NOTE: STATE v. McDONALD: DEATH OF A CRIMINAL DEFENDANT PENDING APPEAL IN WISCONSIN -- THE APPEAL SURVIVES. Skip over navigation
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Copyright (c) 1989 University of Wisconsin Law School
Wisconsin Law Review

NOTE: STATE v. McDONALD: DEATH OF A CRIMINAL DEFENDANT PENDING APPEAL IN WISCONSIN -- THE APPEAL SURVIVES.

July, 1989 / August, 1989

1989 Wis. L. Rev. 811

Author

LYNN JOHNSTON SPLITEK

Excerpt

I. INTRODUCTION

Former judge Daniel McDonald, convicted of first-degree murder, committed suicide in his prison cell before his appeal could be heard. 1 The turmoil surrounding his conviction may thus have ended for McDonald. But the suicide renewed the public's anger and triggered another battle between the state and McDonald's attorney. In State v. McDonald, 2 the Wisconsin Supreme Court ended that battle by rejecting the majority rule that the death of a criminal defendant pending an appeal of right 3 abates all proceedings ab initio.

In McDonald, the trial court denied the motion to abate the conviction. McDonald's attorney appealed the trial court's order, requesting that the court of appeals dismiss the appeal from the conviction and remand the case to the trial court with instructions to vacate all criminal proceedings against McDonald. The court of appeals dismissed the appeal, but refused to vacate the proceedings against McDonald. 4 The court of appeals reasoned that when a defendant prevents a review of the merits by committing suicide, justice does not require abatement of the conviction. 5 The Wisconsin Supreme Court affirmed the denial of motion for abatement, but reversed the dismissal of the appeal. 6 Asserting that a defendant who dies pending appeal, regardless of the cause of death, should not be deprived of the safeguards that an appeal provides, the court held that the proper remedy is not to abate the conviction, but rather to allow the appeal to continue. 7

This Note ...
 
 
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