Our withering Constitution: The right to a public trial takes a hit

Our constitutional rights are easily and routinely manipulated both in and out of the courtroom.  But among the few fundamental rights that seemed unassailable, I thought that the right to an open and public trial was high on the list.  As a practical matter, attempts to close the courtroom during a trial are rare; in fact, I’ve only argued this issue in one trial, and the judge agreed with me and kept the courtroom open to all comers.  And the published decisions that I’ve read on this issue, at least to my memory, have been equally protective of this incredibly basic and important right.  But the recent case of State v. Carpenter demonstrates just how wrong I was.

“That’s justice.”

Attorney Dennis Melowski recently defended a female driver on a group of traffic cases, including a charge of operating while intoxicated, commonly known as drunk driving.  The cases went to a bench trial, and the evidence showed that the arresting deputy had been “amorous” with the female defendant during the traffic stop.  Also, it turned out that the deputy’s squad camera worked fine for every traffic stop he made that evening, except—you guessed it—this one.  But in the middle of the Deputy’s testimony, the bench trial was adjourned for what turned out to be a two year delay.  Here’s what happened when the case finally made it back to court:

Linda Van De Water: Poor Judge(ment)?

In November, 2010 I launched The Legal Watchdog specifically to criticize State v. DeVera, an unpublished case where a trial judge “created facts out of thin air (and contrary to the evidence) to justify sending an autistic defendant to prison.”  I wrote about the case because while I’ve seen and read about bizarre sentences before, this one was beyond the pale.  And, as it turns out, The Legal Watchdog was actually on to something bigger.

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.