On Point

State v. David Barton, 2006 WI App 18
For Barton: Leonard D. Kachinsky

Issue: Whether the expert opinion of a crime lab analyst, presenting his own conclusions about tests performed by a non-testifying analyst, violated confrontation.

Holding: 

¶16 Like the unit leader’s testimony in Williams, Olson’s testimony was properly admitted because he was a qualified unit leader presenting his individual, expert opinion.  Olson not only examined the results of Lyle’s tests, but he also performed a peer review of Lyle’s tests.  He formed his opinion based on his own expertise and his own analysis of the scientific testing.  He then presented his conclusions to the jury, and he was available to Barton for cross-examination.  Thus, Olson’s testimony satisfied Barton’s confrontation right and is admissible under the supreme court’s decision in Williams.¶17 Barton contends that Crawford v. Washington, 541 U.S. 36 (2004), overrules Williams “to the extent Williams is interpreted as permitting the State to rely upon inadmissible hearsay as the basis for Olson’s testimony in this case.”  We disagree.  …

¶20 The holding in Crawford does not undermine our supreme court’s decision in Williams. Williams is clear: A defendant’s confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another. Williams, 253 Wis. 2d 99, ¶¶9, 11. We do not see, and Barton fails to explain, how Crawford prevents a qualified expert from testifying in place of an unavailable expert when the testifying expert presents his or her own opinion.

The reference is to the very similar State v. Luther Williams, 2002 WI 58 (“the presence and availability for cross-examination of a highly qualified witness, who is familiar with the procedures at hand, supervises or reviews the work of the testing analyst, and renders her own expert opinion is sufficient to protect a defendant’s right to confrontation, despite the fact that the expert was not the person who performed the mechanics of the original tests,” ¶20), reconsideration denied 2002 WI 118. The upshot, then, is to ratify Williams in light of Crawford. As Barton suggests ¶¶21-23, there is a developing split on the extent to which Crawford inhibits a testifying expert’s reliance on a non-testifying expert. The problem, of course, is recurrent and unlikely to go away anytime soon.  There are, for that matter, two distinct problems, broadly speaking: reliance by a testifying expert on the report of another expert (which is raised by Barton-Williams) and admissibility of a non-testifying expert’s report without any testimony at all (not raised by these cases but potentially recurrent, certainly in foreign caselaw). For more recent caselaw development, see Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) (introduction of “a forensic laboratory report containing a testimonial certification—made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification” violates confrontation).

State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis

Issue: Whether the witness’s repeated claim of memory loss denied Rockette confrontation within the meaning of Crawford v. Washington, 541 U.S. 36 (2004).

Holding:

¶24      Fensterer and Owens teach us that the key inquiry for Confrontation Clause purposes is whether the declarant is present at trial for cross-examination, takes the oath to testify truthfully and answers questions asked of him or her by defense counsel. These cases also plainly inform us that the Confrontation Clause does not guarantee that the declarant’s answers to those questions will not be tainted by claimed memory loss, real or feigned.

¶25      Rockette claims that the Crawford court altered this analysis where prior testimonial statements are concerned. However, we can find nothing in the Crawford opinion suggesting that the Court intended to overrule or otherwise call into question Fensterer or Owens.

¶26      … Accordingly, we hold that a witness’s claimed inability to remember earlier statements or the events surrounding those statements does not implicate the requirements of the Confrontation Clause under Crawford, so long as the witness is present at trial, takes an oath to testify truthfully, and answers the questions put to him or her during cross-examination. See Fensterer, 474 U.S. at 20, 22; Owens, 484 U.S. at 559-60.

State v. Fred V. Vogelsberg, 2006 WI App 228 (Cert. petition filed, Case No. 06-1253)
For Vogelsberg: Timothy A. Provis

Issue¹: Whether the holding of State v. Thomas, 150 Wis. 2d 374, 394, 442 N.W.2d 10 (1989) (witness may testify behind screen upon showing of necessity) survives Crawford v. Washington, 541 U.S. 36 (2004).

