On Point

Berghuis v. Thompkins, USSC No. 08-1470, 6/1/10

Thompkins’ acknowledgment that he prayed for God’s forgiveness for the shooting was admissible as valid waiver of Miranda rights, despite being preceded by nearly 3 hours of silence during custodial interrogation. Rights must be invoked unequivocally, or not at all:

The Court has not yet stated whether an invocation of the right to remain silent can be ambiguous or equivocal, but there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. See, e.g., Solem v. Stumes, 465 U. S. 638, 648 (1984) (“[M]uch of the logic and language of [Mosley],” which discussed the Miranda right to remain silent, “could be applied to the invocation of the [Miranda right to counsel]”). Both protect the privilege against compulsory self-incrimination, Miranda, supra, at 467– 473, by requiring an interrogation to cease when either right is invoked, Mosley, supra, at 103 (citing Miranda, supra, at 474); Fare v. Michael C., 442 U. S. 707, 719 (1979).

…

Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his “‘right to cut off questioning.’” Mosley, supra, at 103 (quoting Miranda, supra, at 474). Here he did neither, so he did not invoke his right to remain silent.

Thompkins, then, didn’t invoke his right to silence. But did he waive it, a separate inquiry? You bet, given the “implied waiver” doctrine:

If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate “a valid waiver” of Miranda rights. Miranda, supra, at 475. The prosecution must make the additional showing that the accused understood these rights. See Colorado v. Spring, 479 U. S. 564, 573–575 (1987); Barrett, supra, at 530; Burbine, supra, at 421–422. Cf. Tague v. Louisiana, 444 U. S. 469, 469, 471 (1980) (per curiam) (no evidence that accused understood his Miranda rights); Carnley v. Cochran, 369 U. S. 506, 516 (1962) (government could not show that accused “understandingly” waived his right to counsel in light of “silent record”). Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.

Nor was his waiver coerced. (“It is true that apparently he was in a straight-backed chair for three hours, but there is no authority for the proposition that an interrogation of this length is inherently coercive. Indeed, even where interrogations of greater duration were held to be improper, they were accompanied, as this one was not, by other facts indicating coercion, such as an incapacitated and sedated suspect, sleep and food deprivation, and threats.”) But surely there must be some showing of waiver beyond the bare fact of a statement … guess again:

In order for an accused’s statement to be admissible at trial, police must have given the accused a Miranda warning. See Miranda, 384 U. S., at 471. If that condition is established, the court can proceed to consider whether there has been an express or implied waiver of Miranda rights. Id., at 476. In making its ruling on the admissibility of a statement made during custodial questioning, the trial court, of course, considers whether there is evidence to support the conclusion that, from the whole course of questioning, an express or implied waiver has been established. Thus, after giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights. On these premises, it follows the police were not required to obtain a waiver of Thompkins’s Miranda rights before commencing the interrogation.

Give warnings, get statement: who knew life could be so simple? Kurt Scheidegger terms the decision, without exaggeration, as “A Major Pruning of Miranda.” Ditto, Lyle Denniston (“The net practical effect is likely to be that police, in the face of a suspect’s continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess.”) Together with last Term’s Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009) (post-charge: not enough to obtain counsel, defendant must expressly invoke right to counsel to bar interrogation), this decision will almost certainly encourage vigorous interrogation efforts that in the past would have been forestalled out of caution. Indeed, as Denniston points out, “Many [police] manuals, it appears, tell police that they should not do any questioning at all until they have obtained an explicit waiver of the suspect’s rights. It is now clear that that is not constitutionally required.” What were flashing amber lights now shine solid green. Any chance Wisconsin will chart its own course? That probably depends on the outcome of State v. Forbush.

Carr v. U.S., USSC No. 08-1301, 6/1/10

… the Act established a federal criminal offense covering, inter alia, any person who (1) “is required to register under [SORNA],” (2) “travels in interstate or foreign commerce,” and (3) “knowingly fails to register or update a registration.” 18 U. S. C. §2250(a). At issue in this case is whether §2250 applies to sex offenders whose interstate travel occurred prior to SORNA’s effective date and, if so, whether the statute runs afoul of the Constitution’s prohibition on ex post facto laws. See Art. I, §9, cl. 3. Liability under §2250, we hold, cannot be predicated on pre-SORNA travel. We therefore do not address the ex post facto question.

Because the holding is limited to construction of a federal statute, it has no necessary application to state practice. (Save need to keep up-to-date on a bewildering profusion of “collateral consequences”; prime yourself with: Corey Rayburn Yung, “The Emerging Criminal War on Sex Offenders,” which “concludes that the federalization of sex offender policy [has] elevated law enforcement to a nascent criminal war on sex crimes” no less than the “war on drugs.” If you agree with that metaphor, then you’ll see SORNA as another front in that “war.”) But the purely federal nature of the case hardly strips it of state-practice utility relative to rules of statutory construction.

