By the time we are practicing many aspects of law will have changed; need to cover legal reasoning,
technique, as well as statutes. One of the basic early forms of legal systems: teaches a lot about
law, not just crime. We are not a bunch of doofuses that couldn't graduate from a real law school
Justice, Morality and the Law
We're in law school, not justice school or morality
Jurisprudence: where law and justice intersect
Criminal Justice System: related to crime and punishment
Theories of justice
Natural law theory: Aristotle: laws written from the point of view
of virtue (-), proportionality of good/evil reward/punishment (+),
citizen virtues are sometimes different from abstract virtues.
There exists a rational and purposeful order in the universe,
and natural law is the means by which beings live in harmony with
this. Natural rights are a corrolary. Inalienable rights, e.g.
Proportionality is important to the theory of justice.
Divine command theory: 10 commandments. Morality and law are the same,
as they are commandments from God. 1-4, for example, define Man's
relationship w/God. 5-10 are w/fellow man, promoting goals of a
peaceful society.
Social contract theory: people cede rights to a government in order
to receive social order. Authority is derived from the consent
of the governed. Magna Carta limits the rights of the king (it
was a revolt by barons, etc. Important step towards constitutional
law.
Retributive justice: why do we punish, what will punishment be--
deterrance, rehabilitation, security (enhancing the welfare of
society by incapacitation/incarceration)
Ponder the theories' influence as we decide what we're going to punish and
how much. Criminal theory continues to evolve.
Due Process: procedural and substantive
Procedural: fundamental fairness. Right to be adequately notified of
charges, right to be heard, esp. when life/liberty/process might
be revoked
Substantive: matters of individual libert ("implicit and ordered
liberty"). Like right to privacy, free press, counsel, exercise
of religion.
Deputy DA from Dane County will come and talk about charging; Remington Center
will visit near midterm; Chief Judge of criminal division (Pat Fiedler) will
come visit. Consider watching some intake court proceedings.
Briefing Cases
On the board
Legal writing/analysis
Briefing
Issue(s)
Issue
Rule(s) (Gen -> Specific)
Holding
Conclusion
Facts (legally/emotionally relevant)
Procedural History (trial court -> appeal1 -> appeal2...)
Reasoning (why court reached holding)
Briefing is a way to understand the components of a case when you read it
Issue: (sometimes there are many) what is the thing that the court is being
asked to decide. At trial level this is generally is D guilty? At appeal, we deal
with fine points, generally about procedure. Was an element of the offense defined
sufficiently/correctly, for example.
Holding: who won, and what did the court say about the issue that made it so?
Put issue and holding at the top, since you often get asked these first.
Facts: ideally there aren't too many extraneous facts in the case, but sometimes
non-legally-significant things slip in there for emotional reasons.
Procedural history: what has happened in the court processes and hearings in
the lower courts?
When you're getting started, err on the side of including too much info.
Three levels in WI (excluding municipal for traffic tickets)
Circuit court: 17 in Dane county. They have branches here (numbered).
this is your basic trial court.
Court of appeals: 4 districts. 1 judge or panel of 3. Appeal of
right: anyone can get one if you file the right paperwork on time.
Supreme Court: 7 members. You don't get appeal automatically-- it must
have some state-wide importance, or bearing on other cases. So-called
"discretionary review."
Reasoning: hopefully beyond "it was a bad crime and therefore we'll keep the
person in prison." Generally, there is some discussion of each side's
argument, with explanation of majority rule.
State v. Saternus
Some discussion of facts (my brief misses he-said-she-said about how sale
took place re: sicnkess of aunt-in-law-to-be)
What did both sides agree on in the facts (i.e., they were acquainted, he
did sell the pot)
Formula for issue: under [source of law: e.g. constitution, § whatever, common
law, court-made law], is [description of test or standard] when [some key
facts]. (gives a nice framework, helps call out if there are multiple issues,
and what the relevant question(s) is/are)
Legal writing/analysis
Issue(s): "the call of the question." What is your boss/the exam/whatever
asking you? This question may have several sub-issues (elements)
Rule(s): Broad rules, and then specific sub-points. Use a funnel approach
(i.e.: entrapment is a defense; it has two elements; talk about (a),
then about (b)). Some may be clear-cut or throwaway, but mention them
so it's clear you considered them. It's important, especially on exams,
to ferret out and state the framework of rules fully before applying
facts
Analysis: Apply the rules to the facts in question; consider all sides, and
avoid drawing a conclusion or having prejudice. Policy arguments have
their place, but precedent and statutes are more important here.
Conclusion: You've given arguments for each side in the Analysis phase,
now it's time to say what is up.
Problem 1: Entrapment
The "Metro Recycling" problem
What are the legal tests for entrapment?
Wis JI -- 780 ¶ 4 defines two components:
Has a law enforcement officer used improper methods to induce the defendant to commit
an offense?
Was the offense one which the defendant must not have been otherwise disposed to commit?
This latter point can be applied "subjectively" or "objectively":
Objective: was the improper police conduct such that it would affect a person
in these circumstances, whether predisposed or not?
