On Point

State v. Dimitri Henley, 2010 WI 97, on certification; prior history: unpublished decision; related: disqualification litigation; for Henley: Keith A. Findley, John A. Pray, Byron Lichstein; Amicus: SPD

“Wisconsin circuit courts do not have the inherent authority to order a new trial in the interest of justice when a case is not before the court under a proper procedural mechanism,” ¶5.

Much more to be said, but if you just want the Cliffs Notes version, that quote will do and you needn’t read farther. This is dry-as-dust discussion of appellate technicalities. Unless you happen to be the star-crossed Dmitri Henley, for whom the court’s message is, We care more about preserving the finality of your conviction than the fairness by which it was obtained. Hyperbole? Read on and decide for yourself.

Henley, along with Hill and Adams, was tried for sexual assault. Mistrial resulted in Hill’s case being spun off into an eventually separate trial. Henley and Adams were jointly tried and both were convicted. They had a jointly derived “strategy” (about which more, momentarily) of consensual sex,which didn’t include presenting any witnesses. Then Hill went to trial and for some odd reason decided that a readily available defense might be preferable to none, and so took the trouble to produce a crucial witness who corroborated the consent defense. The jury hung, with 11 in favor of acquittal and the charge against him ultimately was dismissed after it turned out that the State had withheld still more evidence. Henley and Adams then filed separate postconviction motions, but raising an identical issue: that each counsel was ineffective for not producing the witness who made the difference at Hill’s trial. Each such motion lost, and separate appeals were taken. The court of appeals affirmed Henley’s case, blithely noting “that counsel’s overarching decision was to make ‘no defense’ a statement to the jury,” and matter-of-factly ratifying the “no defense” strategy. State v. Henley, 01AP2168-CR, 10/10/02. Adams met the same fate several weeks later, State v. Adams, 02AP39-CR, 11/7/02 (“defense counsel agreed they were not going to call witnesses, and this was a reasonable decision”). Both Henley and Adams filed federal habeas petitions, both lost in district court, and then their paths and fates completely diverged. Henley never appealed, but Adams did—and obtained relief, Adams v. Bertrand, 453 F.3d 428 (7th Cir. 2006). Long and short of it: the Seventh wasn’t bowled over by the no-defense defense strategy (counsel “committed to a predetermined strategy without a reasonable investigation that could have produced a pivotal witness”; the state appellate court’s conclusion that this sort of decision-making, without first interviewing the potential witness, was no more reasonable than counsel’s decision); and, because the evidence of guilt was “relatively thin,” this deficiency was prejudicial. If you don’t know anything about 2254 habeas law, know this: review is very deferential to the state-court result, which therefore has to be awfully flawed to support relief. Back, now, to the decision at hand.

Here we are, then: Henley’s trial, if not quite farcical, resulted in what a federal court, bending over backward to try to accommodate the outcome, nonetheless pronounced unreliable. And yet, that pronouncement affected only Adams, so that even though Henley’s case was jointly tried and jointly strategized, and  not meaningfully distinct, it was literally unaffected by the Adams mandate. Which left Henley procedurally hamstrung. He didn’t appeal his habeas denial, so he’s procedurally barred in federal court from taking advantage of Adams, otherwise that holding would equally mandate relief for him. And the appeal he lost in state court operates as a bar that simply wouldn’t be affected by Adams. What to do? Henley did about the only possible thing he could do: moved for relief in the interest of justice. The same judge who presided over Henley’s trial heard this motion and determined that the real controversy, consent, hadn’t been fully tried. Her analysis derived from the Adams decision, which clarified that the jury had been denied the opportunity to hear critical testimony that went to the heart of consent, ¶¶125-35. But the supreme court, by the slimmest of margins, 4-3, says that the circuit court was never even authorized to hear his claim, that finality of judgment counts most, a fair and just result not at all.

Long and short of it: civil rules for relief from judgment, §§ 805.15 and 806.07, aren’t available to a postconviction litigant, ¶¶33-71. (One of the reasons is that the statutory text refers to motions after “verdict,”  rather than “postconviction” motions, ¶40. But this just makes it jarring to see the concurrence unconcernedly observe, “the defendant may file a whole host of motions after verdict in an effort to secure a new trial,” ¶96.) The court goes on to agree unanimously (with the State Public Defender’s amicus position, it must be said) that circuit courts possess inherent authority to engage interest-of-justice review, but diverges as to the limits of this authority. Majority:

¶75  Put simply, the circuit court’s authority to revisit old arguments must end somewhere. While defendants deserve a fair hearing, defendants do not deserve unlimited, duplicative hearings. The fair administration of justice is not a license for courts, unconstrained by express statutory authority, to do whatever they think is “fair” at any given point in time.[29] Rather, any conception of the fair administration of justice must include the principle of finality. Thus, while circuit courts do have inherent powers, we do not recognize a broad, inherent power to order a new trial in the interest of justice at any time, unbound by concerns for finality and proper procedural mechanisms.

This inherent authority to grant relief in the interest of justice may be exercised during (and, apparently, only) during the direct appeal process, ¶63.

