Criminal Law News
July 2005
Published by the Criminal Law Section of the State Bar of
Wisconsin
Chair's Perspective
Barry Cohen
Barry Cohen serves as chairperson of the Criminal Law Section. He is an attorney with the Law Offices of Barry S. Cohen, S.C., a four attorney firm in Elkhart Lake which practices exclusively in criminal and traffic defense.
Purpose of the Criminal Law Section: To provide a forum for criminal defense lawyers, prosecutors, judges and academicians to discuss issues and, if appropriate, adopt advocacy positions to promote respect, fairness and professionalism in the administration of criminal justice in Wisconsin. The Section shall educate and inform its members on the issues affecting the practice of criminal law.
Much has been accomplished during the past two years because of the hard work of our Board of Directors. Contrary to the belief of some, this is not the criminal defense section. WACDL exists for that purpose. This Section concerns itself with the administration of criminal justice as a whole and draws its strength from a diverse Board of Directors. We have benefited greatly from the work of and special thanks to Jefferson Co. Judge Randy Koshnick, Marquette Law School Professor Greg O'Meara, Milwaukee Co. Deputy D.A. Bob Donohoo, Keith Findley of the UW Law School, as well as several defense attorneys from around the state. As a long time member of this Section, it has been especially gratifying to have such a diverse Board that regularly attends meetings and devotes time and energy to the many issues we face. On behalf of the entire Section, thanks again to our Board of Directors and State Bar staff.
One of the proudest moments during my administration was when Justice Louis Butler (then Judge Butler and judicial member of our Board) was elevated to our supreme court. Board member Gerry Mowris presented Justice Butler with a plaque in recognition of his service to our Board. We lost a great board member, but the state has certainly benefited due to our loss. Congratulations Justice Butler!
Another accomplishment has been due to the work of Board member Keith Findley, a clinical professor with the UW Law School. He was the attorney for Steven Avery, whose conviction was reversed after he served many years in prison. Keith has been very active on the state's Avery Task Force, looking at ways to improve eye witness identification. Keith will also be a prominent member of the new Justice Commission, which will take over where the Avery Task Force leaves off. As a result of the work of the Avery Task force, Keith has been working with the Wisconsin Department of Justice to formulate new model rules for eyewitness identification. And to further this Section's commitment to the fair administration of justice, our Section has pledged $5000 to the UW Law Review to sponsor a symposium on preventing wrongful convictions.
The Section was also one of the sponsors hosting former Attorney General Janet Reno's visit to Wisconsin last year. Ms. Reno addressed the Avery Task Force on the issue of preventing wrongful convictions and later gave a lecture at the UW Law School.
I have personally served as the Section's representative on the State Bar's special committee working on revisions to the new trust account rules. Work on revisions to the proposed rules is nearly complete. There were concerns about how unmanageable the new rules would be, but I am happy to report that thus far many of those rules have been simplified. Especially important to criminal defense practitioners, they will continue to be able to use flat fees and deposit them into the attorney's general business account rather than a trust account. If you have any questions about the proposed new trust account rules, do not hesitate to contact me directly.
Also, thanks to Board member Bob Donohoo for chairing our CLE program at the 2005 State Bar Annual Convention. There was a fine turnout, and assisted by attorney Craig Mastantuono, the presenters focused on various criminal trial and procedural issues. Look for information on obtaining copies of the written materials elsewhere in this newsletter.
Finally, let me say that probably the biggest hurdle we have faced as a Board is keeping our Section members as informed as possible about what is happening. We have recently hired a full time editor to regularly produce the newsletter and move to an electronic format to speed up the process of disseminating the information. Hopefully, you will see this newsletter more frequently and in this user friendly format.
As Jerry Buting prepares to take over as Chair of the Section, I wish him well and vow to continue to assist the Board and the Section however I may be of assistance.
Wisconsin Takes the Lead in Improving the Criminal Justice System
Keith A. Findley
Clinical Professor, University of Wisconsin Law School
Co-Director, Wisconsin
Innocence Project
The recent wave of proven wrongful convictions—including at least 160 postconviction DNA exonerations and literally hundreds of exonerations based on other types of evidence—in the last dozen years has led to a realization that the criminal justice system can, and must, do better. Nationwide, attention has focused on the lessons that can be learned from the exonerations, lessons about improvements to ensure that we convict the guilty, but not the innocent. Few states, if any, however, have done as much as Wisconsin to learn the lessons from these errors.
The Need to Learn and Improve
The efforts in Wisconsin began several years ago when the Criminal Law Section of the State Bar began talking with the UW Law School and the Marquette Law School about creating a commission to study the errors that have produced wrongful convictions. Those discussions were followed, in January 2003, when representatives from Wisconsin participated in a national conference hosted by the American Judicature Society in Alexandria, Virginia, at which working teams from a dozen states put together plans for improving criminal justice in their own jurisdictions. The Wisconsin team included a judge, a police captain, the director of the State Crime Laboratory in Madison, a prosecutor, and me, as representative of the Wisconsin Innocence Project at the UW Law School (and a member of the Criminal Law Section Board of Directors).
