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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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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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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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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