Prison for OWI's not the answer

Apparently the Milwaukee Journal-Sentinel has been purchased by the Mother's Against Drunk Drivers. For the last two weeks, the state's largest newspaper has run a series of very long articles detailing the tragedy of drunk driving - especially the loss of life. The articles reviewed Milwaukee County criminal convictions for 5th offense operating while intoxicated from 1999 through 2006, resulting in a detailed analysis of 161 cases. Just 70 defendants, or 43%, went to prison, receiving an average sentence of 18 months. Seventeen of those had an opportunity to shave substantial time off their sentences by completing boot camp or a treatment program. At least one defendant got out early after petitioning the judge. More defendants were sentenced to probation than prison. Although 70 of the 71 who got probation terms served between three and 12 months in the Milwaukee County House of Correction, about half were allowed to spend their days in the community on work release. Twenty more defendants received jail sentences, 11 with work-release privileges. The blood-alcohol level of a drunken driver was consistently cited as an aggravating factor by sentencing judges. And while the analysis showed that defendants with higher blood-alcohol levels were sent to prison more often, there was no clear relationship between blood-alcohol level and sentence length. For example, among the 16 offenders who were sentenced to 18 months in prison, blood-alcohol levels ranged from 0.10 to a potentially poisonous 0.41.

The entire drift of the article was that Milwaukee judges are softies on repeat drunk drivers and that if we can only toughen the law and penalties we will solve this problem. This is same MADD line that has been floated since that group was formed in the 1980's. Back then, the most a 5th offense drunk driver could get was 1 year and that was usually with work release. Now it is a felony punishable by up to 6 years in prison - not jail.

The talk now is to make even 3rd and 4th offenses felonies, begin "sobriety checkpoints," seize more vehicles, and make the 1st offense criminal (it is currently a civil offense for which you cannot get jail).

What is left unsaid here is that it is our culture of drinking that leads to drunk driving and increasing penalties will do nothing to curb that. The increasing criminalization of human behavior has proven time and again to be a failed construct. We have seen it in the atrocious War on Drugs where we have imprisoned literally millions of our citizens - most of whom are nonviolent addicts. It is this same failed mentality that has taken hold in the War on Drunk Driving that is currently being waged.

Many policy makers have finally recognized that drug addicts (offenders) need treatment. A wise and valuable program in Milwaukee has been instituted to divert drug offenders into treatment and out of the criminal justice system. That system is already strained to the breaking point.

I would propose that a similar program be created for drunk drivers. The advantages are obvious - alcoholism is the same addiction as with drug use. Why wouldn't we use the same treatment logic with drunk drivers?

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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Sexual "Assault" ain't always what it seems

One of the really frustrating things about Wisconsin's (and most other state's) sexual assault laws is that they are very often blind to reality. The reality I speak of is that kids - teenagers - are sexually curious and, increasingly, sexually active. In the past year, however, I have represented 5 individuals - 18 year olds - who either had sex with or were discovered in mid-grope with girls in the 14-16 year range. In each instance, the girls were more than on board - they were active, interested participants and, in 2 cases, the aggressors. The boys (men?), however, were hauled off to jail and faced between 25 and 40 years in prison for their dalliance.

One kid (let's face it, 18 year old's are still "kids") actually pled guilty to felony sexual assault and served 9 months because he touched (brushed up against) a girl's breast. After I convinced the judge to reverse the conviction, a jury (luckily!) saw right through the charge of "assault" and acquitted him.

So the system works, right? Sure, after 2 anguishing years, public humiliation, financial ruin and the risk of being labeled a sexual predator.

Another case in point: an 18 year senior is pursued by a 15 year old party girl who trumpets on her "My Space" page about all the drinking and fooling around she does. They finally have sex after she aggressively pushes the issue. Later, in school, she is heard bragging about it by a teacher (who is a mandatory reporter). The next thing this kid knows, a detective is calling about potential charges of sexual assault of a child. Is this just or right? Of course not! It is more of the same sexual hysteria that has infected the system and our society run amok!

That's my rant for today! With all of the unsolved robberies, murders and REAL rapes, don't the police have higher priorities? There is such a thing as judgment and discretion in law enforcement....let's use some folks!

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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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More Kiddie hysteria....

Well the feds are at it again: "State and federal authorities are investigating the possible sexual abuse of minors at a 15-acre evangelical compound run by a convicted tax evader whom critics describe as a cult leader." See the entire story here. "The Tony Alamo Christian Ministries complex in southwestern Arkansas was raided Saturday by more than 100 federal and state police, and six children have been placed in temporary state custody and are being interviewed." The CNN video reports here detail that there are allegations of child porn, and sexual "abuse" withing the Alamo ministries.

Can you say witchhunt? Apparently the feds have been after Alamo for years - repeatedly raiding his compounds in California, Texas and now Arkansas. The evidence that the cops are supposedly acting on is not being revealed but it is very reminescient of the raids on the Koresh compound in Waco, Texas, and the polygamist raid in Utah earlier this year where over 400 kids were removed. As usual, the raid is highly publicized but the evidence of wrongdoing - specific, REAL evidence - is never revealed. Moreover, the anguish of the families and the individual cases are quickly forgotten (or never considered) by the public at large.

