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.

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.