The Wisconsin team left that conference with a plan that included three initial goals: (1) to create a training program for judges and prosecutors to heighten awareness of the problem of wrongful convictions; (2) to create a pilot project in the Madison Police Department utilizing the latest and best techniques for conducting eyewitness identification procedures; and (3) to carry on the enterprise of learning from our mistakes by creating a Wisconsin Criminal Justice Study Commission. The first two goals were accomplished relatively quickly thereafter. And work continued, now with the support of the Wisconsin Team from the Alexandria conference, on the longer-term goal of creating a study commission to continue examining the causes of wrongful convictions.
Shortly thereafter, in September 2003, Steven Avery was exonerated after he had served over 18 years in prison for an attempted murder and rape in Manitowoc County that DNA testing later proved he did not commit. In the aftermath of that exoneration, Representative Mark Gundrum, Chairman of the Assembly Judiciary Committee, created the Avery Task Force, whose charge was to study cases like Avery's and to develop recommendations for reform. The Avery Task Force, at least for the time being, became the "commission" that the State Bar and the state's two law schools had begun planning.
Representative Gundrum appointed 20 Task Force members representing varied perspectives in the criminal justice system, including legislators, judges, prosecutors, law enforcement officers, defense attorneys and a victim advocate. Despite these varied perspectives and interests from participants in an adversary and sometimes polarizing system, Task Force members reached consensus surprisingly quickly on a number of important reforms to the criminal justice system.
First on the Task Force's agenda was eyewitness identification errors-a logical place to begin, given that the primary evidence that led to Avery's wrongful conviction was mistaken eyewitness identification, and that eyewitness error is the most common contributing factor in the DNA exoneration cases, present in anywhere from 65% to 90% of all wrongful convictions. After hearing from nationally renowned experts, the Task Force approved a set of model guidelines incorporating the latest psychological studies about how to conduct fair and reliable identification procedures. These guidelines include several important features, including:
- Proper instructions to witnesses, to make it clear that the guilty party might not be present in any given photo spread or lineup, and thereby to remove inappropriate but otherwise inherent pressure on the witness to pick someone, even where the true perpetrator is not present.
- Proper selection of fillers (known innocent members included to fill out a photo spread or lineup), to remove suggestive cues that might make the suspect stand out unduly.
- Double-blind identification procedures-meaning that both the witness and the police officer administering the identification procedure are "blind" to the hoped-for identification, so that the officer cannot, even unintentionally, cue the witness to pick the suspect.
- Sequential, rather than simultaneous, presentation of photographs or individuals to witnesses. Psychological research has shown that a sequential presentation of photographs or individuals produces much more reliable results than simultaneous display because it minimizes a witness's natural tendency to engage in a "relative judgment process"-comparing one photograph or person to the next, rather than to the witness's memory of the perpetrator-which can lead to identifying an innocent person when the true perpetrator is not included among the photos or individuals in a lineup.
The model guidelines, and other recommendations of the Avery Task Force, can be found at http://www.law.wisc.edu/fjr/innocence/AveryTaskForce.htm.
In addition, the Avery Task Force approved draft legislation that, if enacted, will require all law enforcement agencies in the state to adopt their own policies or guidelines on eyewitness identification procedures, and that will require that those guidelines be designed to minimize the risk of eyewitness error. The draft legislation does not prescribe the content of those guidelines, but leaves it up to each local police agency to develop guidelines that work best for it. By providing the model guidelines outlined above, the Task Force hopes that most agencies will adopt protocols similar to those recommended by the Task Force.
The Task Force has also recommended various amendments to Wisconsin's DNA statutes, many of which are designed to minimize storage burdens on police agencies, and to aid in the prosecution of sexual assault cases in which a DNA profile of the perpetrator has been developed.
Finally, the Avery Task Force has taken up the issue of false confessions. Again, after hearing from national experts, including law enforcement agencies from Wisconsin and other jurisdictions around the nation that have experience with electronic recording of custodial interrogations, the Task Force has approved proposed legislation that will encourage such recording. Electronic recording is widely viewed as one of the simplest and most effective means of guarding against false confessions, while at the same time producing powerful evidence that can be used to help convict the guilty. Those jurisdictions that already record custodial interrogations are uniformly enthusiastic about the procedure as a powerful law enforcement tool, and a safeguard against errors.
The legislation drafted by the Avery Task Force will establish a state policy favoring electronic recording of all custodial interrogations of suspects conducted in a place of detention, provide funding to law enforcement agencies to help them purchase electronic recording equipment, and provide that, with appropriate exceptions, if police fail to record a custodial interrogation the defendant will be entitled to a jury instruction advising that the failure to record violates state policy, and that the jury can consider the failure to record when evaluating the evidence.
Electronic recording is the last issue addressed by the Avery Task Force. The Task Force was never envisioned to be a permanent body, and its work has now concluded. The Criminal Law Section of the State Bar has played an important role in the work of the Task Force, providing funds to enable the Task Force to bring to Wisconsin several of the key experts whose testimony helped the Task Force do its work.
Attorney General Takes the Lead
Recently, the Attorney General's Office has stepped in to improve eyewitness identification procedures in Wisconsin. After studying the problem of mistaken identifications, the Training and Standards Bureau of the Wisconsin Department of Justice, working with the UW Law School's Frank J. Remington Center, developed and adopted a comprehensive set of eyewitness identification guidelines-recommending best practices in eyewitness identification procedures for law enforcement throughout the state. Those guidelines—which are among the most comprehensive in the nation—were adopted and distributed to law enforcement throughout the state in March 2005.
