Under-reported and falsely-reported crimes.

Two specific categories of violent offenses, I believe, have very obvious victim reporting tendencies to which many attorneys on both sides of the aisle seem largely oblivious.  Certain domestic violence cases, and certain sexual assault cases.  Again… this probably falls into the ever-expanding category of my buzzed tavern rants.  It is supported mainly by my own anecdotal observations over the years, combined only with logic.  But here goes:

Domestic violence cases are sadly one of the most under-reported violent crimes in the world.  Untold numbers of women undoubtedly cower under the fists of abusive husbands without reporting for a variety of reasons.  Among them, fear of retribution, fear of being alone, fear of losing their children, and fear of losing the financial support provided by the abuser.  To this I would add a subcategory of abused women: those living illegally in the U.S. who perhaps don’t speak English, rely upon their abusive (but english-speaking) husband to conduct all of even the most trivial affairs of every day life, stay home with the children, and fear deportation were they to report.  [Yes- I’m aware of the VAWA act, but I doubt many of them are, and it probably doesn’t encourage reporting in most cases anyway.]

Equally as saddening, are sexual assault cases.  There, for a plethora of reasons– including confusion, wrongly-placed shame or self-blaming, not wanting to report a friend or family member, or not wishing to be dragged into court… victims neglect to report a sexual assault.

I have little doubt that under-reporting is far more common than false-reporting in both of the above categories.  HOWEVER, I believe that false reporting happens far more frequently in the above two categories of offenses than it does in practically all others.  In domestic violence cases this is usually seen where a defendant is on probation (which the allegedly “abused” spouse knows all too well), and is revealed to be cheating on the spouse with another woman.  In such cases, the enraged “abused” woman is all too happy in many cases to falsely report their “abuser” (perhaps even going so far as to put a mark on their own cheek), knowing full well that their no-good cheating spouse will be facing a lengthy time-out in an hotel with iron bars.  Many people look at me with an incredulous look on their face at the thought that there are women out there who might do this… but if you met some of my clients’ spouses you wouldn’t think it such a reach.

Falsely reported sex assault cases are a bit more complex, and probably deserving of a lengthy blog post all their own.  But to put it into extremely over-simplified terms… they usually occur in cases where there has been consensual sex.  Perhaps even rough consensual sex… And then the victim subsequently experiences “buyers remorse”.  Sometimes (especially the very religious) victims will fall into a state of denial or lack of memory and convince themselves that– even drunk, they never would have consented to sex, and therefore must have been raped.  Alternatively, some victims (again, usually drunk) will hook up with someone other than their boyfriend, fear being discovered (or actually get discovered), and in a panic come up with a way to spin the situation to their advantage.  Answer: he raped me.

Again, these are theories grounded only in reason and anecdotal observations.  The under-reporting of crimes is a terrible problem.  But, if you consider the nightmarish terror and consequences a falsely accused person must endure… I humbly submit that this an issue worthy of greater attention than it typically gets.

The continued criminal enforcement of marijuana laws in Wisconsin

As everyone is well aware, the past half-dozen years have seen (what is in my opinion) a refreshingly positive and progressive relaxation in both laws and attitudes toward marijuana on a nation wide scale.  There remain, however, a great many jurisdictions where the laws (and enforcement of those laws) remains as rigid and harsh as ever.  Sadly, the land of brats, cheese, and the Green Bay Packers remains solidly in that category.  Therefore it seems a good time to outline typical enforcement schemes and penalties one might expect to encounter here in the dairy state.

Though some counties, including Dane, have instituted a policy of not charging first-offense possession of a small amount (less than an ounce) criminally, it still can and often does elicit a misdemeanor charge based upon the still-very-much-alive state law.  The maximum penalty for first-offense possession of marijuana is 6 months jail and/or a $1,000 fine.  For a second or subsequent (lifetime) straight-possession offense one may be charged with a felony carrying a maximum penalty of 3.5 years prison (1.5 years of initial confinement followed by 2 years of extended supervision) and/or a $10,000 fine.

