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Representative Cases

State v. O’Brien 2014 WI 54, 354 Wis. 2d 753, 850 N.W.2d 8

Issue:  Defense challenge to state’s sole reliance on hearsay at preliminary hearing to obtain bind over for trial.  Recently enacted legislation allowed use of hearsay at preliminary hearings, changing long-standing law and practice in Wisconsin. Wisconsin Supreme Court found new law did not violate defendant’s constitutional rights to confront witnesses, compulsory process, effective assistance of counsel or due process.  However, court reaffirmed duty of trial courts to exercise justment in determining whether prosecution’s hearsay is reliable enough to justify bind over, and defense counsel retains rights of cross-examination and right to present evidence and argue against findings of probable cause.


State v. Schaefer 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457

Issue:  Cutting-edge litigation to obtain police reports prior to preliminary hearing so defense attorneys could be prepared to challenge state’s case at the hearing.  Wisconsin Supreme Court rejected defense use of subpoenas, noting that while defense reasons made good sense, it was up to legislature to change present rules, as constitution did not require such defense access.


Oswald v. Bertrand 374 F.3d 475 (7th Cir. 2009)

NEW TRIAL ORDERED.

Issue:  United States Court of Appeals for the Seventh Circuit. This was a federal habeas corpus action seeking to overturn unfavorable state court rulings. The Seventh Circuit, and the federal district court below, granted habeas corpus and overturned the state court rulings and ordered new trial in bank robbery and homicide of police captain during escape. This was a very high publicity and controversial case, made more so by the happenstance that a television crew filmed a live gun battle and capture of the suspects. Jury bias arose during jury selection but trial court refused proper investigation. Federal courts ordered new trial.


State v. Armstrong 2005 WI 119, 283 Wis. 2d 639, 700 N.W.2d 98

NEW TRIAL ORDERED.

Issue:  One of the oldest cases in the country where DNA tests resulted in reversal of conviction. In this 1980 murder case, subsequent DNA tests excluded defendant from crucial physical evidence the state used at trial to convict. Despite new evidence of innocence, state refused to admit mistaken conviction and lengthy appeals have occurred. In May 2004, the court of appeals conceded “this is an extremely close case. It is not possible to tell from this record whether Ralph Armstrong is innocent or guilty.” Nevertheless, the Court of Appeals felt bound by earlier case decisions and refused to grant a new trial. The Wisconsin Supreme Court disagreed and REVERSED the conviction. Mr. Armstrong was wrongly imprisoned for more than 25 years and continually maintained his innocence.


State ex rel Tate v. Schwartz 257 Wis. 2d 40, 654 N.W.2d 438 (2002)

CLIENT RELEASED.

Issue:  Wisconsin Supreme Court held the state’s revocation of a defendant’s probation for his refusal to admit to the crime while he was appealing his conviction was illegal and ordered the defendant immediately released from prison.


State v. Agnello 226 Wis. 2d 164, 593 N.W.2d 427 (1999)

NEW TRIAL ORDERED.

Issue:  This homicide case had lengthy appeals for more than seven years, including twice in the Wisconsin Supreme Court. First appeal to Wisconsin Supreme Court (see below) reversed illegally held motion hearing on the question of police coercion to obtain confession from defendant. On second appeal the Wisconsin Supreme Court was evenly divided and therefore returned the case to the court of appeals, which ultimately held that the defendant was entitled to a new trial. Court of appeals did not agree, however, that statements given to police by murder suspect after 13 hours in custody with no sleep and long periods shackled to the wall should be suppressed as involuntarily coerced.


State v. Brienzo 267 N.W.2d 349, 671 N.W.2d 700 (2003)

Issue:  Wisconsin Court of Appeals held that State’s use of child enticement and sexual assault statures to charge defendant in Internet sting case is not barred by the constitution, but state must elect which charge to proceed under before trial. Defendant traveled to meet undercover agent at restaurant, and was immediately arrested and charged, even though there was no real child involved and defendant never met face-to-face with any real child.


State v. Davidson 236 Wis. 2d 537, 613 N.W.2d 606 (2000)

613 N.W.2d 236 Wis. 2d 537 and
589 N.W.2d 222 Wis. 2d 233

Issue:  Wisconsin Supreme Court reversed Court of Appeals and reinstated conviction, holding other crimes evidence was properly admitted at trial, given “greater latitude rule” in child sex offenses.


State v. Agnello 693 N.W.2d 226 Wis. 2d 164

Issue:  Wisconsin Supreme Court vacated conviction of murder defendant and remanded for new hearing on voluntariness of confession where trial court improperly ordered defendant to answer questions about facts of the murder when he testified at pretrial hearing to suppress statement.


State v. Davidson 589 N.W.2d 222 Wis. 2d 233

Issue:  Court of Appeals reversed conviction for child sexual assault holding other crimes evidence was improperly admitted at trial. This ruling subsequently overturned by Supreme Court.


State v. Hall 557 N.W.2d 207 Wis. 2d 54

Issue:  Wisconsin Supreme Court rules “Drug Tax Stamp” statute unconstitutional infringement of Fifth Amendment privilege against self-incrimination.


State v. Salmon 471 N.W.2d 163 Wis. 2d 369

(Ct. App. 1991)

Issue:  Court of Appeals establishes rules for factors trial court can consider on application for bail pending appeal.


Milwaukee County v. Gliniecki/ State v. Netteshiem 367 N.W.2d 239 123 Wis. 2d 462

Issue:  Court of Appeals reversed trial court ruling suppressing breathalyzer results from trial due to machine susceptibility to radio frequency interference. Evidence of such problems can be presented to jury to undermine credibility of test result. Earlier trial court order in this case had the effect of suppressing breathalyzer results in hundreds of cases around the state.

“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

“Your advice and counsel were greatly appreciated. We appreciate you taking the time on your Sunday and evenings to help us. We are SO happy about the results! Thanks again.” (Waukesha County client)

“Thank you again … for everything. Five and one-half years of commitment, so many ups and downs and an outcome like that. You did a GREAT job.” (Waukesha County felony drug offense client)