Murder

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.”

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.

Murder & Sexual Assault Plea Bargains Aren’t A Bargain

Every day I encounter people who believe that they were bullied into pleading guilty to some plea “bargain” that, upon brief reflection, they realized that it wasn’t that great of a deal. Or, more often, they just felt that they were truly innocent and should have gone to trial. In any event, they routinely blame their attorney for just being in bed with the DA and not really fighting for them and they want to “withdraw” their plea. Sounds simple, right? As usual, the answer is: “it depends.” The variables are huge, the DA’s almost universally oppose these motions no matter when brought but the judge can be a real wild card. I have had extremely compelling cases that have been denied and seemingly difficult cases that breezed right through.

The first hurdle is whether it is before or after sentencing. A criminal conviction begins after the judge “accepts” your plea of guilty and then “adjudges” you guilty and orders a “judgment of conviction” be entered in the record. The case is then set for sentence if it is a felony. Many smaller cases may proceed right to sentencing after the plea proceedings. The legal standard is hugely different: before sentencing, courts are supposed to “liberally” grant such motions for any “fair and just reason.” However, after sentencing, they only grant a withdrawal request to prevent a “manifest injustice.”

Don’t feel bad if you don’t know what those terms mean in the legal context, neither do most judges. We attorneys, of course are convinced that we always have met the standard but the judges are all over the board. Consider two case I have handled in recent years: Jose and Walter.

Jose was set for trial for 3 counts of first degree intentional homicide and 3 counts of reckless homicide. His trial attorney basically did nothing to investigate the case which involved a gang-related shooting. Early on, the state indicated that the only plea they would offer was to cop to 2 counts of first degree and they would recommend life without parole (no death penalty in Wisconsin – yet!). Jose rejected this “deal” categorically and maintained that position to anyone that would listen – including his Jesuit priest that would minister to him regularly. On the eve of trial, his attorney pushed a final “deal” on him: plead to just one count of first degree and 2 count of reckless homicide and the state still recommend life without parole. Can you feel the love? Some how, his attorney convinced with that he may escape a life sentence and basically bullied him into taking the deal. He immediately regretted it and contacted me to help him withdraw the plea under the liberal standard of “fair and just reason.” Claims of innocence and ineffective assistance of counsel and the testimony of his priest just didn’t cut it for this incredibly obstinate judge who used every available tool of intellectual dishonesty to deny his request. The truth was that the court just didn’t want to try the case.

Contrast that with Wally: he was fooling around sexually with his male cousin when they were 14 and 13 respectively. The families all knew about it and put a stop to it. 3 years later, the cousin brought this up at school and the counselor reported it to police. Because of Wisconsin’s juvenile court decisions, the case was treated as an adult crime because Wally was 17 and an adult for criminal law purposes. Also, since the accusation (a false accusation) was that Wally had threatened him with a knife, the judge ordered him to report as a sex offender for 15 years after he finished probation. On appeal, the client had to meet the manifest injustice standard but, to our great surprise, had a policy of granting nearly every request for withdrawing a plea practically for the asking if there is a claim of actual innocence. Since Wally did not fit that role, however, he did not do that. What is amazing is that he would of in a heartbeat.

The difference in these cases? The murder was in a busy Milwaukee court with a hyper-conservative judge and the sex case was in very rural Grant county with an incredibly flexible judge.

Any lessons here? Yes – if you are going to enter a plea (which is often a great idea) – be sure that it is what you want and that your attorney has adequately explained all of your options to you. Then you will not need to worry about coming back later to fix the mess. If you don’t like the deal – go to trial but only if your attorney is ready! If not get a continuance and a new lawyer.

John A. Birdsall, Attorney at Law
Birdsall Law Offices, S.C.
135 W. Wells St., Suite 214
Milwaukee, WI 53203
414-831-5468 – Fax
414-831-5465 – Telephone
800-257-4799 – Toll Free
www.birdsall-law.com