Now it’s important to note that one is not automatically guaranteed a misdemeanor possession charged based upon your first pot-based run-in with John Q. Law.  A large weight by itself will often be deemed to indicate dealership.  If you are found in possession of even a small amount of marijuana, but also have some plastic baggies, a scale, stacks of 20 dollar bills, and/or the small amount itself is divided into multiple smaller baggies– the cop and/or prosecutor may bypass the misdemeanor charge and instead charge you with “Possession with Intent to Deliver.”  Let’s call it PWID for short.  The maximum penalties for manufacture, delivery, or PWID vary based upon the weight or number of plants involved.  Take note of the emphasis on the word “or” there.  The prosecutor may use whichever number allows for the highest maximum penalty.  Additionally, there appears to be no hard and fast requirement that the dry weight of the plant necessarily must be used.  Anyway, the max penalty breakdown for manufacture, delivery, or PWID of marijuana in Wisconsin is as follows:

up to 4 plants or up to 200 grams (about 7 ounces):  3.5 years, $10,000 fine

4-20 plants or 200-1,000 grams:  6 years, $10,000 fine

20-50 plants or 1,000-2,500 grams:  10 years, $25,000 fine

50-200 plants or 2,500-10,000 grams:  12.5 years, $25,000 fine

more than 200 plants or more than $10,000 grams (a little over 22 lbs.):  15 years, $50,000 fine.

A couple of final things to note.  Very often manufacture or PWID charges are accompanied by other charges such as Possession of Paraphernalia (30 days/$500 fine) and Keeping a Drug House (1 year/$25,000 fine).  There are also penalty enhancers for PWID/manufacture within a thousand feet of any park, school, jail/prison, or multi-unit housing public housing project.  I’m also personally aware of a particularly zealous prosecutor (in another county) who charges defendants with the archaic (but still valid felony) of possession of marijuana without a valid tax stamp.  All of these add-ons can push your maximum penalties to horrific levels.

Though it has been de-emphasized somewhat, the US DOJ still does prosecute federal marijuana crimes in Wisconsin as well.  In my experience, they largely focus on importers from other states where marijuana has been legalized.  On the other end of the spectrum, many municipalities will often prosecute ordinance violations as well.  Those tend to be expensive, but you do not risk incarceration.  I won’t elaborate further on those areas, but mention them only to illustrate that running afoul of state law is not the only potential worry for those fond of Mary Jane.

Here is my advice.  If you are an even occasional user of marijuana, know the risks to which you are exposed– and if possible try to learn the policies of the prosecutorial agencies where you live.  Frankly, rural counties tend to be a lot worse.  Don’t ever smoke in your car.  Don’t consent to searches of your person, car, or home.  But most importantly, if you find yourself in hot water– hire yourself a knowledgeable and competent lawyer.  Like me!

My five red flags when hiring a criminal defense attorney

For the past decade I’ve limited my practice almost exclusively to the area of criminal defense in Dane County, Wisconsin, which is home to roughly 1/2 million people.  Although there are somewhere between 2,500 and 3,000 licensed lawyers of various types within the local community (it is the state capital), I would estimate that a mere 30 to 40 private attorneys handle the majority of the local private criminal defense work.  They are mostly all fairly small operations, consisting of 1-3 lawyers plus staff.  Of these 30 to 40 lawyers, probably the most financially successful earn their livings mainly from private retainers, while the remainder tend to vie for as many private clients as they can get while supplementing their case load with various public defender and court appointments.

You may have noticed my italicization of the word “financially” above.  There was a specific reason for that.  In my observations, many of the lawyers who I find to be the most effective, respected, astute, brilliant, hard-working, and talented don’t seem to be the top earners.  Conversely, though most aren’t bad, many of the most financially successful lawyers aren’t what I would consider to be the best lawyers.  This is a phenomenon with which I have some fascination.  Without a doubt, many lousy lawyers are financial failures and vice-a-versa.  But how do some sub-par lawyers out-earn superior ones?

Below is a list of some of the methods that I’ve personally come to believe such attorneys use to market, sell, and overcharge for their services.  This list is by no means exhaustive, and falls into the categorical and ever expanding box of my pet theories.  These are simply the red flags I would tell my non-lawyer friends and family members to watch for when interviewing potential criminal defense attorneys for their services:

1) Lawyers who tout labels such as “superlawyers”, “AV rated” or various other terms that sound awesome (but you aren’t really sure what they mean).  In truth, these labels are usually nothing more than terms that lawyers pay companies rather large fees for the privilege of using.  It’s a marketing gimmick.  It has less to do with their abilities or achievements, than it does the depth of their pocketbooks.  If a lawyer has paid for one of these labels, fine.  Not necessarily a deal killer.  But if they really like to flash it around… I’d probably walk away.  Actually, we can just expand this category to include all lawyers who are extremely prolific advertisers.  The fees they charge their clients will usually reflect their need to pay off massive advertising bills, and if they were worth their salt they probably wouldn’t need to advertise so much to begin with.

