Criminal : Week of 10 September 2007

11 September 2007

• Morality and justice-- not technical but useful to know the lofty goals
• Criminal law defines the lowest common denominator of conduct: lots of conduct is bad, but not illegal
• Proportionality; WI criminal code has over 500 crimes, but you can define a lot of them in just a few general areas
• How read and brief a case; sometimes edited court opinions won't have all the sections you're used to (i.e., facts not relevant to the issue on appeal)
• Helpful to identify the source of the law; may or may not be in the opinion. What is the issue, and what is the source of law that governs it?
• Precedent and controlling authority vs. persuasive or secondary
• IRAC: Issue, Rule, Analysis, Conclusion -- technique for legal writing
• Trend towards codification: substantive and specific definitions of offenses, rationality of organization, etc.
• Drafting process, "crime du jour" problem. The process can take years, but at least you can look back through layers of drafts as a resource to help figure out ambiguity in the code.
• Canons of construing statues:
  • Look at general statements of purpose, in addition to specific sections and subsections, in order to understand the specifics
  • If the legislature says one thing specifically, and doesn't say something else, then the "something else" isn't covered (i.e., if they wanted to criminalize something, they'd say it)
  • Try to avoid absurd results and interpretations
  • Tie in favor of the defendant (lenity?)
• Prosecution and defense functions:
  • DA is elected (2 year term? or maybe 4?): election pressure encourages advocacy for new laws, filing lots of charges
  • DA's office receives police reports, makes a decision on charging, and issues a statement saying there's probable cause. There's broad discretion here, both with charges and add-ons.
  • Until the mid 1960's there was not a guaranteed right to defense (80% of defendants need to rely on counsel). WI exceeds the federal requirements, by extending to any charge with possibility of a jail sentence (feds work it backwards somehow: did you go to jail?)
  • Defense is a role that requires advocacy for people who are accused of bad things, being an adversary to DA, judge, and sometimes defendant. Need to maintain good relations, because a lot of stuff takes place via negotiations, not just trial

• Role of judge and jury
• Production vs. Persuasion
• Lesser offenses
• Burdens of proof and their proper allocation
• Court allocates production and persuasion
• Court instructs jury
Burdens of Proof
• The vast majority of cases don't go to trial, so neither party winds up presenting any evidence to meet the burdens.
• Burden of production: someone has the duty to come forward with a specific kind of evidence
  • If you fail this, there can be a motion for dismissal
  • Like if you don't produce evidence of some element of the crime, then as a matter of law, we're done.
• Burdens of persuasion
  1. Preponderance
  2. Clear and convincing
  3. Beyond reasonable doubt
• Judge can make threshhold findings, but his job is to follow the procedure. The jury's job is to decide.
• At the end of the presentation of evidence, the judge will review and see if indeed the necessary threshholds are met in order to turn the case over to the jury.
• Jury instruction text: text, footnotes, comments. Standard instructions minimize the probability of appeals based on instructions (except in very odd cases). Jury instructions are reviewed and maintained by a committee of judges. The text we got (you can see) was revised a number of times over the years.
• Jury instructions are very helpful for understanding what a statute means, because they explain to the jury what is up.
• The jury gets a written copy of all instructions (not footnotes or comments).
• Burdens of production and persuasion are on prosecutor (default finding is not guilty)
• All Facts/elements of the crime must be proved to the same standard (Fact with a capital F is the same as an element; you sometimes see these used interchangeably. With a small f, it's just a fact... may or may not be relevant, usually many of these make a big-F Fact. That's going to be our typographical standard here for deciding which kind of fact we're talking about).
• A reasonable alternative hypothesis is enough for not-guilty (i.e., the burden of persuasion in reverse: prosecutor needs to overcome all plausible other explanations)
• Jury instructions: presumption of innocence (search for truth, not doubt)
• In Re Winship

Commentary in class
Maybe not a landmark case, but it's a biggie. CA: "The People vs." Some states "The Commonwealth." "In Re" in New York means "Juvenile" (WI calls it "in the interest of;" "Ex rel" means you're suing the warden of a prison or some such). WI also wouldn't say "Winship" in the interests of privacy (i.e., "Joanie P"). Try googling Winship to see where he is today.