Dissent:

¶125 The majority insists that a circuit court’s inherent authority is restricted by statutory procedures and time limits, id., ¶¶76, 86; however, a court’s inherent authority is entirely independent of its statutory authority.  The Wisconsin Constitution confers circuit court jurisdiction, and therefore circuit court authority is not constrained by legislative directives. Wis. Const. art. VII § 2; In the Matter of the Guardianship of Eberhardy v. Circuit Court for WoodCounty, 102 Wis. 2d 539, 548, 307 N.W.2d 881 (1981). We have continuously affirmed that a circuit court’s inherent authority is entirely independent of any statutory authority. Pulaski, 23 Wis. 2d at 142-43 (noting the circuit court’s authority to allow withdrawal of a guilty plea is not derived from a statute, but rather stands upon the circuit court’s inherent authority).

Which side has the better of the argument? That depends, doesn’t it, on whether you fetishize finality of judgment. (¶75: “Rather, any conception of the fair administration of justice must include the principle of finality. Thus, while circuit courts do have inherent powers, we do not recognize a broad, inherent power to order a new trial in the interest of justice at any time, unbound by concerns for finality and proper procedural mechanisms.”) Precisely why finality should trump a fair and just result, the majority doesn’t ever say. Tension in the dea that inherent judicial authority — which has always been recognized — to grant relief in the interest of justice can be silently regulated by procedural legislation is captured in the majority’s curiously worded conclusion:

¶85 In cases like this, the temptation may arise for courts to create a new procedural protection or new remedy unfounded in the law to fit the facts of a very difficult case. But the old adage is still true——hard facts make bad law. We choose to not make bad law.

The majority has just got done informing us in a cursory, dismissive “analysis,” that nothing went wrong in the fact-finding process, that if anyone got it wrong it was the 7th Circuit in Adams, ¶¶82-83. So it is jarring to see the court say in the next breath that the case is indeed “very difficult.” The difficulty is not because, as the concurrence euphemizes, ¶101, that Henley has been “treated differently,” but because he’s been treated unfairly. Hard cases make bad law: “Its meaning is that a particularly unpleasant case is a poor basis for a general law which would cover a wider range of less extreme cases.” And so you have to wonder just what it is about Henley’s case that the majority finds “particularly unpleasant.”

Donald J. McGuire, 2010 WI 91, affirming unpublished decision; for McGuire: Robert R. Henak; BiC; Resp.; Reply

Statute of Limitations – § 939.74(3) – Constitutionality

Under § 939.74(3), the statute of limitations is tolled during “the time during which the actor was not publicly a resident within this state.” McGuire wasn’t a Wisconsin resident, but allegedly committed criminal acts in Wisconsin approximately 36 years before charges were issued. Application to his case of the tolling provision withstands constitutional challenge.

¶3 We conclude that Wis. Stat. § 939.74(3) is constitutional as applied to the facts of this case. It does not violate the Privileges and Immunities, Due Process, or Equal Protection provisions of the United States Constitution. Section 939.74(3) does not burden a fundamental right, and it is rationally related to the legitimate governmental interests of detecting crimes and apprehending criminals.

The court isn’t exactly writing on a blank slate: it rejected similar arguments in State v. Sher, 149 Wis. 2d 1, 437 N.W.2d 878 (1989), and it now does little more than reaffirm that earlier analysis. Why, then, did the court undertake review of already-broken ground? McGuire argued that Sher wasn’t controlling because it dealt with a facial challenge, while his is as-applied. McGuire, never a Wisconsin resident, didn’t flee the state, was easy to locate, and didn’t impede investigative efforts. The court doesn’t buy the distinction: “The distinction between public residents and public non-residents set out in Wis. Stat. § 939.74(3) is rationally related to the legitimate government interests of identifying criminals, detecting crimes, and apprehending criminals.  Therefore, § 939.74(3) is constitutional under both the Equal Protection and Due Process Clauses,” ¶43.

Pre-Charge Delay

Due process challenge to pre-charge delay (36 years in this instance) requires that the defendant show 1) actual prejudice from delay and 2) that the State was motivated to gain tactical advantage,  ¶45. McGuire concedes inability to show improper motive, and argues that such a showing should not be required — the court rejects the argument after canvassing caselaw form other jurisdictions, ¶¶46-53. Nor can McGuire make a showing of prejudice. Although he identifies a number of deceased witnesses, a witness’s death alone can’t supply prejudice. The defendant must make a “concrete” showing of “the substance and relevance of the witness’s testimony,” something he can’t do. ¶¶53-55.

Effective Assistance of Counsel

Counsel’s decision not to investigate certain witnesses was reasonable, ¶¶66-71.

A highly fact-specific issue, as these claims are by their very nature. The larger, operative principle is ithat counsel must reasonably determine that a particular witness isn’t worth talking to, taking into account what that witness is likely to say and what the theory of defense is going to be, ¶70. The rest is mere detail.

