FITCHBURG INTRUDER SHOOTING: OKAY OR NOT?

Yesterday's shooting of an apparent home intruder in an upscale subdivision of Fitchburg, Wisconsin has sparked a raging city-wide, media-saturated debate about using deadly force to defend yourself and your home.

A lot of local residents are offering opinions that range from a far left, anti-gun viewpoint all the way to Dirty Harry threats if they were to confront anyone in their own home under similar circumstances.

Here, for those who care, is the basic Wisconsin law on when you may use deadly force - hell, when you can shoot an intruder - in self defense, defense of others, and defense of property. This discussion is drawn right from the approved Wisconsin Jury Instructions on these issues. Shooting the Intruder - Wisconsin Law of Self Defense & Defense of Others

1. You reasonably believed that someone was actually harming or about to harm you or others (technically, called "interference with your person").


2. You reasonably believed that deadly force (force which is either intended to kill or likely to kill) was needed to prevent great bodily harm to you or others.


3. Your belief is reasonable if it is what any average Joe would also believe under exactly the same circumstances; not how a Madison jury of hand-wringers might later feel you should have acted, but viewed strictly from your standpoint in the face of danger.


4. In Wisconsin you have absolutely no legal duty to retreat from the threat, although if it was possible to beat a safe, fast retreat that can be considered by those jurors later as one of many circumstances you, the average Joe, faced at that very moment.

Use of Force in Defense of Your Home - Wisconsin Law

1. IT IS NOT OKAY, AND NOT LAWFUL, TO USE DEADLY FORCE JUST TO PROTECT YOUR HOME AND YOUR PROPERTY. PERIOD. BUT ... (Isn't there always a "but"?) ...


2. You CAN use non-deadly force to the extent reasonably necessary to stop someone from "unlawfully interfering with" - or, in English, trespassing in or on or stealing from - your home or your property, and that means everyone's property who lives there.


3. You must reasonably believe that someone is interfering with your home or your property under all the circumstances - again, not from the standpoint of a later jury but from your precise standpoint at the moment of great decision, as any ordinary Joe would have believed if he stood in your shoes.

SO ... WHERE DOES THAT LEAVE YOU?

Yes, you can shoot someone who breaks in the house in the middle of the night... IF - and this is a big IF - you reasonably fear death or great harm to you or your loved ones.

No, you cannot shoot the "sumbitch" just because he's trying to get in - or out - of your living room or den with the family stereo. Nor can you do so because he won't "git out da yard!"

But in the latter case, if he makes a move that puts you in great fear of harm or death, or maybe flashes something akin to a deadly weapon or comes at you, you are within your rights to shoot.

So get a 45 magnum? That's a personal choice. Keep in mind that the right to shoot someone and the nerve to shoot someone are two different things - and this isn't deer-hunting, either. So, before you go and stick your friend's Smith & Wesson under the pillow or atop the nightstand, ask yourself: would you? Could you? Because if you are unsure, there is a better than even chance that the only time that 6-shooter will get fired is AT YOU - by the far more criminal-thinking intruder (guns are the most popular item taken in break-in's) or - worse - by a kid who finds it and plays around with it, like kids often do.

My two cents: Consider a loud, large, barking dog. Burglars hate 'em. Leave the Dirty Harry stuff for those who are well-experienced with guns and shooting them. Or become that person yourself. And if you do, keep the guns away from those who don't. Like your kids.

Relavant information:
Self Defense
Intentional Homicide
Homicide
Channel 3 Madison, Fitchburg Intruder Shot & Killed

OWI Initial Appearance Hearing

Appearance Not Required

I’ve been charged with a misdemeanor, and my initial hearing is coming up. Will I need to appear in court? By the way, it was a drunk driving third offense.

Under Wisconsin law, an attorney can appear on behalf of his or her client on a misdemeanor charge at the initial hearing if the client gives written permission. An OWI 3rd offense is a misdemeanor although there is now-pending legislation that would make a third OWI a felony in Wisconsin.

At Van Wagner & Wood, our attorneys always appear on behalf of our clients at the initial hearing in misdemeanor cases.

Attorneys cannot appear at the initial hearing in the place of a person who has been charged with a felony offense. A person charged with a felony must appear in court for all hearings unless specifically excused by the court.

