Convicted, Then Found Not Guilty

Eau Claire Man Convicted Of Second Degree Sexual Assault & Child Enticement, Then Un-convicted, The Acquitted

We've all heard it can't be done - convictions cannot be reversed... 'les there is a prior conviction. But that is precisely what happened several months ago when our client, Aaron B. J. Frey was wrongfully convicted of second degree sexual assault of a child and child enticement. And then at trial, he was acquitted.

In November 2005, Aaron Frey was charged with sexual assault of a minor child and child enticement. The court appointed an attorney, and Aaron plead guilty to third degree sexual assault, with a dismissal of the enticement charge. He was sentenced to 18 months of probation and served 90 days in jail.

Frey then hired Birdsall Law Office to represent him on appeal of the conviction. Birdsall reviewed the court record, and set in motion a reversal of that conviction. The trial judge reversed the conviction based on a defective plea colloquy - inadequate covering of the elements of the offense.

The district attorney then proceeds to file charges based on "other acts" evidence, which allege another sexual encounter on a separate night (two nights prior to the charged crime - and on the alleged victim's 14th birthday). But the alleged victim says that the "other acts" are all wrong, and any "touching" that may have occurred was accidental. She was very worried that her mother would find out about her setting a time with Aaron to meet him after sneaking out of the house while her parent slept. And then there was the fact that they were both in underclothing when the police found them parked behind a building that was under construction at 3:30 a.m. on a school night, the additional fact that she had disarmed the home security alarm to sneak out, and the small technicalities that she was the primary person calling Aaron and she set up the meeting.

Trial began this past Monday, but last Friday, the alleged victim met with the district attorney and completed switched her story, stating that at least one of the "touching" incidences was not accidental and was in fact sexual, among other changes to previous testimony.

When a person testifies to one fact, and then switches that testimony to another fact, and the defense attorney brings up these changes under examination during the trial, the process is called "impeaching a witness".

The jury deliberated for 50 minutes and brought back the verdict of "not guilty" on both counts.

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John A. Birdsall, Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
414.831.5465 - www.birdsall-law.com

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Mushaff

Poor Pakistani President Perez Musharaff....that bothersome constitution of his, it seems, is so severely hampering his ability to stem Islamist violence in his country that the only way to deal with it is to “suspend” it. That is code for “do away with” and/or “abolish” so that he can grab near absolute power. That level of control will certainly allow him (or anyone) to more efficiently crackdown on terrorism but what does this bode for the credibility of this important country? The Bush administration’s abysmal Middle East foreign policy strategy (lack of strategy?) now is faced with a terrible dilemma: support an emerging dictator whose country is home to Osama bin Laden and his terrorist friends (thus completely abandoning the “Freedom Agenda” articulated in his last inaugural address) or dump an important US ally in the legitimate war on terror (as opposed to the war in Iraq).

Is this overly simplified? Yes. The real situation is far more complex (as all matters of international relations are). However, the important point for Americans to take away from this is how precious the rule of law is. Let’s compare Musharaff’s justification for utterly suspending his “democracy’s” constitution with the Bush administration’s consistent and aggressive efforts to chop (not “chip”) away at ours. They are only inches apart.

Don’t get me wrong - I understand that there is a need to balance security and civil liberties. This will always be the case. However, we must ask for both the United States and Pakistan: Must we abandon our core values and the actual structure of democracy to achieve security. The US has been through many wars, we have been attacked, we have been infiltrated by spies, and our constitution has weathered all storms. But in the current terror hysteria (some real, some manufactured) I can easily see the scenario whereby a US president could justify suspension of even our constitution in order to respond to a terrorist attack(s). That is what should have us worried.

Am I engaging in scare tactics myself. I don’t think so. Witness the tremendous centralization of power in the last 7 years: the Patriot Act, consistently withholding information from Congress, essentially sanctioning torture (see, “rendition” and/or “waterboarding”) and, most recently, seeking to “redefine” the term “privacy.” Just today, the New York Times reported that:

Privacy no longer can mean anonymity, says Donald Kerr, the principal deputy director of national intelligence. Instead, it should mean that government and businesses properly safeguard people's private communications and financial information.”

What? “Trust us, we’re the government?” We’ve been down that road and if there is one thing the current administration has demonstrated - they are NOT to be trusted with increased power. I would say the same thing about any new Democratic administration. Checks and balances such as a legislative body and courts are intentionally inconvenient - they are there to slow down the tendency of one branch of government to either slowly accumulate or quickly grab more power than they are supposed to have under our system. So far, the past 7 years have been a slow, but quickening, accumulation of power by the executive branch. I think our institutions and the American people are strong enough to resist a sudden grab, the slow devolution of our freedoms is what we must all stay ever-vigilant against.

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John A. Birdsall, Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
414.831.5465 - www.birdsall-law.com

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Who Really Body Slammed Who?

On Friday, November 2, 2007, Coach Crawley will appear in Milwaukee Court for an intake hearing on two misdemeanor charges alleging he abused a child and acted disorderly.

However, Coach Crawley and several other witnesses say that never happened. This is just another case of the media sensationalizing a story for the ratings.

