The cases on this calendar will be
heard in Courtroom #2, St. Croix County Government Center, Hudson, as part of
the Supreme Court’s ‘Justice on Wheels’ program.
These cases originated in the following
counties:
Ashland
Clark
Marathon
Polk
Shawano
Vilas
WEDNESDAY, OCTOBER 31, 2007 [HUDSON]
9:30 a.m. 05AP2311-CR State v. Douglas J. Plude
11:00 a.m. 06AP499-CR State
v. Leonard J. Quintana
2:00 p.m. 06AP976 Bruce Muller v. Society
Insurance, et al.
THURSDAY, NOVEMBER 1, 2007 [HUDSON]
9:30 a.m. 06AP806-CR State v. William Troy Ford
11:00 a.m. 06AP1847-CR State
v. Donald W. Jorgensen
2:00 p.m. 06AP974-CR State v. Ramon Lopez Arias
The Supreme
Court calendar may change between the time you receive this synopsis and when
the cases are heard. It is suggested
that you confirm the time and date of any case you are interested in by calling
the Clerk of the Supreme Court at 608-266-1880. That office will also have the
names of the attorneys who will be arguing the cases.
Radio and TV, and print
media wanting to take photographs, must make media requests 72 hours in advance
by calling Supreme Court Media Coordinator Rick Blum at 608-271-4321. Summaries
provided are not complete analyses of the issues presented.
WISCONSIN SUPREME
COURT
Wednesday, October
31, 2007
9:30 a.m.
2005AP2311 State
v. Douglas J. Plude
This is a review of an opinion of the Wisconsin Court of
Appeals, District III (headquartered in Wausau), which affirmed a conviction in
the Vilas County Circuit Court, Judge James B. Mohr presiding.
This case involves a man who was convicted of poisoning his wife and drowning her in a toilet bowl. The man’s appeal is before the Supreme Court on two key questions:
Were false statements by an expert witness for the State (statements regarding his credentials) material to the jury’s ‘guilty’ verdict?
Was the State’s expert witness’s testimony credible?
A divided Court of Appeals called the expert
witness’s embellishments of his credentials “odious” but concluded that there
was not a reasonable likelihood the misrepresentation affected the outcome. In
his dissent, however, Chief Judge Tom Cane wrote: “Is there a reasonable
likelihood that his false testimony as to his affiliation with Temple
University would have affected the judgment of the jury? Absolutely.”
Douglas
Plude is currently serving a life sentence for murdering his wife, Genell
Plude, in October 1999. During his trial, Douglas testified that he found
Genell with her head submerged in the toilet. Prosecutors argued that Douglas had
killed Genell by drugging her and holding her head in the toilet bowl until she
drowned. The defense maintained her death was a suicide caused by a drug
overdose, that she had fallen in the toilet on her own, and that the fluid
found in her lungs was not toilet water but rather a natural accumulation of
body fluids. The forensic pathologist who conducted the autopsy could not say
for certain what caused Genell’s death.
In building its case, the State retained Saami
Shaibani as an expert witness. Shaibani conducted experiments that purportedly
showed Genell was drowned in the toilet. Shaibani testified to multiple credentials,
several of which the defense team learned after the trial were fabricated.
These included claims that he was a clinical professor of physics at Temple
University, a research fellow at Conemaugh Memorial Medical Center, and that he
worked with a violent crimes response team in Virginia.
Following his conviction, Douglas
initially petitioned the trial court for a new trial. At that time, he raised
only the Temple University fabrication and the trial court concluded that
Shaibani’s education, training, background, and knowledge made his opinions
reliable in spite of the made-up credential. Douglas then brought his case to the
Court of Appeals, presenting a much longer list of resume embellishments and
raising several other issues, but the Court of Appeals as noted above concluded
that the expert’s qualifications had not affected the jury.
The Supreme Court will determine whether Douglas Plude will receive a new trial.