My wish for law enforcement and prosecutors is that they finally get over there incessant need to grand stand in high profile busts without considering the emotional, finacial and reputation fall-out to the people involved.

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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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Proving a crime is a real "burden"!

Two cases currently being given an inordinate amount of hysterical media attention demonstrate how the public can have a twisted view of justice in America. More importantly, they are left with the impression that the cops always get it right and ignore the vast number of wrongfully convicted people in this country.

OJ is at it again! Or is he? Was he set up? Even some commentators think so as discussed on CNN InSession BLOGs. The hysterical reaction to OJ over the years is explicitly played out here. After his arrest for trying to get his own property back, who were the first to be interviewed? The Goldman's!! How's that for getting a fair shake? The actual evidence - available for those who care to look - shows a judge who let in tapes secretly recorded that even the FBI expert admitted could have been altered, the witness who did the taping selling them to a gossip website (TMZ) BEFORE he gave them to the police and then writing a book well before the trial and the arresting cop admitting that he normally arrests people before making a complete investigation! There is little doubt that OJ was trying to get his stuff back himself (without the police) to avoid any proceeds from going to pay the $33 million dollar judgment against him, but that does not mean he knew that a gun was brought to the party. His rat/snitch friends know that but will say anything after the frantic rush to cut deals with the government.

On the other side of the country, a young woman is being crucified daily in the press. Casey Anthony reported her daughter Caylee missing in July - a month after she went missing. Since then, she has been vilified as "unstable," "perplexed" and that she had long ago tried to give Caylee up for adoption. The authorities then claim to have found Caylee's hair, an "odor" and "stains" (which can only be seen with a black light) in the trunk of Casey's car. There is reportedly evidence of a "decomposing body" and traces of choloform. Never, however, have any of these supposed scientific tests been confirmed. I have seen countless instances where DNA and fingerprint "evidence" has been debunked because of faulty sample collection, messy lab work or flat-out corrupt technicians. But the media plays it like undoubted fact and then engages in salacious smears to paint this woman in the most evil light possible. Enough already!!! Can't the media allow the process to work without poisoning the jury pool before someone has a chance to defend themselves. The paper thin case they are trying to build reminds one of the Manhattan Beach sex abuse case (day care worker acquitted of molesting hundred's of preschool children) or the Duke LaCrosse case (where the DA was ultimately disbarred for abusing his position by manipulating the stripper "victims" of a claimed sexual assault).

Trying someone in the press is not what this country, or a criminal justice system are about. It turns into entertainment for those that can't get enough of Britney, Paris and Lindsay. If anyone has any doubt about the need for an experience and aggressive defense lawyer, these cases ar explicit examples of that need.

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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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POST-CONVICTION RELIEF: PROCEDURAL BARS TO COLLATERAL ATTACKS

If you have recently been convicted of a crime and want to appeal your conviction, you must raise all significant legal issues in your first postconviction motion. If you do not, the chances are you will be procedurally barred from raising new issues in subsequent postconviction motions.

Two very important legal principles work against you here – finality and waiver. Generally speaking, “finality” means that if you raised an issue in a previous motion and lost, you cannot raise it again. See Beamon v. State, 93 Wis. 2d 215, 286 N.W.2d 592 (1980). “Waiver” means that if you failed to raise a particular issue in a previous motion, you cannot raise it later.

It is incredibly difficult to raise a new issue in a later postconviction motion. To do this, you must show the court a “sufficient reason” for raising it now. See State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994); State v. Lo, 2003 WI 707, 264 Wis.2d 1, 665 N.W.2d 756. This is not an easy task. There are very few circumstances in which a court has found “sufficient reasons.” Those include:

§ The appellate attorney did not claim ineffective assistance of trial counsel on direct appeal, because the appellate attorney was also the attorney at trial. See State v. Hensley, 221 Wis.2d 473, 585 N.W.2d 683 (Ct. App. 1998).

§ The appellate attorney was ineffective in failing to bring a postconviction motion on direct appeal. See State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 680, 556 N.W.2d 136, 139 (Ct. App. 1996).

§ The substantive law has changed, and it could not have been foreseen at the time of your direct appeal. See State v. Howard, 211 IWis. 2d, 269 564 N.W.2d 753 (1997).

The doctrine of finality and the waiver rule generally mean that you get only one chance to make your arguments. That is why it is so very important that you or your attorney raise all important issues in your initial postconviction motion.

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Sydne French, 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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No Release Pending Sentence

In a 29 page handwritten letter, former Alderman Michael McGee begged federal judge Charles Clevert to allow him to be released pending sentencing. That letter was sent pro se, i.e., without his attorneys involvement alleging that counsel refused to use certain information that would put into “context” the allegation that he is dangerous. McGee asserts that he is not a drug dealer or gang member and explains but the 5/29/07 phone call to the government’s chief snitch (a friend at the time) was actually friendly and that the conversations about plotting to kill someone was just so much bravado and street talk.

