Jan. 25, 2022 – The Wisconsin Supreme Court has added eight cases to its docket. In one case, State v. Thomas, the court will consider the standard for determining whether the admission of DNA evidence against a criminal defendant in violation of his Sixth Amendments rights was harmless error.

In 2018, a jury convicted Oscar C. Thomas on one count each of first-degree intentional homicide, first-degree sexual assault, and false imprisonment in connection with the death of his wife Joyce.

At trial, the defense objected to the prosecution’s use of DNA evidence during cross examination of the defense’s expert witness. That evidence consisted of DNA from Joyce that was found under Thomas’ fingernails.​

The defense argued that under the Sixth Amendment’s Confrontation Clause, the evidence was inadmissible because the person who performed the DNA analysis did not testify.

The prosecution argued that it was entitled to present the DNA evidence to impeach the defense witness, who had testified that there was not enough evidence to establish that Thomas intentionally strangled Joyce.

The circuit court overruled the defense objection and allowed the prosecution to impeach the defense witness with the DNA evidence.

The court of appeals held that the admission of the DNA evidence did violate the Confrontation Clause but constituted harmless error.

The jury would have convicted Thomas anyway, given that it was the intent of the defendant and not his identity that was at issue, the court of appeals held. Additionally, there was other evidence that supported the prosecution’s theory, and the prosecution mentioned the DNA evidence only twice.

The other issue presented in State v. Thomas is whether a pornographic video and the statements of Thomas’ downstairs neighbor were significant facts that corroborated his confession, as required under the common law to sustain the conviction for first-degree sexual assault.

In his confession, Thomas said that on the night Joyce died the couple watched a pornographic video and later fell out of bed while having sex. He also said that while they were on the floor Joyce said that she loved him.

The neighbor testified that on the night Joyce died, she heard noises from above like furniture being moved, heard a woman screaming, and heard a woman say “Stop, stop, I love you, I love you.”

Walworth LLC v. Engerman Contracting, Inc.

This case arises out of claims related to the construction of two swimming pools, a patio, and retaining walls at a residential complex in Lake Geneva.

A report concluded that the pools leaked because the shotcrete material used to build them had not been properly installed. The owner claimed that the leaking forced it to demolish the pools and have new ones built.

Among the issues presented in this case are whether defective workmanship can constitute an “accident” and thus an “occurrence” under a commercial general liability insurance (CGL) policy; and whether there must be damage to third-party property in order for there to be “property damage” caused by an “occurrence” under a CGL policy.

Lowe’s Home Centers, LLC v. City of Delavan

The main issue presented in this case is whether the circuit court properly ruled that Lowe’s failed to overcome the statutory presumption that the city’s assessment of its property under Wis. Stat. section 70.32(1) was correct.

Lowe’s argued that the circuit court erred by rejecting comparable sales of “dark stores” when considering an appeal from the city’s assessment of Lowe’s property.

In particular, Lowe’s argued that the circuit court’s decision was flawed because the sales of “dark stores” presented by its appraiser did not involve sellers acting under duress, as was the case with sales of dark stores that the court of appeals in a previous decision held were not comparable sales for purposes of section 70.32(1).

Because the “dark store” sales presented by its appraiser were not made under duress, Lowe’s argued, the circuit court should have found that they were valid as comparables and ruled that Lowe’s had overcomes the presumption that the assessment was correct.  

But the court of appeals held that nothing in the earlier decision suggested that whether the sale of a dark store occurred under duress was material to the interpretation of section 70.32(1).

Acuity v. Estate of Shimeta

The wording of a “reducing clause” in an automobile insurance policy provides the main issue presented in this case.

In 2018, Michael Shimeta was killed in Milwaukee County when a car driven by Douglas Curley became airborne and collided with a Jeep driven by Shimeta. Scherr, a passenger riding in the Jeep was severely injured.

In 2019, Acuity filed a declaratory judgment action seeking a declaration that the amount it was obligated to pay Shimeta’s estate was zero, because the policy allowed it to reduce underinsured motorist (UIM) benefits by the amount paid by Curley’s insurer.