WISCONSIN SUPREME
COURT
Wednesday, October
31, 2007
11 a.m.
2006AP499-CR State v. Leonard J. Quintana
This is a review of an opinion of the Wisconsin Court of
Appeals, District III (headquartered in Wausau), which reversed an order of the
Marathon County Circuit Court, Judge Vincent K. Howard presiding.
This case involves Leonard Quintana, who allegedly beat his ex-wife
with a hammer on Labor Day weekend in 2004, causing a skull fracture and cuts
to her forehead. His case has not yet gone to trial, and he has pleaded ‘not
guilty’ to all charges. The Supreme Court is reviewing the case for two primary
reasons:
1. Prosecutors added a school-zone penalty
enhancer to the charges against Quintana because the alleged beating took place
at the defendant’s home, located within 1,000 feet of Newman Catholic High
School in Wausau. The Court is expected to determine whether the penalty
enhancer as applied to these circumstances is constitutional.
2. Prosecutors also charged Quintana with
mayhem. The defense argues that mayhem does not apply in this case, because
Quintana allegedly injured his ex-wife’s forehead and Wis. Stat. § 940.21
defines mayhem as “Whoever with intent to disable or disfigure another, cuts or
mutilates the tongue, eye, ear, nose, lip, limb, or another bodily member of
another….” The Court is expected to determine whether the forehead is ‘another
bodily member’.
The trial court dismissed both the school-zone penalty
enhancer and the mayhem charge. On the penalty enhancer, the judge concluded
that the intent of the law was to keep drug dealers away from the schools, and
that increasing the penalties against a defendant charged with battery in his
home in the middle of the night on a holiday weekend when school was out of
session and no children were present did not foster the public safety goals of
the legislation.
On the mayhem charge, the judge concluded that ‘forehead’
would have been enumerated in the statute if the Legislature had meant to
include it. He dismissed that charge, leaving Quintana to face a number of
other charges including first-degree reckless injury, aggravated battery, and
solicitation of first-degree intentional homicide.
The State appealed, and the Court of Appeals ordered the
school-zone penalty and the mayhem charge reinstated.
The Supreme Court is expected to determine whether Wis.
Stat. § 939.632, “the violent crimes in a school zone” penalty enhancer,
violates the equal protection and due process guarantees of both the Wisconsin
and federal constitutions when applied in this case, and whether the forehead
falls within the definition of “other bodily member’ under the mayhem statute.
WISCONSIN SUPREME
COURT
Wednesday, October
31, 2007
2 p.m.
06AP976 Muller
v. Society Insurance
This is a review of a decision of the Wisconsin Court of
Appeals, District III (headquartered in Wausau), which reversed a ruling of the
Polk County Circuit Court, Judge Robert Rasmussen presiding.
This case began when fire destroyed a sporting goods store owned by Bruce and Karen Muller. The store, B & K Sports and Liquor, was located in the Polk County community of Milltown and burned down on August 11, 2001. This case has come before the Supreme Court on two issues arising from the Mullers’ insurance claims:
1.
Does the ‘made whole’ doctrine apply when the injured party is not made whole
by a settlement although the insurance policy limits were not exhausted?
2. Where an insured has yet to be made whole,
can a subrogated insurer step ahead of the insured and negotiate a tentative
settlement with the tortfeasor (the party that caused the problem)?
The ‘made whole’ doctrine says that, in general, a party who
is injured and who is entitled to compensation must be fully compensated before
the insurer is entitled to seek reimbursement (exercise its right of
subrogation) from the party that caused the injury. In this case, the Mullers agreed
to a settlement that (a) did not make them whole, and (b) did not
use up all the available insurance coverage. The Supreme Court is expected to
determine what effect their agreement has on the made whole doctrine.
Here is the
background: The fire that burned the Mullers store was caused by faulty wiring.
The Mullers sued their electrical contractor and its insurer, United Fire &
Casualty. The contractor’s insurance policy with United had a limit of
$1,000,000.