I totally understand his desire for release and to have a fully vetted decision on the matter. However, the points he raises were subjects for trial, not a motion for release. Here’s the problem: once you are convicted, rightly or wrongly, of offenses involving threats of violence, no judge is just going to let you out because they assume, at that point, that you are guilty. His letter was well crafted and argued on the points of contention raised at trial. However, that ship has sailed. He says that he will completely accept responsibility but then deconstructs the very things that he was convicted of.

As I have said before, I think at least part of this prosecution was the result of a specific targeting (unfairly) of McGee. However, my advice to him to allow his very competent attorney to make the arguments that need to be made.

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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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Entrapping "Thug Mike"?

Yesterday, a federal jury took just 6 hours to deliver guilty verdicts on 9 felony counts of bribery, extortion, attempted extortion and failing to file a financial form on a wire transfer of $15,000 against former Milwaukee alderman Michael McGee, Jr. [See McGee Guilty - JS Online] The entire uproar consisted of complaints by local Arab businessmen that McGee was shaking them down for money and gifts in direct connection with their liquor licences. In essence, no money, no license.

At first blush, the evidence seemed overwhelming: hours upon hours of recorded wiretaps where McGee referred to himself as "Thug Mike" and repeatedly appeared to be telling these government witnesses that he was God to them in their ability to stay in business. In his own words, McGee claimed to be the "gatekeeper." A closer examination, however, exposes at least a plausible entrapment defense. That seemed to be where the defense was trying to head but ultimately they portrayed the informants as incredible plotters just looking to remove a sitting alderman. There was plenty of evidence to support that view including the fact that the star witness, Adel “Jack” Kheirieh, actually ran for McGee's seat following his arrest even though Kheireh lived in Franklin.

Personally, I think that 2 things are going on: First, McGee had a huge target on his back from day 1 - just being the son of former alderman Mike McGee was enough to draw fire. The FBI and the US Attorney's office have spent a great deal of time and resources focusing on City Hall in the past few years (and state officials, too). They have racked up some convictions (Pawlinski, Cameron, Henningson) but have had some colossal embarrassments (Thompson, Donovan). Given that very mixed record, one has to question the tactics and judgement of law enforcement in gathering evidence and bringing cases that are highly questionable.

Second, and related, the fact that no other business owners than this tight group of Arab businessmen (who cling together under pretty much any environment as they all deal with each other just to survive) testified about McGee's conduct seems instructive. Were they the only businesses in the district with liquor licences? Hardly. However, if McGee was as thoroughly corrupt as he was represented, wouldn't all the black, white and Asian license holders be lining up to testify? The 6th district has 86 licences listed here and the government included testimony from a very small group of closely aligned business owners that went to great lengths to enhance the target on McGee's back. Where were the rest? Undisturbed by McGee, apparently.

I saw only a small portion of the trial but it seems that the verdict is at least questionable given the intense focus by law enforcement and the context of the 6th district business environment. As to propriety of the Aldermadic Privelege, that will have to wait for another blog post, such as the one about overzealous prosecutors and TJ Perlick-Molinari, the hero of that day.

White Collar Crimes

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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

The Tragedy of Overzealous Prosecutors

Recently on this blog, my associate, TJ Perlick-Molinari, discussed a gang shooting case he won by talking about "The Tragedy of Gang Violence." It was, as he pointed out, a nasty and unnecessary shooting. What he failed to mention (or brag about!) is how important a vigorous defense attorney is in the process of criminal justice. Here, the state charged a shooting as a "party to a crime" which includes aiding and abetting, facilitating, conspiracy, etc., to commit the crime. However, the prosecutor alleged, through their victim, that our client did it directly.

The victim was just a rival gang member who was out to enhance his position and reduce his own prison time. It was a ridiculous case that never should have been brought and the jury saw right through it. If it hadn't been for TJ's aggressive defense, this client would be at Dodge Correctional Institution right now. The defense matters - though this is largely unseen and unrecognized by the public. TJ's post was far too modest - he was a hero that day for the cause of acting as a fundamental check on governmental power that ran amuk. Kudos to him and all like him that call out prosecutors and police without just rolling over and pleading clients out.

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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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The Tragedy of Gang Violence

Today, I was reminded once again that crime does not pay. A young Spanish Cobra was on trial for allegedly shooting a Latin Kings member. I represented the young Spanish Cobra. This case, like so many, revolved around the issue of whether or not the jury believed the testimony of the Latin King gangster. This victim of gang warfare and violence had in fact been shot. There was no doubt about that. The bullet was still in his body. The real question was, who did it.

At the hospital after surgery, the Latin King made no affirmative identification of his shooter. He told the jury he was planning on taking care of this in the streets, and not cooperating with the police investigation. Turns out, he was already cooperating with the federal government regarding the indictment of his fellow Latin Kings. Part of that cooperation included being offered a proffer letter. This letter allowed him to make statements that could not be used against him unless they turned out to be false. In exchange for these statements, the government would give him consideration at sentencing.

In all gang investigations, the three things that investigators are most keen about are armed robberies, homicides, and shootings. It just so happens that this was a shooting case, albeit the shooting case of the victim in this case.

