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Sentencing – Review – Accurate Information – Television Interview of Defendant, Relied on by Court

State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe

Issue: Whether the sentencing court’s reliance on a television interview of the defendant, which led the court to criticize the defendant as “self-serving” rather than remorseful, violated the due process right to be sentenced on accurate information.


¶24      We address first Lynch’s argument that the court had an obligation to give him advance notice that it was going to consider the television interview at sentencing. [7] The case he relies on, Gardner v. Florida, 430 U.S. 349 (1977), does not support his position. There the Supreme Court concluded that the sentencing court violated the defendant’s right to due process when it decided to impose the death penalty based in part on a confidential portion of the presentence report that had not been disclosed to the defendant. Id. at 355-62. A defendant has the right to an opportunity to rebut information presented at sentencing. State v. Damaske, 212 Wis. 2d 169, 196, 567 N.W.2d 905 (Ct. App. 1997). Obviously, if sentencing information is kept from the defendant, he or she cannot exercise this right. See Gardner, 430 U.S. at 360-61.

¶25      The facts of Gardner are not analogous to those here. The defendant in Gardner had no way of knowing what was in the confidential portion and, thus, no way to challenge its accuracy. Id. at 353. In this case, the contents of the interview were not kept secret from Lynch. Since Lynch gave the interview, he knew its contents and when it occurred. …

Other challenges going to editing and timing of interview rejected on basis that Lynch’s postconviction motion didn’t sufficiently preserve issue of evidentiary hearing to bring out underlying facts, ¶¶26-27.

{ 1 comment… add one }
  • Gerald Lynch, Jr December 17, 2023, 6:49 pm

    I can’t believe the state of Wisconsin continues to omit the eligibility criteria from people charged with criminal offenses. All people should have a right to negotiate a plea to “a crime other than a Chapter 940…” And sentencing judges should stop determining people convicted of a Chapter 940 crime “eligible or ineligible” when their plea and subsequent conviction of a Chapter 940 crime immediately make them NOT ELIGIBLE for such a determination. See Wis. Stat. 973.01(3g) Pretty sad!

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