Substantive Criminal Law : Week of 17 September 2007

18 September 2007

• Review of Last Week
  • Burdens of proof: production and persuasion
  • Need to show some evidence vs. need to meet some standard of proof
  • Due process requirement: presumption of innocense places burden on the state
  • Persuasion: prove each element of the offense, beyond reasonable doubt (it's a two-part deal)
  • Winship: proof beyond reasonable doubt applies in juvenile cases where they would be tried as an adult. Proof beyond reasonable doubt is a "due process" right.
  • So, when writing, Due Process is in the Constitution; Beyond Reasonable Doubt is a subset of due process
  • Gaudin: every element must be proved-- no element can be taken from the jury's deliberation (i.e., "materiality").
  • 5a: due process, 6a: jury determination. So the state has to prove to a jury, beyond reasonable doubt, each element.
  • Bjerkaas: no right to a jury instruction on nullification (they have the power to do it, but they take an oath to follow the law)
  • Reasonable doubt: based on reason or common sense; would cause a person to pause in an important decision. Not guesswork, sympathy, or fear. Reconcile the facts with a reasonable hypothesis consistent with innocense
  • The "Allen Charge:" all the other juries seem to be able to make up their minds, and you don't seem stupider than other juries, so talk to each other, listen to each other, and see if you can't get it done. It is expensive to try a homicide case.
  • Steve Hurley is a premier criminal defense attorney. Also Dean Strang. (sp?). They are expensive (Zapata case).

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  • Elements of the offense: definition of a crime are enumerated in the statute, and also in Jury Instructions.
  • Elements are linked to Double Jeopardy (can't be convicted or punished twice for the same offense).
  • Blockburger "elements only" test: as long as each offense has at least one element that the others do not, you can charge.
  • To avoid double jeopardy charges must be different in law or in fact. The same in law and in fact = double jeopardy. Do not charge
  • If offenses are identical in law, and you want to charge, you need to be sure that the legislature had multiple counts in mind (i.e., multiple punches in a single fight; language that makes the offense seem continuous). Usually multiple punishments are allowed, by the way. This is Lechner, and Rabe.
• Lesser Included Offenses
  • The concept ties back to Aristotle and proportionality: we should treat worse conduct more harshly. So intent, for example, might make conduct worse (accidental vs. intentional homicide). Also amounts of harm or damage (death>great harm>substatial harm>harm). Certain victims (esp. those prone to being victims by their nature or duties). The type of harm (to property vs. to personal security).
  • Criteria
    • Legal test: the elements in the lesser offense have to be in the greater
    • Fact test: there must be evidence from which a reasonable jury could find not guilty on the greater, but guilty on the lesser
  • WI §939.66 enumerates the specific rules for including lessers; both general rules, and then some narrow specific ones.
  • Zenou v. State defines the fact test.
    • If evidence does not support conviction on the greater, dismiss. Don't cascade down to the lesser.
    • If it would be possible to convict on the greater, or on the lesser (on a different theory), but there would be doubt as to an element of the greater, instruct.
  • Verdict form, given to the jury, has pre-printed on it the list of charges on which the jury must find.
  • There's also a chance to argue about jury instructions (an instructions conference), on the record, about what is requested, and what will be given. A defense lawyer who doesn't have a great "not guilty" argument may stress the importance of lesser included offenses in order to get the jury thinking about them.
  • An all or nothing case: the facts do not support charging a lesser offense (i.e., there is no way to conclude that this was a reckless deed).
  • Strategic issue: do you want to go for the lesser or roll the dice?
  • Wickersham: Did the court have the obligation to instruct? This is sort of a CA problem. But sometimes, even absent a request, the court may have to instruct the jury if it is justified (c.f. Zenou). It's not a gaming hall-- it's a hall of justice, and the litigants don't get to decide the options for the jury.

    Also, the concern of inviting an error. If the defense has waived the instruction, no fair complaining about it later. So, since Wickersham didn't waive the instruction, the ruling should be reversed.

