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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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