The victim decided to testify in this case and confront his alleged aggressor. During cross examination, he made statements that seeing Spanish Cobras die or go to prison would make him, “very happy.” He talked of his disdain for rival gang members and how he had been involved with his gang for many years, constantly fighting with other gangs to establish territory.

The result of that lifestyle was an indictment by the federal government. Trying to spare himself some time in prison he decided to cooperate. It just so happens that only after he had been under the proffer letter I talked about earlier did he pick his own shooter out of a lineup.

He insisted he knew the guy and that he lived at a certain address on the south side, and further that he would be able to identify him. All of this is well and good, but it was quite obvious to everyone on the jury that of course this victim is going to know members of his rival gang. He did not dislike my client starting the day he got shot. He had his hatred for this man for quite some time.

Ultimately, his credibility was torn to pieces during cross examination. Because the state did not have any other witnesses or direct evidence, the jury felt that while they did not care for my client, they really did not care for the victim or find him to have one ounce of credibility.

The victim in this case nearly lost his life. But that was a gamble he made years ago when he decided to live a life of deceit and violence as a member of a dangerous street gang. As for my client, not guilty was the verdict.

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Attorney Theodore J. "TJ" Perlick-Molinari
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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State of Wisconsin charged:
Count 1: 940.23(1)(a) - 1st Degree Reckless Injury - Felony D
Found Not Guilty at Jury Trial

Count 2 - 941.29(2)(a) - Felon Possess Firearm - Felony G
Found Not Guilty at Jury Trial

Suspicions

While thinking about the recent case of the corrupt, and now exposed, Special Operations Section (SOS) of the Chicago Police Department, I mused about the nature of our police, prosecutors and far too many judges to never take the word of the accused against someone in law enforcement. That inherently suspicious nature is, perhaps, inevitable. It is also very unfortunate. It is what makes many court proceedings unfair - often in the extreme - and leads to making the truth-finding function of the courts a sham formality. Perhaps a bit of perspective is needed as in these thoughts from the Father of Taoism, Lao-Tzu:

Once upon a time a man whose ax was missing suspected his neighbor's son. The boy walked like a thief, looked like a thief, and spoke like a thief. But the man found his ax while digging in the valley, and the next time he saw his neighbor's son, the boy walked, looked, and spoke like any other child. Similary:

The more laws and order are made prominent, the more thieves and robbers there will be. Lao Tzu

Perhaps we need to revisit the origins and power of the presumption of innocence........

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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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Dangers of Hysteria

Here is yours truly appealing to the media and public to lay off my client who was the victim of false accusations and hysteria by both the media and witnesses.

He was a youth coach of many sports and beloved by both his players and their parents. During football season, he was coaching a rec league team when his son (age 12) was hit by a larger, older (age 13) player from his own team during a scrimmage with an illegal "chop block." This is a hit from behind that is very dangerous and often, as here, results in serious injury. While is son was writhing on the ground, and the other boy (who had done this before to others and was warned about it) was laughing about it, my now angry client rushed to attend to his son. In his way was the other boy who he pushed aside and injured him. Both boys went to the hospital but the attacker was back practicing the next day. My client's son was out for a week.

The day it happened, blanket media coverage ensued because one parent went on the news and claimed (falsely per many other witnesses - including the other coaches) that my client picked the other boy up over his head, spun him around and slammed him to the ground - WWF style. The ever hungry local media went for it in a big way and the false story stuck. Ultimately, despite all evidence to the contrary, he was forced to plead to battery and was sentenced to 24 days jail. He felt he had no choice because the coverage was literally ruining his life - he was threatened at home, his children were harrassed at school and he lost 2 jobs. He was also banned from ALL coaching and even attending school events his own children were involved in! There is no doubt that had the media circus not ensued, none of this would have occured.

The real message here? If you are caught up in the passion of a media storm....the "witnesses" who make it onto the news are more important than the supposedly calmer, rationale court process. I did my best to blunt this affect but the public's limited attention span is going to believe the first thing they hear and inquire no farther....DA's and court's, ever mindful of news coverage of their actions, are undoubtedly influenced by this. It's a steep hill I hope no readers of this blog ever needs to climb!

News: TMJ4 - http://www.todaystmj4.com/news/local/18368289.html

See also:
Battery Defined

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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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Defense Lawyers Vindicated

On 6/1/08, Chicago Police Officer Kieth Herrera went public for the first time about massive corruption within his "Special Operations Section" (dubbed SOS) in some of Chicago's toughest neighborhoods. Up until now, his ratting out was done strictly with the FBI. His appearance on 60 minutes detailed the rampant corruption within the SOS that, in summary, amount to uncontrolled police state tactics to "get the job done" - i.e. use whatever means are necessary to get drugs and guns off the street. This includes beating suspects, warrantless and unjustified searches, lying in reports and in court - all in the name of "justice."

