How a Judge is Assigned

Most counties in Wisconsin have more than one judge, and the larger a county is, the greater number of judges it has. For example, Dane County has seventeen different judges who typically handle specific types of cases, like juvenile, criminal, or civil cases. Counties may differ in how a case is assigned, whether it is assigned to a judge who oversees a particular area of law, or a judge may have a case assigned due to being on a rotating intake schedule.

How A Judge Can Effect Your Case

When you are initially charged with in a criminal case, one of the things your defense attorney will consider is whether or not the assigned judge is favorable to your case. Just like basketball players, teachers, and doctors, different judges have different styles. One example of this would be a judge’s reputation on ruling on certain types of motions. Depending on your type of case, a judge’s tendency to rule a certain way on these types of issues could be beneficial or detrimental to your case. Another factor to consider is the judge’s history. What area of law did they practice before coming on the bench? If it was criminal law, are they a former defense attorney or prosecutor? If they were a prosecutor, did they have a specific area of emphasis? Your attorney may also consider a judge’s reputation on sentencing. The fact of the matter is that some judges have a reputation for sentencing defendants more harshly than others.

Substitution of A Judge

What is the substitution of a judge? It is a legal procedure that allows the assigned judge to be removed from the case, and another judge to be assigned. A defendant always has this right, however there is a specific process that must be followed within a certain procedural time frame. If you wait too long, you lose the ability to request a different judge. A motion requesting the substitution of the judge is filed with the clerk of court, the prosecutor, and with the judge, and this will trigger the removal of the judge from the case. The defendant does not have the right to choose who the new judge will be. In larger counties it will typically be another judge from that county, but in those that are more rural, a judge from a different county may be assigned. Again, it is important to note that a defendant does not have the ability to request the substitution of a judge at any time. A motion requesting the substitution of a judge must be filed at the beginning of a case, before the defendant is arraigned in a felony case. In a misdemeanor criminal case in Wisconsin, a defendant must do it before the originally assigned judge makes any substantive rulings.

Filing a motion for the substitution of a judge is not a matter to be taken lightly, and there are many factors to consider. Because this decision is so time sensitive, and an informed decision requires extensive knowledge of the judge and the county in question, a defendant needs to make this decision with defense counsel. The judge will essentially make all important rulings in a case, and in the event of a plea deal or conviction, will make the sentencing determination. If you or someone you know has been charged with a crime in Wisconsin, contact the Wisconsin criminal defense attorneys at Nicholson & Gansner, S.C. for a free consultation.

Curt Schilling, former Boston Red Sox great, and Ashley Judd, the actress, made news recently with how they responded to Twitter trolls.

Schilling had sent out a proud Tweet regarding his daughter’s decision about where she was going to attend college and play softball. That drew a series of responses from trolls that were by any measure offensive. They could also be interpreted as threatening.

Schilling wrote about his response on his own blog. He found out who the trolls were, identifying them by name and where they worked and went to school. The trolls faced consequences almost immediately; they lost jobs and were suspended from school. Schilling has also indicated that he is pursuing other legal action, including criminal prosecution.

Judd is well known as a fan of University of Kentucky basketball. During the Southeastern Conference basketball tournament, she was Tweeting about her beloved Wildcats (who, of course, later lost to our Wisconsin Badgers in the NCAA tournament Final Four). Trolls responded by calling her a bitch, a whore, and threatening her with rape.

Judd responded much like Schilling did. She wrote about it publicly. She too is pursuing other legal action.

It ought to go without saying that no one should be sending out Tweets or texts or Facebook messages or Instagram messages or Snapchats or any other form of communication threatening women. Apparently, though, it does need to be said. If decency and morality aren’t enough to prevent you from doing it, however, consider that you could be charged and prosecuted criminally for doing it.

In Wisconsin, you could be charged with Unlawful Use of Computerized Communication Systems (Wis. Stat. 947.0125), with criminal Harassment (Wis. Stat. 947.013), or possibly with Disorderly Conduct (Wis. Stat. 947.01. Those are misdemeanors. Depending on how many threatening or harassing Tweets, or texts, you send, an aggressive prosecutor could charge you with Stalking (Wis. Stat. 940.32). That’s a felony. If you’re charged with misdemeanors, you’re facing the possibility of jail time and/or probation. If you’ve been convicted of other crimes recently, you could even face prison time if you’re charged as a Repeater. If you’re charged with a felony, you absolutely face the possibility of prison time.