The Attorney General's new eyewitness identification guidelines recommend many of the same procedures identified by the Avery Task Force, including proper witness instructions, proper selection of fillers, and double-blind sequential presentation of witnesses or photographs. The guidelines provide additional recommendations on such matters as methods for accurately recording the results of the eyewitness identification procedures, best practices governing "show-ups" (single suspect identification procedures), use of facial composites, and other matters. The new guidelines, while not binding on law enforcement, are highly persuasive, and promise the most immediate and direct potential for improving identification procedures in Wisconsin.
To implement its new guidelines, the Department of Justice has developed an in-depth, one-day training program on the new eyewitness identification procedures, and is currently presenting that training to law enforcement officers at a series of regional trainings around the state.
Moving Forward: a New Justice Commission
Although the Avery Task Force has completed its work on the issues it set out to address, and although the Attorney General's Office has now adopted recommendations for best practices in eyewitness identification procedures, the job of improving the truth-finding functions of the criminal justice system is far from complete. More work can be done on eyewitness identification errors, including examining the role of expert witnesses in eyewitness cases, jury instructions on eyewitness evidence, and standards for admissibility of eyewitness testimony. More can also be done to study interrogation techniques and the risks of false confessions. Other issues, known to be significant factors in wrongful convictions, also demand attention: the role of prosecutors; access to and adequacy of counsel for indigent defendants; use of jailhouse snitches or informants; reliability of forensic science; postconviction and appellate review standards and procedures; the problem of tunnel vision in criminal investigations and prosecutions; and many others.
To carry on the work of improving the criminal justice system and to examine issues such as these, the UW Law School, Marquette Law School, and the State Bar, now also partnering with the Attorney General's Office, have returned to the plan, first developed before Steven Avery's exoneration, of creating a Criminal Justice Study Commission. A steering committee appointed by these four partners has met and is in the process of designating members to serve on this Commission. This new Commission will, again, include representatives of all relevant perspectives in the criminal justice system-prosecutors, judges, police, sheriffs, victims, defense attorneys, academics, and corrections officials. It will also include community and business leaders who are not direct participants in the criminal justice system, who will bring thoughtful and fair-minded judgment to the issues, without the limitations on perspective that can often affect those too deeply invested in a particular role in or understanding of the criminal justice system.
The Commission's member-selection process is nearly complete, and the Commission hopes to begin meeting in late July, and continue working for at least three years. The precise topics that the Commission will examine will be determined by the Commission itself. The Commission's anticipated product might take several forms-scholarly papers, model guidelines, draft legislation, formal reports and recommendations, or recommended training programs. Like the range of issues that might be addressed, the nature of the Commission's recommendations or other work product will be determined by the Commission as it progresses with its work. The Commission will be staffed by Byron Lichstein, a recent addition to the clinical instructional staff at the U.W. Law School. Anyone seeking additional information about the Commission, or wishing to make suggestions to the Commission, can contact Mr. Lichstein at 608-265-2741.
Conclusion
Much has been done in a relatively short time to improve Wisconsin's criminal justice system. We have much to be proud of, including the unique and very promising partnership between the State Bar of Wisconsin, the state's two law schools, and the Attorney General's Office to create the new Criminal Justice Study Commission. Through this partnership, Wisconsin promises to continue to take a national lead in seriously searching for ways to make the criminal justice system as good as it can be. Much remains to be done. But at least by continuing to recognize that we all share a stake in ensuring that the system functions as accurately as possible in convicting the guilty and protecting the innocent, the potential for real improvement has never looked better.
Don't Close the Door on Closing Arguments
Christopher A. Mutschler,
Esq.
Anderegg & Mutschler, LLP
Ask any defense attorney what the strongest part of his or her trial skills package is and almost invariably each will answer Any closing argument. We delight in thinking that we close better than anyone else, and that's okay. After all, we are attorneys and therefore love to talk.
The problem with adopting this viewpoint is that it can cause us to turn a deaf ear to constructive criticism because we do not believe we need any improvement in this area. Adopting such an arrogant viewpoint is fatal to your practice.
Do not be alarmed by the foregoing overstatement. It was merely intended to grab your attention. Now that I have you listening, I can tell you that this article is not intended to make you believe that your closing argument skills are pathetic and lamentable and therefore must be completely overhauled. Rather, the author has merely taken the time to winnow through much of the "authority" on the topic of closing argument, and in so doing, has distilled into several palatable bites a few of the more cogent, or alternatively, relevant points related to the most important aspects of closing argument for the purpose of letting you, the reader, decide what is important and what is not. Even if only one point below sparks an idea or initiates a change, this article will have been worth the effort in researching and writing it.
The topical areas the author has chosen are purely arbitrary and are divided as follows: (1) psychological aspects of closing argument; (2) use of demonstrative exhibits in closing argument; (3) dangers inherent in letting your opponent change your closing argument; and (4) general considerations for closing argument. Under each heading, I have attempted to offer a few items of interest from authors or researchers who are considered authorities in the field of closing argument. Citation to the source of the authority is given so that the reader may do further research.
