State v. DeVera update (and a solution to Wisconsin’s fiscal woes)

In The Legal Watchdog’s first post, I wrote about a judge that made up facts out of thin air to justify sending a developmentally disabled, twenty-one-year-old defendant to prison for having a “non-coercive” sexual relationship with his minor girlfriend.  Even the prosecutor had asked for probation, but the judge justified her draconian sentence by citing DeVera’s poor performance while released on bond during the case, and while on probation in a previous case.  What the judge overlooked, however, was that DeVera was never released on bond, nor had he ever been placed on probation.  Therefore, because the judge’s sentence was built on pure fiction, the appellate court “was constrained to reverse and remand for resentencing.”  So what happened next?

What ever happened to Omot?

I recently wrote a blog post, titled Guilt by association, where I discussed two defendants in two different cases who were convicted not for what they did, but for what their roommates did.  One of those defendants was Cham Omot, who was convicted of a felony drug crime because his roommate had marijuana in his (the roommate’s) dresser drawer.  Then, on appeal, the rarest of events occurred: The appellate court reversed the conviction because, even after giving the state every benefit and every inference, there simply was no evidence whatsoever to support the jury’s guilty verdict. 

To most of us, Mr. Omot was just another faceless defendant who had been ground-up in the criminal justice system and wrongfully convicted.  However, from my perspective, Mr. Omot “came to life” when I got a letter from Tyler Wickman, the outstanding appellate attorney who won Omot’s appeal.

Guilt by association

These days, more than ever, you have to be leery of the company you keep.  Two defendants found this out the hard way when they were convicted of felony crimes not for what they did, but rather for what their roommates allegedly did.

You’re damned if you do . . .

Criminal law is an incredibly malleable beast.  It is designed (or perhaps has evolved) to allow a judge to distort any given fact, or set of facts, to reach a predetermined outcome.  In my articles, I have exposed these judicial gymnastics in the Sixth Amendment context and in the Fourth Amendment context.  However, nowhere is this judicial slight-of-hand more evident than at sentencing hearings.

Capacious crimes and creative prosecutors

A recent opinion piece in The Wall Street Journal argued that it’s dangerous to own or manage a business these days.  Our government’s ever expanding maze of laws, including many strict and vicarious liability crimes, puts businesses and their managers at high risk for criminal prosecution.  More pointedly, prosecutors are able to “exploit vague laws to criminalize behavior that no one thought was illegal.”  But this dangerous trend isn’t limited to Wall Street; it’s happening on Main Street too.

Dungeons, dragons, and prison bureaucrats

If asked to describe the typical Dungeons & Dragons (D&D) enthusiast, most of us would probably think of a harmless, glasses-wearing, socially awkward math genius who attends school and possibly lives in his parents’ basement.  (Think Napoleon Dynamite.)  But despite this docile stereotype, prison bureaucrats in Wisconsin don’t take any chances.  In fact, in Singer v. Raemisch, the state just spent a lot of money and five-plus years of litigation—starting in the prison grievance system and culminating in the Seventh Circuit Court of Appeals—to ban all things D&D among its inmates.  But why all the fuss?

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.

Sex offender registries: They’re not just for sex offenders anymore

Our nation’s preoccupation with tracking sex offenders comes at a high cost.  Between the fifty states and the federal government, we’re spending hundreds of millions of dollars on sex offender registries each year, in addition to the billions spent on incarceration and community supervision.  However, these registries aren’t all they’re cracked-up to be, in part because they’re flooded with useless information.  For each violent rapist, a registry may contain dozens of teenagers who had consensual sex with younger teens, and dozens of other teens who were convicted of “sexting,” urinating in public, or similar behavior.  But, perhaps the biggest problem with sex offender registries is that they’re not just for sex-related crimes anymore.

Judge makes up facts and sends autistic defendant to prison

A basic sense of fairness dictates that a criminal defendant should be sentenced only for his crime of conviction.  Given this, most people would be surprised to learn that, when dispensing punishment, judges might also be able to consider “uncharged and unproven offenses,” and increase their sentences accordingly.  But this incredibly lax standard still wasn’t enough for one judge, who went even further and created facts out of thin air (and contrary to the evidence) to justify sending an autistic defendant to prison.