Holding¹:

¶14      Had the Supreme Court intended to overrule Craig, it would have done so explicitly. The majority opinion in Crawford does not discuss Craig or even mention it in passing. The only precedent that Crawford overruled was Roberts, and then, only with respect to testimonial statements. See State v. Manuel, 2005 WI 75, ¶60, 281 Wis. 2d 554, 697 N.W.2d 811.¶15      We conclude that Crawford and Craig address distinct confrontation questions. Crawford concerns the admissibility of out-of-court “testimonial evidence” where the witness was not available for cross-examination. The fundamental issue in Crawford was the reliability of testimony. The Court concluded that the Constitution does not permit judicial determinations of reliability concerning out-of-court testimony; except for traditional common law exceptions, only confrontation at trial is sufficient to satisfy the Sixth Amendment. The issue in Craig, and in this case, is not the reliability of testimony—in both Craig and here, the accused had the opportunity to cross-examine the witness. Rather, the issue is whether the demands of the Confrontation Clause are met when, for public policy reasons and following a case-specific determination of necessity, a barrier is placed between the witness and the accused. Craig addressed this question, and Crawford did not.

See also State v. Blanchette, 134 P.3d 19 (Kan App 2006) (Crawford didn’t overrule Craig; testimony via closed-circuit television therefore upheld).

Issue/Holding²: The requirement of particularized findings before dispensing with face-to-face confrontation of a child-witness, Maryland v. Craig, 497 U.S. 836 (1990), is not limited to instances of trauma impairing the child’s ability to communicate, ¶19:

… In fact, a categorical requirement that the child’s trauma must be such that he or she cannot speak would run counter to the detailed, three-part test to determine the necessity of a special procedure to shield the child witness from the accused. Furthermore, we have applied Craig in the past and have not read it to impose such a requirement. See, e.g. State v. Street, 202 Wis. 2d 533, 552-54, 551 N.W.2d 830 (Ct. App. 1996).

The court also upholds the trial court’s particularized findings of trauma, premised largely on “a police report indicating that a social worker told police that Vogelsberg had threatened to harm the child if he ever told anyone about the abuse.”

State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶19      … (T)his court ordinarily adopts and follows the Fourth Amendment jurisprudence of the United States Supreme Court.…

¶27      Young, however, argues that we should reject Hodari D. and interpret Article I, Section 11 of the Wisconsin Constitution to afford greater protections to individual liberty interests than does the Fourth Amendment. …

…

¶30      Typically, this court interprets Article I, Section 11 of the Wisconsin Constitution in tandem with the Fourth Amendment jurisprudence of the United States Supreme Court. Griffith, 236 Wis.  2d 48, ¶24 n.10.  Of course, we do not always follow the Supreme Court’s lead, ^[9] and the Court does not require us to do so when we supplement the United States Constitution’s protections with protections under our own constitution.  See Michigan v. Long, 463 U.S. 1032, 1041 (1983) (“It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions.”). ^[10] We embrace the Fourth Amendment jurisprudence of the United States Supreme Court when we perceive soundness in Supreme Court analysis and value in uniform rules. We follow that course in this case.

Hodari D. imposes an actually-yielded test to determine when someone has been seized by the police. If the cop yells “stop” and you ignore him and walk or run away you haven’t been seized unless and until the cop catches you. A number of state courts have rejected that test under their constitutions as too restrictive; Wisconsin now refuses to take that step: so much for “New Federalism,” which seems to have run its course, at least with respect to Art. I, § 11. Note that the court relies exclusively on a cost-benefit (deterrence) approach to the suppression rule, ¶49, without so much as a nod to the idea that there are separate doctrinal bases under New Federalism, namely judicial integrity and/or vindication of a citizen’s personal rights; see discussion in this section. More puzzling, the court analyzes the policy for greater state constitution protection solely with regard to the policy basis for the fourth amendment, e.g., ¶49. There is, in other words, not even a rhetorical pass at separate state constitutional analysis. The court’s other articulated reason (¶51) for rejecting greater state constitutional protection is stare decisis, namely the purported adoption of Hodari D. in the recent State v. Kelsey C.R., 2001 WI 54. This invocation of the virtues of precedent is quite odd, for two reasons. One, it shouldn’t make any difference to state constitutional analysis that federal constitutional precedent would bar greater protection. That’s the whole point isn’t it, to go beyond the federal precedent? (Unless, of course, the analyses are coordinate, in which case why bother with a state constitutional argument anyway?) Two, fealty to precedent isn’t controversial, but there was no such holding in Kelsey C.R., and therefore the court did not have to actually submit to its (non-existent) authority. On this point, see the dissent, ¶¶126-32; it’s not as if the fractured nature of that opinion was a big secret). So, in the end, the court rejects a New Federalism argument purely on the basis of a) federal precedent and b) state “precedent” that doesn’t exist. Art. I, § 11 was a nice lark for the several months or so it lasted.