(Also- don’t hire lawyers who wear fedoras, cowboy hats, or any hats in their ads.  No specific reason.  I just think it’s dumb and gimmicky.)

2) Flowery language.  Yes… In the legal world we do so love to throw around a lot of jargon that probably intimidates some and annoys many of those who inhabit the real world.  But there is no legal concept out there that can’t be readily explained in ordinary english.  If a lawyer habitually throws out terms with which you aren’t familiar during your initial consultation, he/she is probably either trying to snow/BS you… or he/she is not smart enough to tailor their rhetoric to their audience.  If it’s the latter, then they likely won’t be very good in front of a jury.  Look for someone who speaks plainly and understandably, but intelligently.

3) The “H” word.  I would speculate that a fair number of lawyers out there tout the fact they went to Harvard or some other Ivy league school.  I myself went to an excellent (though non-ivy league) lawschool, ranked in the top 30-35 nationally, and have encountered a number of Harvard grads during my time in practice.  I can say unequivocally that there were people in the top ten percent of my lawschool graduating class who I would not trust to get me a ham sandwich– let alone represent me if I were in trouble.  As for the Harvard people, though it is an admittedly small sample size, most (though not all) have just seemed sort of strange and not what I would consider above-average in any sense.  (Also- I love criminal defense, so I can see why others would want to do it, but I can’t help but wonder why a Harvard grad wasn’t offered something more temptingly lucrative straight out of lawschool…)

Conversely, some of the most brilliant and effective lawyers I’ve met over the years derived their degree from third tier law schools.  Now I’m not advising you to actively search for a lawyer who got bad grades from a junk lawschool, but be wary of anyone who actively boasts about their school name.

(And no… this isn’t sour grapes because I was rejected from a prestigious school.  I wasn’t.  I’ve just truly failed to be impressed by their grads.)

4) A heavy reliance upon an unusually lopsided win-loss record.  This one is probably counterintuitive to those of you out there in the real world but hear me out.  Despite the impression you may have from TV, the very best criminal defense lawyers, the true warriors… will inevitably try and lose a certain sizable percentage of their cases.  Many cases, simply due to their nature and overwhelming evidence, have a low chance of acquittal at trial (in fact, most cases are naturally stacked in favor of the state, otherwise they probably wouldn’t have charged them to begin with).  Further, for various reasons many bleak-appearing cases simply are not settle-able in advance of trial.  So… if there is overwhelming evidence, and it’s not settle-able… Daniel Webster himself probably wouldn’t be able to keep it out of the loss column.

I’ve been told that one of the most prominent defense lawyers in the midwest lost his first 30+ jury trials.  I myself accepted many case appointments early in my career that were almost inevitably losers on their face, cases of which other lawyers were afraid.  I felt it more important to develop skills and gain trial experience than to compile statistics.  But practically every trial client I’ve ever had expressed sincere gratitude and admiration for the performance I gave, and in some cases optimism blossomed where only hopelessness had previously reigned.

Additionally, trials seldom unfold quite as expected, so they tend to contain a certain amount of inherent unpredictability.  With the right jury, sometimes lawyers may win cases that perhaps they had no business winning, just as sometimes they may lose cases that by most accounts they should have won.  Regardless, factors such as strong evidence and hidden predispositions of the individual jurors usually contribute more to the final verdict than any relative disparity between the abilities of  the opposing attorneys.  It makes me uneasy when I hear lawyers claim responsibility for outcomes for which they are at most only partly responsible.

You certainly don’t want a defense attorney who will be out-litigated by the prosecutor.  You want a lawyer with the strength and talent to not only sustain and diffuse an onslaught of incriminating evidence, but to turn the tables and make the prosecution backpedal wherever possible.  But initially you want to look for lawyers who have the courage and work ethic to try cases at least somewhat regularly.  Such lawyers will typically enjoy positive reputations among judges, clients, and colleagues– and they will hopefully receive the best settlement offers from prosecutors.  So ask not what a lawyer’s win-loss record is, but how long it’s been since they had a jury trial and how many they’ve had.

