Weekly Case Digests November 16, 2020 November 20, 2020.

Byline: WISCONSIN LAW JOURNAL STAFF

7th Circuit Digests

7th Circuit Court of Appeals

Case Name: Bruce Carneil Webster v. T.J. Watson, Warden,

Case No.: 19-2683

Officials: KANNE, HAMILTON, and SCUDDER, Circuit Judges.

Focus: Court Error Newly Discovered Evidence

In 1996 the federal district court in Fort Worth, Texas sentenced Bruce Webster to death for the murder two years earlier of a 16-year-old girl. Ever since Webster has sought relief from that sentence on the same ground he advanced at trialthat he is intellectually disabled. His efforts gained traction in 2009, when his lawyers came upon records dating to 1994 from the Social Security Administration showing that three different doctors found him intellectually disabled. That development sparked a renewed effort to secure relief in this circuit because Webster is housed in the U.S. Penitentiary in Terre Haute, Indiana. In 2015, sitting en banc, we held that Webster was not barred by the limitations imposed on successive requests for post-conviction relief from seeking to show that he is ineligible for the death penalty based on newly discovered evidence. Webster v. Daniels, 784 F.3d 1123, 113940 (7th Cir. 2015). We remanded to allow the district court to determine whether the Social Security records constituted newly discovered evidencea question turning on whether the records were "previously existing evidence of [Webster's] intellectual disability that counsel did not uncover despite diligent efforts." Id. at 1141.

Following extensive proceedings on remand, the district court found that Webster's defense counsel did not discover the Social Security records despite reasonable diligence at the time of trial. From there the district court held a five-day hearing and determined that Webster had carried his burden of showing by a preponderance of the evidence that he is intellectually disabled. Having taken our own look at the record evidence, we conclude that the district court's findings contain no clear error. We therefore affirm the decision to vacate Webster's death sentence.

Affirmed

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7th Circuit Court of Appeals

Case Name: Servotronics, Inc., v. Rolls-Royce PLC, et al.,

Case No.: 19-1847

Officials: SYKES, Chief Judge, and HAMILTON and BRENNAN, Circuit Judges.

Focus: Statutory Interpretation Foreign Arbitration

Section 1782(a) of Title 28 authorizes the district court to order a person within the district to give testimony or produce documents "for use in a proceeding in a foreign or international tribunal." This case asks whether a private foreign arbitration is "a proceeding in a foreign or international tribunal" within the meaning of the statute.

Two decades ago, the Second and Fifth Circuits answered this question "no," holding that 1782(a) authorizes the district court to provide discovery assistance only to state-sponsored foreign tribunals, not private foreign arbitrations. Nat'l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184, 191 (2d Cir. 1999); Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880, 883 (5th Cir. 1999).

More recently, the Sixth Circuit reached the opposite conclusion, Abdul Latif Jameel Transp. Co. v. FedEx Corp. (In re Application to Obtain Discovery for Use in Foreign Proceedings), 939 F.3d 710, 714 (6th Cir. 2019), and the Fourth Circuit agreed, Servotronics, Inc. v. Boeing Co., 954 F.3d 209, 214 (4th Cir. 2020). We join the Second and Fifth Circuits and hold that 1782(a) does not authorize the district court to compel discovery for use in a private foreign arbitration.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals District III

Case Name: State of Wisconsin v. Synika Antonio Kirk

Case No.: 2019AP175-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Warrantless Search Probable Cause

Synika Kirk appeals a judgment, entered upon his guilty plea, convicting him of conspiracy to manufacture or deliver between 2500 and 10,000 grams of tetrahydrocannabinols (THC), contrary to WIS. STAT. 961.41(1)(h)4. (2017-18). Kirk contends the circuit court erred by denying his motion to suppress evidence found during a warrantless search of his automobile. Specifically, he argues the court erred by determining the searchwhich was conducted while Kirk's automobile was loaded and being carried on a car transport truckwas permissible under the so-called automobile exception to the warrant requirement. We conclude the officer who performed the warrantless search had probable cause to search Kirk's automobile. Consequently, the court properly determined the automobile exception to the warrant requirement applied, and we affirm.

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WI Court of Appeals District III

Case Name: State of Wisconsin v. Michael L. Brantner

Case No.: 2019AP710-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Ineffective Assistance of Counsel

Michael Brantner appeals a judgment, entered upon a jury's verdict, convicting him of one count of repeated sexual assault of the same child, contrary to WIS. STAT. 948.025(1)(b) (2017-18), and an order denying his postconviction motion for a new trial. Brantner argues the circuit court erred by excluding evidence that supported his defense. Brantner also contends that his trial counsel was ineffective by failing to impeach a State's witness with...