The holding ultimately turns on something as prosaic as verb tense; the crucial element of interstate travel is couched in the present tense, therefore travel occurring prior to SORNA’s effective date doesn’t come within the Act. Here’s the crucial passage:

That §2250 sets forth the travel requirement in the present tense (“travels”) rather than in the past or present perfect (“traveled” or “has traveled”) reinforces the conclusion that preenactment travel falls outside the statute’scompass. Consistent with normal usage, we have frequently looked to Congress’ choice of verb tense to ascertain a statute’s temporal reach. See, e.g., United States v. Wilson, 503 U. S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes”); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 57 (1987) (“Congress could have phrased its requirement in language that looked to the past . . . , but it did not choose this readily available option”); Barrett v. United States, 423 U. S. 212, 216 (1976) (observing that Congress used the present perfect tense to “denot[e] an act that has been completed”). The Dictionary Act also ascribes significance to verb tense. It provides that, “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise[,] . . . words used in the present tense include the future as well as the present.” 1 U. S. C. §1. By implication, then, the Dictionary Act instructs that the present tense generally does not include the past. Accordingly, a statute that regulates a person who “travels” is not readily understood to encompass a person whose only travel occurred before the statute took effect. Indeed, neither the Government nor the dissent identifies any instance in which this Court has construed a present-tense verb in a criminal law to reach preenactment conduct.5

More to it than that, of course, but the rest is really just commentary reinforcing the blockquote. Particular lesson? Wisconsin has its own version of the Dictionary Act, § 990.001, which similarly defines “present” to include “future” tense (with the qualifier, “when applicable”) without mention of “past” tense. Of course, determining the effective date for criminalizing conduct implicates ex post facto considerations, but the fact remains the Court failed to discuss them so we are left with a purely statutory construction holding. And the meta-message? Syntax matters.

Wisconsin supreme court order

The underlying question is whether Justice Roggensack “previously handled” Henley’s earlier appeal when she was a court of appeals judge; if so, then by statute she must be disqualified from participating in his now-pending appeal. She declined to disqualify herself in a memorandum decision, 2010 WI 12. Further background, here. And here, especially with respect to State v. Aaron Antonio Allen, 2010 WI 10, and its similar question. The question now is whether Justice Roggensack’s disqualification decision is reviewable by the full court. The answer, which you can find in the unpublished order at the link above, is … No. And so we have a conundrum to end all conundrums: how is that a court whose very purpose is to perform the function of review finds itself unable or unwilling to review the authority of a justice to sit in judgment on a case? Keep in mind the following, settled principle: “Where a justice who participated in a case was disqualified by law, the court’s judgment in that case is void,” State v. American TV and Appliance of Madison, Inc., 151 Wis. 2d 175, 179, 443 N.W.2d 662 (1989). Which means that if Justice Roggensack erred in refusing to step down, her ensuing participation will render “void” the opinion issued by the full panel– except that no one will ever know because her decision isn’t reviewable. Whether or not the court fully realizes it, a real crisis in legitimacy is developing.

OLR v. Joan M. Boyd, 2010 WI 41

Various derelictions warrant 12-month license suspension, consecutive to already-imposed suspensions. The Counts include various failures to act competently and to keep her client reasonably informed in a number of postconviction actions. In one instance, lack of diligence led to loss of the federal habeas statute of limitations, ¶8; and in another, to a lost state appellate deadline, ¶11. Another count, of potential interest, ¶14:

Count 7.  By failing to consider the input and wishes of G.W. and, instead, filing an unrevised motion that turned out to be legally inadequate and ineffective, Attorney Boyd did not provide competent representation to G.W., thereby violating SCR 20:1.1.

G.W., serving a 25-year sentence, retained Boyd who prepared a postconviction motion and duly sent it to G.W. for his review. G.W. told her “the motion appeared to be legally defective because it did not include all the grounds for possible relief they had discussed, and it failed to allege that post-conviction counsel was ineffective in the original appeal,” ¶12.  Boyd ignored the critique and “filed the pleadings as originally prepared.” The postconviction court denied the motion on precisely the defect identified by G.W., and Boyd proceeded to bollix up the appeal, and left G.W. to fend for himself, ¶13. A lot is left unsaid by the court, but Boyd stipulated to the Count, making analysis unnecessary. Worth keeping in mind that your incarcerated clients have access to a highly specialized resource — other inmates, all of whom have nothing but time to devote to researching and keeping up to date on specific, recurrent issues. And even if they are often not just spectacularly but loonily wrong, an open mind is highly advisable. You might come out of it with a truffle.