Helpful information:
Wisconsin Drunk Driving Defense
Criminal Trial Procedures
Misdemeanor Offenses
Felony Offenses

Innocent Until Proven Guilty

In the Eyes of the Law

In the eyes of the law, we are all "innocent until proven guilty", however the reality that occurs in courts across the state of Wisconsin and the nation every day is that an accused person is often assumed to be guilty, and often needs to prove his innocence to a jury in order to avoid a mistaken conviction.

In many instances, the laws of Wisconsin require the prosecution to prove an element of a crime beyond a reasonable doubt. Meanwhile, the law provides that the defendant need not prove that the element did not occur or exist. However, many defendants who attempt to represent themselves or hire an attorney experienced in other areas of law find themselves on the short end of the stick when the verdict is read - guilty as charged. And because they did not have an experienced criminal defense attorney beside them to object to the many procedures, rulings and other objectionable aspects of a criminal trial, they have nothing to appeal. If you are a defendant, it may be wise for you to think of the phrase, "innocent until proven guilty" in terms of "defending your innocence". For that, you have but once chance, and it usually requires an experienced, aggressive and previously successful criminal defense attorney to do this for you.

If you are facing criminal charges, contact an attorney experienced in criminal law. Most Wisconsin criminal defense attorneys will provide you with an initial free consultation so that you can ask questions about the state's accusations. As always, we invite you to contact our office for a professional, straight-forward honest assessment of your situation and how the law might affect you today and in the future. And you can call on our dime: 1-866-262-4599.

Helpful information:
Beyond a reasonable doubt
Criminal trials in Wisconsin
Grand jury proceedings
The Sexual Assault Stigma

The Burden of Proof

Why is the burden of proof different for police and prosecutors, or for an arrest or conviction?

An arrest is not a conviction. Formal charges are not a conviction.

The police are looking for a suspect and information that they can pass to the district attorney - the prosecutor - and say, "this person probably did the crime."

The evidence upon which they base those decisions isn't subjected the scrutiny of a jury or judge trial, and in most instances, the person isn't represented by a criminal defense attorney.

It is simply enough for the police to be able to say, "we have probable cause" or "this guy probably committed the crime."

That's enough evidence to arrest the suspect, charge him or her, and start the prosecution process. Then the suspect is released unless the charge is a felony. That isn't enough evidence to convict the person and take away his or her liberties.

Conversely, the district attorney seeks to charge a person with a crime when he or she has been told by the chief of police that they have enough evidence to support the charge and the DA looks at the evidence and concurs. The DA should be more than "probably" sure that the alleged defendant committed the crime. The DA will look at the evidence from the standpoint of the probability of obtaining a conviction.

At the next level - the trial - the burden of proof is even higher. At that level, the judge in a bench trial or the jury in a jury trial must be convinced beyond a reasonable doubt that the person committed the crime.

A person is innocent until proven guilty. If they are proven guilty, their personal liberties will be restricted. Our system guarantees people who are accused of a crime the right to face their accusers, to cross examine the witnesses that accused them of the crime, to examine the evidence presented against them, and to provide their own witnesses. People also have the right to give testimony on their own behalf or to refrain from taking the stand.

That level of proof and cross examination cannot occur in the district attorney's office, nor can it occur in the police station. It can only occur during a trial.

During a recent interview by Wisconsin Channel 3000 with Attorney Chris Van Wagner, TV3000 examined this very issue as it related to a recent arrest of a "suspected" sexual assault offender. Shortly after the arrest, police questioned whether the arrested suspect even could have committed the crime - the facts just didn't fit. Police released their suspect, but tied him to a tether and monitored his actions.

In another interview, Attorney Chris Van Wagner analyzed Scott Jensen's new trial. In that situation, evidence in the first trial that should have been presented to the jury for their consideration was not. When evidence is withheld - particuarly when it is critical to the jury's decision - justice has not been served. See Jensen's Trial for more information.

Pro Se - Representing Yourself In A Criminal Trial

I have been charged with a felony crime and I want to represent myself in court. Any suggestions or guidance that you could provide me would be appreciated. Thank you.

ANSWER:

If you are charged with a felony, my only suggestion to you would be to hire a criminal defense attorney and to seek guidance from that attorney. Self representation is at the cornerstone of our legal system, with your right to represent yourself in any criminal proceeding protected by the United States Constitution. And yet, the Constitution also affords you an absolute right to representation by an attorney at law even if you cannot afford one.

