Here’s an insightful article about selecting a divorce lawyer.

Why do you like sex offender laws? So you can get on the internet and make sure you aren’t moving to a neighborhood that has sexual predators, right?  Well, sorry, the law won’t help you anymore. Last year, people who touched someone on the butt while dancing in a bar got ordered to register. Yesterday, the Supreme Court ruled that some kids who did nothing sexual at all had to register. State v. James W. Smith, 2010 WI 16.  Smith was just a drug case where a 17 year old was involved in a drug case.

How does it protect your kids for a person to be on the list if they aren’t a sex offender?  It doesn’t, but it does guarantee that this one kid, who did something stupid, will never get the chance to grow up and fly right. He’ll never get an apartment. Won’t be able to have contact with kids. Won’t be able to get a job. He’ll have no choice but to commit more crime.  Way to go criminal justice system.

The sex offender registry only protects you if the people on the registry really are sex offenders.  If you dilute the list with common criminals, you won’t be able to tell the misguided from the dangerous. And uncertainty never helps you make a good decision.

BadgerLawyer is starting a radio ad campaign on 95.7, The Rock. Yeah, that’s the music I listened to back when I was doing pipeline construction down in Georgia in the ’80′s. Have a listen!

Here is my article in the November, 2009 La Crosse Magazine.

There was a time, not as long ago as you might think, when you couldn’t get a divorce.  Once you were married, you were stuck with your partner, for better of for worse. This is a short column, so I won’t get into all the reasons why divorce was restricted.  Suffice it to say, it was a bad time to be badly married. After centuries of couples enduring bad marriages, the pressure was pretty strong for change. And when it happened, it was dramatic. Think complete 180. Nowadays, instead of divorce being nearly impossible to get, all you have to do is want one. The legal term is “no fault divorce,” and it means you can get divorced if you want to, without giving any reason, even it your ex-to-be wants to keep trying.

So this sounds pretty good at first. No one should be forced to be in a relationship they aren’t happy with, right? Freedom, after all, is what America is about.

But there are downsides too. Most marriages have kids, and the near universal consensus is that divorce is bad for kids, emotionally and financially. Children of divorce are more likely to suffer in their schoolwork, have babies out of wedlock, live in poverty, and be incarcerated. Grim stuff. Divorce isn’t always good for the other spouse either, especially divorced women, who live in poverty in frightening numbers. The social and economic consequences of divorce are enormous. Some estimates state that over $100 billion in tax dollars are devoted to these issues.

On top of this, Wisconsin’s no fault rules have evolved from not just allowing no-reason divorce, but also no-blame property division. Lawyers argue vigorously that bad behavior during marriage – abuse, adultery, financial mismanagement, you name it – is irrelevant when determining the terms of the divorce settlement.  The law emphasizes equal division of property, which is not necessarily the same as fair division. While it is true that bitter fights over money and property won’t help mend a broken heart, too often equal division rewards the spouse who put in less effort or was less responsible in the marriage. Imagine a marriage where one spouse was hard working and the other ran up debts. In the divorce, the hardworking spouse gets half the debts, and the profligate spouse gets half the assets, and maybe some alimony. Or consider the marriage where one spouse has made significant sacrifices to support the other. Or one where one spouse has abused the other.  There is no question that the sacrificing or abused spouse loses in a 50-50 split, because that spouse almost always has a significantly limited future earning ability. An abused spouse usually hasn’t focused on her career, often because the abuser didn’t let her. Under the no fault system, though, as soon as you ask for additional compensation, you will be told that past abuse is not a factor in determining an equal division. But shouldn’t it be?

Some states are experimenting with modified no fault divorce rules that limit “walk-away” cases. Wisconsin is not one of them. The no fault idea has become so ingrained in Wisconsin’s legal community that there is strong resistance to unequal divorces, even when unequal means fair. The exceptions in the Wisconsin laws that allow for unequal distributions are as underused as the typical family’s treadmill. And trying to bring past behavior into the proceedings is frowned on, even though sometimes, to have a fair future, you have to look at the past.  Maybe Wisconsin should consider changes that rebalance some of the priorities in divorce? I’d like to hear your thoughts on the issue.

In a criminal case, when you hear someone talk about their rights being violated, a good deal of the time the right being talked about is the right “to be free from” unfair or unwarranted searches and seizures.  Under the constitution, searches are always supposed to be done with a search warrant. There are a lot of exceptions to this, and it is the police who have to decide whether an exception is available. If they decide wrong, then your rights have been violated.

For the last umpteen years one exception was that the police could search your car if they arrested you for something, even if you were already cuffed and in the back of a patrol vehicle. This has always seemed like a strange exception to me, because the logic behind it was that the police should be able to search to prevent the arrested person from grabbing a weapon or destroying evidence.  How are you going to destroy evidence if you are in the back of a squad car?