Subjective: was the police conduct sufficient to affect this particular individual's
intent?
Note that it is not sufficient merely for the police to have acted outrageously. The question (see
State of Wisconsin v. Wade A. Saturnus (1986)) is "whether the defendant is a person otherwise
innocent" (citing Hoffman).
Who has to prove entrapment or the lack of entrapment?
The state must prove (beyond reasonable doubt):
The elements of the crime in question (obviously)
That the defendent, although induced, was disposed to commit the crime
Defendant must prove (by a preponderance of the evidence):
That he/she was induced to commit the crime (i.e., that the incitement created
more than the usual or ordinary opportunity to commit the offense)
That he or she was not already disposed and ready and willing to commit the
offense
If the defendant doesn't prove excessive temptation, then there's no need for
the state to prove predisposition. So there's a logical order to what must
happen. That's why it's not enough just for the police to have over-reached.
How might the law of entrapment aply in this case?
For the prosecution:
The statement that Malloy "didn't really care" where Booker got the pipe is
not much of an inducement.
Police conduct was limited to the offer of money, not anything obviously
inappropriate.
Prior theft (2005) of materials from a construction site certainly seems like
predisposition.
It would appear that the defendant was willing to commit the crime, and no exceptional
pressures were applied.
For the defense:
Have the police truly demonstrated the elements of the crime (is possession of
stolen goods the same as § 943.34 "Receiving Stolen Property"?)? The
offence has to be committed "intentionally." The entrapment defense is only
to exonerate a guilty party.
The inducement exploited an unusual pressure (Booker's rent problems) with an
exorbitant enticement (double the market price). This is the crux of the
"more than usual opportunity" issue.
Booker had not initiated the crime, and had in fact only showed up with the
pipe under economic stress, and after the generous offer was made. This
is the crux of the "predisposition" issue.
The defendant may be able to establish that the circumstances of rent troubles and high
payoff were more than the usual motivation, but predisposition will be an obstacle given
that his prior no contest plea can be considered.
Why is this a felony charge? Up to $2,500 should be a misdemeanor (§ 943.34(1)(a)).
How could he possibly be that far behind on his rent, or carry that much copper pipe?
Reading for 6 September
Wechsler: administration poses a threat to justice because it happens without
legal guidance. Discretion in methods and responses is hard to weigh.
Packer: need to examine the limits of criminal law-- it is a powerful social
engineering tool, and can be put to many uses.
Remington: Divide responses to codification into two camps:
Believers:
It is both possible and desirable to build a model penal code.
Codification will make thinds more comprehensible
This puts, via the legislative process, the content of the criminal
code into the hands of democracy, not just administration
It's important to document when you're making changes to the law,
and codification accomplishes this
Skeptics:
The code is the product of ivory tower model makers
There's no historical foundation for believing it will work
Prior, specific, law is superior to broad generalizations
Lacks appeals to prior authority
Too much room for discretion
May result in an unwanted increase in appellate litigation
Platz: Goals:
Simplification of language
Modernization of intent, based on social science knowledge
Codification to incorporate principles from case law into statutes
Classification of crimes by social principle, and enumeration of generally
applicable principles
Fair balance between needs of society, accused
Want to reduce the effort put in on finding the right law. Reject the notion
that each and every particular circumstance must be enumerated. Eliminate
nearly all minimum penalties. Re-arrange some regulatory statues more rationally.
Role of the prosecutor: Decision to charge, DA in WI, charging procedures (usually
none, but sometimes John Doe, pre-charge conference [MKE], grand jury)
Duties of a Prosecutor: No real surprises here.
Remington on charging decision: significance of prosecutorial discretion (as opposed
to sentencing, which keeps shrinking).
Victims' rights lobbies
Charges under multiple, overlapping laws
De facto sentencing by prosecutors
It is preferable that government decisions be made in the open
Senate Bill 38:
Creates a new crime: felons owning dogs
May have some undesirable consequences: economic, penal, technical
Lots of fun buzzwords: identifying microchip § 4(b) "implanted in a
dog by a licensed veterenarian and that identifies the owner of the
dog."
Public defender standards: not much surprising here. Some stuff about records
retention and cooperation with subsequent counsel
6 September
Legislative branch
Three branches of government in the US
Checks and balances
Prosecutor is the executive branch, by the way
Wechsler article was in the 1950s; this predates the exclusionary rule
under the 4th amendment, Gideon, etc. A lot of rights didn't even
exist then. Substantive rights of the accused, for exact.
Remington article: lots of talk about goals (i.e., rationalization,
democratization, etc.)
Platz: like Remington and Wechsler, this dates back to the beginnings
of this penal law modernization effort. Foreshadows the 1960's, when
courts began to concern themselves with balancing society's interests
with the rights of the accused. Nowadays there are resources (e.g.,
Legislative Reference Bureau) to help legislators write in language
that will withstand challenge (also State Agency: Revisor of Statutes)
From our perspective, it's surprising that it's so recent that we've moved
to a written code. No narcotics laws prior to 1920's, by the way.
