Criminal Trial

Competency in the “Slender Man” Stabbing Case

Recently the 12-year-old Wisconsin girl, accused of organizing the “slender man” stabbing was found fit to stand trial. She is accused on carrying out a stabbing of a friend based on directions from a fictional urban myth character, “Slender Man.”

The idea of a 12-year-old girl standing trial as an adult seems unorthodox at best. This case highlights many competency issues and how complicated competency can be when dealing with minors. Attorney Benjamin Van Severen highlights some of the major questions surrounds the “slender man” stabbing case:

“There are a number of competing issues here.  First, you have to wonder if the girl is mentally stable without even considering the criminal proceedings.  She talks of unicorns and imaginary creatures so that is one major concern.  The second issue is the fact that she’s 12 years old.  Can she really assist her attorneys in her defense or even understand the gravity of the crime she is charged with?  Third, even if she’s fit to stand trial, is there going to be some form of insanity defense?  Ultimately, just because this doctor declared her fit to stand trial, I don’t think this will be the last time competency becomes an issue in this case.”

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JOHN BIRDSALL COMMENTS ON CRIMINAL PROSECUTION PROCEDURE

Senate hearsay measure revives talk of dropping stage in process

A new effort to streamline criminal prosecutions in Wisconsin takes aim at hearings once considered a critical stage in the process, but which some argue have morphed into costly, time-consuming tools for the defense: the preliminary examination.

A Senate bill would allow all forms of hearsay at preliminary hearings and has rekindled talk of eliminating them – something the state’s Judicial Council supports.

Sen. Glenn Grothman (R-West Bend) said he introduced the bill at the request of Ozaukee County District Attorney Adam Gerol, president of the state district attorneys association. Grothman put a lot of stock in the position of the Judicial Council, which he called “a do-gooder, almost liberal” body.

“You’re not going to get something radically conservative past them,” he said.

But defense lawyers expressed concerns that the move could be the start of erosion of due process rights in the name of saving money.

Hearsay is testimony from a witness about what another witness said, offered for the truth of the statement. It is generally prohibited because it is considered less reliable and because defendants have the right to confront witnesses against them, though there are exceptions in the rules of evidence.

But Gerol notes that preliminary hearings are not trials. They are statutory creations, not required by the state or federal constitu tions. In the vast majority of cases, defendants either waive their right to the preliminary examination, or a judge finds sufficient probable cause to bind the defendant over for trial. He said when the hearings are held, defense lawyers often use them to get an early feeling for testimony from state witnesses, almost like taking a deposition.

Hearsay is allowed at preliminary examinations to show ownership of property, or lack of consent to enter a building, or any element of identity theft. The new law would expand it to any use – such as letting a detective state what the victim of a violent crime said happened to them.

Preliminary hearings must be granted within 20 days after someone is charged with a felony via a complaint, which itself is generally hearsay – an officer’s narrative of the evidence, including witness statements.

The examinations “are solely to determine if, given the testimony and evidence presented, there is probable cause to believe the defendant committed a felony,” said Sheboygan County District Attorney Joe DeCecco. “Plausibility, not credibility, is the issue with all factors to be considered in favor of the state.”

Defense lawyers are expected to oppose the measure.

“The point of the prelim is to try and eliminate bad cases right at the outset,” said John Birdsall, a Milwaukee defense lawyer. “It’s a pretty big deal. I believe there will be some constitutional issues even though it’s a statutory creation.”

The preliminary hearing is “not onerous by any stretch,” said Daniel Blinka, a Marquette University law professor and former prosecutor who teaches evidence and criminal procedure. “It forces a prosecutor to get serious early in the process on whether a case has evidentiary merit.”

Randy Kraft, a spokesman for the State Public Defender’s Office, said having witnesses present at preliminary examinations helps the prosecution as often as the defense. “The current system often encourages criminal cases to come to a speedier resolution, whether a prosecutor declines to pursue charges or a defendant decides to accept a plea offer,” Kraft said.

Preliminary examinations do eat up a lot of court staff, lawyer, law enforcement and civilian witness time, costs that seem even higher given how infrequently magistrates rule for the defense. In large counties like Milwaukee, there are courts devoted full time to preliminary examinations.

“The prelim is like a solution in search of a problem,” said Dean Stensberg, with the state Department of Justice.

But justice has never been cheap, warn skeptics of the new bill.

“We have a tradition of bringing the person in, under oath, to articulate their testimony,” said Blinka, the law professor. “It’s a very effective way to impress upon people how serious it is, that you not exaggerate and you get it as right as you possibly can.