State v. Michael A. Sveum, 2010 WI 92, affirming 2009 WI App 81; for Sveum: Dean A. Strang, Marcus J. Berghahn; BiC; Resp.; Reply; Amicus (ACLU); Resp. to Amicus

A circuit court “order” authorizing law enforcement to place and monitor a GPS tracking device on Sveum’s vehicle satisfied 4th amendment Warrant Clause (all warrants must be validly issued) and Reasonableness Clause (warrants must be reasonably executed) requirements.

Summary follows. Note first, though, that the court of appeals held “that neither a search nor a seizure occurs when the police use a GPS device to track a vehicle while it is visible to the general public,” 2009 WI App 81, ¶8. But the supreme court “elect(s) not to resolve [that], and assume(s), without deciding, that a search or seizure occurred in this case that required authorization by a warrant,” ¶3. This methodology leaves the court of appeals holding – GPS tracking in public isn’t a search or seizure – intact, so that future litigants are bound by it. It might be thought that by saying this issue isn’t necessary to resolve, the supreme court reduced the lower court discussion to dicta. Not so. Zarder v. Acuity, 2010 WI 35. This isn’t an uncommon problem: the supreme court affirming on a different ground, but leaving undisturbed the court of appeals’ rationale. There’s an easy solution — the supreme court need merely declare explicitly what is implicit (and non-controversial), that its resolution reduces the court of appeals’ to dicta. After all, if the court of appeals didn’t need to take up the issue then its unnecessary discussion oughtn’t be binding. But under long-standing organizing principles, the court of appeals simply lacks authority to withdraw language from its own published opinions absent explicit such authorization from the supreme court. The latter court therefore must be sensitized to the need to undertake this task. Now, the summary.

Warrant Clause

¶20 The “warrant clause provides [] particularized protections governing the manner in which search and arrest warrants are issued.” Id., ¶19. The United States Supreme Court has interpreted the Warrant Clause to be “‘precise and clear,'” and as requiring only three things: (1) prior authorization by a neutral, detached magistrate; (2) a demonstration upon oath or affirmation that there is probable cause to believe that evidence sought will aid in a particular conviction for a particular offense; and (3) a particularized description of the place to be searched and items to be seized. Dalia v. United States, 441 U.S. 238, 255 (1979) (quoting Stanford v. Texas, 379 U.S. 476, 481 (1965)).

…

¶39 We conclude that the order authorizing the installation and monitoring of a GPS tracking device on Sveum’s vehicle was a valid search warrant under the Fourth Amendment. First, the order was signed by a neutral and detached magistrate. Second, Ricksecker’s affidavit provided probable cause for the portion of the order authorizing law enforcement to “install, use, [and] maintain” a GPS tracking device on Sveum’s vehicle and to subsequently “remove” such device. Assuming, arguendo, that the portions of the order granting law enforcement broader authority to search, i.e., authorization to search “any buildings and structures containing the vehicle,” are invalid because the affidavit failed to demonstrate probable cause to search such areas, we sever those portions from the order. Finally, the order particularly described the object into which the GPS was to be placed, i.e., Sveum’s vehicle; the circumstances that led agents to seek to install the GPS, i.e., evidence of Sveum’s stalking activities; and the length of time for which GPS surveillance was requested, i.e., no more than 60 days. See Karo, 468 U.S. at 718.

A judge issued the GPS order upon application supported by sworn affidavit. Pretty straightforward. And probable cause is, as always, intensely fact-specific, making that determination mundane so far as analysis is concerned. What you might find a bit startling is the scope of the authorization — just how far the order authorized the police to intrude, which is set out in ¶7. (It included authority, for example, “to obtain and use a key to operate and move the vehicle[.]” J Police authority, in a word, to joyride Sveum’s vehicle, § 943.23.) But the court concludes that even if portions of the warrant are overbroad (something merely assumed for purposes of discussion), the remedy under the “severability” doctrine would be to strike them; and the remaining, valid portions of the warrant satisfied probable cause and particularity requirements, ¶¶50-52.

Reasonableness Clause

¶53 Even if a court determines that a search warrant is constitutionally valid, the manner in which the warrant was executed remains subject to judicial review. See State v. Andrews, 201 Wis. 2d 383, 390, 549 N.W.2d 210 (1996). “A search ‘must be conducted reasonably and appropriately limited to the scope permitted by the warrant.'” Id.(quoting Petrone, 161 Wis. 2d at 542). “[I]t is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by the warrant——subject of course to the general Fourth Amendment protection ‘against unreasonable searches and seizures.'” Dalia, 441 U.S. at 257.

…

¶59 The officers entered the driveway to install the GPS device in Sveum’s vehicle. Installation was achieved simply, by attaching the device with magnets and tape to the vehicle’s undercarriage. Maintenance of the GPS device included replacing the device twice, due to its limited battery life. Both replacement devices were installed in the same manner as the first. After monitoring Sveum’s vehicle for 35 days, the officers removed the GPS device. Execution in this manner stayed well within the confines of the authority granted by the order, which authorized law enforcement to “install, use, [and] maintain” a GPS tracking device on Sveum’s vehicle and to subsequently “remove” such device.

