Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

Criminal Procedure

Guilty Plea Procedures - Withdrawal of Pleas -
The Bangert Test

State v. Van Camp, Nos. 96-06-CR & 96-1509-CR (filed 23 Oct. 1997)

The defendant was charged with kidnapping and false imprisonment. On the second day of trial, he pled no contest to false imprisonment and had the kidnapping charge read in. The prosecutor noted the defendant's "reticence" to enter the plea. The judge ordered probation but the defendant filed a timely motion to withdraw the no contest plea on the grounds of manifest injustice and because he had not freely, voluntarily and knowingly waived his rights. The circuit court rejected the motion and the court of appeals affirmed.

The supreme court, in a decision authored by Justice Steinmetz, unanimously reversed and ordered the plea withdrawn. The court applied the procedures setforth Instate v. Bangert (1986). The defense easily met its prima facie burden showing that the plea failed to conform to section 971.09 and other mandatory duties imposed by the supreme court. The State and the defense agreed that the "plea colloquy was woefully inadequate." For example, the judge never mentioned the defendant's constitutional rights and nothing in the transcript indicated that the defendant understood the range of punishments he faced.

The burden thus shifted to the state to demonstrate by clear and convincing evidence that the plea was valid despite the inadequate record. The state failed the test. For example, defense counsel at the plea testified that it was his "invariable" practice to advise clients of their rights, but the court charitably characterized the attorney's "mental checklist" of rights as a "confusing muddle which even those educated in the law would have a difficult time following."

Finally, the supreme court held that under Bangert it is inappropriate for trial judges to consider the likely outcome of a new trial or the "victim's feelings" when deciding motions to withdraw a plea.

Eyewitness Identifications - Right to Counsel-
Suppression of In-court ID

State v. McMorris, No. 95-2052-CR (filed 30 Oct. 1997)

A defendant was charged with armed robbery. While formal charges were pending, police staged a lineup at which the sole eyewitness identified the defendant as the robber. The police were unaware that the defendant had a Sixth Amendment right to the presence of counsel at this corporeal identification procedure. The trial court denied the defendant's motion to suppress both the out-of-court lineup identification and any in-court identification by the witness. Granting leave to appeal the suppression order, the court of appeals reversed in part: The lineup identification was ordered suppressed but the in-court,identification was nevertheless admissible. The defendant appealed only the latter determination.

The supreme court, in a decision authored by Chief Justice Abrahamson, reversed and ordered the suppression of the in-court identification as well. In a fact-intensive decision, the majority found that the state failed to prove by clear and convincing evidence that the in-court identification was"independent" of the tainted lineup. Among the factors considered were the witness's opportunity to observe the robber, differences between the pre-lineup description and the defendant's actual appearance (for example, height, facial hair and so on), any identifications of other suspects, photo identifications, the failure to identify the defendant on prior occasions, the time lapse between the crime and the identification, and the conduct of the tainted lineup (here police failed to photograph or otherwise record the lineup). The court refused to consider the witness's level of certainty in making the in-court identification. This factor is appropriate when considering the reliability of identifications challenged on due process grounds (unnecessarily suggestive police procedures), but not in analyzing the taint flowing from a denial of the right to counsel. Justice Crooks, joined by Justice Steinmetz and Wilcox, dissented.

This column summarizes all decisions of the Wisconsin Supreme Court. Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.