Vol. 72, No. 12, December 1999

Legal News & Trends

Truth in Sentencing: Determinate Sentencing Begins Dec. 31, 1999

by Michael B. Brennan

In recent years, many citizens have become cynical about the efficacy of the criminal justice system. They are concerned that parole and other forms of early release have resulted in a "revolving door" criminal justice system in which many offenders serve less than one-half of their sentences. Truth-in-Sentencing as a whole restores credibility to criminal sentencing and delivers greater public safety to the state. Determinate sentencing under Act 283 is the first step of a two-step process.

1997 Wis. Act 283: The Original Truth-in-Sentencing Law. In June 1998, 1997 Wis. Act 283 became law. Now, and before Act 283 goes into effect on Dec. 31, 1999, an offender in Wisconsin receives an indeterminate sentence, in which the sentence length imposed by a judge almost never is the sentence the offender serves. Offenders serve a minimum of six months or 25 percent of the court-imposed sentence, whichever is greater, before becoming eligible for parole, a decision made by the Parole Commission. If parole is granted, the offender is under the supervision of the Department of Corrections (DOC) for a period not to exceed the court-imposed sentence, less time already served.

For offenses committed on and after Dec. 31, 1999, Wisconsin will employ determinate sentencing. Parole is abolished, and an offender will receive a bifurcated sentence. For each offender a judge will set a term of confinement in prison, 100 percent of which the offender must serve, as well as a term of community supervision, known as extended supervision (ES), to be served following the prison term. Violation of ES will subject the offender to return to prison. Under Act 283, the total length of an offender's sentence is the confinement time plus extended supervision.

Act 283 also establishes an informationally accurate system of sentencing: A one-year sentence to prison means the offender will be incarcerated for exactly 365 days. The Act expands penalty ranges for all felonies to allow for ES, and mandates that the ES portion of the bifurcated sentence equal at least 25 percent of the confinement term imposed. The Act also eliminates intensive sanctions as an option for the confinement portion of a bifurcated sentence and authorizes the judge to impose conditions on the ES term.

Act 283 does not change many other areas of criminal sentencing law in Wisconsin. It does not affect any crimes committed before Dec. 31, 1999. Offenders who commit such crimes will be sentenced under the current law, and most will be eligible for parole. It does not alter procedures for granting or revoking parole for those sentenced under current law. Importantly, Act 283 does not affect probation as an option for criminal offenses.

Act 283 also created the Criminal Penalties Study Committee (the committee), an 18-person bipartisan group of judges, prosecutors, criminal defense lawyers, legislators, academics, corrections and law enforcement officials, and members of the public. The committee met from August 1998 until August 1999, when it issued its final report along with draft legislation to effectuate its recommendations. The recommendations contained in the final report represent the second step of Truth-in-Sentencing in Wisconsin, which is before the Legislature.

Michael B. Brennan, Northwestern 1989, is the staff counsel for the Criminal Penalties Study Committee.

Court seeks input on bankruptcy judge

Bankruptcy Judge Thomas S. Utschig of the U.S. District Court, Western District, seeks appointment to another 14-year term. Judge Utschig's current term expires Sept. 30, 2000.

The court is accepting comments from attorneys and the public regarding Judge Utschig's reappointment. Written comments can be sent by Jan. 12, 1999 to: Collins T. Fitzpatrick, Circuit Executive, 219 S. Dearborn St., Room 2780, Chicago, IL 60604.

Beware of flaw in Microsoft Word's word count tool

Many attorneys rely upon the word count tool in their word processing programs to determine if they meet or exceed the word limit for briefs.

As governed by Circuit Rules 32(d)(2)(a) and (b) of the U.S. Court of Appeals for the Seventh Circuit, a principal brief can contain no more than 14,000 words, and a reply brief may contain no more than half that, or 7,000 words. The corporate disclosure statement, table of citations, oral argument statement, table of contents, addenda, and certificates of counsel are not considered part of the word limit, but footnotes are.

Attorneys who use Microsoft Word 97® or 2000 may not realize that a flaw in those programs could give them an inaccurate word count. When text is highlighted to be counted, Word does not include footnotes as part of that word count. In fact, when text is highlighted, the option to "include footnotes and endnotes" is dimmed and unavailable in the "word count" box.

This flaw, and lack of awareness of it, has led to at least one U.S. Court of Appeals case (Nos. 97-1754 and 97-1769). The U.S. Court of Appeals did not impose sanctions on the attorneys whose brief extended the word limit due to the flaw, but did decide that briefs prepared using Microsoft Word would be checked and noncomplying briefs returned.

To correct this flaw in Microsoft Word at the program level, go online. You will find a downloadable feature that will give you the option of counting the words in footnotes and endnotes for highlighted text that contains footnote or endnote references.

New trial court publicity rules ease restrictions
on attorney comment

A Wisconsin Supreme Court rule change has made it easier for attorneys to respond to unfavorable publicity about their clients.

Amended SCR 20:3.6, which becomes effective Jan. 1, 2000, loosens the restrictions, under specific circumstances, on what attorneys involved in a case can say outside the courtroom about that case.

"Before the rule change, if you responded to negative comments about your client, you could face discipline for violating ethics rules," says David Lasker, chair of the State Bar Individual Rights and Responsibilities Section. While extrajudicial comments generally still are prohibited under the new rule, "attorneys now have the right to rebut prejudicial statements made about their clients," Lasker says.

