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flip phoneIn a time of rapidly changing technology, it can often be difficult for state legislatures and courts to keep up with the various means that sexual predators use to communicate with and lure their victims. Without broad and flexible definitions, state criminal statutes and court decisions can quickly become dated and inapplicable to the current and preferred communication methods.  A recent case before the Supreme Court of Wisconsin looks at how concepts such as “computerized communication systems” can be applied flexibly to allow for the continued prosecution of sexual predators.

In State of Wisconsin v. McKellips, Mr. McKellip was a high school basketball coach hired to coach the girls varsity basketball team at Athens High School. C.H. was one of the players selected for the varsity team. Mr. McKellips began his relationship with C.H. by praising her basketball skills to her mother and calling her on the phone to discuss practices, team strategy, and other basketball issues. While most of these calls were relatively normal, Mr. McKellip ended one call by stating “I love you.” Soon, Mr. McKellip began to call C.H. on her cell phone on a more regular basis. When her parents learned of this, they admonished C.H., telling her to tell Mr. McKellip to call on the home phone.  When C.H. told Mr. McKellip this, he bought her a flip cell phone to use so that he could call and text her. C.H. and Mr. McKellip continued a texting and calling relationship, which eventually progressed into a sexual relationship. This continued until C.H.’s parents discovered the secret cell phone, and she admitted what had been happening.

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restitutionTime spent in prison is not the only punishment that can be applied to defendants who are found guilty of committing a crime.  Defendants may also be required to relinquish certain rights, such as the right to own a firearm, or may be forced to attend classes, such as a DUI class, related to their crime. Additionally, defendants may be required to pay restitution to the victims of their crime, as a small means of attempting to remedy the crime that has occurred.  In child pornography cases, it is often difficult to implement restitution because the victims of the crime may be unidentifiable minors. Recently, however, a child pornography case before the Seventh Circuit dealt with restitution for a widely identified child pornography victim who had been greatly harmed by the sharing of images that involved her.

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subwayAs has been widely reported in news media throughout the country this past year, Jared Fogle, the well-recognized spokesman for Subway sandwiches, was arrested and indicted on child pornography charges. Fogle had previously gained notoriety for his Subway diet, which allegedly helped him to lose a significant amount of weight and led to his frequent appearances on Subway radio and television advertisements.  Fogle’s criminal indictment caught many by surprise, yet his name quickly disappeared from the media. Recently, however, Fogle’s charges and conviction were reviewed by the Seventh Circuit as Fogle sought to appeal various aspects of the trial court proceedings.

In 2015, Fogle’s close friend Russell Taylor was put under surveillance by federal law enforcement after they received a tip that he was soliciting sex from minors.  During the process of investigating Taylor, Fogle quickly became a second subject of concern after it was discovered that he knew about the child pornography that Taylor possessed and had met many of the child victims whom Taylor solicited.  Upon the execution of a warrant to search Fogle’s home, the police discovered that Fogle had his own child pornography collection and that he had actively solicited sex from minors as well.  Fogle was arrested and charged with various criminal counts, including distributing and receiving child pornography, conspiracy to distribute and receive child pornography, and attempting to engage in sexual conduct with a minor. Fogle pled guilty in exchange for the government agreeing not to recommend more than 151 months in prison time.  At sentencing, Fogle requested 60 months, and the government recommended 151 months.  The judge, however, chose to go above the recommended sentencing guidelines for Fogle’s crimes and sentenced him to 188 months for each count, with each sentence to be served concurrently.  Fogle appealed.

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sentencingWhen an individual is convicted of a criminal offense, the next step in the criminal process is for the judge to determine the appropriate sentence for the defendant. In considering sentencing, a judge will look at the United States Sentencing Guidelines, as well as a presentence report.  The Sentencing Guidelines provide base offense levels for different criminal offenses, which translate into sentencing ranges for judges to consider. These base offense levels can then be adjusted upward or downward, based on aggravating factors (such as use of a weapon) or mitigating factors (such as assistance with investigation of other crimes).  The Sentencing Guidelines are reviewed on occasion by the United States Sentencing Commission, and adjustments may be made based on policy determinations. Since these adjustments cannot be timed perfectly with every ongoing criminal case, there are inevitably defendants who are sentenced under guidelines that are amended while a criminal proceeding is ongoing.  In these circumstances, can amendments be applied retroactively to reduce a defendant’s sentence? A recent case in the Seventh Circuit Court of Appeals considered this question.

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balance-1172786-1279x867When individuals are charged with federal crimes in federal court, punishment occurs in two phases. First, the criminal defendant must be found guilty of the crime of which he or she is charged.  Second, based on the nature of the crime the defendant is found guilty of committing, and any other aggravating circumstances (such as the use of a violent weapon), a defendant is then sentenced to a certain punishment, with the court giving due consideration to the United States Sentencing Guidelines.  While judges have discretion to vary the sentencing ranges and punishments based on the circumstances of the case, they must consider the sentencing guideline range as calculated by the USSG.  A recent case in the United States Court of Appeals for the Seventh Circuit, the federal appeals court with jurisdiction over Wisconsin’s district courts, addressed which sentencing guidelines should apply when the guidelines have changed during the period since the crime was committed.

In Conrad v. United States, David Conrad was convicted of multiple violations of federal law related to the use and distribution of child pornography.  At the time he was convicted, the USSG provided for a sentence of 360 months to life in prison. Conrad was ultimately sentenced to 196 months in jail by the judge.  Despite the lesser sentence, Conrad appealed, arguing that at the time of his conviction, the sentencing guidelines range for his crimes was 121 to 151 months in jail, and this is the guideline that should have applied in his case.

