This week the attorneys at Badger Lawyer went to trial on behalf of a client who was charged with two criminal misdemeanor counts of Disorderly Conduct.  Attorney Dan Norland took the lead on the case.  After a one-day trial the jury deliberated for less than an hour.  The verdict? NOT GUILTY on BOTH counts.  There’s nothing quite like seeing the weight come off of a client’s shoulder when they are vindicated.

At Badger Lawyer, we aren’t afraid to take cases to trial.  We aren’t afraid to work hard on behalf of our clients.  If you have been charged with a crime, come talk to us.  Who, knows?  The next victory we post may be yours.

Suppression hearings are notoriously difficult to win. Suppression exists as a way of protecting people’s constitutional rights. The idea is that the police don’t get to use evidence against someone if they violated the person’s rights in order to get it. The problem is, once the police have evidence, it usually shows the person has committed a crime. While the purpose of suppression is to protect our freedom by keeping the police within the law, in practice it involves asking a court to throw out charges when the evidence shows the accused to be guilty. As you can imagine, most courts are not sympathetic to that argument. Many lawyers won’t even bother to file the motion.

Not us. At Badger Lawyer, we evaluate every police report for signs that our clients rights were violated, and fight for suppression when they were. This month alone, our lawyers identified constitutional violations in two cases, and took them to court. By the end of the month, both cases had been dismissed and all charges dropped. Both cases involved the police detaining individuals in their vehicles and then searching the vehicles on just a “hunch” that there was something else going on. We brought these cases to court and showed how the constitution does not allow police to search people based on a hunch. Both courts ultimately agreed, and the cases were dismissed.

Chris

The Supreme Court today significantly restricted the police protocol most of you know as “my rights.” You rights, also known as your Miranda rights, stem from the 1960s case that said that police had to give some kind of warning before engaging in custodial interrogation (asking questions after arrest).  Since then, “You have a right to remain silent” has become part of our national culture.

Today, though, the Supreme Court changed the dynamic. The cops still have to read you your rights, but you have to speak up if you want to use them. If you want to remain silent, you have to speak up and tell the officers that you want to be silent and you want a lawyer. Otherwise, police violation of your rights may not do you any good in court.

If you want to read the decision, you can find it here.

Meanwhile, please remember, when the police tell you you don’t have to talk and whatever you say will be used against you, THEY MEAN IT.  It is really better to “invoke” your rights by saying you want a lawyer and don’t want to answer questions. They may threaten to put you in jail if you don’t talk, and they may take you to jail for a day or two, but that is a small price to pay to save yourself from much worse consequences — criminal convictions and possible prison.

Chris

People think if they talk to the cops, they can help themselves out, especially if they are innocent.

WRONG!

You know your rights by heart. So you know “Anything you say can and will be used against you.” They don’t say “Anything you say will be used fairly to decide if you are innocent.”

If you want to know what “Used against you” really means, and if you want to see why you should never talk to cops, watch these two Videos:

Never Talk To The Cops, Part I

Never Talk To The Cops, Part II

If you are facing criminal conviction, or have previously been convicted, the Wisconsin sentencing laws are going to be important to you. The laws have recently changed dramatically. The State Public Defender has produced 4 YouTube videos to help lawyers understand the changes. I share them with you here.

Part 1: Review (10:10)

Part 2: Positive Adjustment Time (9:33)

Part 3: Risk Reduction Sentences and Changes to Bifurcated Sentence Modifications, Earned Released Program and Challenge Incarceration Program (5:01)

Part 4: Early Probation and Extended Supervision Release, Changes in Reincarceration, Expunction and other statutes (6:32)

Chris

Or, When is a Punishment Not a Punishment?
As everybody knows, when you are convicted of a crime you get a punishment. Your punishment can be a fine, jail time, or probation. But as everyone also knows, there are other consequences of being convicted of a crime that have nothing to do with the punishments that are on the books. In law, we call these “collateral consequences.” Here is a sampling of some very significant collateral consequences that can arise from a criminal conviction. If you are faced with a crime, you should be aware of these potential collateral consequences before you enter a plea. If you are representing yourself, the prosecutor is never going to discuss these with you, so they may come as a surprise once it is too late. A good reason to have a lawyer in a criminal case is that a defense attorney will consider collateral consequences in trying to shape a result for you.