State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan

Issue/Holding: A claim that the prosecutor represented the defendant in a prior case may be raised in a pretrial motion to disqualify the prosecutor, which requires a showing that “the subject matter of the two representations are ‘substantially related,’” ¶15, quoting State v. Tkacz, 2002 WI App 281, ¶13, 258 Wis. 2d 611, 654 N.W.2d 37. The “substantial relationship” test is based on SCR 20:1.9 (ethical rule: “Conflict of interest: former client”), ¶16, rather than the 6^th amendment, ¶19 n. 5. The test is based on an irrebuttable presumption that a client discloses confidential information to counsel, and the aim is therefore to avoid a potential conflict before it actualizes, ¶17. However, such a disqualification is subject to waiver bar, including a requirement of timeliness, and where the motion is waived the defendant must then show an actual conflict of interest by clear and convincing evidence, ¶¶19-20, citing State v. Love, 227 Wis. 2d 60, 63, 594 N.W.2d 806 (1999).

The court proceeds to clarify the test:

¶37      While we see why there may be some confusion based on our summary in Tkacz of the circuit court’s findings, those findings do not define the substantial relationship standard. Medina is correct that under this standard a substantial relationship may exist even if there is no evidence that confidential information relevant to the later case was communicated to the attorney. We clearly say this in Tkacz when we state that the standard is whether “‘the lawyercould have obtained [relevant] confidential information.’” Id., ¶13 (citation omitted, emphasis added). And our more thorough discussion of the standard in Berg makes this even clearer: the point of the substantial relationship standard is to prevent the need for an attorney’s former client to have to disclose confidential information in order to have the attorney disqualified from representing an adverse party in the present case. See Berg, 141 Wis. 2d at 889-91 and n.5. That is why the existence of a substantial relationship depends on whether “the factual contexts of the two representations are similar or related.” Id. at 889 (citations omitted). By comparing the factual contexts of the two cases, we can determine whether there could have been confidential disclosures in the former case that are relevant to the later, without inquiring into the actual disclosures.

But compare, State ex rel. Burns v. Richards, 248 SW 3d 603 (MO. SCt No. 2008) (presumptively prejudicial for prosecutor to have recently represented defendant in prior similar matter). Also see discussion in People v. Davenport, 760 N.W.2d 743 (MI App 2008) (albeit where prosecutor’s move is during the criminal case at issue: “The trial court should be promptly informed of a defense attorney’s move to the prosecutor’s office, and it should inquire into the matter and order an appropriate safeguard, such as disqualifying the individual attorney affected by the conflict of interest, or the entire prosecutor’s office, if necessary.”)

More exotically: Hollywood v. Superior Court, 182 P.3d 590 (Cal 2008) (prosecutor had hand in making film about pending case, court finds no disqualifying conflict after “considering the extent to which prosecutorial involvement in cinematic and literary endeavors may give rise to conflicts requiring recusal”) and companion case, Haraguchi v. Superior Court, 182 P.3d 579 (same, where lead prosecutor authored self-published book drawing on facts of pending case).

State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan

Issue: Whether a motion to disqualify a prosecutor because of representation of defendant in a prior case, brought immediately before jury selection, may be deemed waived on timeliness grounds.

Holding:

¶24        We conclude the circuit court may, in the proper exercise of its discretion, deny a motion to disqualify a prosecutor under the substantial relationship standard if the motion is untimely. The circuit court properly exercises its discretion when it applies the correct legal standard to the relevant facts of record and reaches a reasonable result using a rational process. State v. Watson, 227 Wis. 2d 167, 186, 595 N.W.2d 403 (1999) (citations omitted). In the context of a motion to disqualify a prosecutor under the substantial relationship standard, a non-exclusive list of factors to consider in deciding if the motion is timely brought include: when the defendant knew who the prosecutor was and that the prosecutor had previously represented the defendant; whether and when the prosecutor realized he or she had previously represented the defendant; applicable time periods established in scheduling orders; at what stage in the proceeding the motion is brought; reasons why the motion was not brought sooner; prejudice to the State because of the timing of the motion if the motion is granted; and prejudice to the defendant if the motion is denied. SeeBatchelor, 213 Wis. 2d at 256-60.¶25      Applying this standard here, we conclude the circuit court properly exercised its discretion in denying Medina’s disqualification motion on the ground of untimeliness. Although defense counsel had just learned of the prior representation a few days earlier, the court could reasonably infer that Medina knew much earlier in this case who the district attorney was and knew he was the same person who represented Medina at a sentencing three years earlier. In the absence of any explanation why Medina did not bring this to the attention of his attorney earlier, the court could reasonably infer that Medina was raising it just before jury selection for purposes of delay. The court implicitly credited the district attorney’s statement that he had not remembered the prior representation before defense counsel told him, which the court could properly do. The court also properly considered the scheduling orders it had entered and that the jury panel had been called. Finally, nothing presented to the circuit court indicated that there would be any prejudice to Medina in denying the motion: the district attorney could not remember anything from the prior representation and Medina presented little detail about the prior case. We recognize that, as we have described paragraph 17, the substantial relationship standard inquires into the relationship between the two cases, and not into whether confidential information was actually given to the attorney and whether the attorney remembers that information. Nonetheless, the likelihood of an actual conflict of interest is an appropriate factor to take into account in deciding whether to deny as untimely a disqualification motion against a prosecutor based on the substantial relationship standard.

Where “a disqualification motion against a prosecutor based on the substantial relationship standard is properly denied as untimely, the ‘actual conflict of interest’ standard of Love andKalk applies to a postconviction motion claiming a conflict of interest,” which requires that the defendant “show by clear and convincing evidence that the district attorney had an actual conflict of interest, that is, that the district attorney had a competing loyalty that adversely affected Medina’s interests,” ¶¶30-31. The court, however, reserves the possibility of a different showing where counsel knowingly fails to disclose prior representation, ¶31 n. 9.

Judge Lundsten, concurring, discusses an issue that he concedes is gratuitous, ¶40 n. 11, namely whether “a fair and error-free trial” cures an improperly denied pretrial disqualification motion. He would “liken this situation to the rule we apply when an error-free trial follows an erroneous bindover decision. In State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (1991), the court held … that, after an error-free trial, reversing a conviction and returning the parties to the preliminary hearing stage serves no sensible purpose. Id. at 628-31, ¶43. But this analogy assumes that the institutional interests are the same in both contexts—that safeguarding client confidentiality and ethical rules is the same as making sure that a summaryproceeding has done its job. The argument need not be joined, at this point anyway, given that the concurrence is not binding. Indeed, Judge Lundsten “acknowledge(s) that there are differences between the Webb situation and the conflict of interest issue we address today,” and cryptically adds that he would actually explain those differences if only he were writing the majority opinion, ¶46. He isn’t and so he doesn’t. However, his concurrence does highlight the need to seriously consider interlocutory review of a denied disqualification motion. Merely preserving the issue may not be enough in the end.

State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan

Issue/Holding:

¶33      The circuit court here accepted the district attorney’s testimony that he did not remember any conversation with Medina during the prior representation. It also found that the district attorney did not refer to any information at sentencing from the prior representation that was not a matter of public record. There is no basis for disturbing these findings. Medina points to no other evidence that might arguably show his interests were adversely affected because the district attorney, having previously represented him at sentencing in the misdemeanor theft case in 2001, is now prosecuting him for these different charges of burglary. We conclude Medina has failed to show by clear and convincing evidence that the district attorney had a competing loyalty that adversely affected Medina’s interests in this case. The circuit court therefore correctly denied his motion for a new trial.

Counsel pointed out that “the presentence report referred to the earlier misdemeanor theft, and at sentencing the prosecutor referred the court to Medina’s prior record, pointed out that Medina had been convicted of the misdemeanor theft, and referred to prior probation revocations, which included that for the misdemeanor theft,” ¶7. Thus, the court’s observation that the prosecutor relied only on matters of public record is probably crucial to the holding. Had the prosecutor done more than simply “refer” to these matters – had he instead revealed some client confidence – then the outcome might have been different.