In Re Gault (1967): due process requirements for juvenile court. In criminal court, rehabilitation was less of an issue than juvenile, where it's a big deal (things are harsher now). So because the consequences were less, there was controversy about whether due process applied. They do, by the way.

If a crime has no jail consequences (forfeiture; i.e., 1st drunk driving in WI... you might spend a night in jail, but not as a sentence). Note also that WI, 17 (at the time of the charge being filed) is the threshhold for adult court. That leads to some pretty interesting potential penalties (sexual assault, battery of a child). A few high-level felonies come in earlier 1st degree intentional homicide is 10. Some come at 14. These are all major crime. At 15, the prosecutor can petition the court to try as an adult (weighing the background, nature of the offense, etc.).

Until the mid-90s, WI was the only state that allowed jury trials for juveniles. 1995 changed a lot (juvenile code).

The judge nicely framed the issue for the appeal by specifically distinguishing the two proof standards.

Note that many juvenile "penalties" contain renewal clauses, so you can sometimes have effective penalties beyond the maximum for the adult.

• United States v. Gaudin

Commentary in class
Generally you should not bet on the defense in cases where Scalia is writing the opinion. But he is very literal in his interpretation of the Constitution. So, for him "jury trial" means the jury is deciding everything.

Despite the complexity of the crime, the case is straightforward.

• State v. Bjerkaas
  • Jury nullification: the jury can return any verdict it wants, and does not have to explain a "not guilty" (can only avoid double jeopardy in narrow exceptions... like if they were bribed or threatened, etc.).
  • So to what lengths can the defense go in telling the jury to ignore the law? None, really.
  • Sneaky advice from Deb. New guy on task force and new woman at crime lab go and get some little shmoe (living in his car) to sell them some pot out in a car. Had never tried a delivery case w/marijuana. It was 1/8 oz (in college, she tended to see much larger volumes). But they didn't arrest him right then, so they went back several times over a few months. But now there were charges about multiple counts (5), and he had bragged that he could "get them weight." So what defense can there be? They guy doesn't dispute the facts; he was just stupid. So fines were, like $1,800/count; he's got no record, but prosecutor wants to get convictions on 3 counts, for some reason. The penalty was the same: probation, a little jail, and fines he can't pay. So he decides let's have a trial. On cross she tackles the new detective, going through entire car inventory to show jury that defendant is living in his car. Closing argument was essentially: "what was the point of stringing this out to five felonies?" It didn't work. He got convicted on all counts, but sentences were converted to concurrent, which was nice.
• You can settle until the moment that the judge enters the verdict, you can still settle a case/change a plea.
• Problem 2 First, what are the rules:
  • State has burden to prove beyond reasonable doubt (BRD) for each element
  • So what are the elements
  • Procedurally, the prosecution has presented evidence; we're in the middle of a jury trial, and the state has rested
  1. Elements:
     • Without merchant's consent
     • Intentionally take and carry away: not proved
     • Merchandise: not proved
     • Intent to deprive
     Students (Dan and Tamara) say dismiss (me too). It's possible that the judge could rule that there's enough to give it to the jury, though.
  2. Elements
     • Like 1, except alters indicia of price
     Students (Dan and Tamara) say deny (me too). Note that this does not mean that the judge is finding anyone guilty (that does not happen), just that a reasonable jury could make the determination, and therefore they should.
  3. Elements
     • Like 1, except with major evidence
     Students (Dan and Tamara) say deny. It's the jury's job to convict. Trick question, and I got somewhat confused, and didn't really know what to say, but I suspected this was how it should be.