Don’t do it. Don’t Tweet people threatening them or their children with rape. But if you make that mistake and do wind up getting charged with crimes, call us.

Homicide charges can involve all sorts of circumstances that make a difference in how that case is treated by the legal system. While many cases are originally charged as 1st degree intentional homicides—the most serious of form of homicide—they often resolve with convictions for less serious types of homicide. One common way that this can happen is through a plea bargain, where the State and the Defendant agree to reduce the original charge to a less serious charge in exchange for a guilty plea by the Defendant. But a second way in which someone can be convicted of a less serious version of the offense for which they are charged with is by having the jury convict them of a lesser-included offense.

Lesser Included Offenses—Definition and Procedure:

Lesser-included offenses take two forms. The most common type of lesser-included offense is an offense that requires proof of some, but not all, of the facts necessary to prove the charged offense. A simple example is possession of a controlled substance, which is a lesser-included offense of possession with intent to deliver a controlled substance. They each require proof that an individual knowingly possessed a controlled substance, but the more serious of the two requires proof of one additional fact—that the individual possessed the substance with the intent of distributing it.

A second form of lesser-included offenses are those which are designated by statute. Homicide is a prime example; state statute makes any type of criminal homicide that is less serious than the one charged a lesser-included offense.

If, at the end of a jury trial, evidence has been presented to form a reasonable basis for a jury to conclude that the more serious offense was not committed, but a lesser-included offense was committed, then upon request from either party, the judge should instruct the jury on the lesser included offense or offenses. If this happens, the jury will then be instructed to consider the charged offense first, and if they unanimously agree that the individual is not guilty of that offense, or believe that they will not be able to reach a unanimous decision on the charged offense, they are then instructed to consider the lesser-included offense.

Lesser-Included Types of Homicide:

There are several different types of lesser-included homicide offenses.

2nd Degree Intentional homicide:

If a defendant presents evidence of legally recognized mitigating circumstances, and the State is unable to prove beyond a reasonable doubt that the mitigating circumstances do not exists, then the jury should convict someone who was originally charged with a 1st degree intentional homicide with the lesser-included offense of 2nd degree intentional homicide. The most common mitigating circumstances presented in these types of cases are that an individual was acting after adequate provocation by the victim, or that an individual was acting in self-defense, but did so in an unreasonable manner.

First and Second Degree Reckless Homicide:

A second category of lesser-included homicide is reckless homicide. Unlike an intentional homicide, which occurs when someone kills another with the intent to kill, a reckless homicide occurs when an individual causes the death of another while acting in a manner that created an unreasonable and substantial risk of death of great bodily harm. If someone is charged with a first-degree intentional homicide, and the State proves that they killed someone while acting in a reckless manner, but is unable to prove that they actually intended for someone to die, then that person should be convicted of a lesser-included reckless homicide. A perfect example of a reckless homicide would be killing someone by firing a gun through a wall, without knowing at the time of firing whether anyone was on the other side of the wall.

Once a jury has determined that the crime was reckless, rather than intentional, they further have to determine whether the crime was a first or second degree reckless homicide. The only difference between the two is that the state must prove that an individual acted with “utter disregard for human life” in order to establish a first-degree reckless.

Defending a homicide:

When charged with a homicide, it is important to consider not only the defenses that could result in a not guilty verdict, but also what possible lesser-included offenses may be available to mitigate the serious of a conviction. Make sure you consult with an attorney who has experience with these matters so that you are able to mount the best defense possible.

Attorney-Client Privilege

nickgansner —  February 19, 2015 — Leave a comment

Privilege is a word you hear a lot in the criminal justice system, and this post will go into what it is, what it applies to, and how it works. Specifically, there are two types of privilege we will be discussing: privileged conversations and privilege documentation.

What is it?