Now, I could go on a rant about the police and their ridiculous rationalizations about how they HAVE to break the law to get at these criminals. However, the important point for folks (i.e., the public who are typically silent on these points) to remember is that it is exposing exactly this sort of illegal overreaching that defense lawyers do every day in this country. And, I would be quick to add, that we are really only ones doing it. The DA's don't - they work WITH these guys every day and consider them partners in their valient mission. The judges don't because even though they can't honestly believe that the police are always honest, they really have nothing else to go on other than a pissing contest between defendants and cops. It is the defense lawyer that investigates and presents this corruption and overreaching to courts. It is a very difficult uphill battle most of the time but the legal basis is usually a 4th (searches), 5th (Miranda, confrontation) or 6th Amendment (right to an attorney) claim. Some call them "technicalities" but we call them mechanisms form achieving some semblance of fairness.

For an excellent article on the "defense of defense attorneys" (by a federal judge no less!!) click here. Yes we matter.

See also:
Police Interrogations
Legally, Police CAN Lie

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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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Prison: A Black and White Proposition

Well, it's official....blacks are incarcerated at a higher rate than whites throughout the United States with Wisconsin landing the, ahem, coveted #1 spot. Two recent studies (one by Human Rights Watch and the other by the Washington based Sentencing Project) conclude:

• Blacks in Wisconsin are 42 times more likely than whites to receive prison terms for drug convictions. Wisconsin has the highest racial disparity in drug sentencing in the nation.


• Blacks in Milwaukee are seven times more likely to be arrested for a drug offense than whites. Milwaukee has the second-highest racial disparity for drug arrests among all major U.S. cities.


• Nationally, the rate of drug arrests of African-Americans in more than 40 large cities increased 225% since 1980, compared with 70% among whites.

According to national surveys, about the same percentage of blacks and whites use illegal drugs, meaning that because the white population is much larger, many more whites than blacks actually use illegal drugs.

"The alarming increase in drug arrests since 1980, concentrated among African Americans, raises fundamental questions about fairness and justice," writes Ryan S. King, policy analyst for The Sentencing Project and author of its report, "Disparity by Geography: The War on Drugs in America's Cities."

The report examines data from 43 of the nation's largest cities between 1980 and 2003.

"But even more troubling," King writes, "is the fact that these trends come not as the result of higher rates of drug use among African Americans, but, instead, the decision by local law officials about where to pursue drug enforcement."

My opening line is tongue-in-cheek because to anyone who works in the criminal justice system (or even casually pays attention to these matters) has known this for decades. What is remarkable is the expanding disparity here in Wisconsin. While it is no mystery why this occurs blacks live disproportionally in high crime areas that receive greater police scrutiny - no one seems to have any serious solutions. The legislature is nearly worthless - they won't take the courageous step of stepping down the penalties for non-violent drug offenders because they lack the polictical courage. It will have to fall to local officials, most notably and commendably Milwauke DA John Chisholm, to really attack this problem as a treatment issue rather than the ever-easy criminal route. This can be facilitated through the institution of drug courts that will allow judges the option of diverting cases that involve obvious treatment issues into community solutions which cost about 80% less per year than the cost of incarceration. It seems to me that the only people that could be against this are those with a huge vested interest: prison unions, and construction
companies.

You can view the breakdown at: http://graphics.jsonline.com/graphics/news/img/may08/prisons_050608_big.gif and the studies at http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=614 and http://hrw.org/reports/2008/us0508/.

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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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Drug Charges Dismissed

Melanie is a young woman from Kenosha, WI who was hanging around with bad friends for years. One night in 2006 she was at her apartment when the cops showed up and searched the place after her roommate consented to the search. Cops found marijuana, cocaine, and drug paraphernalia. She was not charged at the time.

She then moved to Arizona for personal reasons, mainly to get away from the antisocial behavior that she was surrounded by in WI. Kenosha County DA files charges a year and a half later, charging her with marijuana, cocaine, and drug paraphernalia.

Melanie calls me after she receives the criminal complaint in the mail. She decides to retain the firm. I call the DA on her behalf. I demand dismissal and DA asks why he should dismiss. I provide the DA with a letter regarding Melanie’s life before and after the incident, showing the personal and professional improvements she has made and how the charge would only hamper her progress. Letter outlines essentially why prosecution is inappropriate. DA decides to dismiss the case outright without and initial appearance or further argument.

It is absolutely essential as a defense attorney to examine each case thoroughly and determine what role the defendant played in the act, and how that relates to her current position, especially when charging has come as late as it was in this case. DAs have an interest in whether the defendant is changing from an antisocial lifestyle to a prosocial lifestyle and will look very favorably on that positive transformation. Reasonable minds prevailed in this case and charges were dropped.

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"TJ" Perlick-Molinari
Birdsall Law Offices, S.C.
135 W. Wells St., Ste 214, Milwaukee, WI 53203
801 E. Walnut St., Green Bay, WI 54301
414.831.5465 - www.birdsall-law.com

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This One Vote Counts......

To readers of this blog who are not in "the system" I would like to emphasize the critical importance of tomorrows Supreme Court election (as an aside, we may soon need to have a serious discussion about campaign reform and/or the appointment of judges to eliminate the misleading, jaded, and money-influenced system that exists).

