Saturday, June 30, 2012

Sex, money, juries, and administrative bodies

I don’t mind when a juror is deadpan or stone-faced.  What does bother me, however, is when I see jurors sighing, eye-rolling, sleeping (literally), and complaining in the courthouse hallways about how they don’t want to be there.  (Is watching a jury trial and protecting a fellow citizen from a wrongful conviction really that much worse than their regular jobs?)  Some jurors just don’t seem to realize that it could easily be them sitting at the defense table, instead of in the jury box.  If they understood this, they would instantly appreciate the importance of having an alert (or at least conscious) jury.

But despite my own feelings on the subject, one recent criminal defendant must have been furious with his jury.  The evidence showed that he had taken a passing interest in a woman who—oops!—was an undercover cop.  He was then criminally charged with propositioning her for sexual intercourse, which required the state to prove that, roughly speaking, he (1) requested sexual intercourse (2) in exchange for money. 

The jury convicted him after trial.  So what’s the problem with that?  Well, there was no allegation that he either requested sexual intercourse or offered money for it.  (I suspect that at least some of the jurors had been sleeping or, at the very least, fell into the camp of “I don’t care and want to get the hell out of here.”)  The defendant served a 60 day sentence, consisting of three days in jail and 57 days on electronic monitoring. 

Fortunately, the conviction was eventually reversed because the defendant was “innocent as a matter of law.”  (Kudos to Wisconsin’s District One Court of Appeals.)  But then, after this case of (no) sex, (no) money, and (sleeping) jurors, came the administrative body.  The defendant applied to a special claims board that had been setup to compensate innocent defendants who had been wrongly convicted of a crime and then imprisoned for it.  However, the board rejected his application, holding that: (1) he didn’t prove his innocence; and (2) he was never imprisoned. 

Fortunately, this decision was also reversed. (Kudos, once again, to District One.)  The appellate court decided that his claim should have been granted, and sent the case back to the claims board to decide how much money the wrongfully convicted defendant should get.

But the lesson here for juries is to pay attention, or at least to stay awake.  When someone is charged with soliciting sexual intercourse for money, that means that he has to ask for sexual intercourse in exchange for money.  Otherwise, you must find him not guilty.  Get it?  If this still isn't clear, just think how it might be you at the defense table next time.  Maybe that visual image will bring the legal concepts into better focus.

And the lesson here for the administrative body is twofold: first, when an appellate court holds that a defendant is “innocent as a matter of law,” that means that he is “innocent” for purposes of his application; and second, when a defendant has spent three days in jail (forget about the 57 days on electronic monitoring), that means that he has been “imprisoned” for purposes of his application.  Simple stuff. 

Now, my final piece of advice for the claims board is this: award this guy some of the greenbacks in your coffers so this thing doesn't get appealed for a third time.  It’ll probably be cheaper for us taxpayers in the long run.  


  1. So why didn't someone in authority - some judge or other - stop this early in the process and reprimand (1) the police for arresting him with seemingly no evidence of a crime and (2) the prosecutor for proceeding with the trial.

    Couldn't this whole mess have been short circuited at some point before the defense attorney's billable hours and the imposition of jury duty on 12 citizens tried and true?


    1. lff:

      Great questions. You're right, this case slipped by the commissioner, then the judge, then the jury. Fortunately, the appellate court corrected the error, which is actually a rare event. In a sense, this defendant was "lucky."

      In my opinion, judges should take a stand and put an end to this utter nonsense before it goes to far, rather than letting the prosecutors do as they wish. As for reprimanding the police and prosecutors, that almost never happens. (I expose a lot of police and prosecutor shenanigans in my forthcoming book, "Tried and Convicted," which you can learn about at

      Thanks for writing.

  2. Did the defense attorney bring a motion to dismiss prior to the case being tried? Defense counsel should have done so prior to jurors deciding the case. Maybe no one did anything for the defendant including his counsel. Also, judges are becoming complacent. Probably sleeping like jurors. Whole situation disturbing.

    1. Great question. I went on CCAP to look through the trial court record of events to try and give you an answer. (Pretrial motions to dismiss will appear in the CCAP electronic record.) I think I located what would be the case. However, the case appears to have been "sealed" and the electronic record is not accessible. It would be interesting to know whether a motion was filed.