Wisconsin Criminal Law

When can you pull the gun?

2011-11-04T18:45:00.003-05:00

Caller: What is the definition of the word threatened? What does it mean? When can you pull the gun?

If a person is carrying concealed, they will be more likely to use a gun to protect themselves.

There are two elements to self defense. The first is that you sincerely believe that you are in a situation in which you will be killed, nearly killed or very seriously injured. The second is that your belief that you were at great risk was reasonable under the circumstances.

The type of situation then that might give rise to that type of situation for pulling the gun is one in which there is eminent danger such that you believe you will be killed or gravely injured. It means that your life, or the life of someone else in your presence, is in immediate deadly danger.

Every person in possession of a concealed weapon should have a number handy of a criminal defense lawyer who is experienced in both defending people against criminal charges and with Wisconsin's various gun laws so that you can call them if ever you should use your gun to protect yourself.

Carrying Concealed Weapon Law & Protecting Family, Home & Property

2011-11-04T18:40:00.001-05:00

Caller: Can I use a gun to protect my family in my home and my property with the new CCW law?

Let’s break that down into two questions. First, does the new concealed carry law allow you to protect your family in your home?

You have always had a right to protect your loved ones in your home. If you are in your home, and someone puts you into a situation in which you believe your life or the life or lives of your family are in peril, in very immediate danger of death or very serious bodily injury, and your beliefs are reasonable under the circumstances, you have a right to defend yourself or another.

Under Wisconsin law, your right to defend yourself by use of up to blunt force is extended to those people in your presence whom are in the same danger. Be careful in how you read this, and know that it is not legal advice. If you are in a situation in which your wife's life, for example, who is lying in bed next to you, or your daughter's life who is in bed in the room across the hall, and a person has placed their lives in immediate danger by pointing a weapon at them with an apparent intent to take their life, your right to defend yourself extends to your right to defend them.

If you are in your home and your home is surrounded by a dozen people even if they are carrying guns, you wouldn't open fire on them; you would call 911. Twelve to one odds are just not good odds to hope to protect yourself against them.

And second, does the new law allow you to protect your property?

Your property includes your home and the land surrounding it, as well as any real or personal items on it. So, your question is if the new law allows you protect personal and real property?

Clearly, the new law isn’t meant to encourage people to patrol their property and shoot anyone that crosses the line, and it isn’t meant to encourage folks to take up weapons to resolve conflicts. The best way to resolve conflicts is to talk through them. It also isn’t wise to brandish a handgun without cause.

The intent of the new law is to allow people to carry a weapon on their person or in their proximity to protect themselves if the situation arises, and we all hope it won’t arise for anyone.

Helpful information:
Self defense
Criminal property damage

Self defense is an affirmative defense, which means that it is an omission to having committed murder which you claim to be a justifiable homicide.

Permits For Prior Law Enforcement Officers

2011-11-04T18:30:00.003-05:00

Caller: Will I have an advantage in getting a concealed weapons permit because I have prior law enforcement training?

According to the State of Wisconsin Department of Justice website, prior law enforcement training is one of the criteria for proving that a person has had prior gun safety training.

Notably, there may be instances in which a person with previous law enforcement training might not be able to obtain a concealed carry permit.

Accidental Death with Concealed Weapon Usage

2011-11-04T18:23:00.001-05:00

Caller: What happens if you miss and do property damage or kill or injure another person?

If you are going to use a deadly weapon, you must be prepared to defend your actions after the fact.

This BLOG does not provide legal advice, so think of this as fatherly or brotherly advice: if you are ever in any type of situation in which you may be charged for a criminal offense, the first and best act you can take is to contact a criminal defense lawyer and demand to have that lawyer present during all questioning.

Helpful information:
Criminal property damage
Prevention of a felony
Self defense
Intentional vs. unintentional homicide
Negligent homicide

Is an empty gun in a case concealed?

2011-11-04T18:20:00.001-05:00

Caller: I have a question about concealed carry. If you have an empty gun in a case, is it still considered to be a concealed weapon if I am in a car with it or walking around with it? Is a fully encased and unloaded weapon still a concealed weapon?

Regardless of whether your handgun is loaded or unloaded, it is still a weapon. If you carrying it concealed, it is a concealed weapon. A weapon in a car's glove box, trunk or under a seat is a concealed weapon. A weapon lying on the seat isn't concealed, but it is a weapon and you are 'carrying a weapon' if it is within your proximity. Even fully disassembled weapon has been considered to be a weapon by the Supreme Court.

Notably, you might not want to cruise around with a gun on your front seat.

Carrying Concealed in a Vehicle

2011-11-04T18:12:00.000-05:00

Caller: Can I carry concealed in a vehicle?

If you have a license to carry a concealed weapon, it applies to carrying a concealed weapon in your vehicle.

Under Wisconsin laws, you can be charged with carrying a concealed weapon if you do not have a license to carry a concealed weapon and the weapon is concealed in your vehicle, in the glove box, under the seat, in the truck or on your person.

Wisconsin's Carrying a Concealed Weapon law does not apply to long guns or sawed off guns; it only applies to handguns and the right to carry a handgun in a concealed manner.

Using Your Carrying Concealed Weapon License

2011-11-04T18:06:00.001-05:00

Caller: If you have a CCW license, do you have to use the license when carrying?

If you are walking down the street and someone sticks you up, and you realize that you need to pull out and use your gun or be killed, if you reasonably fear serious bodily injury or death, you are then entitled to use blunt force to protect yourself including mortal force. There is no duty to retreat in Wisconsin.

You don't have to talk to anyone, including police, without your lawyer present. Having your attorney present is your Constitutional Right; assert it in all instances in which any law enforcement agent wants to question you. You can say, "I will be happy to answer your questions, but I need to get my lawyer here for that." If you use your weapon - even justifiably, you should have your lawyer present in answering questions.

If police ask to search you, you need not consent to the search. You may not want to consent to the search for various reasons such as if there might be contraband in a pocket that you aren't aware was placed there.

If you have used your weapon even in self defense, you should immediately contact your lawyer before notifying police.

The simple act of pointing a gun has been charged as reckless endangerment in the state of Wisconsin and most notably in Madison. You should not speak with law enforcement without your attorney present.
If you plan to apply for a concealed weapons permit and carry a concealed weapon, you should also carry the name and number of your criminal defense lawyer for situations that might arise.

Van Wagner & Wood can be contacted 24 x 7 x 365 by calling the main telephone number (608-284-1200 or 1-866-262-4599). If you call after regular hours, please clearly state your name, number and message.

Carrying Concealed Weapon: Use & Judges

2011-11-04T18:03:00.005-05:00

Who decides who will judge you? The caller states, "If I use my concealed weapon, who will judge whether it was reasonable?"

If you are charged with a crime - a homicide in the context of the caller's question - you have a right to face your accusers and to have a decision made about the reasonableness of your actions (which ultimately determines whether you are found guilty or not guilty of the criminal charge or charges), and you have a right to a trial by a jury.

