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

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

Jensen Should Get A Fair Shake

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

http://criminalattorney.vanwagnerwood.com/

Wisconsin Dells WI DA Holds Body In Vehicular Homicide

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

Possession of Controlled Substance - Drugs - State or Federal?

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

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

Probation or Parole?

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