(1) Psychological Aspects of Closing Argument
(A) One experiment indicated that persuasive arguments were most effective when the speaker was more than twelve (12) feet from the listener. Albert & Dobbs, Physical Distance & Persuasion, 15 J. Personality & Soc. Psychology 265 (1970); cf. E. Hall, The Hidden Dimension (1966) (ten to sixteen feet).
(B) Other experiments have found that anything closer to the listener than four (4) feet will likely cause some anxiety on the part of the listener and thereby reduce the effectiveness of the argument. Lassen, Effect of Proximity on Anxiety and Communication in the Initial Psychiatric Interview, 81 J. Abnormal Psychology 226 (1973); but cf. F. Bailey & H. Rothblatt, Successful Techniques for Criminal Trials 243 (1971) (standing four feet from the jury rail is effective).
(C) Where you stand in relation to the jury should always be a function of the style of your argument, i.e., the more "conversational" an argument you present, the closer to the jury you should stand. J. Tanford, The Trial Process: Law, Tactics & Ethics 177 (1983).
(D) An important consideration with respect to closing argument is exactly how much movement in which you should engage. The majority opinion seems to be that you should change position when changing either (a) pace or (b) topic, but not more than this because it is believed to be too distracting. 3 F. Lane, Goldstein Trial Technique ' 22.08 (1971); but cf. F. Bailey & H. Rothblatt, supra ' IV. A. 3., at 243 (stand still, do not pace).
(E) Interestingly, a moderate level of distraction for the jurors is actually a good thing and not a bad thing because studies indicate that a distracted juror is less likely to have either (a) the time or (b) the presence of mind to think up counter-arguments to whatever it is counsel is trying to sell. P. Middlebrook, Social Psychology & Modern Life 184 (1976).
(F) Use of a lectern is divided. Many commentators think it inhibits communication between the persuader and the listener because it is a physical obstacle between them, while others think it is a useful anchor for those who roam too much. See, e.g., J. Jeans, Trial Advocacy 384 (1975).
(2) Physical Placement of Exhibits
(A) If you are using charts of some type or another, it is a good idea to leave them up in front of the jury when your opponent takes to the lectern to deliver his or her argument because your chart will remain as a constant reminder of the points you were trying to make even during the opposing party's summary. This provides you with a tactical advantage over your opponent.
(B) If, on the other hand, you are the victim of such a ploy, it is a good idea to either remove the chart, erase the blackboard, return the easel, etc., as you begin your rebuttal.
(i) When you do this, you should have a chart or exhibit of your own to replace whatever it is your are removing to lessen the notion in the juror's mind that you are afraid to leave whatever it is the opposing party had placed in front of them up.
(ii) The best thing you could do would be to use the opposing party's own exhibit against them. That is, if you can find a way to modify it in front of the juror's eyes into something which assists you—or better still, if you can find significant enough errors that you can correct the opposing party's exhibit—you will gain further tactical advantage over them. See, e.g., M. Belli, Modern Trials 882-83 (1954).
(C) Ultimately, most everyone agrees that having any kind of exhibits for the jury—as long as they are not too complex or difficult to interpret—is a good thing because (a) even when the jurors' attention wanders, there is a good chance it will wander onto the physical manifestation of your argument, and therefore you will still be making your point; (b) exhibits, charts, diagrams, etc., can help to keep the attorney focused and on-point; and (c) many people tend to be visual learners, and therefore, your point is much more likely to be understood and accepted if seen as opposed to merely heard.
(3) Dangers Inherent in Permitting Your Opponent to Affect the Organization of Your Argument
(A) If your party opponent closes his/her argument with rhetorical questions for you to answer in your argument, you should not completely abandon the predetermined and defined structure of your argument just to address the questions proposed by the opponent. Alternatively, you should stick to your guns and tell the jury the following as suggested by Goldstein (cited above):
"Members of the jury, I don't know whether counsel is deliberately trying to divert me from arguing our case and our evidence or not. He wants me to answer a whole series of questions which he knows would take up much of my allotted time. If I had the time I could answer each and every question as I am sure you can, and that you will find from the testimony that you have heard. For instance, he asked me to answer this question. (Repeat the question and then answer it using the evidence favorable to your side.) Of course, I could take each and every one of these questions and answer them the same way, but first let me cover my argument. If we have time, I will come back to them, however I believe you will find the answers to just about all of his questions in my argument." 3 F. Lane, supra ' 22.22.
(B) Alternatively, you can simply address the questions as the answers naturally arise in your closing argument, making certain to identify them as the answers when they come up.
(C) I would not suggest ignoring the questions altogether as it can make it seem as though the opposing party found some unanswerable weakness within your case which is fatal to it.
(4) General Considerations for Closing Argument
(A) Have a logical structure. It may sound simple, but this notion can be easily lost in the confusion of a trial. You should make certain to argue the facts in a logically progressive manner that the jury can understand and retain.
(B) Argue the theory of the case. Your closing argument should include a frequent repetition of the theory of the case-which uses the theory's theme line-along with the facts which were adduced at trial and which support your theory. Remember that the more times a person hears a thing repeated, not only the more likely they are to remember it, but also, the more likely they are to believe it. Posner and Dodd in their seminal treatise on cross-examination suggest that the minimum number of times the listener should hear a fact, point, position or theory repeated is three (3).