Reporters have been contacting Attorney John Birdsall, Crawley's criminal defense lawyer, asking questions and searching for more dirt on the story.

Crawley has been a coach for several years. Before being allowed to coach, the school conducted a complete background check on Crawley. And since becoming a coach, several parents say that he has positively impacted their children's lives.

When you remove the press wrapping from the story, it goes like this. Crawley was teaching his boys a new play. One of those players has repeatedly played dirty in the past, and on the day of this scrimmage, he targeted the coach's son as he had done in the past, and delivered a whopping impact with his shoulder. That impact was so strong that the responsible player wore a sling given to him by his mother after he had been checked out at the hospital to determine that there were no injuries and he did not need a cast.

Meanwhile, the coaches son, who was slammed to the ground by the blow and who lay screaming in pain while the responsible player looked over and laughed, was injured very badly. The responsible player was up to practice the following day and played in a final heated game two days later. However, the coach's son is still out with a very deep bruise to his thigh, and scheduled for an MRI.

So, who is the real responsible party here?

Is it the coach for being upset over his son being the target of a dirty player, getting seriously injured, and moving the assaulting player out of the way so that he could get to his and take him to the hospital?

Is it the dirty player who targeted the coach's son? Who laughed after he had knocked him to the ground, despite the fact that the boy he smacked to the ground with his shoulder blow lay screaming in pain? Who had previously played in this fashion?

Is it the coach who said that the dirty player would not play again?

Or the boy who lives to play football, despite his cheap shot methods?

Or is it the mother, who really wants to see the coach put in jail?

Perhaps there is much more to the real story than a single question about who body slammed whom. Perhaps the coach had talked to the dirty player's mother about the player's ethics on the field, and indicated to her that the cheap shots had to stop, or the boy would be removed from the game. And perhaps that mother told her son, which is what caused him to want to take the coach's son out. Vindictiveness seems to be playing a major role in this case. From the boy who wears his mother's sling to practice the next day - after hurting his own shoulder while taking a cheap shot on the coach's son and not being able to get a sling from the hospital - to the mother's repeated visits and calls to the police station to ask for the coach's arrest, things just don't add up the same way as the media has led you to believe when you know the whole story and the identity of the responsible player.

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John A. Birdsall, Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
414.831.5465 - www.birdsall-law.com

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Mike Crawley - A Father First

Sometimes there is much more to a story than meets the eye, or that is first reported by the news media in a slanted viewpoint that begins trying a case in the public eye, even before charges are officially filed.

On October 24, 2007, the media began a rapid dissemination of unfounded facts about the incident involving Coach Mike Crawley (coach) and a player who alleged that coach assaulted the eighty-five pound player, grabbed his face mask, whirled him in the air, and slammed him to the ground.

However, coaches Jeff Stegal and Shane Wieplowski say that the body slam described in the police report and later broadcast by the news media never even happened.

According to the police report (Incident #I07-1885), the alleged complainant is a minor and a player on a football team, whom we will refer to as "player". Player was learning a new position as a split end. The police report states that during a play, player admits he made a block on another student, who he identified as the son of coach. Player alleges that he made a legal block on the son of coach, after which the son of coach fell to the ground and began screaming in pain, and "appeared to be injured while on the ground after player blocked him".

Coaches Jeff Stegal and Shane Wieplowski, also witness to the incident, identified the block as a very serious and illegal chop block. The block was described as a "cheap shot". The blocking player rams his shoulder into the knees of the targeted player, which can blow the targeted player's knees out.

That was the block that player used against the son of coach. That was not the block that was being taught.

While the son of coach lay on the ground screaming in pain, player stood over him and laughed.

The police report includes statements accusing player of having hit son of coach in a "cheap shot way" before the October 24th incident, and believes that player is a dirty player who probably did the hit intentionally.

Coach willingly met with police to provide a statement. Coach stated that he saw the cheap shot hit on his son, identifying it as an illegal chop block, the result of which injured his son. After the hit, Coach then ran out on the field. He asked player, "What are you doing?" numerous times on his way to the pile. Upon arriving at the pile, he observed player kneeling over his son and laughing at his son. Coach asked player what he was doing, and player turned and laughed at coach. Coach said that he "lost it" and grabbed player by the face mask and threw him behind him to get him away from his son.

As a result of the hit by player, the son of coach was severely injured, and immediately taken to the hospital where they found a deep thigh bruise. Son of coach is scheduled for an MRI on his left hip, and still remains out since the Wednesday evening attack.

Player was taken to the hospital after giving his police report for possible injuries. Player was given a sling by his mother to wear on the arm that he said was sore. Player played in a game on Saturday afternoon following the Wednesday evening attack, but without a sling.

The Cudahy Police Department sought criminal charges against Mike Crawley for criminal child abuse and disorderly conduct.

According to the police report, player's mother checked with the Cudahy police on more than one occasion to ask for a status update on the case, and to inquire as to why coach Crawley had not already been arrested and placed in custody. She also asked for information about a restraining order, but she did not take any action on the restraining order at that time, nor has any been taken yet - now 7 days after the incident.

