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.

IMPLIED CONSENT LAW:

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).

SO, IF I BLOW INTO THE MACHINE ON THE SIDE OF THE ROAD I’M GOOD, RIGHT?

No.

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.

ISN’T IT BETTER TO BE CHARGED WITH A REFUSAL THAN AN OWI?

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.

I WAS CHARGED WITH REFUSAL…WHAT NOW?

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).

Eligibility

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.

I Want My Phone Call

nickgansner —  January 5, 2015 — Leave a comment

The police have you sitting in an interrogation room in Wisconsin, and they tell you that they want you to make a statement. You invoke your Fifth Amendment right to remain silent, and refuse to discus anything without an attorney (which is exactly what you should do). “That’s fine,” they tell you. “We’re arresting you and taking you to the county jail.” At this point you might be a little nervous, not just about what the police are talking about but letting your family and friends know where you are. “I know my rights, I want my phone call.” You tell the officers. You know you can call people, have them get ready to post your bond, make arrangements for your kids, or even just have someone call you into work. The officers refuse and bring you straight to jail. Have you just had your rights violated?

Movie Myth

We’re not sure exactly where the idea that you have the right to make one phone call came from, but my best guess is from an old movie. It would make sense: it is a flair of the dramatic, so much could ride on that one phone call, will they answer, what will you say? But the truth of the matter is that you are not entitled to the use of a phone for a number of calls, or even one.

Despite the fact that you are not legally entitled to have the use of a phone upon being taken into custody, all is not lost. As long as you remain polite and respectful to the officers, most of the time they will allow you to make phone calls to friends or family. They may do so under the condition that you do so in front of them, especially in cases where they believe you might call to arrange the destruction of evidence, or warn others of possible police action, however they will not usually be intrusive. In some cases, officers may even allow you to look up numbers, or even use your own cellphone to make the call.

In the event you have an arresting officer that does not let you make calls immediately upon your arrest, you do still have other options. Jails have phone systems in place for inmate use, although regulations about access and use may vary depending on the county. Initially after being taken into custody, you will likely not have a phone card or money on your books, which means the phone calls that you are able to make will likely have to be placed collect. This means that the person you are calling will have to accept the charges prior to you having a conversation, although they will let you record a short message to inform them who is calling. While this may not be ideal, and extended conversations could get expensive, it is still a way for you to get in contact with the outside world. One thing of note on calls you make from any phone at the jail: all of these calls, with the exception of a privileged phone call with your attorney, are subject to monitoring and are recorded. We repeat: any phone calls you make from jail, other than to your attorney, are being recorded. They can—and likely will—be used against you should you be charged criminally. Because of this, when making phone calls you make from the jail, DO NOT discuss any details, possible defenses, suspicions, etc. regarding your case with anyone except your attorney.

Hopefully you never find yourself in the situation that you need to worry about contacting people while in police custody. If you do, keep the above information in mind, and you will be maneuvering yourself into the best possible situation for your defense moving forward. If you or someone you know has been arrested in Wisconsin, or is going to be charged with a criminal offense in Wisconsin, call our offices for a free consultation with a top Wisconsin criminal defense attorney.

Any time a person is convicted of a crime—whether a case goes to trial and is lost, or the defendant takes a plea deal—the next step is for the judge to impose sentence. This happens at the sentencing hearing. In most serious felony cases, a judge will order a pre-sentence investigation, often referred to as a “PSI,” be conducted by the Department of Corrections (the “DOC”). What exactly is a PSI? What is its purpose? What effect does it have on a case and on sentencing?

What It Is

A PSI is two things. First, it is an actual “investigation” conducted by a probation and parole agent from the Department of Corrections. The agent looks into the background and history of the defendant, including criminal history. The agent interviews the defendant and perhaps the defendant’s family members, as well as the victim and perhaps the victim’s family members. Second, it is a formal document that is drafted by the DOC agent that contains the results (or at least some of them) of the investigation. This document can vary in length depending on several factors, including type of offenses, length of criminal history, willingness to speak with the investigator, and other factors. The PSI report is confidential, meaning that it is only sent to the judge, the prosecutor, and the defense attorney.

The Report Itself

The document has several different portions. The first portion details the defendant’s name, age, height, weight, and other clerical information, including the current charges the defendant has been convicted of. Other information in this section includes permanent marks, like scars or tattoos, and any known gang affiliations and aliases. The next portion of the PSI gives a summary description of the facts of the present offense(s), and then the defendant’s version of events. This portion will also list any other past criminal convictions, time spent incarcerated, and any other pending charges. The defendant is also afforded an opportunity to explain or dispute any past criminal charges and periods of incarceration.

The next section usually covers the defendant’s family background and life history, which details information such as who family members are, their ages, background, and any contact they have had with the criminal justice system. In this portion of the PSI the writer will also address familial and residential stability, values, and attitudes held by the family of the defendant, which leads into the next portion of the PSI, called the Personal History.