(C) Argue the facts. You should do more than simply repeat the facts which came up during trial, rather, you should analyze the same in an effort to demonstrate just how much they actually support your case and not your opponent's.
(D) Use exhibits and analogies. As demonstrated above, exhibits and analogies are an intrinsic part of closing argument because they not only provide refreshing breaks for the jury, but they increase the persuasiveness of any argument.
(E) Weave instructions into the argument. The jury instructions given by the judge should be used as a tool in increase the overall persuasiveness of your argument. For example if you have successfully impeached a witness' credibility with a prior inconsistent statement, tell the jury that the judge will be instructing them that it may consider this when determining the witness' overall credibility. In this fashion, you are making it seem as though the instructions given by the judge are designed to benefit your case.
(F) Answer the jurors' questions. This is very, very important: Try to anticipate questions the jurors might ask on their own and answer them or at least pose them as rhetorical questions to demonstrate that you are thinking like them.
(G) Make your opening and closing points without notes. While you should attempt to minimize your use of notes throughout the entire closing argument, it is most important to demonstrate to the jury that your opening and closing points are of such import that you do not need to refer to any written materials. Jurors will remember best what they see and hear first and last, and any impressions you convey during these periods will likely be lasting ones. You should, therefore, demonstrate the strength of your position by making your point without the help of notes.
(H) Incorporate understatement as well as overstatement. We all understand how reasonable exaggeration is an important tool when making a point in closing argument. What is likely lost, however, is how important understatement can be especially when commingled with overstatement. Jurors can tire of overstatement. Studies have indicated that jurors are more likely to accept a conclusion if they have made it on their own with the lawyer merely suggesting it. Understatement can effectively utilize this fact by hinting and suggesting answers as an alternative to always pounding them home.
(I) Argue strengths. It is a more effective technique to argue the strengths of your case than it is to argue the weaknesses of your opponents. The success of an argument is a function of having a positive approach which focuses on the evidence produced at trial that affirmatively demonstrates that your party should prevail. Argue your strongest point first, and then refer to it throughout the remainder of your closing argument.
(J) Volunteer weaknesses. While you should obviously argue from your strengths, this does not mean that you should entirely avoid your weaknesses. Confronting weaknesses has two advantages. First, you can deflate your opponent's argument by addressing the weaknesses of your case which are typically the strengths of your opponent's case. Second, jurors tend to respect honesty and candor. see Lawson, relative effectiveness of one-sided and two-sided communications in courtroom persuasion, 82 J. Gen. Psychology 3 (1970).
All of the foregoing were divined from J. Tanford, The Trial Process: Law, Tactics and Ethics 150-54 (1983).
Obviously, closing argument is a very personal thing. Each attorney over time develops his or her own style. Style is usually a function of comfort in one respect or another. Nevertheless, an old dog can be taught new tricks. Where your style conflicts with the rules discussed above you should consider modifying the way in which you do things because the foregoing suggestions have been proven successful by the test of time. I encourage you to develop your own analogies and demonstrative exhibits as each case demands. It is my firm belief that successful persuasion is not always a function of on whose side the truth resides as much as it can be a function of who makes the better presentation. You should, therefore, consider having every available resource at your fingertips, including those identified above. Good luck to you all and keep up the good fight!
For Defense Counsel in Federal Cases: Suggestions on What to Do, What Not to Do After Booker
(Excerpted from materials prepared by Attorney T.
Christopher Kelly)
February 2005
DO:
- Continue to evaluate a client's exposure by calculating the sentencing guideline range early in the case, as you have since November, 1987.
- Continue to negotiate with federal prosecutors over the applicable guideline, base offense level, relevant conduct, specific offense characteristics, Chapter 3 adjustments, and any other guideline issue subject to discussion in a given case.
- Continue to incorporate agreements about the proper application of the Sentencing Guidelines (or agreements to disagree) in plea agreements.
- Consider entering a "blind plea" in cases in which you gauge your client as a likely Booker winner (likely to get a reasonable, discretionary sentence below the guideline range), on particular facts and in front of a particular judge.
- Consider a due process argument, sounding the theme of ex post facto concerns, before sentencing in cases in which you gauge your client as a likely Booker loser (likely to get a discretionary sentence above the guideline range).
- Expect presentence reports to look just like they did before the Supreme Court decided Booker. Some courts may direct either the United States Probation Office or counsel for the parties to submit analyses of the sentencing considerations under 18 U.S.C. § 3553 (a), as applied to that case.
- File objections, just as before, to the PSR's incorrect application of the Sentencing Guidelines that results in a higher guideline range than should apply.
- Be prepared at sentencing to dispute the PSR's recommended guideline range, including with evidence if you would have done that before Booker.
- Be prepared to argue for a "sentence sufficient, but not greater than necessary" to comply with the purposes of sentencing described in § 3553(a). Draw on everything under the sun that is relevant to that case and that client. In its specifics, this is very unlike practice before Booker. For early conceptual help, see United States v. Ranum, No. 04-CR-031 slip op. (E.D. Wis. January 19, 2005) (Adelman, J.), and watch for rapidly developing case law on the proper application of § 3553 (a).