The Mullers’
own insurer, Society Insurance, had already paid them benefits totaling about
$407,000, and claimed the right of subrogation against the electrical contractor
and United. The contractor and United reached a tentative settlement of
Society’s subrogation claim for $190,000 pending the resolution of the Mullers’
claims. The Mullers then settled their claims against the contractor and United
for $120,000, but they claimed additional losses not covered by that settlement
or Society’s previous payments. Following the Mullers’ settlement, United and
the contractor finalized their settlement agreement with Society.
The Mullers
demanded a “made whole” hearing, at which the circuit court concluded that to
the extent the Mullers’ payments from Society and their settlement, combined,
did not make them whole, they were entitled to recover the difference (about
$60,000) from Society’s settlement with United.
The circuit court entered judgment in favor of the Mullers and against
Society for the $60,000.
The Court of Appeals
reversed this ruling, issuing a decision in favor of Society. The Court of
Appeals concluded that Society should not have to hand over a portion of its
settlement to the Mullers, when the Mullers chose to settle for less than the
full amount that would have made them whole.
Now, the
Mullers have come to the Supreme Court, where they acknowledge that they
initially settled for less than was their due, but argue that this does not
change the fact that an insurer has no right of subrogation until the injured
party has been made whole. The Supreme Court will clarify whether, if an
injured party settles for less than a ‘made whole’ amount and less than the
policy limits, this settlement permits the insurer to go ahead and seek
reimbursement.
WISCONSIN SUPREME
COURT
Thursday, November
1, 2007
9:30 a.m.
2006AP806-CR State
v. William Troy Ford
This is a review of a decision of the Wisconsin Court of
Appeals, District III (headquartered in Wausau), which affirmed a conviction in
Ashland County Circuit Court, Judge Robert E. Eaton presiding.
This case involves a man who was convicted of battery, bail jumping, and conspiracy to bribe a witness – all as a repeat offender. He also was acquitted on a charge of attempted armed robbery. William Troy Ford is seeking a new trial based upon two arguments:
Here is the background: Around 1 a.m. on Aug. 17, 2004, a woman and a man later identified as Ford entered the Holiday Gas Station in Ashland. While the clerk was ringing up the woman’s purchases, Ford came up behind him and hit him over the head with a bottle of juice. Ford also allegedly threatened the clerk with a stapler, and demanded the keys to his car. When the clerk refused, Ford and the woman left the store.
The clerk did not immediately call police. Several hours after the incident, a man named Larry Wolfgram who works as a bailiff at the Ashland County Courthouse entered the store to buy a cup of coffee. The clerk related the story to Wolfgram, who advised him to call police. Wolfgram left the scene before police arrived, and returned while they were questioning the victim but did not talk to them.
Ford was arrested, charged, and brought to trial. Wolfgram was assigned to serve as jury bailiff in the case. When the clerk was on the witness stand and was asked who advised him to notify police after the incident, he said “Larry” and pointed at the bailiff. The judge halted the proceedings and questioned Wolfgram, who said he had not been aware of his connection to the case and when he realized, he concluded that his contact with the victim after the incident was irrelevant. He also said he had not discussed the case with the jury. The judge then questioned the jurors about whether the connection of the bailiff to the case would have an impact on their ability to be fair and impartial. All said “no.” The judge assigned a new bailiff and denied Ford’s request for a mistrial.
Ford was acquitted on the charge of attempted armed robbery and convicted on three other charges. He appealed, arguing that he hadn’t gotten a fair trial because of the bailiff issue and the deteriorated videotape. The Court of Appeals affirmed his conviction. The Supreme Court is expected to decide whether Ford will get a new trial.
WISCONSIN SUPREME
COURT
Thursday, November
1, 2007
11 a.m.