Because Curley’s insurer had paid $250,000 to Shimeta and $250,000 to the passenger, the $500,000 per-accident UIM limit in the Shimeta’s policy had been reached, Acuity argued.

Shimeta’s estate argued that the reducing clause applied only to per-person payments. Since the estate had only received $250,000 from Curley’s insurer, it was entitled to an additional $250,000.

The circuit ruled for Shimeta; the court of appeals reversed the circuit court.

Rachel Slabey v. Dunn County

Rachel Slabey was sexually assaulted by corrections guard Ryan Boigenzahn 2016 while being held in the Dunn County jail. In 2017, Slabey sued the county and various county officials in circuit court under 42. U.S.C. section 1983.

The circuit court dismissed the complaint after determining that there was no evidence from which a reasonable fact finder could rely to conclude that county officials were deliberately indifferent to the substantial risk that Boigenzahn would sexually assault an inmate.

On appeal, Slabey argued that the county should have known, by virtue of the fact that Boigenzahn was suspended in 2015 for violating the jail’s fraternization policy, that its policies against fraternization and sexual contact were not enough to protect inmates.

The court of appeals upheld the circuit court’s decision, reasoning that Boigenzahn’s prior conduct was not inherently sexual in nature.

The main issue presented is whether a fact finder could find that the county officials displayed a deliberate indifference to a substantial risk of serious harm by allowing Boigenzahn to continue working as a jail officer after his suspension in 2015 and after receiving complaints about his behavior toward female inmates.

State v. Larry L. Jackson

Larry L. Jackson filed for post-conviction relief after being convicted of first degree intentional homicide and felon in possession of a firearm in 2016.

He claimed that his lawyer had provided him with ineffective assistance of counsel by 1) failing to call two alibi witnesses; 2) failing to interview and prepare a witness prior to calling her to testify; and 3) telling him – incorrectly – that the trial court would require Jackson to testify before any other defense witnesses were allowed to testify.

The court of appeals held that Jackson failed to show that his lawyer was deficient in not preparing the one witness because Jackson did explain specifically how the lawyer should have prepared the witness.

The court of appeals also held that, given the strength of the state’s case, Jackson failed to show that he was prejudiced by his lawyer’s failure to call the alibi witnesses.

Green Bay Professional Police Association v. City of Green Bay

The main issue presented by his case centers around the quantum of notice required by the procedural due process standards established by the U.S. Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).

The Green Bay Police Department removed Andrew Weiss from his assignment as a detective after an investigation into leaked information about two sexual assault cases at a local high school.

The police department presented Weiss with a Loudermill notice listing four department policies that Weiss had allegedly violated.

During the Loudermill hearing, however, Weiss’ supervisor discussed alleged violations of two additional policies that were not listed on the Loudermill notice; those two policies were also listed in the written disciplinary notice issued to Weiss.

The police union filed a grievance that went to arbitration. The arbitrator found for the city and the circuit court upheld the arbitrator’s ruling.

The court of appeals held that the arbitrator and the circuit court had not erred by concluding that the notice that Weiss received met the procedural due process standard established in Loudermill.

Weiss was aware of all the charges against him despite the fact each policy that he allegedly violated was not listed in the Loudermill notice, the court held.. Additionally, extensive post-termination procedures were available to Weiss.

John Doe I v. Madison Metropolitan School District

The issue in this case is whether the circuit court properly denied a request by plaintiffs that their identities be sealed – even from lawyers for defendant and intervenors.

Ten parents of children in the Madison Metropolitan School District sued the district over its policy on transgender, non-binary, and gender-expansive students.

The parents redacted their names in the complaint. They also filed a motion seeking to be allowed to proceed using pseudonyms, arguing that the lawsuit would likely expose them to harassment or retaliation.

The circuit court declined the motion, explaining that Wisconsin law both favors the public’s right to know and provides no basis for allowing parties to litigate a case without revealing their names even to the court.

Instead, the court issued an order that the names of the parties would be disclosed only to the court lawyers in the case. The court of appeals upheld the circuit court’s decision.