This section is essentially a biography provided by the defendant; this portion of the PSI can be a few sentences to several pages long depending on how much information the defendant provides. Additional areas that will be touched on in this section will include employment, financial, and relationship history, health concerns, mental ability, substance use, etc.

The final section in the PSI is the summary and conclusion. This portion serves to sum up the information received by the writer, an actuarial assessment tool called COMPASS that purports to give insight into risk factors relevant to the defendant and to his or her likelihood to reoffend, and the agent’s recommendation for sentencing, unless the court orders the PSI to be done without a sentencing recommendation. Also included towards the end of the document is a section usually called “Agent’s Impressions,” in which the writer offers his or her subjective, personal views on the defendant’s acceptance of responsibility, remorsefulness, and general attitude. In our view, DOC agents—who may well have some manner of expertise on how the Department of Corrections itself operates, or at least on how probationers are supervised within it—generally lack legitimate expertise, knowledge, or professional training to form a basis for offering these kinds of opinions, but it is typical for them to offer them regardless. Judges or prosecutors may or may not put much stock in the personal, subjective opinions of the agent.

What Is The Purpose of a PSI?

There are several purposes to a PSI. The main function is to provide the court (meaning the judge) with sufficient information about the defendant so that the judge can sentence the defendant consistent with the factors required under Wisconsin state law, those being the gravity of the offense, the need to protect the public, and the character of the offender.

The PSI allows a defendant to give their version of events, not only about the current criminal convictions, but the broader history of his or her life and any influences that may have had an effect on the defendant and his or her actions. The PSI also gives the defendant an opportunity to accept responsibility for his or her actions and to express remorse. It should be noted that a defendant does not have to make any statements to the writer; a defendant is free to decline or refuse to comment, in which case the writer will attempt to gather information from any documents or records that he or she has access to.

The PSI also allows the victim to weigh in on how a crime may have impacted him or her in both the short and long term, and to express an opinion about what the sentence ought to be. The victim also has the right to address the court directly at the sentencing hearing, which is held after the PSI is completed. The defendant also has the right to address the court directly at the sentencing hearing.

Finally, the purpose of the PSI is to take the defendant’s and victim’s versions of events, as well as any other information from third parties, to form a broad picture of the defendant and his or her actions, and in doing so, usually to make a recommendation to the court about what an appropriate sentence would be.

What Effect Does This Have on Me?

The effect of the PSI on any given case varies. While the agent who wrote the PSI may make a sentencing recommendation, the judge is not legally bound in any way to follow the recommendation. In some sentencing hearings, the judge references the PSI frequently and adheres closely to the recommendation. In others, the agent’s impressions and recommendation are barely mentioned by the prosecutor or the judge and the sentence the court imposes differs substantially from the recommendation. It is very common for the judge and the prosecutor to rely upon the factual information in the PSI to form the basis for their comments on and views of the case and the appropriate sentence.

The most tangible benefit that a PSI can have is to provide a broader picture of the defendant. It can provide positive information about the defendant or contributing factors to the defendant’s actions. It can provide a forum for people like the defendant’s family, friends, and employers—people who really know the defendant and can speak positively about his or her qualities—to voice support for the defendant. In addition, the sentencing recommendation can provide a baseline for sentencing, typically with a defense attorney arguing for the lower range of the recommended sentence, with a prosecutor arguing for the higher end.

While a PSI may come back and be helpful to a defendant, in other cases it may not. Sometimes we get a PSI and are surprised at how low the recommended sentence is. When that happens, it is helpful to our cause at the sentencing hearing. Other times, the recommended sentence is much higher than we feel is appropriate. One option at this point is to hire a professional who can conduct what is called an “independent” or “defense” or “alternate” PSI. This PSI may come back more favorable to the defendant. An independent sentencing consultant may do more research into the defendant’s life, history, and the factors underlying the criminal behavior than the DOC agent was able or willing to do. In cases with specific concerns about mental health disorders, substance abuse issues, or sexual dysfunctions, the individual writing the alternate PSI is usually a professional with a background in this area, and can offer specific insights, backed by social science research, into the likelihood of reoffending, specific treatment needs, negative effects of incarceration or sex offender registration, and other case-specific factors

A sentencing hearing is a pivotal moment in one’s case. The difference in arguments can sometimes be measured in years or decades of incarceration, or the difference between incarceration and probation. If you or someone you know is currently awaiting sentencing, Nicholson & Gansner, S.C. may be able to help you. Call us for a free consultation.

“Restraining Orders”: What Are They?

People often call us asking for assistance in getting a “restraining order.” And a “restraining order,” actually called a temporary restraining order (often referred to as a “TRO”), is a type of order that one can obtain from a court that legally prohibits someone from doing something. But a temporary restraining order is just that: temporary. What people usually mean when they ask about a “restraining order” is an injunction. A temporary restraining order is issued by the court as one step in the process that can end with an injunction, which is essentially identical to a temporary restraining order but is in effect for a longer period of time.

