Adrian Peterson’s recent indictment for child abuse has sparked national controversy regarding the use of physical discipline, and has raised the legitimate question of when—if ever—physical discipline is appropriate? The opinions have been pouring in from far and wide, ranging from Sean Hannity’s defense of using a belt for spanking, to Chris Carter’s impassioned plea against any form of physical discipline. Just as there appears to be no clear-cut line between discipline and child abuse in the court of public opinion, there is no clear distinction between the two in the court of law.

It is a felony under Wisconsin law for anyone to cause bodily harm to a child through either intentional or reckless conduct. However, in spite of this general rule, a person responsible for a child’s welfare has the privilege to reasonably discipline a child, which could in certain instances involve acts of physical discipline. Specifically, “reasonable discipline may involve only such force as a reasonable person believes is necessary. It is never reasonable discipline to use force which is intended to cause great bodily harm or death or creates an unreasonable risk of great bodily harm or death.”

While this helps to focus the inquiry, it doesn’t answer the fundamental question: what sort of discipline is “reasonable?” Is spanking a child with a bare hand reasonable? What about with a belt? Or a switch? Is it the form of discipline that makes it unreasonable, or does it become unreasonable when it begins to leave bruises or marks?

If the national conversation surrounding this matter tells us anything, it is that there is no universal definition of “reasonable,” when it comes to discipline. Instead, each case is dependent on the facts specific to that case, including the age of the child, the reason for the discipline, and the method and manner in which it was implemented. Ultimately, a jury will make a determination of whether or not the conduct in question was “reasonable discipline,” or instead crossed the line to child abuse. Because of the uncertain nature of these types of charges, in the unfortunate event that you are concerned you may face allegations of child abuse, it is important that you contact an experienced criminal defense attorney immediately.

When a person is charged with one or more felonies in Wisconsin, he is entitled by statute to a proceeding called a preliminary hearing or preliminary examination (often referred to as a “prelim”). People often ask us what happens at a preliminary hearing or what the purpose of a preliminary hearing is.

When Does It Happen?

A prelim takes place early on in a felony case. If a defendant is in custody, he has a right to have the hearing within ten days of his initial appearance, which is typically the very first appearance a defendant has in front of a judge. If a defendant is out of custody, he has a right to have it within 20 days of the initial appearance. A defendant can “waive time limits,” meaning give up his right to have the preliminary hearing within ten or twenty days. It is most common for defendants in custody not to waive time limits, while it is most common for those released from jail to waive time limits

What Is It?

A preliminary hearing is not a “mini trial.” Its purpose is not to determine guilt or innocence.

Its purpose is to determine whether or not a felony case will be allowed to proceed on towards trial. In order for that to happen, the government must show a rather small amount of evidence in support of at least one of the charges. Specifically, the government must demonstrate to a judge’s satisfaction that there is probable cause to believe that a felony has been committed by the defendant. Put slightly differently, the government must show that a felony was probably committed and that the defendant probably committed it. If the government can produce a witness who can identify the defendant as the person who the witness testifies engaged in conduct that constitutes a felony, and testifies that the conduct took place in the county where the prelim is being held, the government will almost certainly meet its burden. If the government meets its burden at the prelim, the case is “bound over” for trial.

How Does It Work?

The rather low burden of probable cause was made even easier for the government to meet in 2011, when the state legislature changed the law regarding the rules of evidence at prelims. At trial, hearsay is generally not admissible. Before 2011, hearsay was also generally inadmissible at prelim. But with the change in law, hearsay is admissible at prelim, and a court may base its finding of probable cause entirely or in part on hearsay.

What does that mean? In practical terms, it means that the government no longer has to call the victim of the alleged crime to testify at prelim. It also means that the government can often meet its burden and get the case bound over for trial solely by calling a law enforcement offer to testify. The officer is allowed to testify about what the victim told police (which is hearsay) or about what evidence was collected by the police (which, if it was not collected specifically by the testifying officer would also be hearsay). And the court can find probable cause and bind the case over entirely on hearsay testimony by the police officer or detective. The prosecutor can also submit the criminal complaint (the charging document that outlines the initial charges against a defendant), the contents of which are hearsay, as an exhibit.

What Can My Lawyer And I Do At Prelim?

A defense attorney is able to cross examine the officer. But cross examining a witness about hearsay—about things other people said happened rather than what the officer observed him-or-herself, about evidence somebody else collected—is often fruitless. The officer is simply going to repeat what someone else said or did; the officer doesn’t know any more or any less than what he or she was told by someone else.