- Recall that prohibited and discouraged bases for downward departure in Chapters 5H and 5K are no longer out of bounds.
- Recall that the defense now has the power to argue alone for a lower sentence on the basis of substantial assistance to the government, or to argue for greater credit for acceptance of responsibility. These are not "departures." They are arguments in support of a reasonable, discretionary sentence that is sufficient, but not greater than necessary, to satisfy the goals of § 3553 (a).
- Recall that the zones in the sentencing table no longer are mandatory. A judge in theory could impose, say, 24 months of home confinement on electronic monitoring, rather than a prison term, even if he concludes that 18-24 months (in Zone D) is the appropriate advisory guideline range and that a sentence within that range is reasonable.
- Appeal sentences that you objectively view as clearly unreasonable and well higher than the correct advisory guideline range. Discourage clients from appealing if the sentence is in, or very close to, the advisory guideline range that you think is correct.
- Recall that the Criminal History Category is advisory now, too, not binding. That scale always has been more a prediction of likelihood of recidivism than an actual accounting of a client's past criminal convictions. So we can argue not just that the offense level is unreasonable, but that the criminal history category unreasonably overestimates the probability that the client will violate the law again.
DON'T:
- Overlook an early, honest assessment of whether your client is a likely Booker winner or loser.
- Resort to pre-1987 practice of sauntering in for sentencing with nothing more than your client's priest and his crying mother, or their surrogates.
- Ignore the obligation to build sentencing arguments around the factors identified in § 3553 (a), so that you will have a record on which to defend the reasonableness of a sentence lower than the advisory guideline range.
- Assume or concede on appeal that reasonableness is measured by how closely the sentence was tied to the proper guideline range; reasonableness should be measured against § 3553 (a). The guideline range is just one indicator of what might be reasonable.
- Forget that mandatory minimum sentences are not affected by Booker.
- Assume that Booker necessarily precludes binding application of the Sentencing Guidelines to sexual assault offenses affected by the Feeney Amendment. Booker probably has that effect, but Justice Breyer's opinion for the Court on the second question presented held explicitly (and carefully) only that 18 U.S.C. § 3553 (b)(1) must be severed from the Sentencing Reform Act of 1984. The Feeney Amendment applies through § 3553 (b)(2).
Criminal Law Section Seminar at the State Bar of Wisconsin Convention
At this year's State Bar of Wisconsin Annual Convention, the Criminal Law Section offered sessions on 2004 changes in criminal law as well as a review of recent and legislation, evidence and procedure cases. Board Member Bob Donohoo coordinated this section of the program. The evidence portion of the program was presented by Gregory J. O'Meara, S.J., Assistant Professor of Law at Marquette University Law School. His presentation was titled "A Review of Recent Criminal Law Evidence Cases." The introduction to his materials is excerpted below.
Introduction: Posture on Appeal:
How are these cases getting into the Wisconsin appellate courts? Usually through the vehicle of Ineffective Assistance of Counsel claims. Every defendant has a Sixth Amendment right to the effective assistance of counsel and a like right under article I, section 7 of the Wisconsin Constitution. State v. Sanchez, 201 Wis. 2d 219, 226-236, 548 N.W.2d 69, 72-76 (1996). In Wisconsin, to determine if trial counsel's representation either before or during trial was ineffective, the defendant must satisfy a two-part test. First, the defendant must show that trial counsel's performance was deficient. Second, he must prove that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); accord, Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993); State v. Kuhn, 178 Wis. 2d 428, 437, 504 N.W.2d 405 (Ct. App. 1993). The test for deficient performance is: "Did counsel's representation fall below objective standards of reasonableness?" Strickland at 688. Trial counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Strickland at 690. The performance prong should be analyzed at the time of trial; the prejudice prong is analyzed under existing law at the time of the ineffectiveness challenge. Lockhart v. Fretwell at 369. The reviewing court may avoid the deficient performance analysis altogether if the defendant has failed to show prejudice. State v. Kuhn, 178 Wis. 2d at 438.
"Thus, these criminal evidence cases are wrapped in the mantle of constitutional protections. Usually the Sixth Amendment right to counsel is paramount, though the cases also address Sixth Amendment concerns such as the right to confront witnesses and the Fifth Amendment right to be free of compelled self-incrimination. This posture for these cases is key because they are not simply about infractions in the rules of evidence which would likely be dismissed through some species of harmless error analysis; rather, what these cases address are evidentiary concerns that manifest a constitutional violation. . . ."
The CLE materials for this and the other sessions are available through the State Bar of Wisconsin's customer service representatives at (800) 728-7788. The cost is $5 plus $0.30 per page, or the book of program materials for the day for $25.
Minutes of December 3, 2004 Board Meeting
Pfister Hotel, Milwaukee, Wisconsin
Present: Cohen, Birdsall, Dall'Osto, Donohoo, Hersh, O'Meara, Findley, Koschnick, Buting, Smith (BOG liaison), Garcia, Sybell.
Meeting commences at 6:00 p.m.