The rule change also lifts restrictions on comments from attorneys not involved in a particular case, in effect allowing lawyers to serve as legal commentators for the media. In its commentary, the court recognized "that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small."

"The new rules," says Lasker, "make clear restrictions that were vague. Now, only lawyers involved in the particular litigation have restrictions; others have the full protection of their First Amendment rights."

The State Bar Ethics Committee opposed the rule change, however. Mel Johnson, of the U.S. Attorneys Office in Milwaukee, testified at the public hearing on behalf of the Ethics Committee. "The committee believes," said Johnson, "that the proposed rule change encourages the generation of publicity that will affect pending cases, and that the reasons for the change are inadequate."

"The new rule may create a ping-pong effect. Attorneys will make public statements, reacting to some perceived unfavorable publicity. If there is a concern about one side generating publicity or making disparaging statements, the court should be discouraging that sort of behavior, not encouraging the other side to rebut."

For more information on the new rule, see the full text of the supreme court order.

U.S. Supreme Court considering proposed changes
to Federal Rules of Evidence

The Judicial Conference of the United States has approved and forwarded to the U.S. Supreme Court amendments to the Federal Rules, including provisions covering expert and lay opinion testimony in the Federal Rules of Evidence. If the Supreme Court approves the changes, they likely will be transmitted to Congress by May 1, 2000. Absent Congressional action, the rule changes would take effect Dec. 1, 2000.

Briefly, the seven proposed amendments to the Evidence Rules include:

Rule 103 - Rulings on Evidence. Purpose: To resolve the dispute over whether it is necessary for a party to renew an objection or offer of proof at trial, after the trial court has made an advance ruling on the admissibility of proffered evidence. Amendment: If the advance ruling is definitive, a party need not renew an objection or offer of proof at trial; otherwise renewal is required.

Rule 404(a) - Character Evidence. Purpose: To provide a more balanced presentation of character evidence when an accused decides to attack the alleged victim's character. Amendment: An attack on the alleged victim's character opens the door to evidence of any same character traits of the accused that the accused raised as to the victim.

Rule 701 - Opinion Testimony by Lay Witnesses. Purpose: To prevent parties from proffering an expert as a lay witness in an attempt to evade the gatekeeper and reliability requirements of Rule 702. Amendment: Testimony cannot qualify under Rule 701 if it is based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 702 - Testimony by Experts. Purpose: To resolve the conflict in the courts about the meaning of Daubert v. Merrell Dow Pharmaceuticals Inc. and to provide guidance for courts and litigants as to the factors to consider in determining whether an expert's testimony is reliable. Amendment: Specifically extends the trial court's Daubert gatekeeping function to all expert testimony as affirmed by the Supreme Court in Kumho Tire Co. v. Carmichael, requires a showing of reliable methodology and sufficient basis, and provides that the expert's methodology must be applied properly to the facts of the case.

Rule 703 - Bases of Opinion Testimony by Experts. Purpose: To limit the disclosure to the jury of inadmissible information that is used as the basis of an expert's opinion. Amendment: The otherwise inadmissible information cannot be disclosed to the jury unless the trial judge determines that its probative value in assisting the jury to evaluate the expert's opinion substantially outweighs the risk of prejudice resulting from the jury's possible misuse of the evidence.

Rule 803(6) - Records of Regularly Conducted Activity. Purpose: To provide for uniform treatment of business records, and to save the parties the expense and inconvenience of producing live witnesses for what is often perfunctory testimony. Amendment: To permit a foundation for business records to be made through certification. (This amendment is integrally related to the amendment to Rule 902, below.)

Rule 902 - Self-authentication. Purpose: To provide a procedure for self-authentication to certify business records. Amendment: Sets forth the procedural requirements for preparing a declaration of a custodian or other qualified witness that will establish a sufficient foundation for the admissibility of business records.

The Supreme Court review of these proposed amendments follows months of study by the Judicial Conference Advisory Committee on Evidence Rules and the Standing Committee on Rules of Practice and Procedure. The public comment period for the rule change proposals was Aug. 1, 1998 to Feb. 1, 1999, during which the Advisory Committee conducted two public hearings and received written commentary.

The report of the Advisory Committee on Evidence Rules to the Standing Committee (offering a synopsis of the rule changes and valuable commentary) and the Proposed Amendments to the Federal Rules of Evidence are available online. To view and print the files, you will need Adobe Acrobat Reader.

Get the DIRT on developments in real estate law

For the scoop on real estate legal news and trends, check out DIRT, a Web site for real estate professionals. The site, which receives support from the ABA Real Property, Probate, and Trust Law Section and the University of Missouri - Kansas City School of Law, offers an email listserve, summaries of recent cases and other legal developments, articles, and links to the ABA and other real estate-related sites.

Mark C. Young, a real estate law practitioner with Trapp & Hartman S.C., Brookfield, has dug DIRT for some time. "It's a handy site," he says. "Real estate law varies greatly from state to state, and DIRT is a good way to keep up-to-date on trends across the country and developments that may make their way into Wisconsin.

"The discussions are lively and very informative. One listserve subscriber posted a question on easements, and the site's webmaster [Patrick Randolph, a law professor at the University of Missouri] replied with a treatise he had written on easements. It was so helpful I printed it out and kept it."