The court  stresses that the police entered neither any building nor any compartment of the truck itself, ¶60. Both installation and replacement were “minimally intrusive,” id. What about the idea of 35 days of GPS surveillance under authority of a single warrant? The crime under investigation, stalking, requires a “course of conduct,” so that by definition a search couldn’t have been conducted in a single day. Instead, the court says, each passing day represented a reasonable continuation of the original search, ¶67, citing United States v. Squillacote, 221 F.3d 542 (4th Cir. 2000). The dissent disagrees, arguing that the GPS order didn’t satisfy statutory requirements for a warrant, therefore was void. A warrant must be executed and returned within 5 days of issuance, and not only was this one executed over a 35-day period but a return was never made, ¶¶86-97.

Pretty clear, whether you agree with majority or dissent, that this was a jerry-rigged procedure. (Remarkably, as the dissent points out, both the police and issuing judge perceived a lack of statutory authority for a GPS warrant, ¶93.) A majority (2 separate concurrences and the 2 dissenters) implore “the Wisconsin legislature (to) weigh in on this issue and enact legislation governing the proper procedures for issuing a warrant,” ¶77. Such an effort was recently made, 2009AB171, but failed.

More: The D.C. Circuit has now held that GPS monitoring does require a warrant. United States v. Maynard, 2010 U.S. App. LEXIS 16417 (D.C.Cir. No. 08-3030 8/6/10). That case is described by leading 4th A expert Orin Kerr as “a potentially revolutionary Fourth Amendment decision: It introduces a new ‘mosaic’ theory of the Fourth Amendment that allows individual law enforcement steps that are not searches to become a search when collected together.” Kerr goes on to say in an extended analysis that this “mosaic theory” doesn’t work. But if the panel hearing holds up on (presumed) en banc review, it sets up a circuit conflict which could well induce Supreme Court review. Also see Judge Kozinski’s dissent from denial of en banc hearing in United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), in which the panel rejected the need for a GPS warrant:

I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.

Persuasive? Or merely polemical? You be the judge. In any event, Judge Kozinski’s strongly worded dissent may help tilt the balance in favor of cert review.

State v. Corey Kleser, 2010 WI 88, affirming in part, reversing in part, 2009 WI App 43; for Kleser: Devon M. Lee, SPD, Madison Appellate; BiC; Resp.; Reply

Reverse Waiver, §§ 938.183(1), 970.032(1) & (2) – Generally

¶69 Nothing in § 970.032(2) places a limitation on the evidence at a reverse waiver hearing so long as the evidence is admissible under the rules of evidence and is relevant to one or more of the three elements set out in the subsection. Having said that, it appears to us that the legislature did not intend the reverse waiver hearing to be a minitrial. Accordingly, the court has authority to control the admission of evidence to assure that a juvenile adheres to the statutory scheme——such as recognition of “the violation” already established——and to prevent the hearing from consuming unnecessary time and resources.

…

¶84 We conclude that the juvenile must be given reasonable latitude to offer admissible evidence for the purpose of meeting his burden to prove the three elements for reverse waiver under Wis. Stat. § 970.032(2).  This includes evidence of “the violation” or the offense charged that supplements the facts used to establish probable cause.  Stated differently, the defendant may offer additional factual evidence to put “the offense” in context so that the court can make an informed judgment on whether transferring the matter to juvenile court would “depreciate the seriousness of the offense.”  However, the juvenile may not offer evidence for the purpose of contradicting the offense charged because that offense has already been established in the preliminary examination.

Reverse Waiver Hearing – Expert Testimony & Hearsay

¶88 The admissibility of evidence at a reverse waiver hearing is subject to the rules of evidence. “Chapters 901 to 911 [the rules of evidence] govern proceedings in the courts of the state of Wisconsin except as provided in ss. 911.01 and 972.11.” Wis. Stat. § 901.01. Wisconsin Stat. § 911.01(2) provides that the rules of evidence “apply generally to proceedings in civil and criminal actions.” Wisconsin Stat. § 911.01(4) then enumerates a list of situations in which the rules of evidence do not apply. Because a reverse waiver hearing is not listed as one of the specific circumstances in which the rules of evidence do not apply, we see no reason why the rules do not apply at a reverse waiver hearing.

…

¶90 Because the general prohibition on hearsay applies to reverse waiver hearings, we conclude that Dr. Beyer’s testimony regarding the facts of the offense was inadmissible and that the circuit court erred in relying upon it. …

Expert opinion, of course, may be based on inadmissible evidence, so long as of a type reasonably relied on by other experts in the field, § 907.03. But as the court reminds, this rule doesn’t operate as a hearsay exception:

¶91  We note that Dr. Beyer used Kleser’s description of the offense to formulate her opinion that Kleser acted out of rage and fear. An expert may rely on inadmissible evidence in formulating an opinion, if the evidence is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Wis. Stat. § 907.03.  Even assuming that Kleser’s hearsay was reasonably relied upon by an expert in Dr. Beyer’s field, Wis. Stat. § 907.03 is not a hearsay exception, State v. Weber, 174 Wis. 2d 98, 107, 496 N.W.2d 762 (Ct. App. 1993), and it does not render the underlying inadmissible testimony admissible, see State v. Watson, 227 Wis. 2d 167, 199, 595 N.W.2d 403 (1999). By allowing Dr. Beyer to present Kleser’s description of the offense, the court permitted Dr. Beyer to act as a conduit for inadmissible hearsay.[9] This type of testimony is prohibited by the rules of evidence.  See State v. Coogan, 154 Wis. 2d 387, 399, 453 N.W.2d 186 (Ct. App. 1990) (holding that an expert may not “act as a conduit for inadmissible evidence”).