Civil actions. Most of the time, crimes have victims. When a person is a victim of a crime, something wrong has been done to them. In our society, when someone wrongs you, you are allowed to sue the person who wronged you for money damages. Very often, the commiting of a criminal act also exposes the person to the potential for civil damages. When you plead guilty, that basically serves as an absolute admission for the purposes of a civil case as well. If you think you are facing a possible civil action arising out of criminal conduct, entering a no contest plea might help protect you somewhat, but you should explore the possible civil liability issues before entering any plea.

Immigration. The potential immigration consequences for a criminal conviction are vast and numerous. If you are not a natural-born United States citizen, you should seek an immigration opinion from an immigration attorney before entering any plea agreement. The immigration law is not consistent and very harsh. Even something as minor as a first offense possession of marijuana conviction could potentially lead to permanent exclusion from the United States. The immigration system doesn’t care if you’ve lived in the United States since you were 9 months old and have never known any other country. If you commit the right kind of crime and haven’t achieved citizenship, you may find yourself deported back to a place you never recall being. The criminal law, though, doesn’t consider this a punishment, just a collateral consequence.

SORNA Issues. SORNA stands for Sex Offender Registration and Notification Act. Despite repeated efforts by defense attorneys, being forced to register as a sex offender is considered a collateral consequence and not a punishment. This distinction takes on increasing dire consequences as every year both the state of Wisconsin and the Federal Government pass more laws to make sex offender registration required for more offenses and make the reporting and notification requirements even more onerous. This is a very confusing area. There are both Federal and Wisconsin requirements. The requirements are not consistent with one another. There is inadequate government implementation of both sets of requirements, so it is often difficult to register as a sex offender even if you are trying to do so. And, you can face criminal charges and prison time if you fail to register correctly. The laws are changing rapidly, and it is difficult to know what a person is supposed to do if they’re required to register. Moreover, offenses that once would not necessarily require a person to register are starting to be changed so that registration is mandatory. An example would be 4th degree sexual assault, which can be committed by touching someone on the buttocks in a bar over their clothes. In the past, it would be up to a judge whether the person who did that had to register. New federal law is changing that so probably that person is required to register for at least 15 years. Worse, the laws are retroactive, so the person who plead guilty to a 4th degree case in the past might now be required to register even though when he plead guilty he was told he did not have to.

Possession of Firearms. Most people know if you are convicted of a felony you lose your right to bear arms under Wisconsin law. Many people do not know that if you are convicted in a misdemeanor case involving domestic violence, you may also fall under Federal guidelines prohibiting firearm possession. The enforcement of this law is being stepped up. Now, even if you plead to a misdemeanor without a Domestic Violence label, the federal government will pull the criminal file and see if there was a domestic element to the offense. If there was, you would be denied the right to buy a gun. Even if it was just a disorderly conduct.

Right to Vote. If you are convicted of a felony, you lose your right to vote until you go through a separate legal procedure to have your civil rights restored.

People look. In Wisconsin, criminal convictions, charges, filings, dismissals –everything – is on CCAP. If you plead guilty to something, a future employer can look you up and see that you pled guilty. For that matter, a future employer, or boyfriend, girlfriend, buddy, teacher, anyone, can look up and see if you’ve even ever been charged. True, there are rules and laws prohibiting the use of that information against you in certain contexts, but how are you ever going to prove that you didn’t get a job because CCAP listed you as having once been charged with a drug crime? CCAP makes it very easy for people to look up what you have been convicted of, so it is important to consider that before deciding on taking a plea.