As a final caveat I’m not saying here that a good win-loss record is necessarily a bad thing.  But my overall point is that if a lawyer starts boasting about his or her winning record, you should wonder how their record came to be that way (assuming they are in fact being truthful).  Is it because they customarily withdraw from or shy away from cases that appear to be long shots?  Do they refuse to take challenging cases or serious felony cases?  Did they get lucky a few times early on in their career, and haven’t actually tried a case in 20 years?  Do they regularly brow-beat their clients into taking lousy deals (in order to protect their “winning record”) when they don’t like their odds of winning?  If so, these lawyers may be ones who act more out or their own cowardly self-interest than the best interest of their clients.

5) Assurances they’ll get your case “thrown out” by inundating the state with pre-trial motions.  Though it does happen occasionally, it’s somewhat rare for pre-trial motions to result in outright dismissal of all charges.  During the initial consultation in my “typical” drug case or drunk driving case I will usually identify about 2-4 issues that will merit closer exploration/examination as the case progresses.  The majority of these issues end up being irrelevant or non-starters for one reason or another, while others lack legal authority to support a pre-trial motion.  I file motions to dismiss or suppress evidence in almost every case where it is conceivable such relief might be obtained… which probably ends up being no more than one of every five or six of my cases.  Among all of those motions, probably less than a third are granted (which is actually still a fairly high percentage of success).  Reality: cops just don’t screw up that often, and getting judges to throw out cases is like pulling teeth.

Now I know from experience as co-counsel on prior multiple co-defendant cases that some attorneys habitually file a barrage of six, ten, even twelve boilerplate pre-trial motions in almost every case they have.  Motions that for the most part have not only a zero chance of positively affecting the outcome, but possibly serve to undermine the attorney’s credibility with both the Court and prosecutors.  I suspect that some of these lawyers mislead their clients as to the value of the frivolous motions in order to justify their exorbitant fees.  Stay away from them.  They’ll waste your hard-earned money.

So there are my tips children.  Steer clear of lawyers who tout fancy sounding awards (for which they paid), who spout the name of the lawschool they attended, who boast of lopsided win-loss records, who speak unintelligibly, or who promise success by filing a barrage of (useless) motions.

defending the “guilty”

When I meet someone new in a social context, a bar for example, there is a progression of topics and remarks that has become eminently predictable.  If my profession is unknown, the typical inquiries are exchanged.  When I say that I’m a lawyer, the next question is inevitably “oh?  what’s your practice area?”  (Though this is often preceded by a comment about how the other person always wanted to go to law school, or very nearly did.)

When I reply that I practice exclusively in criminal defense a few notable responses tend to flow from that.  First, the person usually seems to get very interested or perhaps even has a look of being somewhat impressed on their face.  The eyebrows raise.  They usually utter the word “really…”.  Clearly, they were expecting to hear that I do something transactional, or perhaps wills and estates– as is the case with the vast majority of attorneys (who rarely see the inside of a courtroom).  Now suddenly I’m seen as one of those types of lawyers who they see on TV and in the movies.

Now here’s where it gets interesting.  I’d say that the next question for over 80% of people is some version of “how are you able to defend guilty people?”  (As though my conscience must just torture me every night.)  I’m sure they’re genuinely curious about the issue, and not trying to be rude in any way.  But this question carries with it two vague implications about the mindset of the asker– one not exactly dumb, the other a little less than brilliant.  The semi-intelligent component is that they do recognize that most of my clients are guilty of something.  In fact this is usually the case– though it is not necessarily always the case that they are guilty of that with which they’ve been charged.

The less intelligent component, in my view, carries an implicit implication that “guilty” people are less than human and don’t really deserve to have competent, intelligent, zealous representation.  Then there are two potential secondary implications.  Either the questioner thinks that, like most countries in the middle east, we shouldn’t be a country of true due process (to which I think most would disagree); or they lack an understanding of how our system actually works.

To play out the idea that guilty people don’t deserve a lawyer necessarily gives rise to a circular conundrum.  Just how would we determine who gets to have a lawyer and who doesn’t?  This is a very important issue, so perhaps we’d set some sort of screening process whereby evidence is produced, examined and considered.  And maybe bring in a group of third-party citizens who can vote on whether the evidence is compelling enough to deem whether each individual falls into the not-worthy-of-a-lawyer category, or the category where they are afforded representation?  Of course… this sounds familiar.  Because it’s a trial!

