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Constitutional Defenses – Selective Prosecution

State v. Carl R. Kramer, 2001 WI 132, reversing and remanding 2000 WI App 271, 240 Wis. 2d 44, 622 N.W.2d 4
For Kramer: Stephen D. Willett

Issue1: Whether Kramer established a prima facie case for selective prosecution.

Holding: On a selective prosecution claim, the defendant must show both discriminatory purpose and effect. The state concedes discriminatory purpose. As to effect: Prosecutorial selectivity is itself non-problematic. ¶14. But the equal protection clause prohibits singling out someone for prosecution when others similarly situated aren’t. ¶18. “Similarly situated” means that the circumstances present no distinguishable legitimate prosecutorial factors that might justify the different treatment. ¶20. Here, tavern owners in one municipality (including Kramer) were singled out for commercial gambling prosecution; others in the county weren’t, even though they also had the prohibited machines. ¶22. Because the record doesn’t show “distinguishable legitimate prosecutorial factors that justify” this action, a prima facie case for discriminatory effect was made; the trial court’s contrary finding was clearly erroneous. ¶¶23-24.

Issue2: Whether the prosecution put forth compelling evidence to rebut the prima facie showing of selective prosecution.

Holding: Because the trial court (erroneously) found no prima facie showing, a rebuttal hearing wasn’t held, and the case must therefore be remanded for “an evidentiary hearing to determine whether the State has produced sufficient evidence to rebut this prima facie showing.” ¶26.


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