Footnote 9 elaborates on this point, and should be read in full. Beyer’s testimony was hearsay-based — admitted for the truth of the matter asserted — because she addressed “what happened that night,” based on Kleser’s version of the incident, ¶90. The legal principles recited by the majority are settled, it is their application to the particular facts that might be doubtful (a point made by the dissent, ¶133). The court is a bit less than clear, but apparently Beyer relied on Kleser’s statements to her, during a pre-hearing interview as opposed to his statements to the police, ¶96 and id. nn. 11, 12. Perhaps (again: the court simply does not say), had the opinion been based on an against-interest (i.e., substantively admissible) statement to the police, then the “conduit for inadmissible hearsay” problem would have been absent. On the other hand, the dissent persuasively argues that the facts testified to by Beyer “are nearly identical” to those related by the subsequently-testifying detective, ¶143. The majority doesn’t really address this point, but instead obliquely implies that had the detective testified first, then Beyer’s testimony would have been admissible; same, if Kleser had himself testified, fn. 11. The court leaves to inference the significance of either possibility. Apparently — the court doesn’t say –, in either such event Beyer’s opinion would have been based on admissible evidence.

Ultimately, there is a bit of a puzzle: just how is an expert supposed to derive an opinion about the best placement for an adolescent without having an understanding of “what happened”? And if that understanding must be based entirely on “admissible evidence,” then this is a novel approach to expert testimony. Not necessarily a bad thing, unless limited to the unusual context such as this one where the defendant bears the burden of proof. Put it like this. As to the settled principle that inadmissible hearsay may not be admitted as substantive evidence under guise of expert opinion: application of that principle with the same assiduity as reverse waiver to, for example, ch. 980 proceedings may be something else; we shall see.

In any event, a juvenile must prove all of the elements of reverse waiver, else jurisdiction remains in adult court. With the loss of admissibility of Beyer’s opinion testimony (as to reverse waiver not depreciating seriousness of the offense), Kleser’s claim necessarily fails, ¶97, but the court nonetheless takes up other errors in the hearing.

“Jensen” / “Haseltine Comment on Truthfulness

¶98 We next address whether the circuit court erred by relying on Dr. Beyer’s testimony as to the truthfulness of Kleser’s hearsay. The State argues that this testimony violated the principles articulated in Jensen, 147 Wis. 2d 240, and Haseltine, 120 Wis. 2d 92. …

…

¶101 We agree with the State that Dr. Beyer’s account of the homicide offense here cannot be distinguished from the core principles of Jensen and Haseltine. Dr. Beyer testified: “My opinion of the offense as [Kleser] described it was that it was a rage reaction when he was very fearful.” While she did preface many of her statements with “Kleser reported,” she also described the offense in response to defense counsel’s request that she “explain what happened that night as far as you understand it.”  (Emphasis added.)

¶102 We are not persuaded that the vouching rule becomes inapplicable simply because a witness does not use specific words such as “I believe X is telling the truth,” or is inapplicable because X never testified as a witness. There is no requirement that an expert explicitly testify that she believes a person is telling the truth for the expert’s opinion to constitute improper vouching testimony. In Haseltine, for example, the expert testified only implicitly that the victim was telling the truth. Haseltine, 120 Wis. 2d at 96. A requirement that specific words be used would permit the rule to be circumvented easily.

This “anti-vouching” rule applies to hearsay, i.e., the supposed truthfulness of a non-testifying declarant (such as Kleser), ¶103-04.

Self-Incrimination – Waiver – Examination by Expert

A defendant’s use of his own expert, in a reverse waiver proceeding, to “put[] his account of the offense into issue” operates to waive self-incrimination protection. State v. Davis, 2002 WI 75, deemed applicable:

¶115 Kleser argues that this reasoning from Davis is not applicable because Davis specifically pertained to Richard A.P. evidence as it implicated the defendant’s guilt or innocence. We disagree. Although the issue at a reverse waiver hearing is not guilt or innocence, we see no reason why a different rule should apply when the defendant is seeking reverse waiver under Wis. Stat. § 970.032(2). The reasoning from Davis is not limited to cases where the defendant was presenting Richard A.P. evidence to prove his innocence. Rather, the relevant inquiry from Davis is whether “the defendant uses the expert as a surrogate to assert his or her own statements about facts on the crime and thereby waives the right against self-incrimination.” Davis, 254 Wis. 2d 1, ¶3. In Davis, because the expert evidence was “circumstantial evidence of [the defendant’s] innocence,” the state could adequately rebut the testimony without a reciprocal examination.[16] Id., ¶38. Here, on other hand, Kleser waived his right against self-incrimination by using Dr. Beyer as a surrogate to assert his own statements about the crime, and the State was put at an unfair disadvantage when the court prohibited Dr. Collins from interviewing Kleser regarding the offense.