court of appeals decision (1-judge; not for publication); for Heindl: Lisa A. McDougal; BiC; Resp.; Reply

Jury Instructions – Self-Defense

Trial for battery, which the State theorized occurred when Heindl put Lien in a headlock from behind. Heindl himself suffered scratches and swelling about an eye, but was seriously drunk and had difficulty giving a coherent account to the police. He did not testify, thus presented no evidence of his subjective belief in necessity of force, and trial court refusal to give self-defense instruction is upheld:

¶11 A defendant has the right to a self-defense instruction if the evidence viewed in the light most favorable to the defense supports the instruction. State v. Mendoza, 80 Wis. 2d 122, 153, 258 N.W.2d 260 (1977). The issue whether the evidence provides a sufficient basis for the instruction presents a question of law, which we review de novo. State v. Giminski, 2001 WI App 211, ¶11, 247 Wis. 2d 750, 634 N.W.2d 604.

¶13 …  In order for Heindl to be entitled to the instruction, there must be evidence from which it is reasonable to infer that, before Heindl put Lien in a headlock, he believed that there was an actual or imminent unlawful interference with his person and that he believed the headlock was necessary to prevent or terminate that interference.

¶17 Heindl may have subjectively believed that the headlock was necessary to prevent or terminate Lien’s actual or imminent unlawful interference with his person. However, that is not an inference that one can reasonably draw from the evidence before the jury, given the unequivocal testimony that he was behind her when he put her in the headlock and the absence of evidence about when, before the headlock, she hit and scratched him. We agree with the circuit court that, based on the evidence, the jury would have to engage in speculation to determine whether Heindl believed he needed to put Lien in a headlock to protect himself from her.

The court implies but doesn’t quite say explicitly that a defendant need not testify to his or her beliefs before self-defense becomes a viable issue. Thus, the court stresses that the trial judge rejected the instruction because “in this case, there was insufficient evidence without Heindl’s testimony” and not because “as a matter of law, a defendant has to testify about his or her beliefs,” ¶12. In other words, the result is fact-specific and whether or not the court took too narrow a view on the particular facts — trying to segment what was really a continuous course of conduct between two mutually inflamed individuals — would mean at most that the court reached the wrong result “in this case.” No need to extrapolate to other cases. It comes down to the court of appeals’ assessment that, amidst all the gouging, scratching, punching and knife-wielding, a very discrete act formed the basis for criminal liability: the headlock. And that makes it incumbent in such cases to make a notice-type argument to pin down the State as to just what its theory is. It might have been an interesting exercise to force such an announcement before Heindl’s trial rather than after, when the implications may have appeared different. But in the end, this case might simply be a very fact-specific exception to the usual gloss on an altercation of this sort, exemplified by State v. Giwosky, 109 Wis. 2d 446, 326 N.W.2d 232 (1982):

A review of the entire record refutes the contention that the confrontation between the defendant and Noldin constituted two separate incidents. The evidence introduced at trial establishes that the encounter was a short continuous incident that can not be factually separated. … Once the defendant began the altercation by throwing the wood into the water there was no “break in the action” and the confrontation continued until the defendant had incapacitated Noldin on the river bank. After all, every blow that is struck in an altercation such as this is not a separate incident. The jury could properly consider it as one continuous event.

If, though, the incident can be “segmented,” then not only is there a potential notice-of-charge problem, but one of juror unanimity as well, and careful attention will have to be paid to the jury instructions, to ensure that unanimity is composed on the precise factual theory of guilt advanced by the State.

State v. Matthew C. Parmley, 2010 WI App 79; for Parmley: Christopher M. Eippert; BiC: Resp.; Reply

A sex offender may obtain an exception from the registration requirement 0f § 301.45(1m)2, if “the person had not attained the age of 19 years and was not more than 4 years older or not more than 4 years younger than the child.” At the time of his offense, Parmley was 18 and the victim 14: simple math says he comes within the exception, right? No such luck.

¶21      From these cases we conclude that to calculate the disparity of ages required in WIS. STAT. § 301.45(1m)(a)2., to determine if an actor is exempt from registering as a sex offender, the time between the birth dates of the two parties is to be determined.  Using this method we first consider Parmley’s birthday of January 18, 1986, and then the victim’s birthday of June 9, 1990. We conclude that there is a difference of four years, four months and twenty-three days.  Therefore, Parmley is more than four years older than the victim.

