Wisconsin Criminal Defense Legal Questions

Hire an attorney that your son is comfortable with and prepare to handle the matter in Court. Statutory rape or rape with a minor does not take into account the actions of the minor, only of the adult. There are 3 elements to the offense: the age of the alleged victim, the age of the defendant and was there sexual contact between the alleged victim and the defendant. The alleged victim's intent or state of mind is not a consideration.... Read More

She can try to make a claim for it in court, but it sounds like you have the winning argument, especially if you have somebody on your side who knows why you bought the truck and who is willing to come to court to testify on your behalf. If your daughter does sue you, be sure to ask the court right off the bat to dismiss the case as frivolous, and ask that she be sanctioned and ordered to pay your attorney or other court-related costs.... Read More

Under the Sixth Amendment, every defendant is entitled to effective representation of counsel. This includes the right to counsel free of any actual or apparent conflict of interest arising from the lawyer's representation of other current or former clients.. It is generally considered a conflict of interest for one lawyer to represent more than one defendant in a criminal case. Separate counsel is the norm. This is especially true where the defendants have competing interests and one or more defendants must choose whether to cooperate and testify against co-defendants or go to trial. It would be a direct conflict of interest for a lawyer to represent both a testifying defendant and the defendant against whom such testimony is offered. In such a case, the representation of one client would be directly adverse to  interests of the lawyer's other client. There are cases in which defendants' interests may not be adverse and a joint defense is planned. In such cases, the defendants, once advised of the their right to conflict-free counsel, may be allowed to waive that right and be represented by the same lawyer. But in the case you describe, where two defendants are testifying against a third defendant, it would be a clear conflict for all three defendants to be represented by the same counsel. Jeralyn Merritt, Ask a Lawyer Panelist since 1998.    ... Read More

It is very difficult to answer your question without knowing the facts. A no contest plea has the same effect as a guilty plea. However, a no contest plea is not admitting guilt. Basically what you are saying is I do not want to contest it. You will be adjudicated guilty but you have not admitted guilt. If there is a possibility of civil liability (i.e. if there was an accident), a no contest plea would be appropriate. This is for informational purposes only and should not be relied upon or construed as legal advice. I would recommend contacting an attorney.... Read More

"My stepson has a trial on November 11th for three class H felonies for fraud (check writing), and a class A misdemeanor for theft of movable property totaling $2500.00. He cannot afford an attorney and his public defender is not helping. What can we do?" You should be allowed to ask for a different lawyer through the Public Defenders office. You usually are allowed one (1) replacement."How much is a typical retainer fee and is it negotiable or able to be made in payments?" This very much depends on the firm you hire. You will find that lawyers charge different retainers and some will allow payment plans some will not. "The case is in Milwaukee County, Wisconsin. He has a past record and most of his problems are from drug abuse. He is going to Narcotics Anonymous and is drug tested every week." Past crimes will be a factor considered for bond and/or sentencing. It sounds like he has a drug problem and taking proactive steps in combating the problem will likely be received well by the Court.... Read More

Yes, it would be a conflict of interest for a lawyer to represent both you as the defendant and the informant who set you up and may be a witness against you. The Sixth Amendment to the U.S. Constitution guarantees you the right to effective assistance of counsel, and that means counsel free of any conflicts of interest. Having represented the informant, the lawyer would be unable to use the information he or she learned during the course of that representation to assist you, particularly during cross-examination. It would be privileged. As a client, you are entitled to know that your lawyer's loyalties lie only with you. When he or she also represents your accuser, dual loyalties exist and you cannot be sure that your lawyer will be looking out for your best interest. You should raise the issue with your lawyer. I would be surprised if he or she did not agree and suggest withdrawing from your case. If that doesn't happen, you should ask him or her to file a motion with the Court which lays out the facts of his representation of both of you so the court can decide. In the meantime, you may want to consult another experienced defense attorney in your area, disclose all the facts about the dual representation of which you are aware, so that he or she can provide you with more detailed and specific advice on how to best resolve the conflict. ... Read More

A person can be tried at the same time for similar offenses that arise out of the same incident. Battery is the crime of causing bodily harm to another without the person's consent. It is a misdemeanor in Wisconsin, where you are from. A person commits disorderly conduct when they engage in violent, abusive, indecent, boisterous or unreasonably loud conduct which tends to cause or provoke a disturbance. In Wisconsin, disorderly conduct also is a misdemeanor. Two or more crimes may be charged and tried together if they are of the same or similar character or are based on the same act or transaction or if they consist of two or more acts or transactions connected together or constituting parts of a common scheme or plan. If you were charged with disorderly conduct and battery arising from the same incident, you likely can be tried for both at the same time. If this is not the case, or if you think your case is an exception to the general rules above, I recommend you consult with a criminal defense attorney in your area who can advise you whether the facts of your case call for a different result.... Read More