Defendants have a right to call witnesses of their own at prelim, but in most cases this is not done. In theory, a defendant could testify at his or her own prelim, but this is never done. Why? Because, under Wisconsin law, credibility is not to be considered by the court at the preliminary hearing. If witnesses give differing accounts of what happened, the State is entitled to the benefit of competing accounts or inferences. If a witness for the State says the defendant committed a felony, and a witness for the defense says the defendant did not commit a felony, the judge is required to rule in favor of the State and bind the case over for trial. Determining which witness was telling the truth, or providing the more accurate account, would require making a credibility determination. Credibility is very much at issue once you get to trial, but not at a preliminary hearing.

The reasoning behind this is, again, because the purpose of a preliminary hearing is only to determine if there is some reason to believe that a felony was committed, some reason to believe that a specific person committed it, and that the State has charged that person. It is essentially to ensure that the State does not just snatch people off the street and hold them in jail without any reason at all. Whether the evidence and testimony produced at preliminary hearing is strong is a question for another day.

What Happens Next?

After the preliminary hearing, after a defendant is bound over for trial, a defendant is entitled to an arraignment. At the arraignment, the State files a document called an information. Like the criminal complaint, the information contains the charges in the case, but unlike the criminal complaint it does not contain any factual or probable cause portion. The State is entitled to add or subtract or modify the charges from the complaint to the information. At the arraignment, the court will ensure that the defendant is aware of what the formal charges are, and the defendant will enter a not-guilty plea. The court will then set the case for further proceedings.

There are obviously a lot of rules associated with a preliminary hearing. If you have been charged with a felony, you are entitled to have an attorney and you absolutely need one. Your attorney can discuss with you the benefits to having a prelim and the potential benefits of waiving your right to a prelim.

Truth in Sentencing

nickgansner —  August 27, 2014 — Leave a comment

Sentencing can be one of the more confusing aspects of a criminal case, especially because sentencing looks much different today than it did in the past. Today we have bifurcated prison sentences, meaning sentences that are divided into two parts: initial confinement and extended supervision. Some charges have mandatory minimums. If you are convicted of one of these charges, there is a statutory minimum time period for which you must be incarcerated. That means that no matter the circumstances, a judge would not be able to sentence you to a lower amount of time in prison than the minimum. The current sentencing system in Wisconsin was enacted in 1998 with the passage of Act 238. Act 238 enacted a new sentencing structure known as truth in sentencing.

What Is It?

Truth in sentencing is a sentencing system that has eliminated parole. Prior to 1998 in Wisconsin, a prison inmate could become eligible for parole, which would lead to a parole hearing, during which an inmate could argue to be released early from prison. This meant that someone who received a ten year sentence may have been able to be released from prison after only a few years, although they would then be out on parole for the remainder of their sentence and still under supervision. While there was not necessarily a guaranteed amount of time you would have to serve, many people could receive parole after having completed fifty percent of their sentence. Truth in sentencing is referred to as “time earned, time served” because if you receive a sentence you will have to serve the full amount of time of the initial confinement portion of your sentence in prison. For example, if you are sentenced to ten years initial confinement, you should expect to remain in custody for the entire time. Under truth in sentencing, all prison sentences must be bifurcated. Thus, a prison sentence might be a total of fifteen years, bifurcated as ten years of initial confinement and five years of extended supervision. Extended supervision is similar to parole inasmuch as an inmate is released from prison, is returned to the community, but is supervised by an agent of the Department of Corrections for the duration of the period of extended supervision.

Is There Any Way To Get Out Early?

Under truth in sentencing there are very few ways possibilities for early release. Prison inmates can petition for a sentence adjustment after serving either 75% or 85% of their sentence, depending on what they were convicted of. There are a few grounds on which an inmate can petition for a sentence adjustment, but the most common is probably positive behavior and progress in treatment while incarcerated. Not having any conduct violations, making progress in rehabilitation programs (like alcohol or drug treatment, for example), and progress in educational or vocational programs while in prison can form the basis for a petition for sentence adjustment. If a court grants a petition for sentence modification and releases an inmate early, the amount of time the initial confinement portion of the sentence is reduced is then added on to the extended supervision portion of the sentence. So, using the example above, a person sentenced to a total of fifteen years, bifurcated as ten years initial confinement and five years of extended supervision would probably be eligible to petition for a sentence adjustment after serving eight and a half years of the ten year sentence (depending on what level felony or felonies he was convicted of). If the court granted a sentence modification and released the person one year early, that extra year would be added on to the five year term of extended supervision, meaning the person would serve six years on extended supervision.