  • If an offense is a lesser included, and supported by the evidence, it is error for the court to refuse to instruct on the lesser included. So courts err on the side of giving the instruction.
• Problems
  1. Bad checks: charged with felony degree, defense seeks misdemeanor
     • We've got enough facts to make a case for the felony
     • It's not excepted by any of the exemptions in §939.66
     • Misdemeanor doesn't require proof of any additional elements
     • Interesting side point: he's charged with issuing more than one check: does that differentiate in a case where the charge is multiple checks adding up to a felony? ...probably not
     • Does the evidence support instruction on the lesser? Three- item test.
       • We've established that the felony charge can go forward
       • A view supports acquittal on the greater
       • A view supports conviction on the lesser
       With respect to those views, "reasonable," means putting the evidence in the light most favorable to the defendant.
     • So, we might believe that he didn't write the second check, and we might believe that he actually knew the account was closed.
     • Ruling: Instruct. I had this. Yay!
  2. Homicide by intoxicated use of a vehicle, defense seeks homicide by negligent operation of a vehicle.
     • Not a lesser included offense by the elements test
     • However §939.66(2) says all less serious are included: intoxicated is Class D, negligent is Class G. So this is different from Lechner.
     • Ruling: Instruct. I got this wrong. Boo!
  3. Skipping this one (Double Jeopardy) for now
     
     Sexual assault charges. The elements are different, so charging them both is OK. Yay! (followed up on 9/25)
• LOIS on line would have WI jury instructions online; other than that, go to the library and look them up.

September 20

• Guest Speaker: 1 of 3 Deputy DAs. Judy Schwaemle.
  Lots of charging (drafting is done by paralegals). LEAs are requesting criminal charges, based on evidence. She handles mostly adult felons (not drugs). One task is to prioritize

  Someone arrested and sitting in jail, based on probable cause gets top priority (because there has been no review by a legal authority yet; just cops; were they rightfully or wrongfully arrested?).

  First question: what does the law provide? This governs what she can say is a crime. Caselaw determines aspects of how the case will be interpreted and handled. Then there's the matter of evaluating the evidence: is it admissable, reliable, does it meet the elements, etc.?

  Looking at paper, not interviewing witnesses, going to crime scenes, etc. So, before charging, she needs the get the feeling that a conviction at trial is likely. Actually a lot of police are doing less arresting these days, because they are catching on to this. You shouldn't start a legal action that won't end your way: it's not appropriate for the government, and it's also a waste of resources.

  So, is a jury likely to convict, based on what we have (or strongly expect to get)? If not, decline the case.

  The end game isn't just conviction/judgment. There's also the question "do I want to get a conviction for this conduct?" and can the criminal justice system do something meaningful to address the conduct? A public safety threat is an obvious case. In big cases, in general, it's easy to make the call. What about conduct that's not so bad, though? For example, the homeless chronic alcoholic who gets unruly and is a menace on the street. So what can we achieve here, via conviction?

  She gets descriptions of conduct only, not criminal (sometimes) or medical history. So she doesn't necessarily know all of what's involved. And she needs to make a judgment: should the government devote its resources to this particular social problem? What can we accomplish? There's not always a good answer.

  She can't say we're not going to charge drug abusers, because right now that's the only they can get into a treatment bed (once they're on probation). Without this, there's no national health care/mental health system help for them, etc. She knows she is abusing the system when she charges a mentally ill person in order to get them into Mendota. Jails are our new mental health system. But the way things are, the criminal justice system winds up dealing with addicts/mentally ill, and then gets criticized for dealing with those populations. A large number of offenders have problems and treatment needs.

  So, anyway. Is there a social good to be had by intervening in the life of this person? For the alcoholic, probably none. It's getting so there's none for drug abusers, also. 85% of the people in the system have substance abuse issues. So these tend to get "county ordinanced," and the person goes back to State St.

  Does not like "Truth in Sentencing," because it eliminates the notion of rehabilitation. Judges, by the way, don't have access to a great deal of informaiton. It's routine to do 99 hearings in a day (final conferences). They want a joint recommendation for sentencing-- they're not sentencing, they're rubber-stamping. And both sides have less and less time to devote to each case, so things are getting shoddy.

  She doesn't consider matters of degree so much (i.e., plea bargains, defense resources): it's more a decision of should any resources be devoted to the matter. If so, then proceed. It's not her office's job to figure out how jails get paid for, etc.