No. You have an absolute right not to testify. The Fifth Amendment to the United States Constitution provides that no person shall be compelled to be a witness against himself in a criminal case. The burden is on the state to prove the charge against you. You do not have to prove anything. If you do not want to testify, the jury will be instructed that it may not consider your decision not to testify against you. The jury should not even discuss the fact that you did not testify. Whether or not to testify is a decision that is completely yours to make. While your lawyer will advise you as to what he or she thinks is best in your case, the final decision is up to you.... Read More

Federal grand juries conduct investigations into possible violations of federal criminal law. They have the power to subpoena witnesses to appear before them to testify and produce information. The Department of Justice has developed special policies when the witness sought to be subpoenaed is either a "target" or a "subject" of the grand jury investigation. These specific policies are contained in Section 9-11.150, et. seq. of the United States Attorneys' Manual. A "target" of a grand jury investigation is defined as a person as to whom the prosecutor or grand jury has substantial evidence linking him or her to a crime, and who, in the judgment of the prosecutor, is likely to become a defendant--i.e., to be indicted. A "subject" of a grand jury investigation is a person whose conduct is within the scope of the grand jury's investigation. Due to the potential for unfairness and misunderstanding in compelling a target (a person who is likely to be indicted) to testify or produce documents before a grand jury, prosecutors are directed to first attempt to secure the target's appearance voluntarily. If the target refuses to voluntarily appear, before the target can be issued a subpoena, the prosecutor must obtain the approval of the grand jury and the United States Attorney or the responsible Assistant Attorney General. In determining whether to subpoena a target, the officials involved should consider the importance of the testimony or information sought to the investigation, whether the substance of the testimony or information could be obtained from other witnesses, and whether the questions that the prosecutors and grand jurors intend to ask would be subject to a valid claim of privilege. If approval is obtained to subpoena a target of a grand jury investigation, it is the policy of the Department of Justice to advise the witness of his or her rights. Subjects of the grand jury investigation are also receive advisements of rights. This is done either by attaching an "advise of rights" form to the subpoena, or in a letter that accompanies the subpoena. In the case of a witness who is a target or subject of the investigation, the following advice is provided: Advice of Rights. The grand jury is conducting an investigation of possible violations of Federal criminal laws involving: (State here the general subject matter of inquiry, e.g., conducting an illegal gambling business in violation of 18 U.S.C. Section 1955). You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding. If you have retained counsel, the grand jury will permit you a reasonable opportunity to step outside the grand jury room to consult with counsel if you so desire. An additional advisement is provided to targets that their conduct is being investigated for possible violation of Federal criminal law. ... Read More

Not necessarily. Police and other law enforcement agents (such as D.E.A. or F.B.I agents) do not have the ability to make binding plea agreements or sentence concessions. Only a prosecutor can make a binding promise that you will not be charged with a crime or that you will receive a lesser sentence if you cooperate, confess or agree to plead to lesser charges. Police can tell you they will make your cooperation known to the prosecutor. They can tell you they will recommend to the prosecutor that you receive a more lenient sentence or that all or some charges not be filed against you. But they cannot make promises that are binding on a judge, and while prosecutors will surely consider their recommendations, they are not bound by them either. If the police have made you such a promise, I suggest you seek legal counsel in your area to confirm the promise with the prosecutor before you rely on it -- and to advise you as to whether the promise is in your best interests, even if it is confirmed by the prosecutor. ... Read More

Title 21 of the United States Code, Section 843 prohibits several types of unlawful activities involving prescription drugs. Some of the unlawful activities pertain to a physician distributing or dispensing drugs outside the normal course of his or her practice, without the correct order forms or with an expired or invalid registration number. Others pertain to the prescription holder having fraudulently obtainied the drug. As to the prescription holder, 21 USCS Section 843(a)(3) makes it a crime to acquire or possess a controlled substance by misrepresentation, fraud, forgery , deceit or suberfuge. This would include activities such as lying about your condition to obtain a prescription for a controlled substance; having a subscription put in a friend's name instead of your own; or altering the prescription the doctor gives you as to the quantity of drugs, number of refills allowed, etc. In order to convict you under this statute, the government would have to prove a material misrepresentation, fraud, deception, or subterfuge, which is the cause in fact of your acquisition of the particular controlled substance. Under federal law, obtaining controlled substances through fraud and deceit is a felony, punishable by up to four years in prison for a first offense. However, the federal sentencing guidelines will determine the length of any sentence, and if your guidelines score low enough, you might be able to receive probation, or a sentence to a half-way house or other jail-type facility, or home detention. Even if you receive a prison sentence, you might end up in a federal prison camp if your security risk and the length of your sentence are low enough. If you are facing federal prescription fraud charges, you should consult with a criminal defense lawyer in your area who is experienced in defending federal drug cases and in the application of the U.S. Sentencing Guidelines.... Read More