US Federal Courts and Wisconsin State Circuit Courts operate by different courtroom rules and procedures. You will be expected to know those rules and procedures. In addition to knowing how and when to proceed, you will also be treated as though you are an experienced attorney with knowledge of criminal law, criminal procedure, constitutional law, evidential law and rules, and case law (previously decided cases). The court and the prosecutor are on the same payroll, and neither of them are required to teach you the law or courtroom procedure. The outcome can have a very negative effect on your finances or freedom. (See Pro Se Defendant Loses - Gets Convicted of 3rd Offense OWI; Wood Wins on Appeal)

If you are considered "indigent" under state guidelines, you can have an attorney appointed to you at no cost. Those attorneys are called public defenders. (Refer to Wisconsin State Public Defenders).

In some counties, if your income exceeds the guidelines for indigent status, and the county has funds or a program by which to fund court-appointed counsel, you can have an attorney appointed to you at no costs or at very reduced rates.

In all situations, regardless of whether you qualify for a court-appointed attorney, you should consider the facts that 1) the state is your opponent, 2) their attorneys are very experienced in prosecuting felony cases, 3) and they have access to state labs and other resources to support their case against you. As well, district attorneys may not be so readily agreeable to negotiating a plea settlement (often called plea bargaining) with a person who is not represented by an expert legal advisor, or you may be the subject of a less than honorable agreement (See District Attorney violates Supreme Court rules).

Most criminal defense attorneys provide free initial consultations to help you understand the basic requirements of proof involved in a case such as yours, the penalties available to the court if you are convicted, and their initial fees - a retainer - required to hire them to represent you. At Van Wagner & Wood, we provide a free first-impression analysis via phone, e-mail or a meeting. Unless the attorney knows you, your history and ALL of the facts of your case, a first initial consultation will be a first-impression of the merits of the state's case against you and your defense. Consequently, you may be required to pay additional fees beyond the initial retainer.

If a criminal defense attorney offers a free initial conversation, it would be well worth your time and effort to take advantage of that offer before you make a decision to represent yourself.

It may also be of some merit in your decision process to know that criminal defense attorneys do not "go pro se" if they are charged with a crime, even though they know criminal law and how to defend a case in a criminal trial. (See Attorney Staton Found Not Guilty).

If after all these considerations, you are still determined to go it alone, then you will want to have these sites bookmarked in your favorites. These suggestions represent only a few of the resources you will need, but they will get you started.
Wisconsin Criminal Code, Statutes
Wisconsin Circuit Courts, locations
Legal Handbook, Wisconsin Courts
Circuit Court Open Records, Online Access
Wisconsin State Court of Appeals, Opinions
Wisconsin Supreme Court Opinions
A legal dictionary - there are several, this is one
Jury Instructions

Helpful information:
Criminal Defense Overview
Free Initial First-Impression Analysis
Plea Agreements - Plea Bargaining
US Courts - Defense against federal charges
Wisconsin Courts

Smiley Face Killers

If you have seen the Today Show on MSNBC, ABC News, picked up on Albany Times, or read Village Voice, you’ve likely noted irregularities amongst the media.

As is the case with the smiley face killers, police often provide numerous reports, some of which are constructed long after the incident. But when police “want their man” and they have some evidence, it is not impossible to imagine that they might go to great lengths to get that evidence into a trial to convict the person they believe committed the crime. Sometimes the investigator’s narrow focus on the need to make an arrest can lead to sloppy work or worse. When your only tool is a hammer, you tend to see every problem as a nail. In short, when police believe a particular person is the “do-er”, the killer, then they tend to see every sign that points to that suspect, sometimes missing other better suspects along the way.

Another common phenomena in criminal investigations is one of mistaken cause and effect. For example, our webmaster has a favorite statistical analogy: “If you were to assess the sale of ice cream and the number of arrests, you might mistakenly conclude that ice cream sales cause crime”. Whether all of the smiley face killings are tied, it is apparent that police would like to join all of those killings in which there was a smiley face present at the scene together to find one killer for many crimes. The serial killer theory may or may not be correct, but you can bet that if they find a perpetrator upon which to pin one, they will seek to pin on that person every other crimes with smiley faces left at the scene. This, of course, ignores the common criminal phenomena known as “copy cat” crimes.

Just as a mistake of fact is not an excuse to break the law in the criminal courts, it is also not an excuse that can be permitted to hold sway when advanced by police or investigators. Unfortunately, all too often, those types of mistakes of fact - like the ones that may be present in the smiley face killer crimes - are put together nicely and persuasively by the police for a DA to use to negotiate from what appears to be a stronger bargaining position – while the real facts and better suspects are left behind at the cop shop.

