Wisconsin Supreme Court Accepts Six New Cases, Including Issue of Inherent Authority of Wisconsin Appellate Courts to Grant a New Trial in the Interests of Justice

Supreme Court sealOn March 2, the Wisconsin Supreme Court accepted six new cases for review, five criminal cases and one civil case.

The first case, State v. Henley, 2008AP697, presents an interesting issue regarding the authority of the courts of appeal, or the supreme court, to grant a new trial to a criminal defendant in the interests of justice, without regard to the passing of the time for appeal.  As Judges Vergeront, Lundsten, and Bridge explained in their certification of the questions in the case,

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Justice Involves Communities

This past week, the 2009 Marquette Law School Public Service Conference focused on the efforts of communities across the nation to rethink criminal justice policy with a greater emphasis on community involvement in both planning and implementation.  Over the past two decades, Wisconsin has more than quintupled its public expenditures for corrections. At the same time, local communities have struggled with increasing jail populations and declining resources for treatment and reentry services.  At the core of this challenge is the desire to keep communities safe while providing more effective alternatives to long term incarceration.

These challenges are not unique to Wisconsin.  As keynote speaker Jeremy Travis pointed out,

As our nation has reacted to rising crime rates over the years, the response of many elected officials has been to turn to the funnel [arrest, prosecution and incarceration,] as a crime control strategy. . . . We have invested enormous sums of money in these crime control strategies, with profound consequences. . . . Most strikingly, the national rate of incarceration has more than quadrupled over the past generation so that America now has the highest rate of incarceration in the world.

This approach has been accompanied by a drop in the crime rate.  It also has had other sociological consequences which are not as easily quantifiable. 

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Favorite Wisconsin Cases to Teach: State v. Stewart

Kodanko waits alone for the bus in a three-sided plexiglass bus shelter in downtown Milwaukee.  Three men approach.  Stewart and Moore enter the bus shelter, while their companion, Levy, remains outside.  They block Kodanko’s exit from the shelter.  Stewart says to Kodanko, “Give us some change, man.”  When Kodanko refuses, Stewart repeats his request three or four time in an increasingly loud voice.  Stewart then begins to reach into his coat.  Moore says, “Put that gun away.”  At the same time, Levy enters the shelter and tells his companions, “Let’s go.”  The three of them enter a restaurant across the street.  Moore returns a few minutes later to make small talk with Kodanko.  In due course, the police arrest Stewart for attempted robbery.  But was it really a robbery attempt, or just aggressive panhandling?

This is the subject of State v. Stewart, 420 N.W.2d 44 (Wis. 1988), which I teach in my Criminal Law course.  The case resonates with me on several different levels.

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