Reverse Waiver Hearing – Sufficiency of Record

¶124 To us, the record demonstrates that Kleser failed to meet his burden of proving that (1) if convicted, the juvenile could not receive adequate treatment in the criminal justice system; (2) transferring jurisdiction to juvenile court would not depreciate the seriousness of the offenses; and (3) retaining jurisdiction is not necessary to deter the juvenile or other juveniles from committing the violations of which the juvenile is accused. …

…

¶127 In this case, Kleser did not dispute that the deceased suffered at least 20 blows to the head, 30 stab wounds to the neck, and various other wounds. He admitted to a police officer that he stabbed the deceased in the neck multiple times with a pair of scissors after he realized that the man was still alive. He is charged with two additional felonies involving violence to a fellow prisoner. We conclude that transferring this 19-year-old defendant to juvenile court would depreciate the seriousness of the offenses and undermine deterrence.

State v. Michael R. Hess, 2010 WI 82  affirming 2009 WI App 105; for Hess: George M. Tauscheck; BiC; Resp.; Reply

Exclusionary Rule – Good-Faith Rule – Void ab initio Warrant

¶2   We conclude that the good-faith exception to the exclusionary rule does not apply to a situation in which: (1) no facts existed that would justify an arrest without a warrant; (2) the civil arrest warrant issued by a circuit judge was void ab initio[1] because (a) it did not comply with any statute authorizing the court to issue a warrant; and (b) it was not supported by an oath or affirmation; and (3) the court issued the warrant without the benefit of verification of the facts or scrutiny of the procedure to ensure that the judge acted as a detached and neutral magistrate.

¶3   The warrant here was defective on its face.  Nonetheless, we cannot reasonably attribute fault to the law enforcement officer who executed the warrant. Thus, suppressing evidence obtained as a result of the unauthorized, defective warrant is necessary to preserve the integrity of the judicial process. Consequently, we affirm the decision of the court of appeals, State v. Hess, 2009 WI App 105, 320 Wis. 2d 600, 770 N.W.2d 769.

Hess, waiting sentence, skipped out on his PSI interview, so the judge issued a “civil bench warrant” for his arrest. When the deputy picked up Hess under authority of that warrant, he found evidence of bail jumping. The court of appeals decision ordering that evidence suppressed is now upheld, largely under the same rationale: no authority to issue the warrant exists, and suppression furthers the interests of judicial integrity. That is, the judge not the constable  blundered, so deterrent effect on police misconduct would be utterly lost. But the court of appeals elegantly reminds us that deterrence of police misconduct isn’t the only purpose served by the exclusionary rule: “judicial integrity” is an equally important value, and “judicial integrity is threatened not only when a judge condones police misconduct, but also when the judge acts outside of the law,” ¶25. All in all, a remarkable discussion by the court. The trial judge, to be perfectly blunt, acted aberrantly in ordering a citizen’s lockup. This wasn’t, as the court of appeals’ discussion conclusively demonstrates, a close call. If the judge had thought that there would be a consequence to this plainly extralegal conduct, he might well have thought twice and exercised a bit more discretion.

The State conceded the warrant’s invalidity, but the supreme court undertakes a detailed analysis anyway.

¶22  The warrant in this case suffered from two primary defects: (1) the circuit court did not have statutory authority to issue a warrant for failure to meet with a PSI investigator; and (2) the warrant was not supported by an oath or affirmation.
…
¶24  Under appropriate circumstances, a circuit court has statutory authority to issue a (1) civil bench warrant, (2) a criminal bench warrant, or (3) a contempt warrant. To illustrate, had the circuit court ordered Hess to comply with the requests of the PSI writer or made his cooperation a condition of bond, the court might have ordered the defendant arrested for contempt (Wis. Stat. §§ 785.03(1)(b), 785.04(1)) or issued a criminal bench warrant (Wis. Stat. § 968.09(1)) after Hess failed to follow up with the PSI writer. Had Hess failed to appear before the court on a civil matter, a civil bench warrant would have been appropriate (Chapter 818). Under the facts of this case, however, the warrant cannot be supported by any of these various statutes. The court issued what purported to be a civil bench warrant in a criminal case on the basis of Hess’s failure to comply with an order the court never gave.

Thus, it is possible that local judges will now order the defendant’s cooperation with the PSI, failure to abide by which would subject him to a coercive process. Nothing in this opinion precludes a judge from doing so. In any event, this judge issued an indefensible order, and any evidence seized as a result of activity under authority of such a warrant is suppressible. Note that the warrant was issued not only without statutory authority, but also was not “supported by oath or affirmation.” This, the court strongly suggests, is a separate defect, if one that equally supports the idea the warrant was void:

¶37  Without an affidavit accompanied by oath or affirmation, the warrant failed to meet a basic constitutional requirement and was void ab initio. See Tye, 248 Wis. 2d 530, ¶13. The absence of any affidavit should have put both the court and the sheriff’s department on notice of a problem.