First, no one has to answer questions by the police (other than providing their name and producing identification if the police stop them). Just because the police tell you they want you to "go in for questioning" does not mean you have to do so. You have every right to refuse to speak with the police. And you should, unless you have first consulted with a lawyer who has advised you differently and who is present when you speak with them. It is important enough to repeat: If you are going to speak with the police, you should do so with counsel. The police will give you "Miranda" warnings, and they mean it: Anything (and everything) you say can (and likely will) be used against you in court. The jails are filled with people who thought if they could only explain things to the police, they wouldn't be charged with a crime. Unfortunately, with very few exceptions, if you have not been charged with a crime, you are not entitled to have the public defender appointed to represent you. The right to appointed counsel does not attach prior to the beginning of legal proceedings against you--usually considered to be the filing of charges. If you voluntarily appear at the police station for questioning, it is not an arrest. You are only considered to be "under arrest" if you are not free to leave--if your freedom of movement has been restricted in any significant way. If at all possible, you should retain the services of an experienced criminal defense attorney in your area and have them contact the authorities who want to question you. After speaking with you and with the police, your lawyer can best advise you as to whether you should speak with them. ... Read More

You could ask the 7th Circuit for a rehearing en banc, which if granted means that all of the judges on the 7th Circuit Court of Appeals will review your case and either agree or disagree with the panel of three judges that affirmed the decision. Another option is to appeal the 7th Circuit decision to the U.S. Supreme Court by seeking a Petition for Writ of Certiorari. These are not often granted. Your third option, and the one with the greater chance of success, is to seek post-conviction relief in the trial court by filing a motion pursuant to 28 U.S.C. Section 2255, to vacate the conviction on the grounds that it was obtained in violation of the defendant''s constitutional rights, specifically, the right to effective assistance of counsel as guaranteed by the Sixth Amendment. The right to effective assistance of counsel can include the right to conflict-free representation. You have one year from the time the conviction is final (the date your last appeal is decided) to bring this motion. In order to prevail on your motion, you will have to establish that your counsel''s representation was so deficient that it "fell below an objective standard of reasonableness" and was prejudicial. This is not an easy standard. To show that your first counsel did not render effective assistance due to his previous representation of the informant, you will have to establish first that there was a plausible alternative defense strategy or tactic might have been pursued. You need not show that the defense would necessarily have been successful if it had been used, but that it possessed sufficient substance to be a viable alternative. Second, you must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney''s other loyalties or interests. You should discuss your options first with the lawyer that handled your appeal. If you decide to seek a second opinion, try to find an attorney who specializes in post-conviction matters in federal court. Good luck!... Read More

At the time you are arrested or taken into custody, or when a reasonable person in your situation would not feel free to leave due to a significant restriction on your freedom of movement and action, the police must advise you of your right to remain silent and your right to counsel as set forth in a 1966 Supreme Court case called Miranda v. Arizona. This advisement must be given before you are questioned. The purpose of Miranda rights is to protect your Fifth Amendment privilege against compulsory self-incrimination. The advisement of rights include the famous words most Americans know by heart, "You have the right to remain silent. Anything you say may be used against you in a court of law." Other rights the police must advise you of are the right to consult a lawyer before being questioned; to have a lawyer present during any questioning; and that if you cannot afford a lawyer, one will be appointed for you. If you agree to be questioned, you should be provided the opportunity to exercise these rights throughout the interrogation. It is not necessary that the police use exact words to advise you?only that they convey the general rights listed in Miranda. If you decide to allow yourself to be questioned, you may stop the questioning at any point and demand a lawyer. The burden is on the prosecution at or before trial to show that you knowingly and voluntarily waived your right to remain silent. Miranda warnings are a procedural safeguard rather than an explicit constitutional right. If the police fail to advise you of your Miranda rights, the remedy is suppression or exclusion of your statements made in response to police questioning from the prosecution''s case-in-chief at your trial. If you didn''t make any statements, there is no remedy for failing to advise you of your Miranda rights because you weren''t prejudiced. The case against you is not dismissed.... Read More