However, the facts of every case are that evidence is not evidence unless it is admitted into a trial, mistakes in fact can be disproved, and even hometown juries acquit people that may have previously been found guilty by public opinion. O. J. Simpson, for instance.

When we take a case at Van Wagner & Wood, we work it as though it will go to trial. We believe in our clients, and we stand ready to go the extra mile to defend them. That was the situation in a couple child sexual assault cases that I tried (and won) last year. The local communities had all but hung the accused, the DA’s claimed to have overwhelming evidence of guilt, but when the case concluded, a jury comprised of people from the same community found each of those two clients NOT guilty of anything.

Helpful links:
Murder
Sexual Assault

Megan's Law

Information about Megan's Law:

Sex Offender says that the sex offender registry was meant for safety, but has now become a public harassment. So, "what?" they ask will happen with the proposed sex offender license plates. Megan's Law Loophole, Megan's Law Website

Amber Alerts

What Should You Do in Case of an Amber Alert?

J.B. Van Hollen, Wisconsin Attorney General, provides a website about steps to take to help with an amber alert. http://amberalertwisconsin.org/content/whatdo.asp

Sign Up For Amber Alerts

Amber Alerts are available on the web (at http://www.amberalertwisconsin.org/default.asp) and can be added to cell phones (at https://www.wirelessamberalerts.org/index.jsp).

The Wisconsin Clearinghouse for Missing and Exploited Children and Adults is available online (at http://www.missingpersons.doj.wi.gov/).

The National Center For Missing & Abducted Children is available online (at http://www.missingkids.com/).

Sexual Exploitation

A special section about sexual exploitation of children is available online (at http://www.missingkids.com/missingkids/servlet/ResourceServlet?LanguageCountry=en_US&PageId=1442).

Sexual Assault

Definitions of the crime of sexual assault of a minor child, penalties.

Can Murder Acquittals Be Appealed?

If a person is found "not guilty" of a murder charge, can the state appeal the acquittal? I saw on the Department of Justice website that the Attorney General was appealing a conviction.

No. The state can never appeal an acquittal, which is a jury verdict. The state CAN appeal a legal ruling like the one below, where the appeals court said the conviction was vacated and a new trial was ordered. But the Attorney General is not appealing an acquittal.

http://www.doj.state.wi.us/news/2008/nr021908_AG.asp).

MADISON - The Department of Justice will seek Supreme Court review of a Wisconsin court of appeals decision that reversed the 1996 first-degree reckless homicide conviction of Audrey Edmunds and ordered a new trial. Attorney General J.B. Van Hollen said that the Department of Justice will file a petition for review with the Wisconsin Supreme Court, asking the Court to reverse the court of appeals' decision, thereby reinstating her conviction. Edmunds, a former Waunakee day care worker, was convicted after an eight-day trial by a Dane County jury of killing seven-month-old Natalie Beard.

"The court of appeals decision that vacates Edmunds' conviction and orders a new trial applies a novel legal analysis that may tend to upset the finality of all convictions where scientific evidence was properly adduced at trial and where a defendant had the opportunity to fairly and fully present his or her case," said Attorney General J.B. Van Hollen, whose office will represent the state before the Supreme Court. "We will ask the Wisconsin Supreme Court to carefully consider the merits of that legal analysis."

Helpful information:
Wisconsin Department of Justice website
Murder - definition

Murder Trial - Trials by Jury

For more than twenty-five years, I have been involved in murder trials. Without a doubt, they are the most serious, most demanding trials – for all involved. Murder trials involve a great deal of time, money, energy and emotion - from the moment a person is accused until the moment the verdict is rendered. The lawyers obsess for weeks before and during trial on such questions as jury selection, trial strategies, and points weak and strong in their case. But those burdens, undertaken willingly by the lawyers, pale in comparison to the burden placed on each of the jurors, which is – in essence – to determine a person’s fate. That burden- undertaken “voluntarily” but feeling more like conscripted service (we all must be willing to serve as jurors) – requires that jurors set aside their personal lives, their work and their families and listen to weeks of arduous and often emotional testimony before retiring to the jury room. In that room, of course, they must then shoulder the greatest burden – decide the facts, individually and then collectively, and without passion or prejudice for anyone. We ask no greater task of an ordinary citizen, and we each undertake that thankless job, because as a society, we wish to be known as the most beneficent and civilized society. From such momentous, important work from ordinary, everyday people do we hold on tightly to our freedoms.