This is just a list of the main ways that collateral consequences can impact you if you are involved in a criminal case. There may be others that are particular to your situation. If you are in the military or have a stock traders or other professional license, a criminal conviction can have even more significant consequence. There are situations where if you are a student you may not be able to get student loans anymore. There are many different ways that a criminal conviction can impact your life, and before you enter into a plea which requires you to be convicted of a crime, you should research and consider all of the possible collateral consequences, or talk to an attorney who can help you.

Chris

For the most part, being convicted of a misdemeanor in Wisconsin won’t take away your right to own and possess a gun, so if you get into a bar fight, you can still hunt (unless you are on probation for it).  There is a federal law, though, that can jump in and interfere with those rights. Under federal law (18 U.S.C. Sec. 922(g)(9), if you’re interested), it is a crime to possess a gun (or ammo) if you are convicted of any state law “misdemeanor crime of domestic violence.” Federal law defines that as an offense that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” 18 U.S.C. Sec. 921(a)(33)(A)(ii). So a domestic battery would qualify, and a domestic Disorderly Conduct may qualify, because one way of committing D.C. is through violent acts.

On November 18, 2009, a federal appeals court decided the scope of this law as it applies to Wisconsin domestic misdemeanors. The case is U.S. v. Skoien, and you can read it here. Relying heavily on a Supreme Court case named Heller, the Skoien Court held that you do not permanently and automatically lose your Second Amendment rights upon a misdemeanor domestic conviction (like you do if you are convicted of a felony), but left open the question of whether those rights could be restricted in some manner. The implication is that the law needs to have some limits, which it currently doesn’t. The court does not say what those limits should be, nor does it rule on whether this law is or isn’t constitutional. Instead, it spends many pages explaining how some other court should decide the issue. That other court will be the district court in Madison. Once that court decides, the case may get appealed again, back to this court, to see if the decision was correct.  Until then, the law stands.

One suggestion for you though. This case stresses that the strongest part of your gun rights are your rights to self defense, so you might want to emphasize that aspect of it if you are confronted with a situation where you are asked to justify your possession of a gun.

Chris

“has, as an element,
the use or attempted use of physical force, or the threatened
use of a deadly weapon”

BadgerLawyer this week secured dismissal for a client in a carrying a concealed weapons case.

Badger Lawyer has been preparing for months for a Burglary and Theft trial. We pushed. We prepared. We pressured. We thought up a dozen ways to win the case, but the one that happened we never saw coming.

A week before trial, the DA just up and dismissed the charges.  Poof.  Case over.

Now I’m kinda sad that I didn’t get to go to trial, because I do love trial and I was all ready for this one. But our client didn’t mind at all.

Only one trial still scheduled for 2009!

Chris

In Wisconsin Criminal Cases, “DRI” means Dismissed but Read In. It is important to know what this means if you are considering taking a plea bargain.  Let’s say you got into a bar fight and now have two charges, Disorderly Conduct and Battery. The prosecutor offers you a deal: plead guilty to the battery, and he will DRI the Disorderly. What does this mean?

For starters, it means you are found guilty of the battery because you plead to it. You could face up to a $10,000 fine and 9 months in jail. The Disorderly conduct will be Dismissed — that’s the easy part of DRI.  Once dismissed, it can never be charged again, meaning you can never be found guilty of it, ever. You can never be sentenced to jail for the Disorderly and you can never be fined.

Now for the “Read In” part. When a charge is read in, you are admitting it happened for the purposes of the sentencing in the case. While the judge can’t go over the 9 months jail on the battery, he can give you more jail than he would have had there been no disorderly conduct. So a judge might say, “I was going to give you 3 months on this battery, but because you also committed disorderly conduct, I am going to make it 4.” That is still under 9 months, but you got more because of the read in charge.

But it gets worse. If you get in trouble years from now and are convicted of something else, the judge can go back and look at your record and hold that battery against you again, for the same reason.  Although the passage of time dims the significance of any crime, the “read In” charge never goes away. Even though you were never convicted of it, it will continue to haunt you.

It is easy for attorneys to tell you not to worry about a read in charge. After all, it is getting dismissed, and that’s pretty significant. But you should be aware of the consequences of that DRI charge, because they do have the power to impact your future.

Chris