A person sentenced to prison may also be eligible for the substance abuse program or the challenge incarceration program. Both programs seek to address substance abuse issues. To be eligible for either of these programs, the sentencing judge must make a finding at the time of sentencing that a defendant is eligible. A defendant is not eligible if he has been convicted of any crime under chapter 940 of the Wisconsin statutes, or of many crimes in chapter 948. For either program, the Department of Corrections must determine that the inmate has a substance abuse problem. For the challenge incarceration program, the inmate must be under 40 years old. If an inmate volunteers for either of these programs, is eligible, is selected, and completes the program, the remainder of the inmate’s initial confinement portion is converted to extended supervision, such that the total length of the bifurcated sentence is unchanged.

Modifying a Sentence

We receive a large number of calls from individuals who are incarcerated who would like to modify their sentences. In some cases they would like a reduced number of years while others would like to become eligible for programs while in custody. Unfortunately, it is both difficult and extremely unlikely to have a sentenced modified down the road. Because of this, it is important to have an aggressive, and hard working attorney handle your case initially, as they are more likely to be able to secure you a more beneficial sentence. If you are currently awaiting sentencing, or are facing criminal charges, call our office for a consultation and let us show you what we can do for you.

Escorts

If you hear someone say that she is an “escort,” you are probably assuming that she means prostitute. We’ve all seen that in countless movies and on TV. Someone in a hotel calls an escort service and sure enough, twenty, thirty, minutes later, a hooker enters the room ready to get down to business. But what is the difference anyway? Is there a difference?

Prostitute

A prostitute is called a lot of things: hooker, lady of the evening, ho, streetwalker, etc. By definition, a prostitute is someone who exchanges sex for some form of compensation. That compensation is typically money, but it could also be drugs, goods, or services. The underlying factor is that sex, or some form of it, is exchanged for something of value. Most people think of a prostitute and think of a woman in scandalous clothing, perhaps standing on a shady street corner, which still exists in some areas. But the Internet has dramatically changed the sex trade and sex trafficking. Websites like Backpage and Craigslist are often used to advertise and facilitate prostitution. There are various levels and classes in prostitution, where some may charge by specific sex act while others charge by the unit of time. These levels can range from amounts as low as $15 or $20 all the way up to thousands of dollars. Some prostitutes may “work” for a pimp or a madam in what we may now recognize as one form of human trafficking, while others may work independently. Some may work on street corners, while others may work out of bars, nightclubs, or brothels.

Escort

An escort typically, but not always, works out of an escort agency, though pimps may still be involved. An escort agency may be a legal business, registered with the government, and paying taxes. An escort may be considered an employee of that agency or an independent contractor with the agency and the job may be considered legal. An agency operates legally by having a business that’s purpose is to provide a social service rather than a sexual one, as a sexual service would be prostitution and thus illegal. There are generally two types of meetings with an escort, in-call or out-call. An out-call is when it is arranged through the agency for an escort to come to an individual, whether that is a hotel, private residence, or business. An in-call would be when an individual comes to the location where the escort is. The actual agency buildings may vary, with some similar to lounges or bars, while others may be similar to a hotel or a bathhouse. The fees associated with the escorts ostensibly are for companionship, which will usually be defined as a social interaction or a conversational interaction, not a sexual interlude. From the escort agency’s perspective, some escorts may independently contract for sexual favors, but this is not done explicitly by the actual agency. That allows the agency to remain at arm’s length from the prostitution, or at least attempt to do so. The agency, and perhaps the escort as well, would describe any sex acts as consensual sex that happens with independent of the social interaction that was purchased by a client. Escort agencies are careful about not explicitly advertising or promising sexual acts for the exchange of money, and this is how they are often able to avoid prosecution from the government.

Legal vs. Illegal

Prostitution is illegal throughout the Untied States, with the exception of parts of Nevada. Escorts are legal in most states throughout the country, however the exact nature of what an escort is differs by jurisdiction. Engaging in or soliciting prostitution can result in a variety of criminal charges. In some cases, these charges can be dealt with discreetly, and quickly. If you have been charged with the act of prostitution or soliciting a prostitute, call our office for a free consultation and see what it is we can do to help you.

They’re Arresting Him!

It is always hard to find out a friend or a loved one has been arrested or is in jail. Watching it happen can be even worse. Some of us will be lucky enough to avoid that experience, but for many people it is a reality that they will have to face not only once but multiple times. Too often this situation can get out of hand, especially if alcohol or controlled substances are involved, and can even lead to charges of those who are around when the arrest happens. This post is a breakdown on how an arrest can happen, and what you can, and cannot, do as a bystander.