In so arguing, Conrad relied on a recent decision by the United States Supreme Court, Peugh v. United States. In Peugh, the Supreme Court held that when a defendant is sentenced under sentencing guidelines promulgated after the defendant has committed a crime, such a sentence violates the ex post facto clause of the United States Constitution. Under Peugh, the correct sentencing guidelines to consider are those in effect at the time the crime is committed.  However, Peugh was decided after Conrad was convicted and sentenced, and thus the issue of Peugh was first raised in Conrad’s appellate briefing. Accordingly, here, the Seventh Circuit had to decide whether Peugh should apply retroactively to reduce Conrad’s child pornography sentence.

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tray-of-marijuana-1331538-1279x2036Wisconsin law criminalizes not only the use and possession of marijuana and related drugs, but also the intent to distribute drugs to others. Under Wisconsin Statute 961.41(1m)(h)(1), a defendant may be guilty of the crime of possession of THC with the intent to deliver if the state can show that (1) the defendant had THC in his possession; (2) the substance actually was THC; (3) the defendant knew that the substance was THC; and (4) the defendant intended to deliver the THC to another person.  However, the actual facts necessary to support such a conviction can vary and are often a source of disagreement between state prosecutors and criminal defendants. A recent case in the Wisconsin Court of Appeals provides an example of “sufficient” evidence to sustain a conviction under the statute.

In State of Wisconsin v. Heart, the defendant, Germaine Heart, was observed by an undercover officer as a woman pulled up to his vehicle in a Walgreens parking lot, entered the backseat of his vehicle, appeared to take something from Heart, and then exited the vehicle. As she was leaving, the undercover officer noted that she was carrying a plastic bag. He immediately requested a marked police car to investigate Heart. Upon arriving at the scene, Officer Johnson of the Milwaukee Police observed that Heart was using a metallic object, which turned out to be a scale. He was fidgeting around the car and appeared to be moving a green substance that looked like marijuana. When he noticed Officer Johnson, he attempted to exit the car and run away, but he was stopped. Upon a further investigation of the car, the officers found marijuana in the vehicle, a silver scale, multiple cell phones and baggies, and a significant amount of cash.  All of this evidence was presented to the jury at trial, and Heart was convicted.

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dog sniff search

Under the Fourth Amendment to the United States Constitution, individuals stopped in periodic traffic stops cannot be subjected to overly invasive searches of their vehicles, or prolonged periods of being detained, without police officers having justification for doing so. When a suspicious vehicle or individual in a traffic stop leads to subsequent searches and eventual arrests, one of the most common claims by defendants at trial is that the evidence that the police uncovered should be suppressed because it was obtained without reasonable suspicion or probable cause.  A recent case in the Seventh Circuit Court of Appeals looks at the specific question of what is required under the Constitution in order to justify holding a defendant for a prolonged period of time to conduct a dog sniff and search.

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Convictions for drug possession and drug trafficking often arise as a result of the search and seizure of an OLYMPUS DIGITAL CAMERAindividual’s person or property for drugs. However, these types of searches may only occur where a police officer or investigator has “probable cause” to support the search. This is because the United States Constitution provides protection against unwarranted search and seizure. A recent case in the Wisconsin Court of Appeals illustrates the limits on prosecuting individuals for drug crimes where a search and seizure is deemed unconstitutional.

In State of Wisconsin v. Demario Derrick Foster, an unpublished opinion, Foster was arrested on multiple counts of drug offenses. At trial, he moved to suppress evidence obtained from a search of his person, arguing that the police officers lacked probable cause to arrest him.

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There are a number of elections for judges going on in Wisconsin now. The contest drawing the most attention is the election for the Supreme Court. Some of the ads, typically run by special interest groups, have been disturbingly misleading. For example, a series of ads have been run attacking one of the candidates for decisions she’s written as an Appeals Court judge that are alleged to be supporting “criminals” rather than the general good. At the same time, the other candidate is saying she should be elected because she’d be more likely to “uphold the Constitution”. In reality, when a judge issues a decision that protects an accused’s 4th amendment rights, she is upholding the Constitution. In the law, “criminals” don’t have different rights than the rest of us-we all have the same rights. So if a judge says that the police violated somebody’s rights by illegally searching them or coercing them to make a statement, she’s protecting the rights of all of us, not just the accused. Occasionally, by upholding the Constitution, someone accused of a crime is not able to be prosecuted. Typically, the judge making that decision isn’t happy about it, but sees the greater good in protecting the Constitutional rights of all citizens. Judges should be applauded for this, not attacked. It takes a judge of strong character to issue unpopular decisions and perhaps even risk losing their jobs because they feel the Constitutional rights of all of us are more important than the results in just one case.

Good lawyers who do criminal defense work know this, of course. We spend our professional careers challenging violations of our clients rights and standing up to authority figures on behalf of unpopular causes and unpopular clients. When judges do the right thing, we’d like to think they’d be recognized for their courage, but, sadly, that is seldom how it works. As you make your decision on who to vote for this spring in these judicial elections, don’t be swayed by ads that claim their candidate is “tough on crime” or that their candidate protects the Constitution by ruling against “criminals”. The best judges on criminal cases are the ones that carefully apply the Bill of Rights to a set of facts and work to insure that the rights of all of us are protected.

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All criminal defendants are entitled to effective counsel under the United States Constitution.  This may girl-with-smart-phone-1616794-1279x852be either a paid attorney or a public defender for defendants who cannot afford an attorney. When a defendant has been convicted of a state or federal crime but feels that he or she did not receive a fair trial because a private attorney or public defender did not do an adequate job of representing the defendant, an appeal on the grounds of ineffective assistance of counsel may be allowed. Reaching the threshold of ineffective assistance of counsel, however, can be difficult to accomplish.

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