Recently the U.S. Supreme Court overturned this rule in a decision called Arizona v. Gant.  Police can no longer search your car “just cuz” when you are placed under arrest.  If they think they have a reason to search, they have to get a warrant, unless some other exception applies. To read more about the Gant decision, read this article from the Arizona Bar magazine, Arizona Attorney.

And remember, never, ever say “Yes” when an officer asks you if it’s okay to search you or your property. When you give consent, you give up your rights.

Chris

Badger Lawyer’s own Chris Doerfler was interviewed recently for an article on how lawyers should deal with the media. See it here.

“Statute of Limitations” is a fancy word for deadline. It is the time limit on when you have to file a lawsuit following being harmed by another person’s conduct.  Here are some of Wisconsin’s more common statutes of limitations. There are more — I have a 600 page book of them!

contracts

6 years

defamation

2 years

fraud

6 years

injury to personal property

6 years

intentional torts

2 years

libel

2 years

medical malpractice actions

3 years from date of injury

medical malpractice action based on insertion of foreign object

1 year after discovery of object

minors

2 years after date of 18th birthday

negligence causing personal injury

3 years from date of discovery

open account for debt collection

6 years

oral agreements

6 years

personal injury

3 years

product liability

3 years

promissory notes

10 years

slander

2 years

written contract

6 years

wrongful death

3 years from date of death

Seriously, would you be alright with a judge who told you he thought it was just fine to “mislead” the public when running for office?

That’s just what the attorney for Wisconsin Supreme Court Justice Michael Gableman argued today. That the judge had a constitutional right to mislead the public in his campaign to win a seat on the Wisconsin Supreme Court. The “misleading” statement in question was the attack ad Gableman ran against then sitting Justice Butler. The one that accused Justice Butler of finding a technicality that put a child molester back on the street where he then molested another child. Sounds bad, but it isn’t true. The child molester actually went to prison, served his sentence, and was released, where he then molested another child.

So what do you think? Is it okay for a political candidate, especially a candidate for judge, to “mislead” the public in order to get himself elected?  I certainly don’t think so.  Like everyone, I have my political views, and sometimes the person I vote for wins, sometimes not, but what’s a lot more important to me is that I am able to make my decision based on facts, not lies.

Chris

Read the full article at the Wisconsin Law Journal.

Most people don’t know this, but a jury is completely allowed to find a person not guilty even if the evidence overwhelmingly supports the conclusion that the person is guilty. This is called Jury Nullification. A federal judge in New York recently wrote an article on it, including a good example of when it happens.  This may be way TMI for you non-lawyers out there, but if you are curious, I give you here an excerpt:

Perhaps the textbook example of jury nullification in a gun possession case is the recent acquittal of Cpl. Melroy H. Cort. As recently reported in the Washington Post,35 the defendant, a U.S. Marine whose legs had been amputated above the knees when he was wounded by a makeshift bomb during his third tour of duty in Iraq, was traveling from his home in Ohio to Walter Reed Army Medical Center in D.C. for treatment. While traveling in Washington, he had a flat tire, forcing him to pull over at a car repair shop. A witness noticed that he had a gun in his jacket pocket and called the police, who arrested him as he was sitting in his wheelchair. He offered no resistance and readily admitted that he was traveling with the gun.

Since the defendant was not licensed to possess the gun in Washington, as required by D.C. law, his court-assigned attorney advised him that he had no defense to the charge and encouraged him to plead guilty. Cort refused, fired his lawyer, and represented himself at trial. He testified about the loss of his legs and explained that he had a permit to carry the gun in Ohio, and had brought it with him because he had moved out of his house in anticipation of an extended stay at Walter Reed. He told the jury that his commanding officer had advised him to take the gun to the armory on Walter Reed’s base as soon as he arrived. Given that the defendant admitted that he possessed the gun in violation of D.C. law, his acquittal clearly amounted to jury nullification.

The province of a jury to disregard the law and engage in nullification has spawned debate and controversy throughout the years, and has been the subject of extensive commentary. The origin of jury nullification traces back to the mother country in the 1670 decision in Bushell’s Case, which arose out of the underlying prosecution of Quakers William Penn and William Mead for unlawful assembly.36 At trial, the evidence of the defendants’ guilt under the applicable statutes was “full and manifest,” but the jury “acquitted [the defendants] against the direction of the court in matter of law, openly given and declared to them in court.”37 After juror Bushell was imprisoned for disobeying the judge’s instructions, he sought habeas relief in the Court of Common Pleas, where Chief Justice Vaughan ruled that the detentions were unlawful, stating that “how manifest soever the evidence was, if it were not manifest to [the jury], and that they believed it such, it was not a finable fault, nor deserving imprisonment. …”38 Bushell’s Case is widely cited as the first precedent for the independence of the jury.

