Saturday, December 11, 2010

Judge convicts defendant of a felony for being homeless

In last week’s post we saw how easy it is to fall into the gravitational pull of the sex offender registry.  This week we’ll see how tough it can be to comply with its requirements.  In the case of State v. Dinkins, the 56-year-old defendant was looking forward to being released after serving ten years in prison.  Unfortunately for him, however, he had been ordered to register as a sex offender and was required, prior to his release, to give his residential address.  But, as might be expected of someone who has been sitting in the slammer for ten years, he didn’t have anywhere to live upon his release from prison.  Therefore, three days before his ten year prison term would have been completely served, an opportunistic prosecutor charged him with another crime—a felony—for failing to register as a sex offender.

The defendant waived his jury trial and instead put his fate in the hands of the judge, who served as both judge and jury.  The fact was that the judge, the prison social worker, and even the prosecutor all agreed that the defendant tried to find post-prison housing, and tried to comply with the sex offender registry.  But the prosecutor (presumably with a straight face) argued that, before the defendant was set to be released from prison, he should have provided the address of the “park bench,” or “heating grate, bush, or highway underpass” where he planned to sleep.  The defendant argued that these things aren’t residences, and he first has to find a residence before he can report the address of that residence. 

The judge sided with the prosecutor, and convicted the defendant of a felony for failing, while still in prison, to provide the address of the hypothetical park bench.  The good news is that the judge’s guilty verdict was eventually reversed by the appellate court, in part for these reasons:

  • The sex offender registry requires the defendant to provide the address of his residence, and, as the defense lawyer told the judge, park benches, heating grates, bushes, and highway underpasses are not residences.

  • Even if those things were residences, the defendant can’t predict the park bench or heating grate on which he’ll be sleeping because it could be occupied or otherwise unavailable by the time he’s released from prison and arrives there. 

  • Even if the imprisoned defendant could somehow remember a park bench or heating grate suitable for sleeping, he simply wouldn’t have access to its address because (you guessed it) he’s in prison.

  • The law allows other sex offender registrants, who aren’t in the process of leaving prison, a full ten days after moving into a new residence to report their address.  Therefore, in this case, “the public” simply isn’t harmed by not knowing the address of the extremely temporary, and purely hypothetical, park bench, heating grate, bush or highway underpass.

That’s the good news.  The bad news, however, is two-fold.  First, the wheels of justice turn slowly.  It took two years for this disaster to get reversed, during which time the then-56-year-old defendant turned into the now-58-year-old defendant.  And, he had to spend much of those two additional years incarcerated (in addition to his ten year prison sentence) without so much as an apology.    

And second, the taxpayers bear the cost of this hyper-aggressive, unfair, and stupid government behavior.  Rather than just one government bureaucrat making a few phone calls to locate a boarding house or homeless shelter for this defendant, a prosecutor decided to spend taxpayer money on a new felony case, complete with a trial.  Here are just some of the people who had to work on this case, all at taxpayer expense: the prosecutor who filed the case, the trial judge who found the defendant guilty, the court clerk, the court reporter, the public defender trial lawyer, the public defender appellate lawyer who got the conviction reversed, the state attorney general, and the three appellate court judges.  And on top of all of this, there’s the cost of incarcerating and then supervising the defendant for his “crime” of being unable to find a home while in prison. 

No expense was spared in this fiasco.  In the end it was an incredibly long and expensive way of teaching the prosecutor and the trial judge what every other human being already knows: park benches, heating grates, bushes and highway underpasses aren’t residences, and it shouldn’t be a felony to be homeless.


  1. I encourage you to name names. Who was the prosecutor? Who was the judge?

    And kudos to the trial and appellate lawyers. Who were they? We don't need to get hung up about who the court clerk and court reporter were though, they were just playing bit parts.

  2. and who wrote the appellate decision? and who else was on the panel?

  3. Robert - great questions. The trial and appellate court judges are named in the opinion itself, which I've linked to in the first paragraph of the post. The prosecutor, for at least part of the case if not all of it, was William Bedker. However, this doesn't mean that he was the prosecutor that made the decision to prosecute. Sometimes they have to take orders from their higher-ups and have little say in what they do. Finally, the defense lawyers appear to be William Mayer at trial, and Steven Phillips for post conviction motions and possibly the appeal. (Great job, Steven!) There's probably a Wisconsin appellate court website somewhere that could confirm all of this information; I'm getting what I can from the Circuit Court Access Program.

  4. The appellate website is here:

    Steve in fact litigated the appeal.