On Point

State v. Ralph D. Armstrong, 2005 WI 119, reversing unpublished decision
For Armstrong: Jerome Buting; Barry Scheck

Issue/Holding: Supreme court has both statutory and inherent authority to order new trial in the interest of justice, even on collateral review (as opposed to direct appeal), ¶¶119-24. (State v. Allen, 159 Wis. 2d 53, 464 N.W.2d 426 (Ct. App. 1990) (court of appeals has no authority under § 752.35 to engage in no authority to undertake interest-of-justice review on collateral attack) severely questioned if not explicitly overruled. But this leaves open possibility that supreme court’s authority in this context is broader than court of appeals’.)

State v. James M. Moran, 2005 WI 115, reversing unpublished decision
For Moran: Colleen D. Ball, State Bar Pro Bono Project

Issue/Holding:

¶3 We conclude that the plain language of § 974.07(6) gives a movant the right to conduct DNA testing of physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material, if the movant meets several statutory prerequisites. First, the movant must show that the evidence meets the conditions under Wis. Stat. § 974.07(2). Second, the movant must comply with all reasonable conditions imposed by the court to protect the integrity of the evidence. Third, the movant must conduct any testing of the evidence at his or her own expense. If a movant seeks DNA testing at public expense, the movant must proceed under § 974.07(7)(a) or (b), and satisfy the heightened requirements in subsection (7).

There are three required showings under subs.(2): relevance of requested material; government’s possession of requested material; and no prior DNA testing of material (or, testing by less sophisticated method than now available), ¶42. If those hurdles are passed, then the material may be tested at defendant’s expense, with the judge authorized to set testing conditions under subs.(6)(c), ¶43. After testing is accomplished, the judge determines if the results support the claim for relief and, if so, then an evidentiary hearing will be conducted, ¶47. The court, it should be noted, is troubled by the idea that § 974.07 permits greater access to testing for solvent defendants:

¶56 The harsh reality of life is that some persons who have been convicted of crime may have the means to hire attorneys or investigators post-conviction under circumstances that would never justify the expenditure of public money. The court is being asked in this case to prevent a person from conducting DNA testing at his own expense. We are unable to discern from the plain language of § 974.07 a clear legislative intent to block testing demanded by a person willing and able to pay until that person satisfies the requirements for publicly funded DNA testing. We encourage the legislature to revisit Wis. Stat. § 974.07 to define undefined terms, set limits to the evidence that must be provided, and give courts clear guidelines in procedure.

Real as this concern of resource-based access certainly is, it is entirely possible that it is beyond legislative authority to fix — that is because of a growing possibility that postconviction access for the purpose of testing at the convict’s expense may well be raised under 42 USC § 1983: Osborne v. District Attorney’s Office, 9th Cir No. 04-35126 (1983 supports prisoner’s postconviction request to compel state authorities to provide access to biological material for prisoner’s DNA testing), cert granted, 11/3/08. ; McKithen v. Brown, 2nd Cir No. 03-0168, 3/13/07. This issue has certainly split those federal courts to address the issue. In all likelihood the issue will be raised with increasing frequency, and it is best to keep a close eye on the trend-line. It should also be kept in mind that Wisconsin, as well as federak, courts have jurisdiction over 1983 claims, Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977).

State v. Thomas H. Bush (III), 2005 WI 103, reversing in part and affirming on the merits, 2004 WI App 193
For Bush: Robert G. LeBell

Issue/Holding: Although an “as applied” challenge to a statute may be waived, a facial challenge, in contradistinction, is not waivable, ¶17:

¶18 This rule is also entirely consistent with our line of cases that recognize that a criminal complaint which fails to allege any offense known at law is jurisdictionally defective and void. See Champlain v. State, 53 Wis. 2d 751, 754, 193 N.W.2d 868 (1972); State v. Lampe, 26 Wis. 2d 646, 648, 133 N.W.2d 349 (1965). Once again, the premise behind the rule is simple. Circuit courts have original jurisdiction over all matters civil and criminal, except as otherwise provided by law. If a complaint fails to state an offense known at law, no matter civil or criminal is before the court, resulting in the court being without jurisdiction in the first instance.¶19 We conclude that because Bush has facially challenged the constitutionality of chapter 980, his challenge goes to the subject matter jurisdiction of the court. Therefore, because challenges to subject matter jurisdiction cannot be waived, we reach the merits of his claim. ^[8]

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^[8] Common law principles of waiver generally apply to Bush’s “as applied” constitutional challenge. See State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (noting that the waiver rule exists to promote efficiency and fairness); see also State v. Cole, 2003 WI 112, ¶46, 264 Wis. 2d 520, 665 N.W.2d 328, and State v. Trochinski, 2002 WI 56, ¶34 n.15, 253 Wis. 2d 38, 644 N.W.2d 891. Because Bush failed to raise this issue in his earlier appeals, and because we do not have all components of the record, we conclude that Bush has waived his as applied challenge. However, we decline to reach the question of whether a procedural bar, similar to one announced in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), applies.

The court of appeals applied a serial-litigation bar to Bush’s challenge and thus refused to reach the merits at all, 2004 WI App 193, ¶¶13-19, hence it’s fair to characterize the supreme court result as “overruling in part” the court of appeals’ holding. Yet, the supreme court explicitly leaves open the possibility of such a bar, in the footnote reproduced above. Presumably, such a bar is limited to as-applied challenges, given that the court proceeds to reach the merits of the facial challenge.