The term 'a jury of your peers' often leads people to believe that the jurors will be people of like interests and concerns. But the reality is that the jury of your peers in Madison, Wisconsin, for example, aren't going to be 12 members of the NRA, like you; they'll be a mix of men and women, old and young, some tied to the University and the vast majority from within the confines of the belt line.

Helpful information:
National Rifle Association
Wisconsin Criminal Defense Lawyers

Carry Concealed with Florida permit?

2011-11-04T18:01:00.001-05:00

Can I carry concealed in the state of Wisconsin if I have a concealed carry permit from Florida?

No. According to the State of Wisconsin Department of Justice website, Wisconsin does not recognize permits from any other state. Any person who wishes to carry concealed within the state of Wisconsin must apply for, be granted and carry a permit issued by the state of Wisconsin before they carry concealed.

Castle Doctrine & Concealed Carry

2011-11-04T17:58:00.001-05:00

Caller: What is my castle? I live in low income housing and manage the complex. Is it the apartment complex I manage my castle? Can I carry concealed on the complex?

Let’s break down the questions.

First, what is your castle?

Your castle is your home.

Next, is the apartment complex that you manage your castle?

No, it is not your home.

If you live in an apartment at that complex, your apartment is your castle. People who rent an apartment live in the apartment as their home, hence it is their castle and they are entitled to all the rights and privileges of using it as their home including protecting themselves or their family while in it.

Can I carry concealed on the apartment complex?

While you may have a right to protect yourself – even defend yourself with lethal force – at the apartment complex such as if a person were in your rental office pointing a gun at you, I’d be very careful not to go around the apartment complex with a gun on my side.

Carrying and Using Concealed Weapon in Self Defense

2011-11-04T17:55:00.005-05:00

Suppose I protect myself and shoot and kill an attacker? I assume the police will confiscate my firearm, and I'll be arrested. True?

After shooting, you would holster your weapon, call 911 and explain that there has been a shooting in which someone was attacking you and you were forced into a situation of self defense or be killed and you used your handgun to protect yourself; in the process of defending yourself, the attacker was shot and (injured/is believed to be dead/killed, depending on the situation).

In the situation in which you feel you did what you believed was right, if you can state the facts under the stress of the situation, then you would call 911.

The reality is that most people won't be able to state the facts of a very stressful situation after having shot and killed another person and not make statements or use wording that may get them charged with a crime. For example, if a person broke into a lawyers' home and the lawyer shot and killed the intruder, the lawyer would - without a doubt - call 911 and state the above information as it applied to the situation and then call his or her criminal defense attorney before answering any questions. Remember, EVERYTHING you say WILL BE HELD AGAINST YOU IN A COURT OF LAW.

Whether the police will confiscate your weapon will depend upon the situation. You should be prepared to have your weapon confiscated, and you should if you plan to carry concealed have the name and number of a criminal defense lawyer with you for situations such as this.

Live BLOGGING Vicki McKenna and Attorney Christopher T. (Chris) Van Wagner on WIBA. Join the streaming live talk show now at http://www.iheart.com/.

Is Open Carry Legal?

2011-11-04T17:36:00.001-05:00

Caller: Is open carry legal?

Open carry has always been legal. You have a right to carry openly. Keep in mind that you might violate DNR rules. The new concealed carry law does not apply to long or sawed off guns; it only applies to handguns.

But what happens if you are in a situation in which a disorderly situation arises? For instance, say that you have a weapon on your person in a public place and someone near you is offended by the sight of the gun and creates a disorderly situation. Under Wisconsin disorderly conduct laws, you may have created an 'other disorderly conduct' situation. You would then have to defend yourself against the disorderly conduct charges.

Attorney Christopher T. (Chris) Van Wagner was a guest on Vicki McKenna's Upfront Talk show on WIBA.

Carrying Concealed in Wisconsin with Iowa Permit?

2011-11-04T17:30:00.002-05:00

Caller: I am a resident of Iowa, moving to Wisconsin. I have an Iowa permit. Can I carry concealed in Wisconsin with my Iowa permit? Under Iowa law, you can use your DD214; does that apply in Wisconsin?

Let's separate these questions.

Can a person with a permit to carry concealed from Iowa carry concealed in Wisconsin?

No. Wisconsin law requires a person who wishes to carry concealed in Wisconsin to apply for, be approved for and carry a license issued by the State of Wisconsin Department of Justice to carry a concealed weapon.

The State of Wisconsin Department of Justice has identified the states that require similar background checks. In the future, the Wisconsin DOJ may enter into reciprocity agreements with those states, but you should not rely upon rumor or websites to verify whether such privileges exist; everyone should check the laws of the state in which they wish to carry concealed.

Does a DD214 qualify one for a concealed carry license?

A DD214 is the form giving to people when they separate from a military position.

According to the State of Wisconsin Department of Justice website, one of the valid proofs of having completed gun safety training is a DD214. In cases where a DD214 is accepted as proof of having completed a gun safety training course, there are other background checks that must be conducted before an application is approved. Notably, there may be situations in which a DD214 will not suffice.

Helpful information:
State of Wisconsin Department of Justice website

Can I carry a concealed long gun?

2011-11-04T17:24:00.000-05:00

Caller: Does a long gun on the rack in my truck constitute a gun under the concealed carry law?

Wisconsin's new concealed carry law does not apply to any type of long gun (including sawed off guns, shot guns, or rifles); the new law only applies to handguns.

Can I keep a loaded gun in my home?

2011-11-04T17:22:00.000-05:00

Caller: Can I keep a loaded gun in my home?

Yes, the concealed weapon law didn't give you that right; you have always had that right.

The risk you take with a loaded gun in the home is that it may be used inappropriately, such as if children are present.

"Protect children from loaded weapons."

Carrying Concealed Weapon on Business Premises

2011-11-04T17:16:00.003-05:00

Caller: If I own a store and allow people to come in with concealed carries and someone gets shot, am I, as the business owner, liable for the shooting or killing? Am I responsible for searching people for concealed weapons to ensure they aren’t carrying?

If you didn’t do anything wrong, you would not have any liability.

Wisconsin’s concealed carry law gives people the right to a carry concealed weapon; you don’t give them the right to do so by posting a sign. You can post a sign warning that there may be concealed weapons on the premises, but you aren’t required to do so. You can also post a sign prohibiting concealed weapons, but you wouldn’t be liable for any resulting shooting if someone brought a concealed weapon onto the premises.

I, personally, would not attempt to search people for a concealed weapon.

Caller: Conversely, if I prohibit concealed carry and someone ends up using the weapon, can i be sued for the use of a weapon?

So long as you as the store owner does nothing negligent, careless, reckless or just plain wrong, she or he couldn't be held liable for the improper actions of gun-toting customers who, unbeknownst to the store owner, carry in & use a concealed handgun to injure or harm others.

Helpful information:
Ordinary care
Criminal negligence
Self defense

Attorney Chris Van Wagner was a guest on Vicki McKenna's Friday, November 4, 2011 show. They took questions from callers and Sigma One Group BLOGGed the answers live.