I. Introduction by Chairperson Cohen. Cohen notes need to make minor amendments to bylaws. Discussion of preference for in-person meetings of Section Board over lunch or dinner. Consensus is that lunch meetings tend to be interrupted or hurried due to court schedules of board members. More business can be conducted at meeting after regular court hours, plus such allows for Board member travel time.
II. Minutes of September 10, 2004, Board meeting are distributed for review by Secretary Dall'Osto; Hersh moves to approve, Dall'Osto seconds, minutes approved.
III. Treasurer's Report. Garcia notes need to do letter to Board of Governors (BOG) to request and allow carryover of last year's Section funds. Hersh notes lack of Section newsletter and Donohoo says this is of great concern. Dall'Osto suggests doing shorter, more frequent newsletters via e-mail. Buting says send minutes to membership via email as well, and Cohen agrees. Cohen requests minutes prepared within two weeks and distributed to Section Board, with one week for comments. Bar Center to email new minutes thereafter. Bar Center to email May and September minutes to membership now. Donohoo so moves, Hersh seconds, approved.
Sybell suggests that the Section get priority lists of issues that the Section should address in the upcoming legislative session from prosecutors, defense attorneys and judges for dissemination and discussion.
Discussion of Section newsletter continues. Cohen proposes that $500 payment to law student writer/editor per issue would be in order. Findley so moves, Dall'Osto seconds, motion approved. O'Meara and Findley will look for students, with a 01/30/05 deadline for submission of applications, and will consult with Cohen on final choice to resurrect newsletter.
IV. Old Business
A. Trust Account Rule.
Cohen sits on ad hoc trust account committee that is dealing with the impact of July 2004 trust account rule changes. Cohen pushed for language change so that flat and stage fees are considered earned when received. Sentiment was that flat and stage fees, along with nonrefundable initial engagement fees, are earned when paid. Smith sits on OLR Board and says that there is concern that trust account rule changes went too far afield. Change is in wind, she notes and both Cohen and Smith will monitor and report to Section Board on future developments.
B. Invitation to National Indigent Defense Conference.
Cohen notes invitation for Section to send member to national meeting. Dall'Osto encourages State Public Defender to send representative.
V. Legislative Update
A. Current Legislative Issues.
Sybell notes that Republican Party added one seat to their previous majorities in each house in the November 2004 elections. The line-up is now 19-14 in the Senate; 60-39 in the Assembly. There are only 14 attorney members in Legislature. Discussion on draft of Roessler bill on drug treatment in lieu of prison. Dall'Osto says this could be good springboard for the Section to push for truth in sentencing (TIS) reforms, the need for which were recently highlighted in a four-part Milwaukee Journal-Sentinel series on TIS. Further discussion on TIS and on Roessler bill. On death penalty, Sybell says outlook is decent that proposals to reinstate the death penalty might get bottled up in the Senate. Lobbyist training will be held 01/06/05 at Bar Center, after Section Leaders Conference. Cohen encourages Section Board members to attend; those wanting to attend lobbying training should contact Sybell.
B. Avery Task Force.
This will be a big issue in 2005, says Sybell. Findley summarizes likely proposals of Task Force. Donohoo says we don't need pilot project on electronic recording of suspect interrogations as a number of smaller jurisdiction in Wisconsin already are doing it. Sybell discusses Mowris' input on proposal to increase enhancer penalty on methamphetamine precursors, and providing helpful references to what other states have done (rather than increase penalties through the roof, list pre-cursors as scheduled substances to staunch flow). This cooperative and educative approach may be helpful in implementing Task Force proposals.
VI. Legislative Committee.
A. Approved after discussion. In addition to volunteers who noted they would serve at the Sept. 10, 2005, Section Board meeting (Cohen, Dall'Osto, Hersh, Koshnick and Shapiro), Donohoo and Birdsall are also willing to serve on legislative committee. Sybell to distribute bills and organize teleconference committee meetings in 2005.
B. Guidelines for Section priorities and suggested protocol for lobbying presented and discussed by Cohen. Cohen moves to adopt lobbying suggestion number 7 (point person) as policy, Donohoo seconds and Board approves.
C. Legislative Agenda in 2005. Dall'Osto urges Section to focus efforts on TIS reform, enacting legislation implementing Avery Task Force recommendations and introducing and passing bill for expungement reform, including CCAP. Donohoo says that after twelve years in the making, proposals for criminal procedure recodification will be presented soon, which should be a concern and legislative priority for Section. Birdsall says attorney fee survey should be done to develop evidence to support increasing private bar rate on cost of counsel portion of indigency standard for State Public Defender cases. Sybell notes that the McCormick bill proposed changing the standard to 115% of poverty level. Donohoo states that low indigency formula and low appointed counsel pay rates are outrageous. Koschnick says mandatory sentencing guidelines should be of great concern as well in the next session.
VII. Board of Governors update by Smith. Discusses need for more funding of civil legal services and WISTAF petition. Reviews written report and discussion ensues on Ethics 2000 petition the Supreme Court will hold hearing on in February 2005. Smith says that Board and Section members who have comments and concerns with the proposal, which is available on-line at the Bar website, should contact their individual Bar Governor(s) with their views.
