Articles Posted in Constitutional Rights

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handcuffsUnder the Fourth Amendment of the United States Constitution, criminal defendants are protected from unconstitutional searches and seizures. This means that police cannot enter the home of an individual or search a place like a vehicle without probable cause to do so and a warrant, unless certain circumstances apply. A recent case before the Wisconsin Supreme Court considers whether exigent circumstances justifying entering an individual’s home exist when a police officers claims to be in “hot pursuit” of an individual who is believed to have committed crimes.

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houseIn recent years, corrections officials have become convinced, despite conflicting studies,  that sex offenders are prone to particularly high rates of recidivism.  In an effort to address concerns that certain circumstances, such as homelessness, accelerate recidivism, many counties have enacted regulations and administrative ordinances imposing various requirements on sex offenders upon their release from prison. For instance, sex offenders may be required to return to their county of residence rather than allowed to move to a new location after prison, and they may be prevented from residing near schools or daycare facilities.  In Brown County, Wisconsin, local officials enacted an ordinance providing that sex offenders who cannot find an approved home that meets these various types of requirements must continue to remain in jail, or prison, during the evenings until a suitable home is located.

While such restrictions are a result of justifiable concerns, they also raise important questions for due process and the liberty rights of offenders. In Werner v. Wall, Mr. Werner raised a constitutional challenge to Brown County’s ordinance, arguing that incarcerating him after his mandatory release date, and until he found a proper home, was a violation of his Eighth Amendment and Fourteenth Amendment rights.  At trial, the individual defendants that he sued, including various correctional officials, moved for summary judgment against his claims, holding that they were barred by qualified immunity. The district court agreed.  Mr. Werner appealed.

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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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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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Recently, a local paper in Wisconsin published a list of judges, purporting to rank them from best to worst, based on a survey of lawyers. Lists like this come out from time to time of both lawyers and judges, presumably in an effort to educate the public regarding the quality of the legal community. It is true that not many members of the public would have any meaningful way to compare judges or attorneys, as most simply don’t have enough contact with the legal system to have an opinion. Having said that, I recommend that people who read these rankings do so with the understanding that these lists have some undeniable weaknesses that may make them less than reliable.

For example, the most recent ranking of judges was based exclusively on the opinions of the lawyers who answered the survey. In many cases, there were only a handful of responses. Obviously, if the sample size is so small as to not be representative of the opinion of the bar as a whole, one or 2 disgruntled lawyers who may have had a bad experience in that court can unfairly skew the results. Also, some of the judges had only been on the bench for a few months, while others had been acting as judges for decades. Obviously, the opinion regarding a judge, good or bad, is likely to have more weight if it is based on years of observation than one based on a few short months.

As to the lawyer lists, unfortunately, ranking lawyers has become something of a cottage industry. Barely a month goes by without someone at our firm being notified that some organization, national or local, has selected them to be on their “best lawyer” list. Typically, to accept this “honor”, you simply need to mail in your check for the “dues” to belong and you can be ranked as one of the best lawyers in Milwaukee or Wisconsin or America! Obviously, consumers should be careful in hiring counsel based on the number of plaques in a lawyer’s office proclaiming them the 2016 “best” criminal lawyer or “best” divorce lawyer or any other designation. I say this with the full disclosure that this firm has received the highest ranking from Martindale-Hubbell for approximately 20 years and both Attorneys Singer and Reddin have been ranked as top lawyers in Milwaukee by local magazines in the last year and for multiple years. We do not pay “dues” or any fee for these rankings and, to the extent that they are based on the opinion of fellow lawyers who know us, we are proud of our inclusion as among the best in our field. I would never suggest, however, that a person looking for a lawyer rely exclusively on our rankings or any attorney’s ranking, except to the extent that the ranking confirms your opinion of the lawyer’s competence.