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Identification Case Analysis

Whether the Supreme Court in State v. Dubose, 2005 WI 126, 699 N.W.2d 582, implicitly overruled State v. Marshall, 92 Wis.2d 101, 284 N.W.2d 592 (1979), is an important question that demands consideration by the Supreme Court, and prosecutors adversely affected by this decision should preserve the issue for potential review. In the interim, State v. Wolverton, 193 Wis.2d 234, ...

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Accidental ID may be inadmissible

An “accidental identification” of a defendant, out-of-court, is unreliable and must be suppressed, the Wisconsin Court of Appeals held on Sept 28, where it occurs just outside the courtroom on a day when the witness expects to see the alleged perpetrator. “Principles of fairness dictate that identification evidence, even absent police involvement, must be scrutinized to determine whether suppression is ...

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Lawyers jump in to help wave of Katrina evacuees

Julie J. Darnieder, James M. Brennan, Tanner B. Kilander and Jessica A. Abbott (L to R) are among the lawyers who have jumped in to help Katrina evacuees navigate some of the legal challenges that they face. The Marquette Volunteer Legal Project has coordinated volunteer lawyer efforts at State Fair Park in Milwaukee where more than 250 evacuees are temporarily ...

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To Google or not to Google? Different Web research tactics

Diane Duffey It is very common to hear people make plans to address their information needs by “Googling,” that is, using the popular Google search engine — or really any general search engine — to try to gather data from the World Wide Web. Is doing a search of the Internet necessarily the best way to get worthwhile information? Is ...

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Vienna Case Analysis

The court is the first of the circuits to permit damage claims for Article 36 violations. All have rejected suppression of evidence as a remedy, and two — the Fifth and Sixth — have expressly held that no individual rights are conferred by Article 36. Given the conflict between the circuits, and the importance of the issue, the case should ...

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Vienna Convention violation spawns suit

“In the absence of any administrative or other alternative to measures we have already rejected (such as suppression of evidence), a damages action is the only avenue left.” Hon. Diane P. Wood Seventh Circuit A foreign national who is not advised of his right to contact his consulate for assistance can sue for damages, the Seventh Circuit held on Sept. ...

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Asylum Case Analysis

The actual holding in the case is not especially noteworthy, because the Seventh Circuit has held in previous cases, that asylum should not be denied to credible applicants, solely because of lack of corroboration. In Balogun v. Ashcroft, 374 F.3d 492, 502-503 (7th Cir. 2004), the court held, “corroboration should be required only as to ‘material facts’ and only when ...

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Corroborating evidence not required for asylum

If an immigration judge finds an asylum applicant’s testimony of persecution to be credible, asylum should not be denied for lack of corroborating evidence, the Seventh Circuit held on Sept. 19. Ehab S. Dawoud and his wife, Amani Y. Refaat, are members of the Coptic Church, an orthodox sect of Christianity native to Egypt. Several months after they were married, ...

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Justice Butler reviews last term’s criminal cases

“There is nothing illegal about not recording an interrogation. The statement is just not admissible. That is the gist of the Jerrell decision.” Hon. Louis B. Butler Jr. Wisconsin Supreme Court Participants at the State Public Defender Conference in Milwaukee on Sept 23 got the rare opportunity to hear a review of the Wisconsin Supreme Court’s criminal cases from the ...

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Labor Logic

U.S. Supreme Court docket watch: Labor and Employment Law cases on the court’s 2005-06 calendar

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Landlord Case Analysis

The decision is unsound both on public policy grounds, and because it is contrary to the precedent and statutes. It is noteworthy that, since CSS North Henry, LLC, v. Tully, 2001 WI App 8, 240 Wis.2d 534, 624 N.W.2d 847 was decided almost five years ago, the case at bar is the first court of appeals case to cite it. ...

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Landlord can’t recover from breaching tenant

“The landlord’s actions in dealing exclusively with the successor, proposing a new long-term lease to the successor, accepting higher rent from the successor as called for in the proposed lease, and failing to communicate in any way to the tenant that she deemed him responsible for the tenancy through May 31, 2001, ‘clearly evidence[d] an intent’ to accept the tenant’s ...

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Unmined gold: Finding Wisconsin local legal resources (68033)

Maybe you know where to find your local ordinances, but what about all the other resources produced by local governments that could assist you in your practice? This handy guide will walk you through what’s available and where to find local legal resources across the state. All web links worked as of the time of writing. Ordinances: County and Municipal ...

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Receivership Case Analysis

According to the allegation in the petition to intervene, the supplier never knew that it was dealing with a receiver, rather than its original client. The key question raised by this case is what such a supplier should do if the receivership terminates before he gets paid or is given notice of the receivership. The fact that the proceedings have ...