  There have been policy decisions about not prosecuting certain offenses (Operating After Revocation, e.g.), because of lack of prosecutorial resources (except in Operating Under the Influence cases, because there's a public safety concern there). Ironically, revocation because of speeding isn't treated the same way. And anyway, nobody in Dane County will put anyone else in jail for that. Note that there are a lot of unlicensed drivers out there. State Patrol (who pretty much do only traffic law) are pretty sad about this.

  She did LAIP, and wanted to be a PD, but decided the charging decision had more impact. You have to be pretty much dirt poor to get a PD these days (the standard has really worsened-- the "cost of living" part has not changed since 1987). Dane County has heroin, but not meth. Other counties, it's the opposite.

  Dan asks a good question about race. In her view there are a disproportionate number of minorities in the criminal justice system; they're treated disproportionately in many other areas (education, housing, employment, healthcare, etc.), and this is one result. It's a big social problem, and a symptom of racism in our society. Interesting distinction between rich coke users and crack users: one does not come to the attention of the system. The other doesn't have a house to be private in, or money to pay for the drug; they have to deal with untrustworthy sources, bad deals, etc., and all in public. So you get fights, debts, etc., that you do not with the other population. That is what causes drug prosecution, and that's why you get more minorities prosecuted for it.

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• Minor things we need to know about before charging people with crimes.
  • Notice. The 5th Amendment (or WI const Article 167). Right to demand the nature and cause of the accusation. There's a basic test to determine whether a charge has been made sufficiently:
    • Is the accusation clear and specific enough that defendant can plead and prepare a defense
    • Would conviction or acquittal on that charge be a bar to another prosecution (this is less of an issue since codification)
    This is both a due process and double jeopardy right
  • The charge must set forth all of the elements of the crime; if the state omits one of them, it's no good. By citing statute in the complaint, you avoid this risk.
  • There's a case where a person was originally charged with possession of cocaine w/intent to deliver. Within a day or so before trial date, the DA amended the charge to conspiracy to deliver. There is a provision to allow amendments of charges, and to add charges after preliminary hearing. And here the two charges are related, and shouldn't surprise the defendant. But the court disagreed, and found that there was not adequate notice because new evidence was involved, and the list of witnesses the defendant might need would be different.
  • Notice problems tend to come up in sexual assault cases, esp. child ones, because details tend to be non-specific (dates and times, e.g.).
  • See §939.03 regarding jurisdiction of the state over crime. This, too, can be a notice issue.
  • Subject matter jurisdiction: whether it's appropriate for the court to preside over stuff. I.e., is the court authorized to hear this kind of case? In WI it's easy: all the circuit courts are general jurisdiction. Counter-examples might be criminal complaints that fail to charge a crime properly-- these don't state an offense known to law, so the court doesn't have jurisdiction, because they only deal with crimes. Also expiry of statute of limitations will cancel subject matter jurisdiction.
  • §939.74 is the statute of limitations. It's been altered recently regarding DNA. Generally it's 6 years for felonies, 3 years for misdemeanors, but there are provisions (like for homicide) that extend in some cases
  • Venue: usually it's the county in which you're being charged. The Dane County DA can only issue charges for offenses that happen in Dane County. Failure to prove venue may have screwed some charges up (you need some evidence regarding venue, even though it's not an element of the offense); although this might be an urban myth about rote/overworked prosecutorial efforts.
  • Cases get transfered if they're high profile; special prosecutors get appointed in conflict-of-interest cases; or in bogus-check cases, to unite multiple counts
• Interesting crime deterrant laws: some jurisdictions require surveillance cameras or 2-persons-on-duty at Kwik-e-Marts, etc.
• State ex rel Evanow, Appellant, v. Seraphim, County Judge, Respondent: bogus probable cause appeal.
  • Needs essential facts: who, what, where, when, why, and who says so?
  • Credibility is not the same as at at trial; statements against interests aren't inherently untrustworthy; anonymous information might even be OK