Can Holdover Tenants Shoot Landlords Under Castle Doctrine?

2011-11-04T17:12:00.000-05:00

More Blogging Live with Vicki McKenna and Attorney Christopher T. Van Wagner

Caller: Chris, you touched on the landlord situation, but I have more questions on it. If I have a problem tenant and give him a 10 day notice, and I go to inspect the property after giving proper notice, and he shoots me for going into his home, what is the situation there with the new Castle law?

First, the Castle Doctrine (Wisconsin Legislative Bill AB69) has not yet passed at the time of this broadcast, and Attorney Van Wagner has not read the bill in its entirety.

Under current Wisconsin law, your remedies do not include your own use of force against the tenant; you would have to call upon the Sheriff to assert your right to inspect the property.

A tenant has a legal right to be on the property until such time that the tenant's right to possess has ended; a tenant's right to hold possession can be extinguished by notice upon the date on which that right ends.

VWW is not a landlord-tenant law firm, but speaking from the criminal aspects of the question, a landlord shouldn't go into an apartment outside of law. If I had an apartment to show, I would ask permission to show the apartment and set a time to show it so that my visit wasn't a surprise.

Here you are asking if the holdover tenant can shoot you for entering the apartment without prior and proper notice to the tenant even if a holdover tenant. The answer would be no. There is nothing in current law that would protect the tenant if the tenant shot you if s/he knew that you were coming in to show the apartment.

If you know that the tenant is a problem person, taking any unnecessary risk such as entering the apartment without prior notice would be very risky on your part, and you do not have a right to protect that apartment as though it were your home and go in brandishing a weapon or even with a concealed weapon with an intent to use it.

Helpful information:
Self Defense Laws in Wisconsin
Carrying A Concealed Weapon License

Attorney Chris Van Wagner Guest on Vicki McKenna's Upfront Talk

2011-11-04T17:10:00.003-05:00

Attorney Christopher T. (Chris) Van Wagner will be on WIBA with Vicki McKenna at 5 PM today talking about Wisconsin's Carrying Concealed Weapon law and cautions you should take if you should be stopped by police while carrying concealed. You can listen live on WIBA at http://www.wiba.com/main.html. Great BLOG Post at http://wisconsincriminallaw.blogspot.com/2011/11/prudent-cautions-when-carrying.html.

To read all of the live BLOG posts from the show, select Carrying Concealed to the right.

WIBA-AM
www.wiba.com
News/Talk 1310..

Prudent Cautions When Carrying A Concealed Weapon

2011-11-04T15:50:00.004-05:00

CCW: Carrying A Concealed Weapon - Wisconsin Law

On November 1, 2011, Wisconsin joined 48 other states in becoming a concealed carry gun law state. All Wisconsin residents who wish to carry a concealed weapon in Wisconsin MUST have a Wisconsin Concealed Carry License, even if that individual holds a valid concealed carry license from another state (DOJ).

Carry Concealed Weapon Licenses

The Concealed Carry Application Form is available online. See DOJ site for printing instructions.

Applicants are required by Act 35 to provide proof of firearms safety training, such as the hunter education program established under Wisconsin Statute 29.591 or a similar program, or an valid (not revoked) concealed carry license from another state or jurisdiction, or proof of military, law enforcement or security firearms training, or a Department of Justice Firearm Safety Course certificate issued by a DOJ certified instructor, or a firearms safety or training certificate.

The Wisconsin Department of Justice (DOJ) estimates that it will issue a minimum of 100,000 permits in 2011, and approximately 50,000 in 2012.

Individualized Prohibitions to Concealed Weapons Property owners and lease holders may declare prohibitions of concealed weapons on their premises. Many businesses throughout the state of Wisconsin have already taken a position on the question of whether or not a person may carry a concealed weapon on the premises, so you should look for postings on the front door such as, "Concealed Weapons Prohibited", as well as signs stating, "Warning: Concealed Weapons carried on these premises" or similar wordings.

In some situations, there may be contradictory permits and prohibitions of carrying concealed weapons. For example, The Senate wants to prohibit concealed carry in its galley, but visitors to the Assembly would be permitted to carry concealed weapons.

If you are carrying a concealed weapon in an area which does not prohibit doing so, and you need to enter an area that does prohibit carrying of a concealed weapon, you may not enter the prohibited zone with the concealed weapon on your person or in your proximity.

In your proximity means that you can reach it. Reaching it can mean by exerting minimal effort, such as if the gun is located in the back seat of a car and you need to get out of the driver's seat and reach it by opening the back door. 'In your proximity' also includes your glove box of a vehicle, as well as the satchels on the back of a motorcycle. Carrying a weapon on your person falls under the rules for carrying the weapon concealed: if carrying concealed is prohibit on the premises, then one may not carry a weapon exposed on their person such as on a hip belt.

Carrying Concealed Weapon In Another State

The State of Wisconsin Department of Justice has identified the other states that conduct similar background checks and administrate similar rules to those of Wisconsin, and for which they will accept a non-revoked concealed weapon license as part of the application process for those wishing to obtain a license to carry concealed in Wisconsin. Those states are:

Arizona, Arkansas, California, Colorado, Connecticut, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Montana, Nebraska, New York, North Carolina, North Dakota, Pennsylvania, Tennessee, Texas, Utah, Washington, Wyoming, Puerto Rico, and the U.S. Virgin Islands.

Notably, a Wisconsin resident must have a Wisconsin concealed Carry license to carry in Wisconsin, even if that person holds a valid concealed carry license from another state. The Wisconsin Department of Justice may form reciprocity agreements with other states, in which instance a Wisconsin license to carry a concealed weapon would be honored by another state or another state's license would be honored by Wisconsin without a separate Wisconsin license, but those reciprocity agreements have not yet been established and nobody should rely upon rumor, websites or any other unofficial material.

Whether or not a resident of Wisconsin may also carry concealed in another state depends entirely on the laws of that state. A Wisconsin Carry Concealed Weapon license holder should always check with the other state in which they want to carry concealed on the most current laws of that state.

Concealed Weapon Used In Self Defense

Previously, a self defense article was posted in this BLOG.

Like most responsible armed citizens, you are unlikely ever to need the services of a Criminal Defense Attorney. Nonetheless, if you should ever feel the need for our help, due to a police contact, the best things to do include the following:

Respectfully decline to answer any questions unless & until you contact your attorney. This is your right. Assert it.

Be respectful & cooperative if police have a search warrant, but respectfully & expressly decline to give consent to any search of any place, any thing or any vehicle. This too is your right but is always better to say it, so that your failure to do so cannot be interpreted as tacit assent or consent to any search.

Call us promptly & formally retain us to represent you in regard to any such investigation. This not just your right but it is also just plain smart. Unfortunately, at least in regard to police investigations of firearms, it is NOT necessarily true that "good things come to those who wait."

The best way to reach us, regardless of the time or day, is to call our main telephone number, (608) 284-1200 or toll free at 1-866-262-4599. And feel free to forward a link to this page or our website, http://www.vanwagnerwood.com/, along with our contact information, to anyone else who you think might have similar concerns.