Closer to home, the John Peter Zenger trial in 1735 is the foremost historic example of jury nullification in the United States. Zenger was charged with publishing seditious libels against the governor of New York; it was clear he had published the writings in question. Although the court instructed the jury that it could only consider whether Zenger had printed the material at issue and could not consider the truth or falsity of the writing, the jury acquitted Zenger, believing that he had printed the truth and should not be convicted.39

As exemplified by the Zenger trial, the independence of the jury emerged as a central value of liberty in the new American republic. As one commentator has noted: “The proponents of the jury’s power and right to nullify the law suggest that juries have traditionally had that power and right. The nullification power was explicit in the American courts until the 1850s.”40 Even as late as 1910, Harvard Law School’s eminent Dean Roscoe Pound wrote: “Jury lawlessness is the greatest corrective of law in its actual administration. The will of the state at large imposed on a reluctant community, the will of a majority imposed on a vigorous and determined minority, find the same obstacle in the local jury that formerly confronted kings and ministers.”41

There subsequently arose a more formalistic, anti-nullification view, as articulated by the Supreme Court in Sparf v. United States.42 In Sparf, which arose from a murder trial, the trial court had refused to comply with the jury’s request for instructions on the “lesser” charge of manslaughter because, while the evidence supported a murder conviction, it did not support a manslaughter conviction. While the jury apparently did not believe that it could acquit entirely, its request for instructions as to manslaughter showed that it was considering exercising leniency by convicting of the lesser offense, notwithstanding its legal inapplicability to the scenario at issue. The Supreme Court held that the trial judge had not erred in refusing the jury’s request. The Sparf court read Bushell’s Case narrowly — not as explicitly permitting jurors to nullify based on their personal view of the law, but merely as holding that Bushell could not be punished because “it could never be proved” that his refusal to convict was based upon his disregard of the law (which would have been impermissible), rather than his personal view of the evidence (which would have been permissible, however questionable).43 The Sparf court’s holding followed from its fear that “[p]ublic and private safety alike would be in peril if the principle [were] established that juries in criminal cases may, of right, disregard the law as expounded to them by the court, and become a law unto themselves.”44

This anti-nullification view was expressed once again in Horning v. District of Columbia,45 where the Supreme Court gave its approbation, over the dissent of Justice Brandeis, to the trial judge’s jury instruction that “a failure by you to bring in a [guilty] verdict in this case can arise only from a willful and flagrant disregard of the evidence and the law. …”46 Hewing to its formalistic approach, the majority opinion in Horning stated: “In [a case where the facts are not in dispute,] obviously the function of the jury if they do their duty is little more than formal.”47 While the Supreme Court recognized that the trial judge had “[p]erhaps [displayed] a regrettable peremptoriness of tone” in his comments on potential jury nullification, it concluded that “[i]f the defendant suffered any wrong it was purely formal since … on the facts admitted there was no doubt of his guilt.”48 In disagreeing with this view of the role of the jury, Brandeis retorted that “[w]hether a defendant is found guilty by a jury or is declared to be so by a judge is not, under the Federal Constitution, a mere formality,” and opined that “the presiding judge [had] usurped the province of the jury. …”49

The debate over the efficacy and acceptance of jury nullification has animated the circuit courts. In United States v. Dougherty,50 Judge Leventhal, writing for the D.C. Circuit, traced the evolving attitude toward jury nullification reflected in American jurisprudence. He noted that “in colonial days and the early days of our Republic [there were a] variety of expressions … from respected sources — John Adams; Alexander Hamilton; prominent judges — that jurors had a duty to find a verdict according to their own conscience, though in opposition to the direction of the court; that their power signified a right; that they were judges both of law and of fact in a criminal case, and not bound by the opinion of the court.”51 However, he continued, “[a]s the distrust of judges appointed and removable by the king receded, there came increasing acceptance that under a republic the protection of citizens lay not in recognizing the right of each jury to make its own law, but in following democratic processes for changing the law.”52

Sparf was the natural end point of this evolution, Leventhal wrote, establishing that “[t]he jury’s role was respected as significant and wholesome, but it was not to be given instructions that articulated a right to do whatever it willed.”53 Judge Leventhal concluded that juries ought not be advised of their power of nullification, as “its explicit avowal risks the ultimate logic of anarchy”;54 as for the occasional exceptional case where nullification was indeed appropriate, he believed that “[t]he totality of input [from literature, media, word of mouth, history and tradition] generally convey[s] adequately enough the idea of … freedom in an occasional case to depart from what the judge says,” such that instructions to that end were not necessary.55 Judge Bazelon, in dissent, criticized as “sleight-of-hand” the practice of intentionally hiding the right of nullification — the existence of which the majority had acknowledged — from the jury.

See the whole article:  Guns and Nullification or here on BadgerLawyer

August 25, 2009 – La Crosse County. Today Badger Lawyer defended a client charged with felony substantial battery and disorderly conduct arising out of a domestic situation. The significant facts were that both the defendant and the alleged victim had been drinking, and the alleged victim drank until she blacked out. There were a number of evidentiary issues including hotly contested hearsay issues, issues with chemical testing, and how to judge the credibility of the witnesses. A SANE nurse testified and was cross examined by Attorney Doerfler. The jury deliberated about 15 minutes and returned not guilty verdicts on both counts.