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

---

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.

---

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

---

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.

---

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

---

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.

---

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

---