Accidental Death with Concealed Weapon Usage

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

Carrying and Using Concealed Weapon in Self Defense

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/.

Can Holdover Tenants Shoot Landlords Under Castle Doctrine?

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

FITCHBURG INTRUDER SHOOTING: OKAY OR NOT?

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

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

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

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


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


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


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

Use of Force in Defense of Your Home - Wisconsin Law

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


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


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

SO ... WHERE DOES THAT LEAVE YOU?

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

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

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

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

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

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

Smiley Face Killers

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

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

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

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

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

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

Helpful links:
Murder
Sexual Assault

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

Jurors In Mark Jensen Murder Trial Return Guilty Verdict

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

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.