Saturday, January 5, 2013

Sniffing out repeat offenders (updated below)

It’s not often that a judge manages to land on the virtual pages of The Legal Watchdog twice.  Sure, Judge Linda Van De Water did it, first by making up facts out of thin air to justify sending an autistic defendant to prison for a nonviolent, strict-liability crime (her sentence was so contrary to law and evidence that it was reversed), and then for getting criminally charged herself for a disorderly romp in public when chasing down an ex-lover.   And now, Judge Dennis Cimpl becomes The Dog’s newest repeat offender.

I first reported on Judge Cimpl back in June of 2011 in a post titled “why judges shouldn’t give legal advice.”  In short, the judge was bullying a defendant to take a plea, and in the process grossly misstated the law, which induced the defendant to see things the judge’s way.  (If you can’t trust a judge to know the law, who can you trust?)  In the end, the judge’s over-the-top attempts to avoid a jury trial resulted in (1) nearly thirty court hearings over 2 ½ years for a simple (or Cimpl) misdemeanor case, (2) a successful appeal by the defendant, and (3) an eventual dismissal of the case.  But now, Judge Cimpl is back at it, and the appellate court has reversed him again.

In State v. Badzinski, the accuser said that the defendant sexually assaulted her in the basement laundry room of a home.  The trial evidence, however, showed that it was highly improbable, if not impossible, for anything to have happened in that room.  But the jurors wanted to convict the defendant anyway, so they asked Judge Cimpl “if they had to agree on the place that the sexual assault occurred.”  Because (1) there was no independent evidence that there was any assault, regardless of the room, (2) there was only one accusation made, and (3) the sole accusation was that the assault happened in the basement laundry room, the correct answer should have been: “Yes, jurors, you must all agree beyond a reasonable doubt that the assault happened, and that it happened in the room where the accuser said it happened, or you must find the defendant not guilty.”

But instead, Judge Cimpl “said that they did not” have to agree, and “told the jury to ignore [the accusation], and let the jurors pick any room or rooms in the house.”  

The judge's error, of course is that, “jury verdicts must be based on evidence, not conjecture and speculation."  Therefore, “we may not permit a guilty verdict to rest on matters beyond the evidence. . . . Speculation cannot be the basis for proof in the civil context much less the basis for proof beyond a reasonable doubt. . . . Accordingly, Badzinski is entitled to a new trial.”

Let’s hope Judge Cimpl bones up on his law so he can avoid yet another appearance on The Legal Watchdog’s virtual pages.  We don’t want him to become The Dog’s first three-time offender.

UPDATE:  The Wisconsin Supremes reversed the appellate court that had reversed Judge Cimpl.  Click here to read the case.

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