This is for a 10 year term on a court that not only administers the entire court system in Wisconsin but also renders opinions on the most pressing issues of our day from corporate regulation to overreaching police searches and interrogations. Our present court is evenly split in the traditional conservative/liberal paradigm (to the extent that we can even apply that to a "detached" body of government) and, in my view, have been remarkably competent and thoughtful in recent years.

We have a court that is admired nationally and it is headed by a Chief Justice (Shirley Abrahamson) whose balanced view of the law and the administration of justice is something we should all be thankful for. Yes, I am an unabashed defense advocate so some may discount this appraisal of the court. However, I also run a small business and understand that tying the hands of business interests benefits no one - especially my clients who need jobs.

Louis Butler is the only serious candidate to consider here. Gableman is simply throwing his name out there and slinging mud as hard as he can hoping to pick off not just a great justice but one of the finest men I have ever had the pleasure to know. In fact, Butler was recently rated by two SE Wisconsin Bar associations as "qualified" by 90% of the membership while Gableman was found so by just 1/3. This speaks volumes about how the profession feels and they got it right.

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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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Sex hysteria and Perversion of the Truth

I had the painful experience of listening to the Supreme Court debate between Justice Louis Butler and Circuit Judge Michael Gableman last night at the State Bar Center in Madison. Virtually the entire debate centered around the negative ads that have defined this campaign and smeared both candidates.

As an ardent Butler supporter, I was incredulous at Gableman's refusal to recant the obviously slanderous content of the ad that HIS campaign wrote and he approved. He claims it was "fair game" to talk about the candidates past work. Fair enough. However, the ad is severely misleading and leaves the strong impression that Butler's work on a sexual assault appeal (while he was a public defender) somehow "sprung" a child molester that "went on" to commit more assaults.

In fact, Butler raised the issues of the irregularities in the trial and an unanimous court of appeals agreed and reversed the conviction and sent the case only for a new trial. The man was not released. The Supreme Court agreed (again, unanimously) with Butler but nonetheless reinstated the conviction because there was overwhelming evidence so the error was "harmless." The man served his entire sentence and only committed another assault years later.

Gableman, however, juxtaposes pictures of Butler and the man together and then asks - who would you trust to protect Wisconsin's children? How much more perverted can you get? Not the man....Gableman! He wants to be a trusted member of the state's highest court but can't even exercise the judgement to debate issues fairly or to accurately portray a set of facts. This overzealous pursuit of a position of power stands in stark contrast to Butler's calm composure, keen intellect and rational judgment.

I hope that enough of the truth about this fine justice and honorable man is communicated to the public prior to the April 1st election. We have a great court right now....Gableman will not be a welcome addition.

See more about this focus on attack ads here.

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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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Your Right to Remain Silent - Use It

Question: Is it ever appropriate to make statements to the police?

The the short answer is no. Here's why.

In our criminal justice system there are two parties: the state and the defendant. This is what is known as an adversarial system. What does this mean? The police are not your friends. The average officer starts building a case against you the second he sees you drive down the road, or look at him funny. Why help the man out? Giving a statement rarely accomplishes anything. More often than not, you are nervous, and not in any position to help yourself. Most people's hearts start beating when they realize that they were going over the speed limit when they passed a deputy on the freeway. So amplify that times 100 when an officer is staring you in the face alleging that you are drunk, or the main suspect in a burglary down the street.

The police will even try to be your friend and give you whatever you want to eat or drink in order for you to cooperate with them. It's because if you cooperate it makes their job 100% easier. They know that. You should know that too. Keep remembering this is State v. You and not State and You. They also know that if you ask for an attorney that they have to stop questioning you, so until you say the magic words, "I want to speak to an attorney" don't think they are done with you.

In the end, you may decide that you want to cooperate, but that decision should only be made after a consultation with an attorney. Don't let the officer convince you that he'll put a good word in for you with the district attorney or the judge. The only time I ever see a police officer in court saying something is when he is on the stand testifying against the defendant.

Read more about Police Interrogations, Police Can Lie, What To Do If You Are Accused Of A Crime, & Smart Ways To Handle A Police Stop

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

Gun Control - A Right To Own Guns: Personal or Militia?

Today the Supreme Court heard oral arguments on whether the US Constitution’s 2nd Amendment contains a right to own a gun as a personal right or if that relates strictly to militias. I am personally indifferent as I do not own a gun, don’t hunt and am fortunate not to live in a dangerous area that would prompt me to have a gun at home or carry one for protection. The District of Columbia law has banned all handguns (except for police) since 1976. The District argues that its law is fine since the 2nd Amendment relates much more to the right of the people to maintain militias rather than to any individual, personal right to keep and bear arms. In my view, the text of the amendment is ambiguous - it certainly cites both.

So who’s right? While strong arguments can be made on both sides - especially with a bevy of sophisticated legal talent weighing in - I have to land on the side of gun owners and the existence of a personal right. I think that the founders were far more leary of an armed government that could slip into despotism if the people could not have the option of overthrowing that government. That said, do we still want to look at this 20th and 21st Century problem of street awash in guns that kill people at record rates through the rose colored glasses of a 18th century document? Isn’t that what the Elastic Clause allows us to do - to make all laws “necessary and proper” to effectuate the provisions of the Constitution. And doesn’t the undisputable tragedy of handgun deaths merit a strong societal response?