Helpful Online Information:

Attorney Christopher T. (Chris) Van Wagner

Van Wagner & Wood

Wisconsin Criminal Defense Lawyers

Concealed Carry License Application

Concealed Carry Law 2011 Wisconsin Act 35

Concealed Carry Senate Bill history

Summary & History of States with Concealed Carry Provisions

Felon In Possession Laws

Felony Conviction & Firearm Hunting

2011-11-04T12:23:00.000-05:00

Q: If I have been convicted of a felony, can I still buy a hunting license in the state of Wisconsin, and hunt during the 2011 deer season?

If you are asking if you can rifle hunt deer, the answer is no; however, you can hunt deer with a long bow and arrow, recurve bow, compound bow or composite bow. Crossbows are illegal in the State of Wisconsin, with an exception for handicapped people.

A person with a felony conviction is legally able to purchase a hunting license in the State of Wisconsin even though they cannot hunt with a gun, nor tag a deer, bear or other game that has been killed with a gun.

More short hunting answers:

Can a convicted felon buy a hunting license? Yes.

Can a convicted felon possess a rifle, handgun or muzzleloader? No.

Can a convicted felon join a hunting group? No.

Can a convicted felon use a bow and arrow to hunt? Yes.

Can a convicted felon hunt? Yes, so long as he or she does not possess a firearm to do so.

Can a convicted felon hunt deer? Yes, but not with a firearm (only with a bow & arrow).

Can a convicted felon hunt with a compound bow? Yes, during bow & arrow season.

Is a BB gun a firearm? No; BB guns are expressly excluded by Wisconsin legislation as firearms.

Under Wisconsin laws, it is illegal for a felon to possess a firearm, or for any person to provide a felon with a firearm. Wisconsin Statute 941.29(2) expressly prohibits any person who has previously been convicted of a felony offense in any state from possessing a firearm at any time, for any purpose, while in the state of Wisconsin.

A felon is a person who has previously been convicted of any felony offense in this or any other state. A felony conviction includes being found guilty of a felony at trial, pleading ‘guilty’ to a felony offense, and pleading ‘no contest’ to a felony charge and being found guilty of a felony. Additionally, if you plea bargained for a lesser offense, and the lesser offense was a felony, it is still a felony conviction.

A felony conviction in another state equally prohibits that felon from hunting in Wisconsin.

Helpful information:

Felon Possession Firearm, Wisconsin Statute 941.29(2)

Wisconsin Hunting Laws, Rules & Regulations

Felon Firearm Possession In Other States

BB Guns

Wisconsin No Firearm School Zone

Hunting, Fishing & Trapping Licenses

Licensing Requirements

Armed Forces Privileges

Antlerless Deer (Bonus) Carcass Tag Availability

Bow Hunter Safety Education Certification

Conservation Patron License Nonresident

Conservation Patron License Resident

CWD Carcass Tag Agents

DNR Service Center Locations

Duplicate Safety Education Certificate

Earn a Buck Prequalification

Fishing Regulations

Hunting and Fishing License Fees and Information (Resident)

Hunting and Fishing License Fees and Information (Non-Resident)

Hunting Regulations

Hunter Safety Education Certification

Licenses and Permits for People with Disabilities

License Sales Locations

Safety Education Instructor Certification

Hunting & Trapping Seasons Dates

Setline and Bank Pole Licenses

Trapper Education Certification

Trapping Information

FITCHBURG INTRUDER SHOOTING: OKAY OR NOT?

2009-09-17T11:52:00.014-05:00

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

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

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.

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.

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

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"?) ...

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.

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

2009-02-05T20:13:00.007-06:00

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

2008-10-24T07:46:00.000-05:00

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

2008-09-08T20:24:00.000-05:00

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

2008-08-20T05:19:00.000-05:00

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

2008-04-30T06:09:00.002-05:00

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

2008-03-08T05:54:00.000-06:00

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

2008-02-24T05:35:00.002-06:00

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?

2008-02-23T05:56:00.002-06:00

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

2008-02-22T07:15:00.001-06:00

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.

Jurors In Mark Jensen Murder Trial Return Guilty Verdict

2008-02-21T13:25:00.002-06:00

The jurors in the Mark Jensen trial returned their verdict: murder. Mark Jensen was convicted of First Degree Intentional Homicide, a Class A Felony in the state of Wisconsin punishable by a mandatory life sentence to prison.

Under Wisconsin's sentencing laws, Jensen may be eligible for parole after serving at least 20 years. Parole is at the court's discretion.

Day 2 Jensen Murder Trial Jury Deliberations

2008-02-20T17:50:00.001-06:00

What does it mean when the jury deliberates for two days?

That is a question that many criminal defense attorneys ask when they wait for the jury's verdict. Some say that it means a hung jury (and it likely does in many cases), but the jury is going over evidence from the trial a piece at a time.

Jensen Trial - Jury Deliberations Begin

2008-02-19T16:00:00.005-06:00

The trial of Mark Jensen in State of Wisconsin -v- Mark D. Jensen has come to a close, and the jury has begun deliberations. Over the course of a 7-week trial, the jurors have listened to more than 160 hours of evidence. And now, they carry the greatest burden of all - the burden of determining whether reasonable doubt exists.

The jury in the Jensen trial is comprised of 7 women and 5 men from the local Walworth County area. The men's occupations include a truck driver, an engineering technician, production tester, facilities manager, and machine operator. The women's occupations include a medical secretary, a housewife, an unemployed female, a retired female, a certified nursing assistant, a proofreader, and a bookkeeper.

Thus far, the deliberating jurors have asked for certain testimonial transcripts and evidence: the letter allegedly written by Julie Jensen, testimony from Mark Jensen's co-worker, photos of Julie Jensen when medical personal arrived at her home, and both Mark and Julie's day planners.

Jensen Trial Continues

2008-02-18T18:32:00.007-06:00

Jury deliberations were expected to begin today at the end of closing arguments, but the closing arguments haven't ended. See Jury Deliberations.

In a criminal trial, the prosecution makes its initial closing argument, then the defense makes its closing argument, and then the prosecution gets the last word. That "last word" took more time than the judge anticipated, a fact he pointed out when commenting on his expectation to "send the trial to the jury" today.

At 6:20 p.m. tonight, the judge polled the jury, not for their verdict in Mr. Jensen's trial, but rather for the time that they wanted to start the trial tomorrow - they voted for 8:30 AM - and then he recessed the trial and emphasized his intent to "charge the jury" tomorrow and refrain from holding the jurors any longer than necessary. The defense agreed, and added that they were also interested in not having Mr. Jensen's life unnecessarily put on hold any longer.

A pool of 19 jurors were selected for the Jensen trial. Twelve jurors for the jury, and 7 additional jurors (called alternates) if needed. Alternate jurors are selected for very serious felony trials to prevent a mistrial in case one or more jurors is unable to serve.