Most commonly, people want to get a “restraining order” because someone is seriously bothering, harassing, threatening, stalking, or even attacking them or their child. And there are three types of restraining orders and injunctions that we most commonly pursue for people or defend people against.

Domestic Abuse TRO’s and Injunctions

The first is a domestic abuse restraining order and injunction. Most commonly, this involves a boyfriend or girlfriend, or ex-boyfriend or ex-girlfriend, engaging in abuse. But under the law, this type of restraining order and injunction applies not only to be people who were or are in an intimate or dating relationship, but also to family members, adult caregivers against adults who they are caring for, current or former spouses, or people who have a child together.

The law defines domestic abuse as the intentional infliction of physical pain, injury, or illness, the intentional impairment of physical condition, sexual assault, intentional damage to property, or a threat to engage in any of those behaviors. If someone you are or were in an intimate or dating relationship with, if a family member, if an adult caregiver of yours, if a former or current spouse, or if a person you have a child with has engaged in any of those behaviors against you, you can pursue a domestic abuse temporary restraining order and injunction against him or her.

Harassment TRO’s and Injunctions

The second common type is a harassment restraining order and injunction. That can be pursued by anyone, against anyone, regardless of what kind of relationship you do or don’t have with the other person.

Harassment is defined by law as striking, shoving, kicking, child abuse, sexual assault or stalking, or threatening or attempting to do any of those things. It is also defined as engaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose. If anyone—a co-worker, a person who lives in your apartment building, a neighbor, a person you see on the street, the guy at your local coffee shop, anybody—has done any of those things to you, you can pursue a harassment temporary restraining order and injunction against him or her.

Child Abuse TRO’s and Injunctions

The third type of restraining order and injunction that we often receive calls about is child abuse. This is most often filed on behalf of a child by a parent (although it can be filed by a stepparent or a legal guardian) and can be filed against anyone committing abuse or threatening to do so against a child.

How You Go About Getting One

The process of obtaining a TRO and eventually an injunction begins by filing a petition. A person can do this him or herself or an attorney can do it on his or her behalf. It can be very helpful to have the assistance of an attorney experienced in preparing and litigating TRO/injunction petitions; an attorney is familiar with the law, familiar with the legal standards for domestic abuse, harassment, and child abuse, and can craft the petition to meet the legal standards. The petition is filed with the clerk of court. It is promptly reviewed by either a judge or a court commissioner. If the judge or court commissioner finds that the allegations provide reasonable grounds to believe that the person named in the petition—called the “respondent”—has engaged in domestic abuse, harassment, or child abuse, a temporary restraining order is issue.

What It Is And What It Does

The temporary restraining order is an order of the court. It temporarily restrains the respondent from engaging in further abuse or harassment and from contacting the person who filed the petition, who is called the “petitioner.” Violating the TRO can result in criminal charges; that is the protection afforded by the TRO.

What Happens After I Get The TRO?

At the same time that the judge or court commissioner issues the TRO, a date and time for a hearing on the petition is set. The TRO is in effect until the hearing.

Once the TRO has been issued and a hearing date has been set, a copy of the petition and the TRO, with the hearing time and date, must be served upon the respondent. The purpose of service is to make sure that the respondent is aware of the allegations and when the hearing is.

What Happens At The Hearing?

At the hearing, the petitioner can present testimony and other evidence to the judge in support of the petition. The respondent, in turn, can also present evidence defending against the allegations. If the judge finds reasonable grounds to believe that the respondent engaged in abuse or harassment, an injunction will be ordered.

If the petitioner fails to show up for the hearing, as sometimes happens, the court will dismiss the petition for what’s called “failure to prosecute.” If the respondent fails to show up for the hearing, the injunction will be granted by default.

How Long Is It In Effect?

Under normal circumstances, an injunction can be put in place for up to four years, or for a shorter period of time if the petition would prefer that. In more extreme circumstances—for example, if a petitioner in a domestic abuse case demonstrates that the respondent has engaged in sexual assault—the injunction can be ordered for ten years.

As with the TRO, if the respondent violates the injunction by continuing to engage in abuse, by threatening to do so, or by contacting the petitioner, he or she can be charged with crimes.

Firearm Surrender

Another very important aspect to TRO’s and injunctions is that a respondent against whom an injunction is ordered may have to surrender any firearms he or she owns or has in his or her possession to the sheriff. This requirement provides additional safety to the petitioner, but it is also something a respondent should be aware of in determining how to defend him or herself from a petition.

If you or your child have been subjected to abuse or harassment, the law can help protect you. You should contact an attorney experienced in prosecuting TRO’s and injunctions to discuss your options. Likewise, if someone has filed a petition for a TRO and injunction against you, you should contact an experienced Dane County or Wisconsin attorney, like the attorneys at Nicholson & Gansner, S.C., to help you understand your options.