2006AP1847-CR State
v. Donald W. Jorgensen
This is a review of a decision of the Wisconsin
Court of Appeals, District III (headquartered in Wausau), which affirmed a
conviction in the Shawano County Circuit Court, Judge James R. Habeck
presiding.
This case began when Donald W. Jorgensen showed up for a court appearance smelling of liquor. He was found to be intoxicated, and charged with bail jumping, fifth-offense drunk driving, and operating a vehicle after revocation. This case has come to the Supreme Court because Jorgensen is seeking a new trial based upon two grounds:
Here is the background: Jorgensen was charged with an unrelated traffic offense and appeared in court on Nov. 10, 2004. The district attorney informed the judge that she smelled liquor on Jorgensen, which would constitute bail jumping as he was prohibited to drink. She requested that the judge order a breath test, which came back at .12, and a subsequent blood test, which came back at .17. After police determined that Jorgensen had driven himself to the courthouse, he was charged with fifth-offense drunk driving, among other offenses.
The same judge presided over Jorgensen’s trial. The prosecutor was the same prosecutor. The judge informed the jury that he had been the presiding judge during the incident, and, in her closing argument, the prosecutor repeatedly referred to her personal knowledge of the events. Jorgensen’s attorney did not object.
Jorgensen was convicted on all three counts. He filed a motion for a new trial, claiming that his lawyer had been ineffective. The judge denied the motion and Jorgensen went to the Court of Appeals, which affirmed the conviction in a split decision. While the majority characterized the district attorney’s remarks during closing argument as “highly inappropriate,” the court concluded that the outcome of the case would have been the same even if Jorgensen’s attorney had objected, because Jorgensen himself had admitted having consumed alcohol that morning. The appellate court also determined that the judge’s participation in the case was not improper.
Now Jorgensen has come to the Supreme Court, where he argues that he deserves a new trial in the interest of justice. The Court will determine whether he will get a new trial.
WISCONSIN SUPREME
COURT
Thursday, November
1, 2007
2 p.m.
2006AP974-CR State
v. Ramon Lopez Arias
This is a certification from the Wisconsin Court of
Appeals, District IV (headquartered in Madison). The Court of Appeals may
certify cases that it believes cannot be resolved by applying current Wisconsin
law. The Wisconsin Supreme Court, as the state's preeminent law-developing court,
often accepts such certifications from the Court of Appeals. The case
originated in Clark County Circuit Court, Judge Jon M. Counsell presiding.
This case began with a traffic stop that resulted in the arrest of Ramon Lopez Arias on charges related to drugs and weapons. The case raises two questions that are now before the Supreme Court:
Here is the background: In fall 2005, a police officer was parked adjacent to Highway 13 to run radar, and observed a man later identified as Ramon Lopez Arias leave a grocery store and deposit three 12-packs of beer in a car driven by a girl whom the officer knew to be only 17 years old. The officer began following the vehicle and, he testified, he observed a traffic violation. He called for back-up and pulled the car over. While talking with the girl, the officer smelled intoxicants. The girl indicated that she had not been drinking, and she was given a breath test that confirmed this.
After checking the girl’s license, the officer asked if there were drugs in the car. She told him no, and he brought a drug-sniffing dog out to sniff the car’s exterior. The officer said that the dog smelled narcotics. He ordered Arias and the girl out of the car, searched them and the car, and found a switchblade knife and a bag of cocaine stuffed between the front seat cushions. Arias admitted they were his, and he was arrested and charged with crimes related to possession of a weapon and a controlled substance.
Arias has not yet been brought to trial. In the circuit court, Arias moved to suppress the evidence on grounds that it was obtained through an illegal search. The court granted his motion after concluding that the dog sniff had improperly prolonged the traffic stop. The State then appealed this decision to the Court of Appeals which, as noted, certified the matter.
The Supreme Court is expected to determine whether the dog sniff constituted a “search” under the Wisconsin Constitution, and whether it unreasonably and unlawfully extended the traffic stop.