,,,

¶66  The consideration of judicial integrity must take into account the nature of the defects in the warrant. The defects in the warrant here were not technical irregularities or errors of judgment: The defendant’s failure to cooperate with the agent in preparing a PSI was not a crime.  It did not violate a court order, and it did not violate a condition of his bond.  He could not have been arrested without a warrant because the defendant did not commit a crime. See Wis. Stat. § 968.07(1)(d); State v. Lange, 2009 WI 49, ¶19, 317 Wis. 2d 383, 766 N.W.2d 551 (“A warrantless arrest is not lawful except when supported by probable cause.”). The bench warrant civil that the court issued was void ab initio because it did not comply with any statute authorizing the court to issue a warrant. It was defective on its face because it was a civil warrant in a criminal case. It was not supported by a constitutionally required oath or affirmation. This should have been obvious because there was no affidavit at all. No law enforcement officer or agency made a significant investigation to support an affidavit; no government attorney or informed officer scrutinized the warrant for probable cause. In short, the warrant was void ab initio because it was unauthorized and defective in nearly every respect.

¶67  While it is easy to understand why a clerk’s failure to remove a warrant from the computer system does not threaten the integrity of our judicial system, see Arizona v. Evans, 514 U.S. at 4-5, a warrant issued without statutory authority in the complete absence of the basic constitutional requirement of oath or affirmation raises more serious questions. As stated by the Sixth Circuit, “Leonpresupposed that the warrant was issued by a magistrate or judge clothed in the proper legal authority . . .  Indeed, Leon noted that it left ‘untouched . . . the various requirements for a valid warrant.'” Scott, 260 F.3d at 515 (internal quotes and citations omitted).  When fundamental constitutional and statutory requirements for issuing a warrant are completely absent, the good-faith exception cannot save the resulting unconstitutionally obtained evidence.

State v. Kurt D. Neis, No. 2009AP1287-CR, District IV, 7/15/10

court of appeals decision (1-judge, not for publication); for Neis: Jacquelyn L. Wolter; BiC; Resp.; Supp. Resp.

Guilty Pleas – Collateral Consequence – Federal Gun Ban

Although Neis’s guilty plea to disorderly conduct, § 947.01, subjected him to the automatic federal firearm ban given the circuit court’s finding that the conduct related to domestic violence, the ban was a collateral consequence of the plea and therefore the circuit court didn’t need to inform Neis of it before taking his plea. State v. Kosina, 226 Wis. 2d 482, 485, 595 N.W.2d 464 (Ct. App. 1999), deemed controlling:

¶11      We conclude that Kosina is controlling, and therefore Neis is not entitled to an evidentiary hearing on his motion to withdraw his plea. Under Kosina, the circuit court need not inform a defendant of the application of the federal firearm ban to comply with WIS. STAT. § 971.08. We need not address Neis’s argument that his case is distinguishable from Kosina because here the circuit court made an explicit finding that his conviction was for disorderly conduct related to domestic violence; regardless, it remains that the federal firearm ban arises under federal law, which we explained in Kosina was an independent basis for our conclusion that it was a collateral consequence. Because the effect of the federal firearm ban is a collateral consequence of Neis’s plea, the circuit court did not err under § 971.08 in failing to inform Neis of that consequence.

It would be a serious mistake to take this as the final word. Indeed, the court itself seems to be troubled by the result, ¶13 n. 4:

The distinction between direct and collateral consequences as determinative of the constitutional validity of a plea seems to be problematic. “The Constitution sets forth the standard that a guilty or no contest plea must be affirmatively shown to be knowing, voluntary, and intelligent.” State v. Bangert, 131 Wis. 2d 246, 260, 389 N.W.2d 12 (1986). State v. Brown, 2006 WI 100, ¶29, 293 Wis. 2d 594, 716 N.W.2d 906, speaks of a “full understanding of the charges against [the defendant].” A full understanding of charges against Neis would include that by pleading guilty, Neis would lose the right to possess a firearm, and would be prosecuted for a federal crime if he did so. This is a significant enough right for United States and Wisconsin citizens that we have included it in both constitutions. It is difficult to conclude that this right is nonetheless so insignificant that it is only a “collateral” consequence of pleading guilty to a disorderly conduct charge. But that is all it is. See State v. Kosina, 226 Wis. 2d 482, 489, 595 N.W.2d 464 (Ct. App. 1999).

Eugene Volokh covers the decision: “We Affirm, But Only Because We Are Unable to Write a Principled Opinion Reversing.” The court full well sees the difficulty labeling the gun ban a collateral consequence of conviction but perceives that it is bound by prior precedent. It is counsel’s job to explain why that is not so, and it’s not clear that was done here. The Kosina holding that a consequence imposed by the feds is necessarily “collateral” to a Wisconsin conviction at least seemingly can’t be squared with Padilla v. Kentucky (deportation by the feds as a consequence of conviction must be imparted to a guilty-plea defendant). Indeed, at least one federal court held that immigration effects are “collateral consequences” because under the authority “of another agency over which the trial judge has no control and for which he has no responsibility,” Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir. 2005). Same logic as employed by Kosina, and if it had any viability, Padilla would have come out differently.