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John A. Birdsall, Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
414.831.5465 - www.birdsall-law.com

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Never Judge a Book by its Cover

Battery to a Law Enforcement Officer is a crime that defense attorneys dread to defend. The case boils down to this. A police officer, usually in uniform, with gun and badge, will come in and tell the jury how much of a bad guy the defendant is, show his bruise, and then leave the stand. If anyone else testifies, it is usually his partner who witnessed the whole thing unfold. Slam dunk for the prosecution, right?

Not necessarily. Keep in mind that just because a case looks like a loser on its face does not mean that it is a loser deep inside.

As it turns out in our scenario, two police officers got on the stand and testified, but interestingly enough, they both told different stories. Under cross examination officer 1 and officer 2 could not even explain exactly how the injury occurred, even though they claim they were both, "right there". Referencing their police reports didn't help either. Upon refreshing their memories, they both realized they had written down different accounts of what happened. On top of the debacle which was the testimony of the two on scene officers, a detective got on the stand and initially testified that he had spent 2 hours with the defendant getting his confession. As it turns out, that didn't happen either. On cross, it came out that he really only spent 20 minutes with the defendant. By his own training manual that was not enough time to get an accurate statement.

In the end, the jury found my client not guilty and sent him home. So despite the charges, the bruising evidence and what may seem like insurmountable odds, we asked questions and set the record straight in a criminal trial by jury held in Milwaukee County Circuit Court on the charge of battery to a law enforcement officer and won an outright acquittal (not guilty verdict from the jury).

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John A. Birdsall - T.J. Perlick-Molinari
Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
801 West Walnut Street, Green Bay, Wisconsin 53704

414.831.5465
www.birdsall-law.com

Public Defenders Underfunded

Justice Schmustice

Justice is priceless, but it's not free
Milwaukee Journal Sentinel
By TOM BASTING
Posted: Sept. 9, 2007

In an op-ed piece in the Milwaukee Journal Sentinel, the president of the State Bar, Thomas Bastings, complained - appropriately and accurately - that the entire justice system in Wisconsin is underfunded. I couldn’t agree more. After years of lobbying on behalf of the state Bar Criminal Law Section and the Wisconsin Association of Criminal Defense Lawyers, I have drawn the only possible conclusion about our child-like legislature: they either don’t get it, or don’t care. This goes for both sides of the aisle. The willy nilly passage of tough-on-crime bills aside, they don’t recognize the triangle of courts, prosecutors and defense attorneys that must be equally funded not only for more just results but for pure functionality.

There are legitimate shortages on all 3 sides of the triangle but, for obvious reasons, I focus on the defense. Let’s start with the indisputable premise that every citizen in this country has an absolute right to the effective assistance of counsel (see, the Sixth Amendment to the United States Constitution). That is the ultimate unfunded mandate in the eyes of most legislators and they want to pay rock bottom price. They need to step back and look at the forest for a minute.

The entire foundation of democracy rests on a reliable and fair legal system. Obviously many, many factors contribute to, or detract from, how fair that system is, the bottom line is that without it, people resolve their differences with bullets and car bombs (see, Iraq) or simply have authoritarian (or worse theocratic) governments. With Bush in office, we have seen a study slide into more centralized power and secrecy - hallmarks of a police state. It is defense attorney’s more than anybody else, who are institutionally designed to challenge these encroachments of freedom.

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John A. Birdsall, Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
414.831.5465 - www.birdsall-law.com

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Introduction - Disclaimer

Welcome to my blog!! As we begin, the reader should be aware of the "narrow scope" of this blog - we will be strictly limiting to anything that has to do with the law since the beginning of the universe. It may also occasionally delve into the morass that is politics and/or history from the time of the Big Bang to the present.

Now that we have established our boundaries, I would issue the following disclaimer: anyone who relies on this as legal advise for a specific case is clearly not well and should probably see their therapist for some powerful psychotropic medication.

That does it for the disclaimers - believe it or not, I do intend to tackle serious subjects -mainly notorious criminal cases in Wisconsin and around the country - even the world. I will seek to praise those parts of, and person in, the system that are good/great and criticize (occasionally skewer) the parts that aren’t. The latter, unfortunately, are more common.. These will be both anecdotal and systematic observations based on 17 years of legal practice. Most of those exclusively doing criminal defense.

The first few posts may be more overview to imbue the reader with an area that they may not be familiar with (unless they get arrested regularly). But I shall also seek to be timely - though I won’t always try to keep up with the crazy Wisconsin legislature who seem to have a policy of introducing a bill on whatever the crime du jour happens to be in today’s headlines.

Please feel free to respond to posts, add to, point out mistakes, and offer alternative opinions. While I have strong views, I rarely outright reject another point of view (with the possible exception of the death penalty.

John A. Birdsall, Attorney at Law
Birdsall Law Offices, S.C.
135 W. Wells St., Suite 214Milwaukee, WI 53203
414-831-5468 - Fax
414-831-5465 - Telephone
800-257-4799 - Toll Free
www.birdsall-law.com


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