The court ordered the defense and prosecuting attorneys to report at 8:15 a.m. tomorrow morning to answer the question, "How many jurors should be dismissed before deliberations begin?" The court posed that question to the attorneys yesterday, with the anticipation that the court would dismiss those alternates today.

So, why are closing arguments taking so long? The prosecuting attorney is giving his rebuttals to the defense's closing arguments, and to that end has prepared a list of the testimony and evidence in the state's case. For each item on the list, he is summarizing the state's case, as well as hypothesizing other possible reasons for past activities and evidence in the trial, a summation technique that met with a few objections from the defense and a motion for a mistrial.

The court denied the defense's motion for a mistrial.

The court indicated that the prosecuting attorney is expected to be done with his closing arguments by noon tomorrow, with deliberations beginning as soon as the jury instructions are done.

Triple Murder Charges Filed

2008-01-11T18:31:00.000-06:00

One Year After A Triple Murder, Charges Are Filed

One year ago, on January 11, 2007, a triple murder took the lives of three people at their Janesville, Wisconsin home. Today, charges were filed against a suspect.

When charges lagged and were not immediately filed after the killing, the public began asking questions. As the weeks passed, many people were very upset over the district attorney's failure to file charges. In a Madison TV 3000 special segment, we discussed the burden of proof in a criminal trial, and compared that to the burden of proof required for an arrest. (The Burden of Proof - Beyond A Reasonable Doubt)

Today, the focus is on a one year delay in criminal charges. Why do prosecutors delay charging a person? What happens in the time between the crime and the date on which criminal charges are filed against a suspect?

In some instances, prosecutors choose to delay charges for a particular reason. While in other instances, a delay may be caused by some circumstance outside of the prosecutor's control. It could never be said that the act of filing charges on the one year anniversary date of a crime is not without impact, or that charges filed on the fifth anniversary of a crime send a very different message.

In some cases, a delay is a legal strategy, but most delays are caused by circumstances beyond the prosecutor's control such as when criminal records are not readily available, or the crime lab is backed up (see Wood Speaks Out On Criminal Lab Delays).

Whether criminal charges are filed immediately, the single most important factor to keep in mind is that everyone is innocent until proven guilty. Whether a prosecutor is quick to file charges or waits to file charges for some certain event to occur should not be construed as an inference of guilt or innocence.

Helpful information:
Wisconsin Criminal Trials - Proceedings explains the criminal trial process and jury selection
Wisconsin Circuit Court Access provides access to some circuit court records including criminal charges, arrests, and convictions
WIBA - Madison 1310
Wisconsin Statutes
Wisconsin Circuit Courts

What is an illegal act?

2007-12-03T09:07:00.000-06:00

What is an illegal act?

An illegal act is any action proscribed by law. In other words, in order for an act to be a crime, and therefore an illegal act, it must be prohibited under the laws of the state (or federal government), and there must be a penalty provided by law if someone is convicted of committing that act. If the law does not prohibit the act, theoretically then it is not a crime.

However, Wisconsin law has a catch-all statute that provides that if some act is not proscribed by law, but it nevertheless wronged another person or society, the state government can still prosecute the person for committing that act. On the other hand, it is unconstitutional for a person to be charged criminally for any act that is not proscribed by law, properly written as law and communicated to the public at large.

Each state is responsible for its criminal code. The legislature can make whatever law it elects.

Helpful information:
Criminal Law Overview

Jensen Should Get A Fair Shake

2007-11-23T14:28:00.000-06:00

Why was Scott Jensen's conviction reversed by the Wisconsin Court of Appeals?

http://criminalattorney.vanwagnerwood.com/

The Death Penalty

2007-10-04T20:13:00.000-05:00

In a recent poll asking, "How do you think the Supreme Court should rule on the issue of legal injection being cruel & unusual punishment?"

The majority of responses were, "The death penalty should not exist."

The second most often chosen response was, "The Supreme Court should rule that the death penalty is not cruel and unusual punishment."

Read more about Wisconsin Death Penalty

Lethal Injection Execution Poll

2007-09-26T14:13:00.000-05:00

Voting Options

How do you think the Supreme Court should rule on the issue of lethal injection being cruel & unusual punishment?? (Sorry, the question keeps disappearing)

Yes, the Supreme Court should rule that legal injection is cruel & unusual punishment.
No, the Supreme Court should rule that legal injection is not cruel & unusual punishment.
I don't know. I would have to hear what Ralph Baze & Thomas Clyde Bowling Jr. have to say before I decide.
The Supreme Court should continue to make it easy for death row inmates to contest the use of lethal injection.
The death penalty should not exist.

Lethal Injection Executions

2007-09-25T12:54:00.000-05:00

On Monday, a death row inmate won a criminal appeal in the United States Supreme Court resulting in a stay of execution. Clarence Hill, a Florida death row inmate, was seeking to show the Court that legal injection is cruel and unusual punishment.

The Supreme Court has taken up the issue of lethal injection in the past temporarily halting its use as cruel and unusual punishment under the Eigth Amendment. The Court reversed itself five years later. Florida is one of 38 states to allow the death penalty; all but one of those 38 states allow the use of death by lethal injection.

Hill claimed that the drug cocktail could fail, and he could be paralyzed by it but strapped to a gurney unable to speak. Hill, who is mentally retarded, also claimed that his execution should not be allowed because the state of Florida banned the execution of mentally retarded persons in 2002. The state protested the appeal on the basis that it was filed too late. The justices of the Supreme Court spent the majority of their time discussing late filing procedures. The justices voted 5-3 to take up the issue of lethal injection, but said nothing about the mentally retarded claim of Hill's appeal.

The federal government and the US military use lethal injection as the primary means of execution. In those executions, as in most across the United States, the method involves a three step process. Once securely strapped to a gurney, I-V's are inserted into the veins through which three agents are pumped into the blood stream. The first agent causes numbness (sodium pentothal). The second agent causes paralysis (bromide pancuronium). Finally, potassium chloride is inserted into the I-V which causes a fatal heart attack.

Hill was stapped to his death bed, and I-V's were already inserted to prepare for his execution when Justice Anthony Kennedy issued the stay.

Govenor Jeb Bush of Florida has issued a stay of all executions pending the Supreme Court's decisons. Around the country, some executions have been stayed, while others have proceeded.

Other methods of execution include the gas chamber, hanging, and a firing squad.

O. J. Simpson - If Charged Under Wisconsin Law

2007-09-18T07:39:00.000-05:00

Perhaps very similar to the laws of Nevada where O. J. Simpson was arrested on multiple felony counts for robbery and assault with a deadly weapon, under Wisconsin law, O. J. would face felony charges.

Under Wisconsin law, a robbery charge is a felony. The felony classification is determined by the type of force used during the robbery. If a deadly weapon is used, the felony is a Class C; otherwise, it is a Class E.