Note that the court of appeals has authority to determine that its prior, otherwise binding precedent, has been “effectively” overruled by Supreme Court caselaw, e.g., State v. Forbush, 2010 WI App 11, ¶2. But first you have to make the court of appeals aware of the argument.

As for “categorical” (which is to say, automatic) nature of ban as consequence of conviction, see post on U.S. v. Skoien, 7th Cir No. 08-3770, 7/13/10.

State v. Aaron A. Allen, 2010 WI 89, affirming unpublished decision; for Allen: Robert R. Henak; BiC; Resp.; Reply

¶4   We conclude, following Wis. Stat. § 974.06, that a defendant is not required to file a response to a no-merit report. This means he is not required to raise issues in response to a no-merit report. However, a defendant may not raise issues in a subsequent § 974.06 motion that he could have raised in response to a no-merit report, absent a “sufficient reason” for failing to raise the issues earlier in the no-merit appeal. The fact that the defendant is not required to file a response to a no-merit report is not, by itself, a sufficient reason to permit the defendant to raise new § 974.06 claims.

¶5   Here, we conclude that Allen’s 2007 postconviction motion is barred by Wis. Stat. § 974.06(4) and Escalona-Naranjo. Allen’s § 974.06 motion is based entirely on issues that he could have raised in a response to his appellate counsel’s no-merit report. He has not alleged a sufficient reason for failing to raise the issues in a response to the earlier no-merit report. The record reflects that the court of appeals properly followed no-merit procedure in 2000 and its decision carries a sufficient degree of confidence to warrant application of the Escalona-Naranjo bar to the issues of this motion. For these reasons, we affirm the court of appeals.

Both the Wisconsin court of appeals (State v. Ricky J. Fortier, 2006 WI App 11;  State v. Christopher G. Tillman, 2005 WI App 71) and 7th Circuit (Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003)) have grappled with whether and to what effect a prior no-merit affirmance operates as a procedural bar to subsequent collateral attack. The supreme court now takes a stab at it. A defendant’s failure to respond to a no-merit report doesn’t itself bar a later attack, ¶39. But that doesn’t make such failure meaningless:

¶41  A no-merit appeal clearly qualifies as a previous motion under § 974.06(4). Therefore, a defendant may not raise issues that could have been raised in the previous no-merit appeal, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously. Tillman, 281 Wis. 2d 157, ¶19. Hence, the real issue in this case is whether Allen demonstrated a sufficient reason for failing to raise in a timely response to the 2000 no-merit report the three claims related to ineffective assistance of postconviction counsel that he set out in his 2007 motion.

The court goes on to say Allen fails to make this showing. What are the larger principles? The court reaffirms one principle that may nonetheless have been obscure: “A defendant who has not filed a § 974.02 motion or pursued a direct appeal is not burdened with the requirement of giving a sufficient reason why the claims being raised were not raised before,” ¶40. But because a no-merit appeal is a prior form of litigation, a later § 974.06 motion triggers the serial litigation bar. It’s not an absolute bar, but it might as well be except for a vanishingly small number of cases. The court stresses “finality” as underlying the bar, such that “(d)elay can also wreak havoc,” ¶73 (going on to suggest, albeit not holding that a 3+-year delay in seeking a new trial might be too long). And when all is said and done, just what is a “sufficient reason” for excusing the serial litigation bar? “To satisfy the “sufficient reason” standard, the defendant must do something to undermine our confidence in the court’s decision, perhaps by identifying an issue of such obvious merit that it was an error by the court not to discuss it,” ¶83. “Whatever reason the defendant offers as a ‘sufficient reason’——ignorance of the facts or law underlying the claim, an improperly followed no-merit proceeding, or ineffective assistance of counsel——the defendant must allege specific facts that, if proved, would constitute a sufficient reason for failing to raise the issues in a response to a no-merit report.  If a defendant fails to do so, the circuit court should summarily deny the motion, as the circuit court appropriately did,” ¶91.

A no-merit appeal is, as both majority and concurrence show, an “appeal.” But it is also counsel’s motion to withdraw, which is why when the court of appeals accepts the report it not only affirms the conviction but also relieves counsel of further representation; and when it rejects the report, requires counsel to continue representation. If the court of appeals misses an “obvious” issue, does that taint the very process by which it relieved counsel? If so, then the mechanism might be an attack on the no-merit report (via supervisory writ in the court of appeals?) rather than 974.06 attack on the conviction in circuit court, with the relief being restoration of the direct-appeal process. Look at it like this: the basis for a 974.06 motion might be obvious if the “omitted” issue is constitutional in nature, but what if it isn’t? A non-constitutional, non-jurisdictional issue simply doesn’t support a 974.06 motion. Maybe you could argue that the appellate attorney was ineffective, a constitutional error in its own right, but that’s a Knight petition, not a Rothering motion, and must therefore be filed in the court of appeals rather than circuit court anyway. Well, there’s no reason you can’t play this game from the comfort of home. Just read the opinion and come up with your own questions — then litigate them so we can finally put them to rest.