Also see, State v. Scott R. Nelson, 2007 WI App 2, ¶7 n. 3:

Because Nelson is making facial challenges to the constitutionality of chapter 980, the State’s assertion that Nelson has waived his constitutional arguments lacks merit. See State v. Bush, 2005 WI 103, ¶19, 283 Wis. 2d 90, 699 N.W.2d 80 (“[B]ecause Bush has facially challenged the constitutionality of chapter 980, his challenge goes to the subject matter jurisdiction of the court [and] … cannot be waived ….”), cert. denied, 126 S. Ct. 631 (2005).

State ex rel. Leroy Riesch v. Schwarz, 2005 WI 11, summary order
For Riesch: Christopher J. Cherella

Issue/Holding:

¶13. Certiorari review for parole revocation is limited to four questions: “(1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable, representing its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.” State ex rel. Thorson v. Schwarz, 2004 WI 96, ¶12, 274 Wis. 2d 1, 681 N.W.2d 941.¶14. Here, Riesch’s claim implicates the first two inquiries. He submits that the Division acted outside its jurisdiction and contrary to law in revoking his parole status because he was not on parole at the time of revocation. Resolution of these matters present questions of law subject to independent appellate review. See State ex rel. Curtis v. Litscher, 2002 WI App 172, ¶10, 256 Wis. 2d 787, 650 N.W.2d 43.

Also see State ex rel. Gary Tate v. Schwarz, 2002 WI 127, ¶¶15-16, reversing 2001 WI App 131

State v. Paul J. Stuart, 2005 WI 47, reversing unpublished COA opinion; and overruling State v. Paul J. Stuart, 2003 WI 73<
For Stuart: Christopher W. Rose

Issue/Holding:

¶40      The test for this harmless error was set forth by the Supreme Court in Chapman v. California, 386 U.S. 18 (1967), reh’g denied, 386 U.S. 987 (1967). There, the Court explained that, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Id. at 24.  An error is harmless if the beneficiary of the error proves “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. ^[10] Here, the State must carry the burden of proof.¶41      As noted in Hale, __ Wis. 2d__, ¶61, this court has articulated several factors to aid in its harmless error analysis. These include the frequency of the error, the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence, whether the erroneously admitted evidence duplicates untainted evidence, the nature of the defense, the nature of the State’s case, and the overall strength of the State’s case. Id. (citing State v. Norman, 2003 WI 72, ¶48, 262 Wis. 2d 506, 664 N.W.2d 97; State v. Billings, 110 Wis. 2d 661, 668-70, 329 N.W.2d 192 (1983)).^[11]

Every other Justice has something to say on the articulation of the correct test for harmless error. If you’re sufficiently interested to try cobbling together 4 votes in favor of some coherent whole, you could probably add the 3-vote dissent to Justice Prosser’s concurrence – taken together, they seem to locate the test in State v. Harvey, 2002 WI 93.

State v. Paul J. Stuart, 2005 WI 47, reversing unpublished COA opinion; and overruling State v. Paul J. Stuart, 2003 WI 73
For Stuart: Christopher W. Rose

Issue/Holding: Confrontation error deemed harmful, where the following evinced the tainted evidence’s impact: prosecutor’s litigation strategy, ¶51; jury’s reaction (which included repeated requests to have tainted testimony read back; and return of verdict very shortly after such reading), ¶¶51-52; judge’s remark that case wasn’t “close” after this reading, ¶53. And given, too, that the State’s witnesses, though superficially very incriminating, were significantly impeached, ¶¶45-50, and that the defense theory of innocence “was certainly plausible,” ¶56.

Harmless-error analysis is necessarily fact-specific. This one’s a bit unusual, in that there was a seemingly impressive array of incriminating State’s witnesses. The decisive factor may well have been that the State took the highly unusual step of halting the trial mid-stream, when the judge initially ruled the challenged evidence inadmissible, seeking and losing “emergency” interlocutory review in the court of appeals and then carrying the fight successfully to the supreme court. The term “estoppel” doesn’t appear in the opinion, but it might as well be read into it. It just doesn’t look right when the prosecution induces an admissibility ruling by saying that the evidence has earth-shattering significance and then turns around and says, “Hey, it was no big deal after all.” Hard to imagine the supreme court wanted to be used quite that way.

Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion
For Shannon R.: Brian C. Findley, SPD, Madison Appellate

Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children.

Holding:

¶71      The State’s interest in terminating parental rights promptly does not outweigh the requirements of fundamental fairness and Shannon R.’s constitutionally protected due process right to be heard in a meaningful manner. It would have imposed no burden on the State to allow Shannon R. to present her qualified expert witnesses.¶72      In light of the important constitutional right at stake, the State’s interest in an accurate decision, the fundamental fairness of giving a party the opportunity to defend, and Shannon R.’s inability to present evidence on an issue central to the outcome of the case, we hold that the circuit court’s erroneous preclusion of Dr. Wellens’s expert opinion testimony (the only expert opinion testimony Shannon R. proffered on an issue central to her defense) denied her the due process right to present a defense and goes to the fundamental fairness of the proceeding. We therefore hold that the circuit court committed prejudicial, reversible error.

Very good discussion of right to due process generally in a TPR, particularly with regard to opportunity to mount a meaningful defense,¶¶56-67. Interestingly, the court says nothing about harmless error analysis (where the beneficiary of the error can show harmlessness by showing beyond reasonable doubt that the error didn’t impact the result). The court treats the issue as if it’s one of structural error (reversal is automatic, without regard to impact)—the parent’s fundamental right to defend against the petition was thwarted and reversal automatically follows. The court doesn’t put it that baldly, but that nonetheless seems to be the essence of it.