Helpful information:
Robbery - Wisconsin Law Statute 943.32
Felony Classification Under Wisconsin Law
Possible Wisconsin Felony Penalties - Jail, Fine, Probation

Charges: Multiple Counts, Sexual Assault of A Child; Verdict: Not Guilty

2007-09-07T13:45:00.000-05:00

Lesson: Less Is More - The 60-second Close

Wise old judges really are sometimes both. A few years back, a wise old judge name “Wright” told me and the prosecutor, just before closings in a homicide trial, that shorter was better and that no closing was the best idea of all. He claimed that jury studies showed that closings never win trials but sometimes lose them. Neither of us took the bait. So I argued in closing for 30 minutes in between the prosecutor’s 95 minute, 2-part stem-winder. (The shorter closing was the winning closing that day, thankfully.)

This week I took the wise old judge's advice in a felony sexual assault trial involving two stepdaughters that each accused my client of years of assaults. I sensed the prosecutor might hold back arguments for rebuttal. But she nonetheless argued well for 45 minutes in her initial closing argument. The jury struggled to pay attention, as they usually do at that point in a trial.

So, after getting my testifying client's approval, I gave a 60-second closing argument. I said simply that the only way to prove you did not do this was to testify, that my client did so, and that I could add nothing to that. I told them of the jury studies' conclusions, as well. I closed with a stern, whispered caution that before they marked my client as a child molester for life, they better be damn sure they were right. And then I sat down.

The jury studies may be right. The jury acquitted on both counts despite my “concession” of closing arguments to the prosecutor.

Simple lesson? Trials are won in jury selection and openings – and sometimes even on the evidence, but not in closing arguments. The latter are mere fodder for TV and press. (Maybe, though, it helps to tell the jury why you are not saying much; and always clear this unusual approach with the client... CYA is good.)

The problem most lawyers have is they fear that being so brief or risky is also setting up a claim of ineffective assistance. That fear is palpable and usually overwhelms logic and science. In this case, I fought with myself for two full days before I convinced myself to say little in closing. It helped that jury selection had gone very well, and openings seemed to be in our favor. But I ultimately did what my instinct said to do, which seems obvious in hindsight; but leaving well enough alone is difficult. (It helped that I had laryngitis, which I noted to the jury at the beginning of my 60-second non-argument to evoke laughter from the jury after a persuasive initial closing argument for conviction. A laughing jury is not usually a hanging jury – at least, not in these parts. I started by telling the jurors that I had good news. I paused for effect. Then I said “I have laryngitis.” The laughter helped make them forget any anger they felt for my client, I suspect.)

Next case.
CVW

Helpful Information:
First degree sexual assault of a child, Wisconsin Statute Stat 948.02(1))
Class B felony
Attorney Chris Van Wagner

In Voir Dire, Listen With Great Care

2007-09-05T21:46:00.000-05:00

Still Seizing The Jury's Answers

Yesterday, Attorney Anne Reed posted in her BLOG:

September 04, 2007
Back To Basics: Nine Things To Look For In Voir Dire

Summer's over. It's time to refocus, and if the recent search traffic here is any indication, it's time to get ready for trial. Judges are back on the bench today, and a lot of this blog's readers spent some time yesterday researching their voir dire questions.

Which brings up a question I'm asked often. We're getting an idea of what voir dire questions to ask, readers tell me, but what do we do with the answers? We know we're supposed to get jurors talking and then listen, but what are we listening for?

I've been pretty clear about what I'm usually not listening for in voir dire. I set very little store by demographics, and I don't trust bias questions to bring out jurors' secret or unconscious biases. But I do have a list of the main things I'm listening for, the things I'm usually trying to figure out in voir dire. I use it both as a checklist to develop questions, and as a reminder of what I'm looking for as I listen. I keep tinkering with this list, but here's the version I'm using right now." Read her BLOG at: Deliberations - Back To Basics

Third Jury This Year, Second In A Felony Child Sexual Assault Trial ~ Still Seizing The Jury's Answers

“Anne:

Yesterday I picked my third jury of the year, and my second in a felony child sexual assault trial. Two experiences in yesterday’s voir dire reminded me of the critical importance to the DEFENSE of seizing voir dire answers and getting a major point across.

20 years ago, as a young state prosecutor in Trenton, New Jersey, I recall plea negotiating with ace NJ Public Defender Mike McConnell (who could sell air conditioning north of the Artic Circle) in a child sexual assault case. As he outlined his client’s claims of innocence, I responded that his guy ought to go to trial, if he did not do it (which, by the way, is precisely what I tell all my felony sex assault clients in today’s climate). He responded in words that had no real meaning for me as a “wet behind the ears” prosecutor, but ring so true in my current work. “Hey, Chris, you could try this case drunk. All ya gotta do [hey, this WAS Jersey, friend!) is put the baby on the stand and say her name and you will have every single juror ready to perform the castration on the spot! I can’t go to trial in this kind of case, Chris!”

Well, Mike Mac’s words came back to me last night, when I reflected on a spotlight moment yesterday in my latest voir dire effort. When the judge asked the potential jurors if the charges themselves would make it difficult for anyone to be fair and impartial, a woman raised her hand and said, “With these charges, I know he’s guilty already. I will find him guilty. He would have to prove his innocence to me, but I don’t think he can because of the fact of what he did.” Ouch.

She was excused, naturally, and before any attorney asked. The ADA, no doubt, was pleased. Then she – the prosecutor - gave me the answer I needed, in her own voir dire of the jurors. She used the phrase “in light of what the defendant did to these girls” as if the matter were a foregone conclusion. Double ouch?

Not at all.

Twenty minutes later, when the voir dire baton was passed to me, I seized upon the prosecutor’s ill-advised choice of words, and asked if any juror had heard her say what I had heard her say. An older, articulate female juror in the very front row – less than 5 feet from me – raised her hand and said she had heard that very phrase. I then honed in ad asked her how she felt about the phrase – even though for lots of reasons I knew I’d probably strike her if the AD did not.

She said: “I was very troubled and offended. I thought that the defendant was presumed innocent, and that it was OUR job to decide if he did anything to the girls. I found it uncomfortable that the DA was talking as if she KNEW he was guilty, and as if there were no presumption of innocence.”

[CVW to self: “Nice.”]

I then asked if anyone else had any other reaction or the same reaction to the DA’s ill-advised words. Half the hands in the box went up.

[CVW to self: “Very nice.”]

Then, just as another juror started speaking out about the same concerns, the prosecutor stood up and said that she thought she had said “what the defendant had allegedly done to the victims.”

CVW to jury venire: “That was not what I wrote down as a quote…

And then, I went right back to the “he’s guilty as sin” juror answer – with her long gone from the courtroom, asking they jury venire if they had heard HER answers. And if they had any reaction to HER views – i.e., “Fry the SOB!” The jurors then discussed for 10 full minutes – in their own words and with only a little prodding from me – the meaning and importance of the presumption of innocence AND the burden of proof beyond a reasonable doubt. The prosecutor – after 10 minutes of this GREAT defense stuff – finally started objecting to the “discussion” – another point scored for the defense voir dire, since the jury liked the discussion and the DA tried to stop it.

