesn’t satisfy that exception, in view of various credibility determinations by the district court after an evidentiary hearing. In any event, his claim fails on the merits, because he failed to show either that the prosecution “had any reason to believe” a witness wasn’t telling the truth, or a likelihood that the testimony, if false, impacted the verdict.

Test for Napue violation recited:

… A conviction obtained through the knowing use of false testimony violates due process. Napue v. Illinois, 360 U.S. 264, 269 (1959). To obtain a new trial, a petitioner must establish that: (1) there was false testimony; (2) the prosecution knew or should have known it was false; and (3) there is a likelihood that the false testimony affected the judgment of the jury. United States v. Freeman, No. 09-4043, 2011 WL 2417091, at *3 (7th Cir. June 17, 2011). …

seventh circuit court of appeals decision

Habeas – Counsel – Appeal 

When a defendant in a criminal case specifically instructs a lawyer to file a notice of appeal, the lawyer’s failure to do so deprives the defendant of the Sixth Amendment right to counsel, regardless of whether an appeal was likely to succeed. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000); Peguero v. United States, 526 U.S. 23, 28 (1999); Rodriquez v. United States, 395 U.S. 327, 330 (1969); Gant v. United States, 627 F.3d 677, 681 (7th Cir. 2010), cert. denied, 131 S. Ct. 1840 (2011); Castellanos v. United States, 26 F.3d 717, 718 (7th Cir. 1994). That is what Ryan claimed in the district court and argues here: he asked counsel to file a notice of appeal, and they failed to do so. If the allegation is true and the § 2255 motion is not barred on timeliness grounds, Ryan is entitled to have his criminal judgment vacated and reimposed to permit a direct appeal. See United States v. Hirsch, 207 F.3d 928, 931 (7th Cir. 2000); Castellanos, 26 F.3d at 720.

True, these principles are neither earth-shattering nor in dispute. Doesn’t hurt to have them restated so concisely, either. Of equal if not greater interest: the court’s discussion of how the 1-year statute of limitations is measured if the defendant was cast adrift following conviction: “No rule of thumb emerges from the cases on how long prisoners may take to discover their lawyers’ missteps, and we hesitate to pick a magic number. … [T]his is a fact-intensive inquiry and, here, that point probably lies somewhere beyond two months given Ryan’s status as a first-time offender, the court’s failure to notify him of the time to appeal, and the limited ability of prisoners— especially those in transit—to communicate freely by mail with those outside the prison.”

State v. Jason D. Spears, 2011AP934-CR, District 1, 9/20/11

court of appeals decision (1-judge, not for publication); for Spears: Kyle S. Conway; case activity

Trial court’s failure to explain rationale for sentence violated State v. Gallion, 2004 WI 42, ¶¶44-49, 270 Wis. 2d 535, 678 N.W.2d 197, and requires remand for resentencing.

¶11      Here, the circuit court did not explain how Spears’s criminal history impacted its sentencing decision, or what other factors it considered in arriving at the sentence.  We are left to guess why the circuit court rejected probation.[4]  Nor did the circuit court explain how the sentence imposed related to its statement that it was going to protect the public, or how the sentence would affect Spears’s rehabilitative needs.

¶12      In its Decision and Order denying the motion for sentence modification or resentencing, rather than explain the rationale behind the particular sentence given, the circuit court noted that it “reduc[ed] [Spears’s] exposure significantly from what the State sought.”  While defense attorneys may well consider such reduction a victory of sorts, we are unaware of any Wisconsin case that has ever held that imposing a lesser sentence than the State’s recommendation is sufficient to show that discretion was properly exercised.

¶13      We are cognizant of the very high volume of cases and the resulting time pressures faced by busy urban courts.  We nonetheless are compelled by existing law to require more of an explanation of the reasoning process used by the circuit court at sentencing than can be found in the transcript and the postconviction Decision and Order in this case.  Consequently, we must reverse and remand for resentencing consistent with the requirements of Gallion and McCleary.

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[4]  The fact that Spears failed previously on probation was obviously known to the circuit court.  The court mentioned several times the fact that Spears was now serving a sentence because his probation had been revoked.  A prior failure on probation, especially when that failure and this criminal activity arise from the same conduct, could be an appropriate factor to consider in rejecting probation.  The problem here is that the record does not connect those dots.

A Gallion violation is nearly as a rare as a unicorn sighting. In gauging the potential impact, take into account that the State confessed error, and agreed to resentencing, ¶5.