The Arrest

Police contact and an arrest are two different things. Police contact might be an officer asking an individual questions, taking down information, or simply following up on past contact. An arrest occurs when an individual is taken into custody. This will typically involve the person being handcuffed, searched and brought into custody. Regardless of an individual’s guilt or innocence, when a person is being arrested he or she needs to be cooperative. If an individual who is being arrested attempts to flee, is verbally or physically abusive, or resists the arrest, that individual is running the risk of additional charges, such as obstructing, resisting, battery to an officer, or disorderly conduct.

If you are present when an individual is being arrested, you should remain as calm as possible. Yelling at an officer, attempting to free or prevent an individual from being taken away, or any other behavior similar to this makes the officer’s job much more difficult and dangerous and can quickly land you in a squad car as well. While it can be extremely frustrating to watch, the more civil and polite you are with the officer, the better of you are in this situation. For example, you may be able to ask what the individual is possibly being charged with, what jail they are being taken to, and whether the individual will be able to get out on bond.

At the time of the arrest, you may feel that you have important information relating to the case someone is being arrested for. While you may in fact have helpful information, the time of the arrest is not the time to try and give it. If possible, try to find out the officer’s name, or get his or her card, and contact them later to give a statement. It is unlikely that an officer will be able to talk with everyone, especially if there are multiple people around or if anyone is causing a scene. The officer may simply be focused on detaining an individual, taking an individual into custody, or otherwise restoring order and making sure the situation is safe.

What Now?

Now that the individual has been arrested, there are several options that exist. Typically, the best thing you can do for the individual who was arrested is contact a defense attorney. A defense attorney can help determine what exact charges the individual may be facing, attempt to arrange for bond, and go over the different outcomes and possibilities with you.

Treatment and Sentencing

Nicholson & Gansner handles a large number of drug cases, from simple possession to conspiracy and/or intent to distribute. Commonly the defendant in the case has become a heavy user of a controlled substance, whether that is THC, heroin, cocaine, methamphetamine, or prescription medication. Many of these individuals would like to seek treatment, and a frequent question that we get is: what part does treatment play in the sentence of my case?

As a Defense

Often times someone who is a substance abuse addict will do things that they would normally not do. Addiction drives some people to steal, some people to sell drugs, while others may commit a violent offense or simply drive while intoxicated. No matter what the case, most people want to know whether or not they can go to some sort of treatment as part of the sentence for their case. The short answer is that, except in the most rare of circumstances, seeking out or attending treatment will not be sufficient as a sentence. To clarify, simply attending, or agreeing to attend alcohol or drug treatment will almost never be the sentence that you receive in a case. This does not mean that treatment cannot be part of your sentence, but you will likely be looking at additional consequences such as probation, fines, and/or incarceration.

Simply being addicted to alcohol or drugs is not a defense of a criminal action, meaning that it is almost impossible to have a criminal charged dropped simply because it was an action fueled by addiction. However, this can be a factor in plea negotiations and sentencing.

Prior to Sentencing

While obtaining treatment will usually not be sufficient to having your charges dropped, it can be helpful during negotiations to receive a lesser charge or sentence. Attending AA or NA regularly, or treatment with a provider that is more easily documented, for an extended period while your case is ongoing can demonstrate a commitment to sobriety. If you seek out a private facility for treatment, a defense attorney can submit documentation of your progress, as well as potentially call on the treatment providers to testify on your behalf. Some times people ask if the State will pay for someone to go to inpatient treatment, and the answer is that this option generally will have to be sought out and paid for privately by the individual or their family and friends.

As Part of a Sentence

When you are sentenced for a criminal case, part of what a defense attorney does is attempt to limit your exposure to penalties, whether that is probation, or simply less lengthy terms of incarceration. If your charges are a result of a substance abuse issue, that may be a mitigating factor for sentencing purposes. In some cases, a prosecutor may agree that treatment is among the rehabilitative or treatment needs of a defendant. There are different ways treatment can be worked into a sentence. On more serious cases, a defendant may be made eligible for treatment programs in jail or prison while he serves his sentences. In less serious situations, seeking out and providing proof of ongoing treatment may be a condition of probation.

While the State or Federal government may make someone eligible for a program, or agree that they can seek treatment at an impatient facility as part of their sentence, the government has extremely limited resources. This means that most programs are in institutions, and there is often an extensive waiting list. While someone may be approved for a program, they may have to wait for an opening, which can take weeks or months. Private treatment may be more intensive, and quicker to get a spot in, but the government will not pay for a defendant to attend a private facility like Hazelton. Private treatment facilities typically are only options for those who have the financial resources to pay for the treatment themselves.

