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  • WisBar News
    April 01, 2013

    Wisconsin Supreme Court Adds Six New Cases to its Docket 

    April 1, 2013 – The Wisconsin Supreme Court has voted to accept six new cases – four criminal cases, one involuntary commitment case and one case involving an “absent witness” jury instruction delivered in a slip and fall trial in Milwaukee.

    James Kochanski broke his arm and his wrist after tripping on a snow-covered curb in a gas station parking lot. He sued the Speedway Superamerica for negligence and for violations of Wisconsin’s safe place statute. The case went to a jury trial.

    Speedway did not call any employee witnesses, instead relying on video surveillance footage of the accident. Thus, Kochanski requested that the court give a Wis. JI-Civil 410 instruction, which lets the jury infer “that the evidence which the witness would give would be unfavorable to the party who failed to call the witness.”

    Over Speedway’s objection, the trial court gave the so-called “absent witness” instruction. The jury found that Speedway was negligent, and the trial court entered judgment in Kochanski’s favor after denying Speedway’s motion to set aside the verdict.

    An appeals court reversed, noting that the absent witness instruction should be given only if it would be “more natural” for the party to call those witnesses and the party fails to satisfactorily explain the witnesses absence. The appeals court ruled that Speedway properly relied on the videotape surveillance to prove that it was not negligent.

    In Kochanski v. Speedway Superamerica, 2011AP1956, the supreme court will decide whether the circuit court erred in giving the absent witness instruction. The court also agreed to hear the following cases, and denied review in 52 other cases.

    State v. Pinnow / State v. Seaton, Nos. 2011AP2424 & 2012AP918

    In these consolidated cases on certification from the state court of appeals, the Wisconsin Supreme Court will examine whether the failure to object to the closure of a public trial under the Sixth Amendment to the U.S. Constitution is to be analyzed on appeal under the forfeiture standard or the waiver standard.

    A circuit court judge removed the public from the courtroom during jury selection in both cases. In both cases, counsel for the defendant did not object to the public closure. Both defendants now argue that a right to a public trial is a constitutional right that may only be waived through an intentional relinquishment of the right, not merely by forfeiture.

    State v. Robinson, 2011AP2833

    In this case, the supreme court will examine if a defendant’s double jeopardy rights were violated when the circuit court increased the total period of initial incarceration one day after imposing the sentence.

    A day after original sentencing, the circuit court judge recalled the defendant’s case and sua sponte extended the defendant’s original prison sentence by nine months.

    The court noted that it mistakenly believed the original sentence would run consecutive to another sentence, not concurrently. The defendant, who was convicted of drug possession and battery to a police officer, says the extension violated the double jeopardy clause of the U.S. and Wisconsin constitutions.

    State v. Lopez, 2011AP2733 

    This case examines the interplay of a trial court’s discretionary power to accept a plea withdrawal and Wis. Stat. section 908.08, which allows child abuse victims under the age of 16 to testify by video. The victim turned 16 while an appeal was pending.

    The defendant was accused of physically abusing a 14-year old girl. Staff at a child advocacy center interviewed the victim and captured the interviews by video. The state filed notice of its intent to use the video interviews pursuant to section 908.08.

    Ultimately, the defendant Minerva Lopez pleaded no contest to six counts of child abuse, but later filed motions to withdraw the plea and asked for a jury trial.

    The circuit court denied the request, concluding that the state would be substantially prejudiced because it could no longer introduce the videotaped interviews, and a substantial amount of time had passed since the alleged abuse.

    An appeals court reversed, rejecting the state’s argument that the state’s inability to use the video testimony should be a basis to deny the defendant’s plea withdrawal request.

    State v. Jackson, 2011AP2698 

    In this case, the supreme court will review whether defendant Curtis Jackson’s rights of compulsory process and fair trial were denied when his motion to enter evidence of the victim’s reputation for violence was denied. Jackson was convicted of second-degree reckless homicide by use of a dangerous weapon. An appeals court affirmed.

    Milwaukee County v. Mary F., 2012AP958

    This case involves constitutional challenges to the involuntary commitment of a woman under the state’s mental health commitment law, Wis. Stat. ch. 51.

    Specifically, the court will consider whether Wis. Stat. section 51.20(11), which provides for a six-person jury and a five-sixths verdict, violates equal protection rights. The respondent, Mary F., says she is entitled to a 12-person jury by unanimous verdict. 


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