Privilege, as a legal term, refers to a particular benefit, advantage, or immunity enjoyed by a person or class of people. In the legal world, privilege is most often used as an exemption; that is, to prevent information from being disclosed or used by one side or the other. For example, a conversation that an individual has alone with their attorney is a privileged conversation. That is attorney-client privilege. What does that mean? Well, it means that there is no legal method to compel either of those two parties to disclose what was said in that conversation, even if the defendant made a full confession of crimes to the attorney. Similarly, there are documents that can be privileged as well. During a criminal case most materials related to the case are discoverable, meaning that each party has a duty to disclose the material to the other side. Medical records, police reports, and investigator statements are all examples of discoverable material. However not all documents are discoverable, and for obvious reasons. One example of this would be a defense attorney’s notes on a trial strategy. These documents are exempt from the discovery process, and there is no legal method that could compel the defense attorney to give this to the State.

With Your Lawyer

Privilege works in many different ways, and applies to many things that you would not normally expect. For example, a defendant’s communication with his attorney, or the staff in their office, is privileged information. That means even if the defendant’s mother called the law office to get the defendant’s new cellphone number, the office would be unable to disclose this information without written consent from the defendant. While you normally wouldn’t imagine things like an e-mail address, phone number, or even appointment times being that secretive information, it would fall under the umbrella of privileged information.

With Your Spouse

Another example of privilege exists between spouses. We’ve all seen some movie or TV show where someone says that a husband and wife cannot be forced to testify against one another. This is true, well sort of. First off, this privilege does not exist in any form if there was a third party there, so a conversation that was a husband, wife, and a close friend is fair game. Another part of marital privilege to remember is that it only starts existing once two individuals have married. That means a conversation had two months before the husband and wife got married is not covered under Marital privilege.

Privilege and Your Case

So what does privilege really do for your criminal case? Quite a lot. Being able to have an open and honest conversation with your attorney is the single most helpful thing that you can do. Some people will hold back information, or only be fully honest once evidence has been produced during the discovery process, which can be counterproductive and damaging to your case. Defense attorneys have heard it all, from the most mundane to the most heinous, and because this is our chosen profession, we don’t stigmatize or judge our clients. The more honest you are with your attorney, the quicker and easier it is for them to plan the best defense for your case. Attorney-client privilege is meant to foster that kind of honesty and open communication. If you or someone you know is currently charged, or believes he is going to be charged, contact our office for a free consultation.

Wisconsin has one of the most publicly-used criminal case databases in the country with Wisconsin Circuit Court Access Program, or CCAP, for short.  Want to know if the guy you started dating has a criminal history? Run him through CCAP.  What about if you’re a landlord and want to figure out a tenant’s likelihood of failing to pay? CCAP them and see if they’ve got a history of being sued.  All sorts of uses (and abuses) of such a public database exist.  Most commonly, when clients have cases dismissed or acquitted at jury trial, they want to know — is there any way I can remove it from CCAP?

The short answer is “no”.  Dismissals, successful completions of deferred prosecution agreements, and even acquittals at jury trial remain of record in the CCAP database.  The only way to remove something from CCAP is to have the case expunged, and there are very specific rules for qualifying for expunction –  you must be age 24 or under at the time of the offense, and the offense cannot be above a level H felony.  Certain types of H and I felonies are barred from being expunged, such as child abuse.  It is rare, if not impossible, to get an agreement to expunge a case that is dismissed.

All too often, a person who has been stopped and cited for Operating a Motor Vehicle While Intoxicated, is perplexed to find that he or she has also been issued a citation for refusing to submit to a breath, blood or urine test. In this situation, a client will often ask me: “Why are they saying I refused? I blew into the device the first time they asked me to. I don’t see why I should have to do it a second time?” Hopefully this post can clear up the confusion surrounding when you can, and when you cannot, refuse to provide a requested evidentiary breath or blood sample.


Wisconsin law requires that a person who is placed under arrest for operating a motor vehicle while intoxicated provide a sample of either breath, blood or urine, upon request from a law enforcement officer. At the time the request is made, the officer must read an approved script, often referred to as the “Informing the Accused” form to an individual. If, after being read this script, you refuse to provide the sample, you will be issued a refusal citation, which carries with it a mandatory license revocation and a mandatory installation of an Ignition Interlock Device (IID).