Treatment

There are several different types of treatment, such as outpatient, intensive outpatient, inpatient and follow up treatment. It is important to discuss all possible options and weight the positives and negatives of each. Because addiction can only be managed and not cured, some individuals benefit from follow up treatment for years after their initial treatment. Addiction is a frightening thing and is a factor in a large percentage of criminal cases. If you or someone you love is currently facing criminal charges and addiction issues, contact our office for a free consultation and let us see what we can do to help you.

All About Probation

nickgansner —  July 22, 2014 — Leave a comment

Probation Basics

When an individual is convicted of a crime, there can be many outcomes, including probation. Probation is a disposition ordered for a set period of time during which the person convicted of a crime is supervised by the Department of Corrections. Probation can be ordered by the court in two different ways. First, the court can withhold any sentence and place the person on probation. If sentence is withheld, the person would be brought back before the judge to be sentenced if he/she is ever revoked from probation. Second, the court can impose a sentence (of jail or prison time) but stay it for a period of probation. If sentence is imposed but stayed for probation, the person would automatically receive that sentence if he/she were revoked from probation.

Some types of offenses, like sex offenses, have unique rules of supervision that are different from the normal rules of supervision in place for other offenders. There are also different levels of supervision, with meetings with the supervising agent or visits to the offender’s home being more or less frequent. One common trait of all probation is that you will have the standard set of rules, which include things such as not using a controlled substance, no new additional charges, and keeping the probation officer apprised of your current address and employment.

Regardless of what your rules are, if you are on probation the agent supervising you will go over your rules with you, require you to sign a document acknowledging that you understand the terms and conditions of your probation, and you will be expected to follow them. While we all may have the best of intentions, things don’t always work out the way we plan. That can be frustrating under normal circumstances, but for a person on probation it is a more serious problem. You will be held in jail on a probation hold if there is suspicion that you have violated a condition or rule of your supervision. You will be taken into custody, typically in the county jail, and you will be held while an investigation in conducted.

How Do I Get Out?

Almost everyone’s immediate question upon being thrown in jail is the same: How do I get out? In the prosecution of a criminal case, you would often have a bond that could be posted. Bond, however, is not available to you when you are on a probation hold. The truth of the matter is that you can sit for a long time of a probation hold, and you are simply stuck waiting. There are three possible outcomes that can happen next.

Release

A good attorney can help speed up the process of having you released if there has not been a rule violation, if there has been a mix up in the system, or, occasionally, if the infractions are small. Out of the three typical outcomes, this is the most unlikely. A defense attorney can get in contact with your probation officer and attempt to negotiate your release.

ATR

ATR stands for an Alternative To Revocation and is sometimes a possibility for someone on a probation hold. There are many different kinds of ATR’s and the possibility of receiving one depends on several factors, such as what offenses you are on probation for, the type of rule violation, and your criminal history. In some situations a sanction is possible. A sanction is a jail sentence, and they come in different increments, such as thirty, sixty, or ninety days. Other types of ATRs might include alcohol or drug treatment, anger management counseling, domestic violence treatment, or some other form of treatment.

Revocation

Regardless of how hard a defense attorney negotiates, your agent and the Department of Corrections may choose to pursue revocation of your probation. Factors that go into the determination of whether to pursue revocation include whether you are being charged with new crimes, if you have been put on probation holds on previous occasions, if you have been given sanctions or ATRs before, or if you have absconded from probation. Your agent and the Department of Corrections cannot unilaterally revoke you, however. If they make the decision to pursue revocation, you are entitled to a hearing. A revocation hearing is held in front of an ALJ, or an administrative law judge, typically in the jail where you are being held, during which your probation agent would attempt to prove that you violated the conditions or rules of your probation. You are your attorney can contest the alleged rule violations, cross examine witnesses, and argue to the ALJ that the violations don’t warrant revocation or that alternatives to revocation should be considered. If the ALJ determines that you did violate the rules of your supervision and that you should be revoked, you will either be returned to court for sentencing or the previously imposed but stayed sentence will be imposed.

What An Attorney Can Do For You

Hiring a defense attorney can be very helpful when you are placed on a probation hold. For some people, being revoked from probation means losing the opportunity to have a conviction expunged from their record. For others, it can mean a lengthy prison sentence. A defense attorney can help navigate the process, help you to reach a desirable solution, or help you contest the allegations. In many cases, an attorney can negotiate more effectively with a probation agent, or propose options for an ATR. It is also easier for a defense attorney to get in contact with and receive calls back more quickly from the district attorneys office. While the process can be frustrating, the weeks that a probation hold can last have the potential to save you months or years in your future. If you have questions about a probation hold, ATR, or revocation case, contact our office for a free consultation.