• A "probable cause hearing" is just a hearing about whether the complaint is sufficient (result is dismissal w/o prejudice-- new charges can be filed because jeopardy not yet attached). A preliminary hearing involves production of evidence (but same result can happen).
• Problem 4: Drafting a Criminal Complaint
  1. Traffic stop nets drug bust.
     • Statute: §961.41(3g)(am) [Possession of controlled substance]
       1. Elements:
          1. Possess [or attempt] a controlled substance (3g)
          2. Without proper authorization (3g)
          3. Schedule I or II (am), as defined in §961.14(3)
       2. Probable cause:
          On 5/1/07 at 10:00PM on Johnson St., Officer found .3 grams of substance determined probably to be heroin in Mike Williams's front pants pocket; discovered based on statement made by Mr. Williams that he had heroin there.
       Penalty: $10K and/or up to 3.5 years. But that 3.5 is a "bifurcated" sentence (thank you, "Truth in Sentincing"). 1.5 term of confinement, then the remainder would be extended supervision (ES). ES agent (formerly Parole Agent) could revoke you.
     • Statute: §961.573(1) [Possession of drug paraphernalia]
       1. Elements:
          1. Possess
          2. Intent to use
          3. Drug Paraphernalia §961.571(11)(a)
          4. (Determination based on §961.572(1)(d), (e), (L))
       2. Probable cause:
          On 5/1/07 at 10:00PM on Johnson St., Officer found a metal tube with steel wool stuck in one end; the steel wool was scorched and bore a residue. In the officer's experience, and based on training, such devices are commonly used for smoking crack cocaine.
     Note: Ignoring §943.50 (retail theft) and possible vehicular code problems (§346.34?); assuming Williams is over 18. And that searches are legit. What about §961.495? READ THE JURY INSTRUCTIONS: intent is required for §961.41, even though it's not in the statute!
  2. Guy wants to kick some ass.
     • Statute: §947.01 [Disorderly conduct]; 2 counts
       1. Elements:
          1. In a public or private place
          2. Violent, abusive conduct
          3. Tends to provoke a disturbance
       2. Probable cause:
          1. On 5/13/07 at 1:15AM, Officer received a report from Keith Johnson that David Connerly had been pounding on Johnson's door and shouting threats. This disturbed Johnson.
          2. On 5/13/07 at 1:15AM, Officer observed Connerly banging on a squad car and threatening Johnson. The threats continued and attracted spectators.
     • Statute: §947.013(1m),(1r)(a) [Harrassment]
       1. Elements:
          1. With intent to harrass or intimidate (1m)
          2. Engages in a course of conduct or repeatedly commits acts which harrass or intimidate (no legitimate purpose) (1m)
          3. The act is accompanied by a credible thread that places the victim in fear of... great bodily harm (1r)(a)
       Error! Should just be (1m). (1r) requires both (a) and (b); also, should be 2 counts of this.
       2. Probable cause:
          Officer observed (and received reports) Connerly expressing ass-kicking sentiments in a threatening manner, accompanied by bullying gestures. The victim did perceive a threat (hence the call to police).
     • Statute: §940.45(3) [Intimidation of victims]
       1. Elements:
          1. Knowingly and maliciously (940.44)
          2. Attempts to dissuade (940.44)
          3. A person who has been the victim (940.44)
          4. Making a report to a peace officer (940.44)(1)
          5. where the act is accompanied by any express or implied threat of force (940.45(3))
       2. Probable cause:
          Officer observed Connerly threatening Johnson while Johnson was in the protection of the squad car. The threats explicitly involved Connerly's disapproval of police involvement, and the kicking of ass.
       This probably won't fly; it's sort of in conflict with "disorderly," and that's a more pertinent charge.
     Note: Assuming §940.201(2)(a) and 940-43(3) are not a problem, because you're not a witness until proceedings have started.
  3. Christmas dinner conflict.
     • Statute: §940.19(1)
       1. Elements:
          1. Causes bodily harm
          2. Intent to cause bodily harm
          3. Without consent
       2. Probable cause: On December 28, 2006 at 1:30AM at 2010 N. First St, Ann Pipalini said that Simon Katley, her boyfriend, pushed her down on a chair.
     • Statute: §943.01(1)
       1. Elements:
          1. Causes damage
          2. To the property of another
          3. Without consent
       2. Probable cause: On December 28, 2006 at 1:30AM at 2010 N. First St, Ann Pipalini said that Simon Katley, her boyfriend, smashed a jointly owned bowl on the floor.
          This seems pretty harsh. I'd advocate not even charging, unless the person who called the police was Pipalini and she was in fear. I would not charge the property damage, since the bowl was 50% his. Yay! Victory! Win! Possible disorderly conduct charge. Actually, you could go with the property damage charge if you needed to, but it's OK not to charge here.