¶22      The legislative intent in carving out this narrow exception to the sex offender registration program supports this commonsense approach of calculating who is “not more than 4 years older” than the victim. “[T]he legislature’s purpose was to craft a narrow exception to mandatory registration for sex offenders in cases of factually consensual sexual contact between two minors who, but for the age of the younger child, would have broken no law.” Joseph E.G., 240 Wis. 2d 481, ¶11. If we were to adopt Parmley’s view, there could be almost a five-year gap between an actor and a victim.  Assuming an act of sexual intercourse happened on December 31, 1998, and the actor had a birthday of January 1, 1980, and the victim’s birthday was December 27, 1984, under Parmley’s method of calculation, the actor would have been eighteen years old and the victim fourteen years old and he would be exempt from sex offender registration because he is not more than four years older than the victim.  However, under the method of calculation we adopt in this opinion, Parmley would have to register as a sex offender because the actual difference between their ages is four years and 360 days—making Parmley almost one additional full year older physically, emotionally and sexually.

Well, that’s one way to imagine the problem. But toggle the birth dates so the age difference is 4 years 1 day, and suppose still further a precocious victim and a passive, immature defendant. Should a judge be trusted to exercise discretion in favor of the registration exemption in some such circumstance? No, says the court of appeals, because of the overarching legislative policy to ensnare “predators” in the registration requirement, ¶28. It simply doesn’t matter that any given individual is in fact not a predator; he or she is categorically deemed one without regard for the specific circumstances. Parmley also argues that the registration requirement is unconstitutionally vague as applied to him, because “being eighteen, he would not have considered himself more than four years older than the victim,” ¶25:

¶27      This same challenge was rejected by the Supreme Court of Connecticut in Jason B., and we cannot improve upon its reasoning:

The defendant’s contention that our vagueness analysis should focus on the warning provided to the average sixteen year old lacks merit. First, the scope of the statute is not confined to defendants of teenage years. Second, vagueness analysis ordinarily does not depend on the individual or categorical capabilities of the defendant. It focuses on the warning that is afforded by the language and its gloss to persons of ordinary intelligence. Although the knowledge possessed by a particular defendant may undermine a vagueness challenge … the converse is not true. Lack of knowledge, either by the individual defendant or a person in his particular age category, does not enhance a vagueness challenge.

Jason B., 729 A.2d at 770 (citations and emphasis omitted).

¶28      To enhance and promote the state’s policy of protecting our children from sexual predators, the application of the exemption from registration as a sex offender when the actor is “not more than 4 years older,” is determined by calculating the time between the birthday of the actor and the birthday of the victim. We reverse because it was error for the circuit court to only compare calendar year ages.[5]

A tangent: the sex offender registration requirement is considered a “collateral consequence” of a guilty plea because it doesn’t “constitute punishment,” State v. Bollig, 2000 WI 6, ¶27, 232 Wis. 2d 561, 605 N.W.2d 199. But for years the same was said of deportation, and we’ve recently learned that simply isn’t so. It may be that with the increasingly draconian requirements of sex offender registration and the court’s increasingly transparent rhetoric (“protecting our children from sexual predators”; no one doubts the worthiness of the goal, the issue is what consequences flow from the effort), the collateral-consequence principle merits reevaluation.

State v. Brian K. Sowatzke, 2010 WI App 81; for Sowatzke: Andrew R. Walter; BiC; Resp.; Reply

¶13      Sowatzke had two countable OWI “convictions, suspensions or revocations” (i.e., he had two OWI convictions) at the time he was arrested on May 9; he had a BAC of 0.048 percent at the time he was arrested on May 9; his legal BAC limit was 0.08 percent at the time he was arrested on May 9.  Accordingly, the State could not properly charge him with a PAC based on his May 9 arrest.  The circuit court properly dismissed the charge of fourth offense PAC.

As the blockquote suggests, Sowatzke had 2 priors when he picked up the May 9 OWI. He thereafter suffered his 3rd conviction, and the State added a 4th offense PAC. The long and short is that the charge is unsupportable because the number of qualifying priors is measured as of when the person was driving.

¶11      Thus, presented as we are with every indication in the statute itself that the legislature meant to make the crime of operating a motor vehicle with a prohibited alcohol concentration one which requires a person had the PAC at the time he or she drove or operated the motor vehicle, the State’s fourth offense PAC charge improperly criminalized a BAC of 0.048 percent when the legal limit on May 9 as it applied to Sowatzke—because he had no more than two convictions on this date—was a BAC of 0.08 percent.

The trial court ruled that by retrospectively reducing Soawatzke’s allowable PAC, the charge “applied the statutes in a manner that retroactively changed one of the elements [of the PAC charge] in an ex post facto manner.” The court of appeals doesn’t reach the ex post facto problem, resolving the appeal instead on the narrower ground of statutory construction, ¶2.