CSI

I’d like to present something of a counter to my earlier post re: my theory that O.J. Simpson was incalculably detrimental to the world of criminal defense.  The proliferation of science-based crime dramas on television has been a great BOON to the legal world, in particular criminal defense.

Here is why:  I believe that in many criminal cases juries fail to truly apply the constitutional legal standard of Beyond a Reasonable Doubt.*  This is probably particularly true when the crime or underlying facts are morally repugnant.  (Think sexual assaults involving children.)  In such cases, I suspect that jurors are so fearful of acquitting the defendant (thereby allowing them free to victimize others) that the deliberation (both internal and external) becomes more akin to a what-do-I-think-happened rather than one of carefully measuring the strength of the case presented and asking whether it matches the elements of the charge.  In other words, when the crime is morally repugnant, Jurors are willing to overlook shortcomings in evidence when reasonably certain that the defendant at least did some pretty bad shit.

Shows like CSI have implanted the idea in Jurors minds that evidence should be abundant, rock-solid, scientific, and hopefully DNA based.  This is probably unrealistic in most cases.  But in my view it offsets the tendency to convict if the jurors belief is merely it’s-more-likely-than-not the defendant is guilty.  It carries power when a defense attorney says “where is the DNA in this case?  What?  We don’t have any?  This case is garbage!”  In fact, when not given the fun science-y data that jurors are accustomed to seeing on TV, they are already disappointed with the state’s case.  Being critical of the evidence is a healthy attitude.

*Lawyers will debate what the phrase “Beyond a Reasonable Doubt” means until the end of civilization.  But I think it should mean one is more than 90% certain on every single element.  Frankly, I’d prefer 98%.

Remember jerks

People in power have a choice in how they want to behave.  In how to conduct themselves.  The best are caring, thoughtful, kind, considerate, and hardworking.  Some are deceitful, reckless, arbitrary, capricious, difficult, tyrannical, bullying, dismissive, and/or just outright mean.  Still others seem uncomfortable with conflict.  They want to please everyone and will generally try to find a point that will be as satisfying (or unsatisfying) for all parties.  (In some cases wimps are worse to have than bullies, at least when it comes to Judges.)

How a person conducts themselves when in that position of power speaks volume about who they really are.  I’m looking at you Judges, prosecutors, and cops.  Over the years, I’ve seen a number of people who were just awful in governmental positions of power.  When they leave, it is typically for the riches of the private world.  Often there seems to be an almost Jekyll and Hyde like transformation.  Suddenly they become the nicest person in the world.  They seem to expect that they’ll be welcomed with open arms into their new positions and suddenly given a status of great deference.  All too often they are accorded such respect, at least in the legal world.

I don’t like it.  It think it all of our responsibility to remember accurately how they were when people in positions of power and authority leave those positions.  Karma is supposed to be a bitch.

What makes someone in Wisconsin a “registered sex offender”?

A common concern many of my clients facing sex crime charges have is whether or not they will be required to register as a sex offender.  Sex offender registry is mandatory in some circumstances in Wisconsin, and discretionary (meaning, the judge can elect to order an offender to register or not) in certain circumstances.

When is sex offender registry required?

With any felony sexual assault conviction in Wisconsin, assuming that the age difference between the offender and the alleged victim is more than three years, a person will be required to register as a sex offender.  The length of time one has to register as a sex offender varies depending upon the degree of seriousness of their felony conviction.

When can the judge decide if registry is required? 

Judges have discretion when a sexual assault conviction is a misdemeanor offense, and in certain other criminal convictions where the judge suspects that an offense may have been sexually motivated, even if the conviction doesn’t contain the words “sexual assault”.  Additionally, juvenile defendants are often spared the burden of sex offender registration.  Finally, in cases where there is a small (three year) age gap between the offender and the victim, the judge may elect to decline to force someone to register.

What happens if someone is ordered to register and doesn’t? 

In Wisconsin, failing to comply with sex offender registry requirements is an H felony, punishable by up to six years in the Wisconsin State Prison and a $10,000.00 fine.

If you are concerned with facing charges relating to a sexual offense, contact a qualified Dane County, Wisconsin criminal defense attorney such as Terry Frederick today.