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

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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