People often confuse a roadside breath-test, usually referred to as a (Preliminary Breath Test (PBT), with the breath sample they are required to provide upon arrest. A roadside PBT, which is done using a handheld device that is slightly larger than a deck of cards, is a tool used by law enforcement to determine if there is probable cause to arrest in the first place. There is no legal obligation to for you to provide a PBT if an officer asks you to do so, and you face no penalties for refusing to do so. Further, the results of a PBT are not admissible against you in Court.

However, regardless of whether you choose to submit to a PBT or not, if you are arrested and an officer requests that you provide a sample after reading to you the information contained in the approved “Informing the Accused” notification, you must provide the sample or risk being charged with a refusal.


If there were a situation where you could choose to be charged with one or the other, then in many instances a refusal would be better. While the license revocation and IID requirements tend to be more harsh than for an OWI, there are no fines or potential jail time for a refusal. However, as a practical matter, a refusal is almost never issued as a stand-alone offense. Instead an OWI charge that will almost always be issued as well. This is because, in many instances, even if you do refuse to voluntarily provide a breath or blood sample, a law enforcement officer will obtain a warrant and take a forced blood sample which will be analyzed for alcohol content and/or controlled substances. Even if the law enforcement agent does not seek a warrant, there is an inference that refusing to provide a requested sample shows consciousness of guilt, and law enforcement officers and prosecutors will often rely on this inference, in combination with any additional observations of intoxication, as grounds to charge you with an OWI if you refuse to provide a breath or blood sample for alcohol analysis.


In the event that you are cited for a refusal, it is imperative that you act quickly. The arresting officer will provide you with a form titled “Notice of Intent to Revoke License.” At that point, you will have ten days to submit a written request for a refusal hearing. If you miss this deadline, you will default on the refusal, and 30 days from the date of the citation the refusal penalties will go into effect. What’s worse, once this deadline has passed, with very few exceptions there is no way to re-open or otherwise challenge the refusal citation. So, if you have been charged with a refusal violation, you should seek out the counsel of a qualified defense attorney immediately to ensure that you understand the full extent of your rights, and that you take the necessary steps to protect them.

The possibility of jail time is an anxiety-producing thought for many people.  Accordingly, a common question I receive from clients is whether they’re eligible for house arrest – meaning, can they serve their jail sentences at home?  The answer, generally, is that it depends on a number of things.

Jail v. Prison Sentences

To be potentially eligible for house arrest in Wisconsin, a defendant needs to be sentenced to jail, not prison.  Prison sentences in Wisconsin cannot be served via electronic monitoring.

Sheriff’s Decision

By and large, it is the county sheriff’s decision whether to release an inmate on electronic monitoring.  Wisconsin statute 301.135 grants the sheriff’s department the authority to contract for electronic monitoring, to establish electronic monitoring eligibility criteria,  and to charge fees for such a service.  Case law prohibits Wisconsin judges from forbidding the use of electronic monitoring in lieu of Huber privileges for offenders. (See State v. Schell, 2003 WI App 78, 261 Wis. 2d 841, 661 N.W.2d 503, 02-1394.).  Thus, when defendants are sentenced, the judge cannot grant them electronic monitoring through the Sheriff’s Office—only an application to the relevant county sheriff’s office will allow for that.  (Some counties do have court-funded alternatives to incarceration exist, though those are rare).


Different counties in Wisconsin have different rules for who qualifies for electronic monitoring.  Some counties don’t have the ability at all, or have very limited resources to provide such an opportunity.  Some counties will not allow electronic monitoring for particular types of crimes (violent offenses, OWIs, etc.).  Some counties need a defendant to have a “hard” or “land” telephone line, some can work with a cellular phone. Almost every county will require a defendant to pass a drug test prior to being released on electronic monitoring, and all counties require a defendant to be eligible for Huber (work release) privileges before they can be eligible for electronic monitoring.  Offenders with longer jail sentences tend to be prioritized for electronic monitoring over offenders with shorter sentences, and in some counties, inmates whose sentences are under 30 days will be not be considered for EM.   Prior bad behavior in a jail setting can bar an inmate from EM eligibility for a period of his sentence, or for the entire length of it.

If you are facing jail time in Wisconsin, and have questions about the availability of electronic monitoring, contact a Wisconsin criminal defense attorney today.