Sentence amplifiers: there is one place (in the Beltline) in MSN where
you're not within a danger zone for drug possession. In MKE, you pretty
much have to be in the lake. Due to resources, Dane County will no
longer bother prosecuting < 25g of marijuana (this is not a law-- it's
just prosecutorial policy). In spite of "full prosecution" atmosphere
in WI. Last legislative session had about 300 proposed new criminal
statutes (most died, of course). This works to reduce the DA's incentive
to prioritize or drop police reports: the issue is prosecute, and do
so in visible cases especially. De/Re-criminalizing theft of shopping
carts, etc.
Senate Bill 38. Tamara: embedded racism, perhaps (this is a good
and interesting point -pbe). Consideration of cost is not
mandatory, but this one has requested some analysis. Once this
passes the senate, it goes to assembly, there will be some
differences to be resolved in conference committee, from which
it either will die, or go to the Governor
Interpreting statutes
Note that generally we don't see the full opinion (sometimes, for
example, all the facts might be edited out), when we see a case
in our books. They can be severely edited.
Letters and numbers: 77 Wis 2d 141, 252 N.W.2d 380 (1977)
77 volume of Wis reporter. Northwest district. These
are two different reporters: N.W. is by West. Wis is by another
company, but it is popular in Wisconsin. Sometimes, you see
2004 WI 6 (6th decision of 2004): this is a public domain
citation, basically.
Note that Abrahamson is now chief justice of the WI supremes.
943.20(1)(a) is pronounced "sub one sub ay."
Criminal Complaint is a standard charging document; the prosecutor
just files it with the court. It tells what the charge is (i.e.,
what statute got violated, and in what way). It has a narrative
section that establishes probable cause.
Why does the state get to appeal? Why is this not double jeopardy?
BECAUSE he has not been tried yet. The complaint was dismissed
before trial. Before the start of the trial (whether this is
when the jury is sworn in, or when the first witness talks),
you're not in your first jeopardy yet (amazing knowledge by
Dan!). Defendants don't often win on appeal, it seems.
Elements:
Whoever: Start with the start of the statute ("Whoever");
identity (PTAC: "party to a crime") is important
Intent to deprive
Property of another
Without Consent
The string of verbs and commas
Primary (mandatory) authority: the constitution, precedent from
the jurisdiction (except in highest court)
Secondary (discretionary): other persuasive things
Role of the Prosecutor
There is no private prosecution in WI. You can never say "I'm going to
press charges." You don't do that; only the DA can do that. There
are some victims' rights things that can influence, but ultimately
it's the elected DA who decides. 99.9% of the time a police department
will submit a report recommending some charges, then the DA who has
intake for the day makes a decision and dictates the complaint.
In WI, grand jury is technically possible, but vanishingly rare. A
John Doe can happen, and the judge can say there's a charge out
there, but it's still the DA who does the charging.
Options
Do not charge: the conduct isn't criminal under any statute; there
isn't enough evidence; divert to some treatment program
Refer back for further investigation
Issue a charge: then you need to decide what offenses the conduct
supports, and how strong the evidence is. This is the subject
of much strategy.
Think of the many factors that govern how you get charged: media, funding,
community pressure, political platform, etc.
Gideon v. Wainwright
See maybe Gideon's Trumpet, for more info about the case. The
book is more informative, but the movie is fairly fun. Looks like
the Supremes wanted an excuse to overturn Betts v. Brady
Note that the first paragraph was an editorial synopsis, not really part
of the opinion. I am dumb for highlighting it.
States can give more rights than the Constitution, but not less than
what's in there. Note that states filed amicus briefs (maybe because
they thought there'd be federal funding for the programs once they
were federally mandated).
4 of the 9 judges on the USSC must approve of a case to grant cert. You
don't generally get to find out who they were.
Note that the appellate court doesn't hear evidence-- they just rule on
argument and the record. And, in this case, common sense. Once
in a while you'll see a citation to an amicus brief, or some
scholarly thing.
Rhenquist court pretty much only heard states' appeals, and tended
to limit rights, rather then protect them.
A felony carries potential prison time (state institution); misdemeanor
means maybe county jail. So the maximum penalty (base package, not
with enhancers) is the distinguishing factor. More than a year
is generally a felony. Exactly a year gets technical (where does
the statute say the time has to be served). 40 misdemeanors
could be 30 years of misdemeanor time...
Gideon originally only applied to felonies, so you could have these
giant misdemeanor penalties, etc. Nowadays it's different.
In WI, the possibility of any imprisonment means it applies.
Gideon did not say how the states should implement this, and indeed
different jurisdictions do it differently. Some are case-by-
case (judges or counties would handle it). WI did not have a
statewide defender until the 70s (Gideon was in 63). Court appointments
could create conflicts of interest. Only about 22 states have
a statewide defender (and some of these are only at the apellate
level).
Public Defenders often do as many as 350 cases per year. One investigator
for every seven attorneys (2,000 cases for each investigator).
Public Defenders and District Attorneys get identical benefits, and are
both union represented in WI. Same salaries, etc.