September 13

• Blockburger v. United States
  Commentary in class
  • Almost a landmark case, maybe not quite.
  • Wisconsin is a tax stamp state (last 10-15 years), but this doesn't really get charged any more. Perhaps it is even struck down.
  • Issues:
    1. Are two sales to the same buyer a single offense under the Harrison Narcotics Act, given that they violate the same subsection?
       [holding: not a continuous act, like slicing mailbags]
    2. Can the same sale, under the Harrison Narcotics Act, result charges under two separate subsections?
       [holding: yes, they are different because they have different elements]
  • The offenses are legally different, so it makes sense to keep them separate.
• State v. Harrell
  Commentary in class
  Relatively easy to separate these offenses into more than one count. These cases are sort of variations on a theme. Concerns that matter:
  • Identical in fact and in law
  • Legislative intent
  The counts each require proof of an additional fact that the other does not: the second instance has different facts. The "unit of prosecution" might even have been parsed down more granularly ("sexual contact OR intercourse by threat of force") is the statutory language, so if there were touchings along the way, there might have been additional counts. Commonly this happens when there are various forms of penetration (these are all different facts). The Blockburger test: each crime requires proof of an element that the other does not. "
• State v. Lechner
  Commentary in class
  The casebook has basically no facts, so here they are. Lechner was charged with:
  • Second degree reckless homicide
  • Homicide by operating while intoxicated
  ...but there was only one dead person!!! He was zooming around, weaving, and passing, and he seriously injured a mother and child in the oncoming car, and killed one child. He pled guilty to both. So why the appeal? Because he needs to make a record and preserve the facts, but he doesn't want a trial because it makes him look bad. He wants to appeal the issue, though. The case here is really about legislative intent. Again there's the two part test (identical in law and in fact), and whether the law intended to allow multiple punishments. Absent other indicia of contrary legislative intent, we presume the intent is to allow multiple punishments.
• State v. Akerele-Ale
  Commentary in class
  Why did we have this appeal if Ambuehl is good law and controlling? Someone thought there was a chance of overturning precedent. So the fundamental fairness argument was considered compelling enough to get it heard.
• State v. Lasky
  Commentary in class
  Identical in fact, but not identical in law. Note that the state statute is just a codification of Blockburger. Again, the court is sympathetic, but advises contacting the legislature.
• State v. Rabe
  Commentary in class
  Different from Lechner (2 convictions, one fatality); here we have one act, and four convictions. But proving each death requires proving of a different fact (i.e., who died). Homicide by OWI does not require intent as an element, so there's no separation of counts on that extent; hence his policy argument (i.e., no utility to multiple punishments).
• Defense attorneys cannot have any contingency fee. Not even a tip jar.
• Prosecution for bad checks; each count can be charged separately, but they can be consolidated to make a felony, within certain parameters.
• Failure to pay child support: this can be continuous or multiple counts as well. Likewise concealing stolen property.
• In 99% of Blockburger issues, the state wins.
• "Operating After Revocation" and "Operating While Intoxicated" is a very popular combination with the profs' clients.
• DWI and PAC (Prohibited Alcohol Content): you can convict on either or both, but the sentences merge. Sort of an interesting exception.
• Discussions of the flavors of battery
  Elements generally include causing harm, intent to cause harm, it doesn't matter if the person harmed is not the one you intended, and generally there should not be consent. As you go up the scale, the consent stuff goes away, but other factors are introduced (degree of harm, e.g.); also intent gets different (you need to have intent to commit the assault, but not necessarily to the degree of the harm that took place).

  Defendants often say things at the time of the act which make it hard on their defenders.

  Why would the consent clause be dropped from the more serious statutes? Just sort of a policy determination: why give an out in severe cases?

  The statute provides that a less serious form of battery is a lesser included offense. That's a technical thing we'll discuss next week?

  Other batteries: by prisoners, on officers, tecnical college or school district employees, jurors, public transit vehicle operators, witnesses, etc, etc...

• 5th offense of OWI is a felony in WI; and yet this is in the top 10 (maybe top 5) reasons for imprisonment in WI. 1st offense is not criminal. Unholy alliance: it would be too costly to prosecute this and provide representation, because there are so many; at the same time, there's less deterrance. WI relies on the brewery industry, I guess.
• Louisiana public defender is really overworked. If we studied the LA jury instructions, and prepared for a week, we'd probably be able to run a trial as well as the PD down there. Maybe. Kind of. But presumably public defenders are still awesome. :)
• Mayhem: biting noses, ears, etc.
• We play spot the element: false imprisonment, online solicitation, battery to LEO
• When you want to know the elements of a crime, the pattern jury instructions are the very best place to look: they're the test that the prosecution will be trying to meet, and the defense will be trying to defeat