Today’s lesson, reinforced: in voir dire, listen with great care to the BAD things jurors – and the DA– are saying, and discuss them openly with the rest of the panel. It can only help the cause. Mike McConnell’s viewpoint notwithstanding … although he won too often for my then-prosecutor’s tastes."

CVW

Helpful information:
Criminal Trial Proceedings
10 Rules For Jurors

Wisconsin Criminal Defense Attorney: In Voir Dire, Listen With Great Care

2007-09-05T21:45:00.000-05:00

Wisconsin Criminal Defense Attorney: In Voir Dire, Listen With Great Care

Wisconsin Dells WI DA Holds Body In Vehicular Homicide

2007-08-11T09:17:00.000-05:00

In the Wisconsin Dells accident in which Olga Ivanenko was killed, the family, the Ukrainian Embassy, and the Wisconsin Dells funeral home director have begged the Columbia district attorney to release her body, but the DA says she cannot do that. Why does she refuse to release the body? Can she?

ANSWER:

Prosecutors want to retain all of the evidence including the body so that the defense cannot appeal on that basis. However, the district attorney can release the body. If the medical examiner has completed the autopsy and it showed little question as to how the person died, then the DA both can and should release the body to the family.

Helpful information:
Vehicular Homicide

Sexual Assault Of A Minor Child

2007-07-31T06:00:00.000-05:00

My boyfriend and I have dated for two years. My mother thinks we are having sex and says she is going to have my boyfriend arrested. He's 19, but we told my mother he was 16, and I'm 14. Can my boyfriend be arrested if I agreed to have sex with him? My mother thinks he is a minor!

ANSWER:

YES.

Regardless of whether your mother believes he is 16, the fact of the matter is that you are a minor, and it is illegal for a minor to have sexual intercourse or engage in any form of sexual conduct with another person regardless of the other person's age. Under Wisconsin law, a minor cannot agree (give consent) to have sex with another person (minor or adult).

If your mother files a report with the police, your boyfriend's identification information will reveal his true age, and the police will share that information with your mother. Once that report is filed, and whether your mother wants charges pressed, the police are required to investigate any sexual assault complaint involving a minor.

If your boyfriend is charged with sexual assault of a minor, he will be arrested. If he is convicted of sexual assault of a minor, the court can sentence him to imprisonment in a county jail or a prison, fine him, or both. As well, Wisconsin courts usually sentence people convicted of sexual assault of a minor to probation and require the offender to register with the sex offender registry, which will have a very devastating effect on his future jobs, activities, and even his residence. A convicted sex offender is prohibited from working in jobs involving children. A registered sex offender cannot go where children may be present such as a high school dances (even if his or her child is at that dance), or public places where children would likely gather such as amusement or water parks.

Under Wisconsin law, it is also illegal for your adult boyfriend to expose himself to you, entice you to have sex or expose yourself to him, or even have contact with you of a sexual nature.

Helpful information:
Sex crimes, Wisconsin
Sexual assault, Wisconsin
Sexual assault of a minor child, Wisconsin
Solicitation or Enticement
Entrapment

Possession of Controlled Substance - Drugs - State or Federal?

2007-07-23T05:47:00.000-05:00

If I am arrested for possession of marijuana, will it be a state or federal charge?

Possession of marijuana is charged as the crime of Possession of a controlled substance. As with any drug crime, a person can be compelled to testify before a grand jury, charged, tried, convicted and sentenced by a federal agency, a state agency, or both for each incident of possession. If convicted by both a federal court and a state court, each court can impose a separate sentence including fines, imprisonment, or both. Imprisonment for a federal offense is in a federal prison, and imprisonment for a state offense can be in a state prison, a county jail, or both.

Double jeopardy does not apply when two separate governments prosecute an individual for the same crime and the same incidence of the crime. Either agency can be the first to charge an individual, and the other agency can bring charges afterwards regardless of whether the individual is convicted or acquitted in the first trial. The same applies to plea bargains unless the settlement agreement specifically excludes the other agency from bringing charges.

In most cases, there is no discussion between the federal government and the state government regarding which government will prosecute the defendant, unless there is a very large quantity of drugs delivered or possessed with intent to deliver.

The charge of possession of a controlled substance is based on the quantity of the drug. The laws for each drug classification provide the quantity limit for "personal use", and if that limit is exceeded, the charge can also include "intent to sell, delivery or distribute".

Drug charges and convictions are posted on the Wisconsin State Circuit Court website (CCAP) located at: http://wcca.wicourts.gov/index.xsl.

Wisconsin law provides a right to an automatic appeal if a person is convicted of a crime in a Wisconsin state court. An automatic right to appeal only eliminates the process of applying for the right to be heard by the Court of Appeals. If a person is convicted of drug charges under both Federal and Wisconsin state law, an appeal is made to the respective higher court - to the US Court of Appeals for convictions from a Federal court and to the Wisconsin State Court of Appeals for convictions from a Wisconsin State Circuit Court.

Helpful information:
Wisconsin Drug Crimes
State Drug Crime Penalty Schedules
Federal Drug Crime Penalty Schedules
Federal - Distribution & Sexual Assault
Search & Seizure In Drug Crimes
Double Jeopardy
Criminal Trials in Wisconsin

Federal Defense Attorney Chris Van Wagner & Tracey Wood

Double Jeopardy

2007-07-16T05:38:00.000-05:00

When does double jeopardy apply?

In a criminal trial, jeopardy attaches when the jury is sworn. In a judge trial, jeopardy attaches when the first witness is sworn. If there is no trial, then jeopardy attaches when the court accepts the defendant's plea.

Double jeopardy protection applies if jeopardy previously attached, and more specifically, to a single crime and a single incidence of that crime.

Double jeopardy protection does not apply to grand jury proceedings, to other crimes committed at the same time as the crime to which jeopardy applied, or to other incidences of the same crime that were not previously charged.

Helpful information:
Double Jeopardy
Criminal Trials in Wisconsin

Jury Deliberations BLOG

2007-07-12T17:30:00.001-05:00

Helpful Information About Jury Deliberations

Criminal trials are "procedural" (see Trial Proceedings). Before the jury can deliberate a case, certain prodecures must be followed, particularly where alternate jurors are concerned - they must be retained or dismissed before deliberations (see Jury Deliberations).

Jury Procedures provides a detailed information about the exact process for jury selection.

More Helpful Jury Information For Attorneys

Anne Reed, a trial lawyer and jury consultant in Milwaukee, Wisconsin, maintains a BLOG regarding jury deliberations. Her BLOG includes very helpful information. Attorney Reed's BLOG: http://jurylaw.typepad.com/.

CVW

A Jury Of Your Peers

2007-07-09T04:11:00.000-05:00

If the jury will be my peers, does that mean that they will be about my age, same nationality, same economic position in life, and so forth?

ANSWER:

Maybe.

Under the Constitution of the United States of America, a person accused of a serious crime (one for which the penalties can deprive him or her of life or freedom), has a right to a trial by an impartial jury (Sixth Amendment). Under the due process clause of the Constitution (Fourteenth Amendment), the Supreme Court has applied the Sixth Amendment guarantee to state criminal cases, and under the Seventh Amendment, the Constitution guarantees that right in Federal suits.