I think that the real question is - as is the case for many legal quandries - isn’t there room for both a personal right and some reasonable regulation of that right? Simply put - yes. We do that with most rights contained in the Bill of Rights. We adore free speech but don’t let people slander, incite riots, or yell “fire” in a crowded theater. We arduously protect a citizen’s right to remain silent and not incriminate themselves but allow cops to lie to those citizens about the strength of evidence to get them to confess and otherwise coerce that them to give up that right. The list goes on but the point is: can’t we do the same with guns? I would never want to restrict legitimate gun rights of someone to protect themselves, their family or even to hunt (though I personally don’t see the big thrill). But I also think that the carnage that hand guns have created in modern society can only lead to death when in the wrong hands. As big of a libertarian as I am, some regulation, I think is appropriate here.

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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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Drunk Driving Cops in Wisconsin

So Are Police Officers Just Better Drunk Drivers?

When most of us get pulled over by a police officer we get nervous. Apparently, when an off duty officer gets pulled over, he has nothing to worry about. Just this week in Milwaukee County on St. Patrick’s Day, an on duty officer pulled over an off duty officer on suspicion of drunk driving. http://www.jsonline.com/story/index.aspx?id=729881 What is really appalling here is that the off duty drunkard thought he was just going to get away with it and be on his merry way home. After insisting that if he pulled an off duty officer over he would let them go, and has over 100 times, he begged the on duty officer to do the same for him.

The Frank Jude case has been society’s most recent opportunity to publicly see the culture of protecting one’s own in the police department. There is no doubt in my mind that this brotherhood extends to all officers and not just officers within the same department. I also know that the police department is no different than any other profession when it comes to looking out for one’s own.

Sadly, I am sure there is truth to the statements of the drunk deputy when he explained that he has let off duty officers go after he realized who they were. This cannot be an acceptable practice. I applaud the Hales Corners Police Officer who had the guts to arrest this man and take him into custody the same way any one of us would have been taken into custody if we were that intoxicated and behind the wheel swerving on the road.

We expect more from officers because of the important role they play in society. Cops who break the law themselves are hypocrites who do not deserve the respect of wearing the uniform and carrying the badge. They apply to be police officers to enforce law and order. And while I, as much as anyone can understand that we are all human and we all make mistakes, people who rely on other people’s mistakes to make their living should be smarter. They see it every day and know the consequences.

As a defense attorney, especially one who deals with OWI offenses, I know that if I get pulled over, I am getting the special treatment. And it is not the kind of special treatment that apparently off duty officers regularly get. While I do not believe this man should lose his job over this, he certainly should not be on highway duty arresting people for something of which he may be guilty of himself.

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TJ Perlick-Molinari, 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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New York Governor Eliot Spitzer - Street Sex -vs- Wall Street

I have listened with great interest at the “outrage” over New York Governor Eliot Spitzer’s recent admission of “wrongdoing” (which was well crafted to not directly admit any criminal liability). Mostly, the talking heads have decried his hypocrisy at being an unforgiving, zero tolerance, prosecutor in the past and then doing exactly the things that he eschewed. With that I agree completely. I have to say as a defense attorney that I did not like his tactics (he was the one that really invented the “perp walk”) and ruined a lot of lives of people who may have only been tangential players. That said, as a citizen, I always appreciated that someone aggressive was monitoring the greedy bastards on Wall Street that play endless illegal games that cost a lot of us a lot of money.

Spitzer’s fundamental problem was the bevy of powerful enemies that he made over the years. I am not inclined to conspiracy theories, as a rule, but I smell a rat here. Here’s the company line: a bunch of nondescript IRS bureaucrats slaving away at meager government wages in the bowels of some gray bland office building saw about $4,000.00 change hands and did a check on it (because they are just public servants doing their jobs). Then, voila, it turns out to be the immensely popular and powerful Governor of New York paying for sex. It had, they say, nothing to do with politics, revenge, powerful interests on Wall Street or any of that stuff. Just doin’ my job.......yeah, right.

Let’s be clear....there were literally thousands of recorded calls and an extensive investigation by both state and federal cops....all because a few bucks looked a little “irregular?” Unlikely. This is more akin to a set up whereby unseen forces were sifting and searching for any dirt that could possibly find on this man to bring him down. Don’t get me wrong...he brought this on himself in terms of his conduct. However, the cover story that they just stumbled on some small financial blip and then spawned a multistate investigation reserved normally for international drug smuggling operations is a lot of nonsense.

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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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Murder & Sexual Assault Plea Bargains Aren't A Bargain

Every day I encounter people who believe that they were bullied into pleading guilty to some plea “bargain” that, upon brief reflection, they realized that it wasn’t that great of a deal. Or, more often, they just felt that they were truly innocent and should have gone to trial. In any event, they routinely blame their attorney for just being in bed with the DA and not really fighting for them and they want to “withdraw” their plea. Sounds simple, right? As usual, the answer is: “it depends.” The variables are huge, the DA’s almost universially oppose these motions no matter when brought but the judge can be a real wild card. I have had extremely compelling cases that have been denied and seemingly difficult cases that breezed right through.