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Supplier can intervene in receivership

An unpaid supplier to a company in receivership must be permitted to intervene in the action, the Wisconsin Court of Appeals held on Sept. 15. The Urquhart Companies owned and operated three nursing homes in Pierce and Shawano Counties. M&I Bank held first-mortgage liens on the homes, as well as security interests in the business’ personal property. Urquhart defaulted on ...

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Unmined gold: Finding Wisconsin local legal resources

Maybe you know where to find your local ordinances, but what about all the other resources produced by local governments that could assist you in your practice? This handy guide will walk you through what’s available and where to find local legal resources across the state. All web links worked as of the time of writing. Ordinances: County and Municipal ...

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Labor Logic

Labor and Employment Law decisions from Judge John G. Roberts, Jr.

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Limitations Case Analysis

The decision raises a number of issues that attorneys need to be aware of whenever an indictment is filed at the eleventh hour before expiration of the statute of limitations. In its discussion of the sufficiency of the evidence, the court stated, “Caldwell does not challenge the [jury] instruction; he contends only that the instruction makes it cloudy on which ...

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Conviction upheld despite erroneous instruction

The Seventh Circuit upheld a conviction for felon in possession of a firearm, even though the jury instructions permitted them to find the defendant guilty for conduct “on or about” a particular date, when, because of statute of limitation issues, they actually needed to find him guilty of the conduct on a particular date. In its Sept. 12 decision, the ...

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Legislature holds hearing on Avery Task Force reforms

“In the name of Gregory Allen’s other victims, and in the name of Steven Avery and all others convicted of crimes they did not commit, I urge you to consider this legislation.” Penny Beernsten,Sexual assault survivor “These are really win-win propositions for everyone in the criminal justice system.” Keith FindleyWisconsin Innocence Project “I don’t want what happened to me to ...

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Sovereign Immunity Case Analysis

The issue for which contract actions the state has consented to be sued is an important one that the Supreme Court has not considered in a long time, and one which it should. The issue is not as clear as the court suggests; even assuming the result in the case at bar is correct, not all the cases the court ...

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State can't be sued for lost profits

“The lost profits and the incurred expenses he seeks to recover are not liquidated; they cannot be readily determined from the terms of the alleged contract or from fixed data or mathematical computation.” Hon. Margaret J. Vergeront Wisconsin Court of Appeals The state has not waived its sovereign immunity from contract claims seeking lost profits, the Wisconsin Court of Appeals ...

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Trial consultants' role challenged

In the decade since the O.J. Simpson trial brought trial consultants to national prominence, their role has continued to expand to the point where the profession is now fending off challenges to its growing influence. Whether it’s concern about their role in witness preparation or claims that their communications should not be privileged, trial consultants are now experiencing a level ...

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Brennan leads Milwaukee courts

After serving 11 years on the Milwaukee Circuit Court bench, Judge Kitty K. Brennan took on the role of chief judge of the First Administrative District last month. Brennan, who spent two years as a deputy chief judge, recognizes the variety of challenges facing the district of 47 judges. Prior to coming to the bench, the 1977 University of Wisconsin ...

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Damages Case Analysis

The issue of whether evidence of insurance coverage for punitive damages can be presented on rebuttal is an important one that needs to be resolved sooner rather than later. The defendant in this case forfeited any objection by choosing not to present evidence in its case-in-chief, lest it open the door to such evidence. A number of courts in other ...

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Damage award over $20 million upheld

What the court held Case: Staskal v. Symons Corp., No. 2004AP663. Issue: Was an OSHA report properly excluded from evidence, notwithstanding Rule 908.03(8)? Is a compensatory damage award that included $7.5 million for pain and suffering excessive? Does a punitive damage award of $15 million violate due process? Holding: Yes. Where the report was based on an indisputably incorrect fact, ...

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IGRA Case Analysis

Notwithstanding the court’s decision, it is possible that other tribes will be able to successfully challenge the provision in the Ho-Chunk compact. There is persuasive precedent from other jurisdictions authorizing a challenge under the APA to the Secretary of the Interior’s decision to approve a compact. Artichoke Joe’s v. Norton, 216 F.Supp.2d 1084 (E.D.Cal. 2002), aff’d, 353 F.3d 712 (9th ...

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Challenge to gaming compact fails

The Seventh Circuit held on Sept. 1 that a Wisconsin Indian tribe has standing to object to a compact entered between the State and another tribe. However, the court held that, by failing to respond to the Department of the Interior’s argument that judicial review was precluded by the Administrative Procedure Act (APA), it forfeited the argument. Pursuant to the ...

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Identification Case Analysis

The decision will be difficult to apply in future cases, because there is no principled basis on which to distinguish Bryant v. U.S., 599 A.2d 1107 (D.C. 1991), although the court cited it with approval, and yet distinguished it. In all relevant respects, the two cases are identical. The court states, "Unlike in Bryant, the undisputed facts here show that ...

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