A Wall of Justice....

Recently the court of appeals basically attacked former Milwaukee County Circuit Judge Joseph Wall in opinion vacating the sentence of Landry Harris on drug charges because, they said, his comments at sentencing were capable of being interpreted as racist. http://www.jsonline.com/news/milwaukee/38004039.html. Aside from the very thin reasoning in the opinion, they really picked on the wrong guy. I have known Joe Wall for many years and can say with great confidence that he is one of the fairest, brightest and most professional attorney I have ever met. He is deeply involved in the rights of the poor and goes out of his way to be fair in all circumstances. Moreover, he is a very decent human being.

While he may have used strong language (referring to the girlfriend supporting him as his "baby mama") it was not out of line in any way (and that's coming from a defense attorney!) . The appellate judges here simply must have more significant cases to work on than this kind of trivial nonsense! Come on, there are real problems with the system that need to be addressed!

---

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

---

Computer Kiddie Porn Acquitals

---

I have just finished a very complicated (on one level) and simple (on another level) case involving kiddie porn that was found on a computer. The complicated part was challenging the fact that digital imaging technology is of such a sophisticated nature that even experts can't tell the difference between morphed images and real ones. In other words, the images that are discovered on a computer could have been adult females and simply manipulated to make them look like children.

The simple part was that the charged images were all logged in under my client's girlfriend's name! The state argued that my client was the one that actually accessed the pictures because there was a search for "preteen" under his login.

To make a long story short - after a series of computer experts testifying that the images were not morphed and that the children were real, the jury acquitted on all 10 counts.

Needless to say, a very relieved client! What really bothers me, however, is that district attorneys around the state continue to charge these patently weak case. Is it a reaction to public hysteria over sex crimes in general (witness the "rape" cases of 18 year old boys having sex with their 15 year old girlfriends)? Political expediency? Both? Who knows....what is clear is that hundreds, maybe thousands, of people (mainly men) are being charged with very serious felonies when they should not be.

In this case it was a bitter ex-girlfriend who made it very clear that she would do and say most anything to put my client in prison. I was able to prove that she had lied in court on numerous occasions, and actually hatched a plan to get rid of my client months before she turned the computer over to the police.

If anyone doubts the importance of an experienced defense attorney in our system of justice - go ask my client!

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

---

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!

---

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

---

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.

---

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.

---

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

---

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

---

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

---

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

---

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

---

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

---

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

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.

---

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

---

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.

---

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

---

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.

---

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

---

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.

---

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

---