“An officer recounting a summary is just not the same guarantee.”

Click here to read the original article

  • Location and Date:Milwaukee Journal Sentinel – 2012
  • Link:> Read Article

Impossible Cases | Milwaukee Cold Case DNA Defense Attorney


Birdsall Law Offices has experience in defending against cold case homicide charges.  Many people believe that DNA evidence makes defense impossible.  We have top criminal defense attorneys on staff to handle these types of cases.

You have been charged with a serious criminal offense. You are very concerned that your case is impossible. You may think that there is no way that you could possibly win at trial. We have experience with “impossible cases”. Take for example the case State vs. Lewis tried in May 2011. This case was a “cold case” reckless homicide with DNA evidence, a strangulation, murder and sexual assault. It was a one week long jury trial and the jury came back not guilty. The reason that we were able to do this is simple. We completed a serious investigation, we used competent experts and the knowledge and experience that comes with having tried over 200 jury trials. No case is impossible, even yours.

Birdsall Law Offices Specializes in Criminal Defense and DUI & OWI Defense. Call us today to find out what we can do to defend your case. We have over 25 years of experience in taking difficult cases of all kinds to trial. We are very experienced trial attorneys and we will always work hard to get the best results possible. Unlike other attorneys, we are not scared to go to trial. We have extensive success in criminal defense case that go to trial.We have specific experience in:
-Homicide
-Drug Trafficking
-Drug Possession
-Sex Crimes
-Internet Crimes
-Computer Crimes
-Federal Crimes
-OWI
-DUI
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-White Collar Crime
-Violent & Domestic CrimesCall us today for a free consultation (414)831-5465

www.birdsall-law.com

It appears that it has gotten pretty difficult to find jurors that have not heard of the Michael Jackson situation.

It appears that it has gotten pretty difficult to find jurors that have not heard of the Michael Jackson situation. In the high profile trial of Michael Jackson’s former doctor Conrad Murray, the search for jurors looks like it will require sifting through hundreds of people to find a suitable jury.

http://ow.ly/6tikH

Stages of a Criminal Case – Criminal Law

 

Stages of a Criminal Case – Criminal Law.

Some information about the stages of a Criminal Case from findlaw.com

Many people’s first introduction to the legal system occurs during a criminal case. Each criminal case is different, but there are some steps that are common to most, if not all, criminal cases. In this section you will find information on what to expect at each stage of a typical criminal case — including tips on the arrest process, plea bargains, sentencing options, and more. To begin, select an item from the list below.

  • Arrest – what is an arrest, and when can an arrest occur?
  • Booking & Bail – information about the processing that occurs after an arrest and how bail works.
  • Arraignment – the defendant’s first appearance in a courtroom.
  • Plea Bargain – learn more about what goes into a plea bargain.
  • Preliminary Hearing – in a preliminary hearing, a judge determines whether there is enough evidence to support a trial.
  • Pre-Trial Motions – pre-trial motions establish whether a trial should take place and, if so, what the boundaries at trial will be.
  • Trial – at trial, a jury will consider whether the evidence proves the defendant’s guilt “beyond a reasonable doubt”.
  • Sentencing – the stage of a criminal case where a judge determines the appropriate punishment.
  • Alternative Sentences – punishment for criminal behavior doesn’t always have to include prison time.
  • Appeals – a criminal case isn’t over after sentencing. The defendant can appeal a conviction to a higher court.

The Problem With Denny…

The prosecution and conviction of Steven Avery will take another turn as his appeal tries to undo the ruling of the trial court that he could not argue that other specific individuals committed the crime.  The appeal (at least the public portion – the rest is sealed) centers around this refusal of the trial court to allow Avery to argue that 5 other individuals who either lived on the same property or were friends of those that did, had motive, oppotunity and specific evidence linking them to the murder.  The postcoviction motion argues that he was denied fundamental constitutional rights including: the right to present a defense, to confront his accusers and to be able to subpoena witnesses in his defense.    He is absolutely right and the judge was absolutely wrong.  Love him or hate him, Avery has the exact same rights as any one of us – perhaps more given his 18 years of wrongful incarceration.    The judge’s ruling boiled down to this:  he felt that this defense would amount to a “collateral issue.”  Amazingly, he thought that this interpretation of the law would result in Avery accusing “hundreds” of people and devolve into a series of mini-trials despite the fact that the defense limited it to 5 specific people with a specific recitation of facts supporting what they were doing.  The bottom line is that Avery’s guilt or innocence is for the jury to decide but the court, like the Manitowoc County Sheriff’s Department, were focused on one person alone: Avery.    You can see some limited media analysis here.