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What do Stalin, Wisconsin, and the Slenderman case have in common?

State v. Morgan E. Geyser, 2018AP1897-Cr, 8/12/20, District 2  (recommended for publication); case activity (including briefs)

Morgan Geyser, one of the two 12 year old defendants in the Slenderman case, was charged in adult court with attempted 1st degree intentional homicide. At her preliminary hearing, the court found probable cause that she committed a crime for which it had exclusive jurisdiction. On appeal, Geyser argued that the adult court had found the facts necessary to mitigate attempted 1st degree homicide to attempted 2nd degree homicide and thus it lost jurisdiction. She also argued that her custodial statements to police should have been suppressed because her Miranda waiver was not knowing, intelligent and voluntary. The court of appeals rejected both arguments.

Geyser’s affirmative defense was that she tried to kill the victim because otherwise Slenderman would kill her family. The circuit court found this fact to be true. Geyser argues that this finding reduced the charge from one that had to be tried in adult court to one that had to tried in juvenile court.

Section 970.032(1) requires a circuit court to hold a preliminary hearing to determine whether there is probable cause that a juvenile committed an adult court offense. It says “if the court does not make that finding, the court shall order the juvenile be discharged,” but the State can still pursue charges in juvenile court.

The court of appeals notes that a  preliminary hearing is not a trial on the issue of guilt beyond a reasonable doubt. The circuit court found probable cause of an adult court offense and probable cause of Geyser’s affirmative defense. Because it did not find that the State lacked probable cause that Geyser committed an adult court offense, it appropriately retained jurisdiction over her case. Opinion, ¶¶27-38 (applying State v. Toliver, 2014 WI 85, 356 Wis. 2d 642, 851 N.W.2d 251; State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413; and State v. Kleser, 2010 WI 88, ¶65, 328 Wis. 2d 42, 786 N.W.2d 144).

Geyser’s brief and the amicus brief filed by Juvenile Law Center and others present strong arguments that her Miranda waiver was not knowing, intelligent, and voluntary. Hence, no way was the court of appeals going to decide the issue and possibly provide helpful guidance on the often murky line between a constitutional and unconstitutional juvenile waiver. Better to duck the issue and waste the effort by invoking the harmless error doctrine. Opinion, ¶40. Note that this doctrine does not preclude the court of appeals from finding an error and explaining it to the bench and the bar. It only precludes the court of appeals from reversing on that basis.

Now about Stalin. In 1935, he personally drafted and issued an edict lowering the age of criminal responsibility to 12. “This harsh and reactionary edict shocked soviet jurists, and . . . challenged them to find ways to make its implementation palatable.” Peter H. Solomon, Jr., Soviet Criminal Justice Under Stalin, 201 (Cambridge Univ. Press 1996).  Shocking to Soviet jurists but apparently not to some Wisconsin legislators and jurists.

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