VIII. Section CLE Program at May 2005 State Bar Convention in Milwaukee
A. Donohoo outlines that there will be three 50 minute sessions on 2004 changes in criminal law - sentencing, constitutional, evidentiary. Donohoo is coordinating this section of the program.
B. Bench-bar break-out with Section input discussed by Dall'Osto, who is coordinating such. Board members may be contacted to participate.
IX. New business
Koschnick says set upcoming 2005 Board meetings in advance. Cohen to send possible dates by email to Board members.
X. Section Board meeting is adjourned at 9:10 p.m.
Minutes of February 28, 2005 Board Meeting
Marriott Hotel, Waukesha, Wisconsin
Present: Cohen, Birdsall, Mowris, Hertel, Donohoo, Hersh, O'Meara, Findley, Koschnick, Buting, Smith (BOG liaison), Garcia, Sybell. Dall'Osto excused.
Board Member Hersh graciously agreed to take notes and act as Secretary pro tem for this meeting at the request of Secretary Dall'Osto.
Meeting commences at 6:00 p.m.
I. Introduction. By Chairperson Cohen.
II. Minutes. The minutes of the December 3, 2004 Board meeting are distributed for review by Chairperson Cohen; Cohen moves to approve, and minutes are approved by consensus.
III. Treasurer's Report. Section in good shape financially.
IV. Section CLE Program. On track for May 4, 2005, annual Bench/Bar meeting in Milwaukee. It will contain a review of recent criminal law and legislation, evidence and procedure
V. Old Business.
A. Newsletter. A new editor has been hired, Angela Dirden. Discussion was held regarding whether to have Section newsletter in print or electronic format. It was suggested to try electronic format in the next newsletter. Mowris moves to adopt electronic newsletter suggestion, Buting seconds, and Board approves. No advertising will be allowed in the Section newsletter. Advertisements may be placed in Wisconsin Lawyer.
B. Justice Butler Recognition. Board approves by acclamation a proposal by Chairperson Cohen to make a plaque for Supreme Justice Louis Butler to honor his past service to the Criminal Law Section. The plaque will be presented to Justice Butler at the Section's CLE program at the Spring Convention. Mowris will be in charge of obtaining the plaque.
C. Point Person List. Chair Cohen discussed the list of Section members available to respond to press questions in their various areas of expertise.
VI. New Business.
A. Board Member Bill Lipscomb. Chairperson Cohen notes that member Lipscomb is unable to serve on the Board per his email. By consensus, Lipscomb's position is deemed open and Mowris will contact John Vaudreuil at the United States Attorney's Office for the Western District of Wisconsin about possibly serving.
B. Ballot for Election of Directors. Ballots must be in to State Bar prior to April 1, 2005. Hersh submits his name for position of Chair-Elect.
C. Expungement Proposal. Mowris intends to submit a proposal to effect changes in expungement and record retention policies to the Supreme Court and the matter was discussed at length. Hertel moves to approve the proposal for expungement with amendment that clerk of court shall notify CIB of expungement. Motion approved by vote of 8 to 2.
D. Jason Hanson Petition. Discussion held on proposed Section involvement. Consensus that taking a position is moot due to time constraints as it would have to be presented to the State Bar Board of Governors for approval.
E. Board of Governors. Handout from Deb Sybell. BOG is opposed to changes in Ethics 2000 to allow prosecutors to participate in sting operation by deliberately utilizing untruthfulness.
F. Justice Commission. The Avery Commission is reaching the end of its inquiries. UW and Marquette Law Schools have been looking into continuing this type of work by Innocence Project and/or a Justice Commission. UW has funded a person to work on the administration of this commission, Byron Lichstein. Both UW and Marquette have kicked in $7,000 each and would like the State Bar to do the same. A steering committee is in the process of formation. Initial members of the steering committee are Keith Findley, Walter Dickey, E. Michael McCann, Dan Blinka, Tom Hammer and Kelli Thompson.
Birdsall moves that the Criminal Law Section earmark $5,000 for the use of the Justice Commission. Motion seconded by Hertel, and the motion is approved.
G. State Department of Justice. Formulation of rules for eyewitness identification procedures for Law Enforcement Standards Bureau (LESB) is underway. Rep. Gundrum will introduce a bill requiring police departments to adopt standards for sequential line-up and eyewitness identifications.
H. Dues. The Section's contribution to Bar administration has gone up by $2.50 per member. Hertel moved to raise dues to $30, Donohoo seconds. Motion passed.
The Board was also advised that uncontested elections will no longer be paid for by State Bar.
I. Legislation. The Board considered and discussed the recommendations of the Legislative Committee and voted to take the following positions:
- AB 30 Involuntary commitment of sexual predator as sexually violent offenders. No position.
- AB37 Witness exclusion. No position.
- AB47 Time limits for sex assault prosecutions. No position.
- AB62 No contact sentence discretion. No position.
- AB90 Municipal court appeals. Support.
- AB91 Municipal court alternative jail sentences. Support.
- AB92 OWI evidence of intoxication. Support.
- SJR 5 Defer to State Bar.
- Regarding an LRB draft proposal to cut probation for nonviolent defendants by half. Oppose.
VII. Section Board meeting was adjourned at 8:00 p.m., after it was agreed to hold the next Board meeting in conjunction with the annual Bar convention in Milwaukee in May 2005.