The first hurdle is whether it is before or after sentencing. A criminal conviction begins after the judge “accepts” your plea of guilty and then “adjudges” you guilty and orders a “judgement of conviction” be entered in the record. The case is then set for sentence if it is a felony. Many smaller cases may proceed right to sentencing after the plea proceedings. The legal standard is hugely different: before sentencing, courts are supposed to “liberally” grant such motions for any “fair and just reason.” However, after sentencing, they only grant a withdrawal request to prevent a “manifest injustice.”

Don’t feel bad if you don’t know what those terms mean in the legal context, neither do most judges. We attorneys, of course are convinced that we always have met the standard but the judges are all over the board. Consider two case I have handled in recent years: Jose and Walter.
Jose was set for trial for 3 counts of first degree intentional homicide and 3 counts of reckless homicide. His trial attorney basically did nothing to investigate the case which involved a gang-related shooting. Early on, the state indicated that the only plea they would offer was to cop to 2 counts of first degree and they would recommend life without parole (no death penalty in Wisconsin - yet!). Jose rejected this “deal” categorically and maintained that position to anyone that would listen - including his Jesuit priest that would minister to him regularly. On the eve of trial, his attorney pushed a final “deal” on him: plead to just one count of first degree and 2 count of reckless homicide and the state still recommend life without parole. Can you feel the love? Some how, his attorney convinced with that he may escape a life sentence and basically bullied him into taking the deal. He immediately regretted it and contacted me to help him withdraw the plea under the liberal standard of “fair and just reason.” Claims of innocence and ineffective assistance of counsel and the testimony of his priest just didn’t cut it for this incredibly obstinate judge who used every available tool of intellectual dishonesty to deny his request. The truth was that the court just didn’t want to try the case.

Contrast that with Wally: he was fooling around sexually with his male cousin when they were 14 and 13 respectively. The families all knew about it and put a stop to it. 3 years later, the cousin brought this up at school and the counselor reported it to police. Because of Wisconsin’s juvenile court decisions, the case was treated as an adult crime because Wally was 17 and an adult for criminal law purposes. Also, since the accusation (a false accusation) was that Wally had threatened him with a knife, the judge ordered him to report as a sex offender for 15 years after he finished probation. On appeal, the client had to meet the manifest injustice standard but, to our great surprise, had a policy of granting nearly every request for withdrawing a plea practically for the asking if there is a claim of actual innocence. Since Wally did not fit that role, however, he did not do that. What is amazing is that he would of in a heartbeat.

The difference in these cases? The murder was in a busy Milwaukee court with a hyper-conservative judge and the sex case was in very rural Grant county with an incredibly flexible judge.

Any lessons here? Yes - if you are going to enter a plea (which is often a great idea) - be sure that it is what you want and that your attorney has adequately explained all of your options to you. Then you will not need to worry about coming back later to fix the mess. If you don’t like the deal - go to trial but only if your attorney is ready! If not get a continuance and a new lawyer.

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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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www.Birdsall-Law.com Goes Live

Ta-da!! Introducing our new website, Birdsall-Law.com, that went live today.

www.Birdsall-Law.com features information about many of the criminal law areas in which we practice, and there is plenty more information to come. We've also provided information about a few of our past cases.

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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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Racial Disparity

Yet another report was released that confirmed what we already knew - blacks are incarcerated at a dizzying rate compared with their proportion of the population in Wisconsin. http://www.jsonline.com/story/index.aspx?id=715572 The governor appointed yet another commission to study this well documented problem - you may remember that Gov. Thompson did this in 2000 (investigating racial profiling - gee, ya think?) and that the recommendations (including treatment for addicts and diversion of nonviolent drug offenders) were promptly put on a shelf and everyone felt much better because it made great headlines. Well, it’s deja vu all over again with the new report from the Governor’s Commission on Reducing Racial Disparities in Wisconsin’s Justice System. http://www.equaljustice.wi.gov/ The report tells us what the numbers are: blacks are 6% of the population but 45% of the prison population. We also know that about 30% - 40% of the prison population consists of nonviolent drug offenders (most of which are black). The solution? Treatment and diversion. Hmmmm, that’s just crazy enough to work!

In fairness, the recommendations that would give crack addicts the same treatment response as afforded to meth users, getting DA’s to commit to guidelines to train staffers to recognize discrimination and reverse laws that bar drug offenders from financial aid and public housing are wise. However, despite Co-Chair Sen. Spencer Coggs optimism, the legislature is unlikely to make this a priority. The problem? They ultimately really don’t care about felons because they have no money, no power and are easy to pick on. Also, by introducing tough-on-crime bills they get some nice headlines for the folks back home.


After lobbying the legislature for years on a variety of bills - good and bad - I can tell you that the only arguments that really carry the day in Madison is: this will save you money or this will make you look good. While these recommendations are sound and make sense, the only way that any of them will see the governors desk is to package them are money saving vehicles (which they are) and make sense in a rehabilitative sense (streets are safer). With the current crop of republicans, I have my doubts.

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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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