The Supreme Court has held that an "impartial jury" - a jury of your peers - means that the jurors are chosen randomly from the community and that no particular race, sex, national origin or other representative classification of the population is excluded. The random selection process, as with any statistical process, will result in a representative body being selected from the community. Over time, the entire jury pool will include members from each of the community's races, national origins and all other classifications of people, as well as the changes to the community.

The jury for a criminal trial is selected through a process called voir dire (for more information, refer to criminal trial procedures), which provides your criminal defense attorney an opportunity to eliminate some jurors. Even so, whether the jury consists of people of your same age, race, religious beliefs and national origin or not will depend upon the random selection process and whether people from those groups were selected to serve at the time of your trial.

Helpful links:
Criminal Trial Proceedings
Jury Selection
Juror Rules

If Arrested, Will The Arrest Appear Online?

2007-07-02T04:30:00.000-05:00

Wisconsin Open Records Law

ANSWER:

If a person is arrested, the arrest, citation, and information regarding the arrest can be made public and published on the Internet through many portals including newspapers, television, radio stations, and CCAP, as well as personal websites.

Newspapers often maintain an online version of their printed news, which may include the entire newspaper or just selected areas of news. Arrests, tickets and other police news are usually published online bcause people like to read about those types of newsworthy issues.

Some cases make the six o'clock news and subsequently are published on the television station's website. High profile criminal cases broadcasted on major networks such as Court-TV or CNN almost always make the website edition.

CCAP (see cap) is the Wisconsin circuit court records website located at http://wcca.wicourts.gov/. Under Wisconsin open records law, CCAP mirrors the clerk of courts records. With very few exceptions, arrests are published on CCAP along with subsequent court activity. Among the few exceptions are an arrest of a juvenile or an arrest incident to a mental committment. Even juvenile arrests have exceptions, such as arrests resulting from traffic offenses because juveniles are treated as adults in traffic case.

Case information remains accessible on WCCA for the minimum retention period for the case type as set by Supreme Court Rule - Chapter 72. However, cases with active warrants, active appeals or money still owed remain available on WCCA. However, a person can contact the Clerk of Circuit Court office in the county where the case was filed for complete case information for those cases that no longer display on WCCA.

Case records remain available on CCAP for a number of years. A traffic forfeiture, non traffic ordinance violation, or a subsequent arrest to incarcerate a person for violation of a court order remain on CCAP for 5 years. Tax warrants, civil cases, foreign judgment cases, transcripts of judgement cases, unemployment compensation cases, workers compensation cases, tribal court orders, misdemeanor and criminal traffic cases remain available on CCAP for 20 years. However, drunk driving cases remain available on the Department of Transportation records forever. Class A felony and John Doe cases remain available on CCAP for 75 years. Class B, C, D, E, F, G, H, and I felony cases remain available on CCAP for 50 years.

An expunged record is one that is removed from a person's public information, however, it is not completely destroyed. An expunged record still exists in a file drawer in the clerk of court office where the charge originated. An expunged record can also appear on CCAP even after the expungement order has been entered. In those instances, additional legal action must be taken to remove the expunged record from CCAP.

Helpful links:
Drunk Driving Tickets & Records
Expungement
WI State & Federal Arrests
Wisconsin criminal penalties

Probation or Parole?

2007-06-30T05:20:00.000-05:00

What's the Difference Between Probation and Parole?

ANSWER:

Both probation and parole represent ways for people convicted of crimes to avoid doing time. What's more, they're both conditioned on good behavior -- if the offender messes up, they're shown back to their cell. But there is a major procedural difference between probation and parole. Probation is part and parcel of the offender's initial sentence, whereas parole comes much later, allowing the offender early release from a prison sentence.

Probation is handed down by the judge at trial. It may be in lieu of jail time or in combination with some jail time. The judge will specify restrictions on the offender's activities during the probationary period.

Parole is granted by a parole board, after the offender has served some -- or perhaps a lot of -- time. The parole board may consider factors such as the offender's behavior in prison and level of rehabilitation, and let him or her out early. The parole board can also specify restrictions on the person's activities while on parole.

Last but not least, probation has one more vowel and two more consonants than parole.

CVW

Helpful links:

Parole Probation Post-conviction challenge Wisconsin criminal penalties

Introduction

2007-06-29T06:13:00.000-05:00

In any given month, our firm receives more than 12,000 virtual (Internet) visitors. At our website, http://www.vanwagnerwood.com/, we focus on current criminal law issues to provide people with an idea of the types of criminal and drunk driving cases we regularly handle. While most of the people who really need a criminal defense attorney call our office to arrange a confidential consultation with one of our attorneys, we receive about half as many contacts via e-mails. About half of those e-mails are from people looking for an answer to a simple question, such as "What is the difference between probation and parole?", or "If my record is expunged, will the DA remove it from CCAP?" From time to time, we will post those types of non-legal thoughts here, but you should always remember that no BLOG or website can replace a consultation with an attorney.

At Van Wagner & Wood, we offer a free first-impression analysis, which is based on our more than thirty combined years of criminal law experience and providing expert criminal defense consultations. We call a first consultation a "first-impression analysis" to emphasize the fact that every case almost always requires more than a short initial conversation to gather all of the facts. The criminal defense lawyers at Van Wagner & Wood take hundreds of calls every week from people who have been accused or convicted of a criminal or drunk driving offense, parents of high school children or UW students who have found themselves in a bit of jam with the law, and spouses and significant others of people who have already been arrested.

Whether your freedom, reputation or finances are at stake, you may want to consider taking advantage of the free legal advice from our firm or any of the very knowledgeable and experienced attorneys in our network because at the end of the day, the other side (the DA) will always have tried more cases, be more knowledgeable of the law, and have gained more experience in knowing how and what to argue than most people can acquire in the short period of time between an arrest and a trial. Moreover, the DA will undoubtedly employ those skills to your disadvantage in a court of law. If you are considering going pro se, please read, "Representing Yourself In A Criminal Case".

Below are some helpful links.
How to choose a good criminal defense lawyer
When to hire a criminal defense attorney
Criminal trials - what to expect

CVW

The Disclaimer

2007-06-29T05:15:00.000-05:00

Folks:

The information in this BLOG is not nor is it intended to be legal advice. Every letter, word or sentence ever published here appears without any legal research. Anybody who relies upon this information is certifiably insane or should be checked right away. Naturally, that also means that no attorney-client relationship can be formed through this or any other of our Internet publications (websites, BLOGS, etc.).

If you are a suspect in a criminal investigation, if you have been arrested for a criminal or drunk driving offense, or if you have already been convicted of a crime or drunk driving in Wisconsin and believe the conviction or sentence were wrong, please refer to the contact information on our firm's website (http://www.vanwagnerwood.com/) to access a form to send us your contact information or call (1-866-262-4599) Van Wagner & Wood, S.C. to speak with a criminal defense attorney for a confidential, no-obligation, brief but professional free first-impression analysis of your case.