Saturday, November 24, 2018

Reversing Wisconsin’s “Victim” Culture

Maybe this is a trendy thing in other states as well, but Wisconsin has a bizarre, cart-before-the-horse practice of anointing complaining witnesses and deceased persons as “victims” long before the defendant reaches a plea agreement or calls the first witness at his jury trial.  In one example, I represented a defendant in an obvious self-defense case.  It was so obvious that the jury came back “not guilty” in warp speed—under one hour, if memory serves.  Yet, despite the presumption of innocence and the lack of sufficient factual allegations let alone evidence, the judge and prosecutor had repeatedly used terms like “victim’s rights” and even “the victim” throughout the case and even during the jury trial.

After the jury’s swift acquittal in that self-defense case, I even learned, quite accidentally, that a state-funded, pro-victim commission of some sort—I can’t recall the bureaucracy’s name—actually paid the complaining witness for his injuries shortly after he made his incredible accusation to the police and long before the jury trial even started.  The theory, I suppose, was that the taxpayers would ultimately be reimbursed by the defendant after he pleads guilty or is convicted at trial.  Well, not if I can help it. 

To his credit, there is at least one judge who doesn’t tolerate that type of linguistic nonsense in his courtroom.  There, prosecutors and witnesses are not allowed to use the term “victim” before there is a conviction.  Instead, “complaining witness” or “the deceased” are the correct terms.  But nearly everywhere else, and with very few exceptions, we operate under a guilt-presumptive, victim-centered culture in Wisconsin—all the while chipping away or even eliminating defendants’ rights. 

This bizarre movement is due to a combination of anti-defendant legislative initiatives and judicial practices.  Take, for example, our recent preliminary hearing fiasco.  The law is clear that the standard for bind-over after a preliminary hearing is tougher to satisfy than the standard for the mere issuance of a criminal complaint.  Yet, despite the hearing’s purpose of preventing hasty, malicious, and improvident prosecutions, the legislature changed the law to permit the state to win bind-over exclusively on hearsay.

Prosecutors took full advantage of this and, worse yet, judges decided to “legislate” from the throne to help them achieve their goals.  For example, no longer must witnesses have “personal knowledge” of the subject matter about which they are testifying—a basic rule of evidence that remained in effect even after the legislature permitted the use of hearsay.  Now, the common practice in Wisconsin is to permit a cop, who knows nothing about the case and played no investigative role in it whatsoever, simply to memorize the complaint and then regurgitate the facts while playing the role of the sole witness at the preliminary hearing. 

This is so embarrassing to a system of criminal justice that prosecutors should be burying their heads in the sand for using such hearsay evidence, and court officials (commissioners and/or judges) should be doing the same for allowing it to happen.  The use of hearsay uttered by a clueless cop witness—or “reader,” as I call them—is so bizarre that clients don’t believe me when I try to explain it to them beforehand; they think I’m joking.  But once they see it for themselves and get bound-over for trial based on a cop’s recitation of the criminal complaint, clients usually reach the conclusion that the system is not a joke after all; it’s an utter embarrassment. 

For a cherry on top of the preliminary hearing sundae, some judges are now going completely over the top and are even denying defendants their well-established constitutional right to be represented by an attorney at their preliminary hearing.  To make a defendant go through this nonsensical meat grinder without a lawyer should, in my opinion, be a basis for removal from the bench or at least a punishment of some sort.  (I know that oaths and ethics rules are often forgotten or ignored, but I think all judges are obligated to uphold the law, including the constitution.  Maybe there would be more compliance if the legislature set forth a specific sanction for the failure to do so.)    

I don’t understand the intricacies of state government or the Governor’s exact role or influence in lawmaking.  (While others were studying political science in college, I was studying accounting.)  But given some of the things that Governor-Elect Tony Evers said during the democratic primary campaign, and during the race against the ousted Governor Walker, I don’t have much hope that he’ll support even politically popular reform measures such as pot legalization.  And I certainly don’t hold out much hope that he’ll stand up to our state’s irrational “victim” culture.  In other words, I don’t think he will advocate for laws that protect our basic procedural and constitutional protections against state government power. 

But I like surprises.

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