Conspiracy Law in Wisconsin

By John DiMotto

Not a week goes by when the media does not reference a criminal conspiracy that has been uncovered and being prosecuted. Did you ever wonder exactly what is required for criminal activity to constitute a conspiracy? Today, I would like to review Wisconsin statutory and case law regarding the law of conspiracy.

Statutory Law

Wisconsin Statutes section 939.31 addresses "Conspiracy." It sets forth that whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime, may, if one or more of the parties to the conspiracy does an act to effect its object, be fined or imprisoned. The crime of conspiracy is an inchoate crime, that is, one that has begun but not completed.

Elements of a Conspiracy - WI Criminal Jury Instruction 570

One of the best references to conspiracy law in Wisconsin is found in the Criminal Jury Instructions. It sets forth that there are three elements necessary to constitute a conspiracy. First, that a person have the intent to commit a specific crime. Second, that a person was a member of a conspiracy to commit that crime. Third, that one or more of the conspirators performed an act toward the commission of the intended crime that went beyond mere planning and agreement. It is important to note that "the act" performed need not by itself be an unlawful act or an attempt to commit the crime. However, "the act" must be a step toward accomplishing the criminal objective.

A conspiracy is a mutual understanding to accomplish some common criminal objective or to work together for a common criminal purpose. There is no need for an express or formal agreement, no need for a meeting, no need for the members of the conspiracy to all know each other. So long as the parties agreed or combined by words or actions and the person intended that the agreement be carried out, it is not necessary that the other persons intended to carry out the agreement. Wisconsin has adopted a "unilateral" approach to conspiracy.

Case Law on Conspiracy

As always, appellate decisions give trial courts and attorneys guidance as to what constitutes a conspiracy.

State v. Cavallari, 214 Wis.2d 42 (Ct. App. 1997). A conspiratorial agreement may be demonstrated by circumstantial evidence. Tacit understanding of a shared goal is sufficient.

State v. Ray, 166 Wis.2d 855 (Ct. App. 1992). It is necessary for the trial court to determine when a conspiracy begins and ends.

State v. Hecht, 116 Wis.2d 605 (1984). Each defendant need not be present at the scene of the crime, just that between all of them, all elements of the crime are done with mutual awareness of what each is doing.

State v. Sample, 215 Wis.2d 486 (1998). In a conspiracy prosecution under 939.31, you assess the subjective behavior of the defendant not the others who may be involved. 939.31 applies to both bilateral and unilateral conspiracies.

State v. Huff, 319 Wis.2d 258 (Ct. App. 2008). A unilateral conspiracy is when a person agrees to proceed in a prohibited manner. This approach assesses the subjective, individual behavior of the defendant. A criminal conspiracy will lie even where 1 of 2 alleged co-conspirators is unknown to the defendant, a cop or an informant who merely feigns participation in the conspiracy. Immateriality of con-conspirator's legal status is implicit in the unilateral approach. A bilateral conspiracy is when 2 or more persons agree to proceed in a prohibited manner. Under the inchoate crime of conspiracy under 939.31, by definition, no substantive crime is ever needed. 939.31 focuses on the subjective behavior of the individual defendant.

State v. Routon, 304 Wis.2d 489 (Ct. App. 2007). The focus of 939.31 conspiracy puts a heavy emphasis on intent. A stake in the venture is not a necessary element of conspiracy - It may be persuasive of the defendant's involvement in the crime but lack of stake in the venture does not absolve one of party to a crime liability for conspiracy.

The issue of whether withdrawal or renunciation is a defense to the inchoate crime of conspiracy under 939.31 has not been specifically addressed in Wisconsin case law. In terms of solicitation, it cannot be a defense. see State v. Boehm. 127 Wis.2d 351 9Ct. App. 1985).

Conclusion

Wisconsin like most other states has taken the steps to criminalize conduct that would lead to actual criminal activity. Conspiracy law has the intent to "nip criminal activity" in the bud. Conspiracy law is a pre-emptive strike against crime.

Party to a Crime Law in Wisconsin

By John DiMotto

Did you ever REALLY wonder what LEGALLY constitutes being a "party to a crime" (PTAC)? I have been asked that question on more than one occasion by non-lawyers and when I ask them what they believe the answer is, they usually respond "if you are there" you must be a party to the crime. However, that is not accurate. The correct answer -the legal definition is found in the Wisconsin Statutes and is further explained in the Wisconsin Criminal Jury Instructions and appellate decisions.

Statutory Definition

Wisconsin Statutes section 939.05 address "Parties to Crime." It sets forth that:

1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed is has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.

2) A person is concerned in the commission of the crime if the person:

a) Directly commits the crime; or

b) Intentionally aids and abets the commission of it; or

c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and under the circumstances is a natural and probable consequence of the intended crime. A person is not a party to the crime is the person voluntarily changes his or her mind and no longer desires that the crime be committed AND notifies the other parties concerned of his or her withdrawal within a reasonable time BEFORE the commission of the crime so as to allow the others also to withdraw.

Examples

The statutory definition seems clear, but some concrete examples are helpful to an accurate understanding of the concept of "party to a crime."

1) Direct Commission -- Armed Robbery -- If "A" decides to rob a bank, takes a gun, goes into a bank, points the gun at the bank teller and demands money or says he will shoot the teller, "A" is given money and flees the bank, "A" has directly committed an Armed Robbery because "A"'s conduct meets all elements of the crime.

2) Intentionally Aids and Abets the Commission of a Crime -- Armed Robbery (PTAC) -- If "A" decides to rob a bank but wants someone to be a "lookout" (keep an eye out for the presence of police and to let "A" know if any police might come on the scene to stop the commission of the crime) and so "A" tells "B" of his plan to rob a bank and asks "B" to come along and stand at the door of the bank and to warn "A" if the police are coming and "B" agrees and does so, "B" is a party to the crime of Armed Robbery and is as guilty as "A" even though "B" did not have a gun, did not threaten anyone and did not take the money.

3) Conspiracy PTAC theory -- Armed Robbery (PTAC) -- If "A", B" and "C" agree to rob a bank and "A", "B" and "C" each consciously intend to make it happen and have a stake in the venture and one of them actually robs the bank, all three are equally guilty of the crime.

4) Natural and Problem Consequence theory -- If "A" and "B" agree to commit an Armed Robbery where "A" will directly commit it and "B" will be the "getaway driver" (i.e. "B" will drive "A" to the bank and drive "A" away after the robbery.) If "A" intentionally shoots and kills the bank teller BOTH "A" and "B" can be convicted of First Degree Intentional Homicide as parties to the crime since homicide is a natural and probable consequence of an armed robbery. This is so even though "B" never entered the bank. The reason for this liability is to deter people from joining in such crimes.

5) Withdrawal theory -- Armed robbery (PTAC) -- If "A" and "B" agree to commit an Armed Robbery where "A" will directly commit it and "B" will be the "getaway" driver but when "A" comes to "B"is house "B" tells him he has changed his mind and will not drive "A" to the bank, "B" has withdrawn before the commission of the crime and can not be held responsible. What is critical to legally withdrawing from being a party to a crime is the withdrawal must be done before any acts in furtherance of the crime are done.

Jury Instructions on Party to a Crime

Since the "Intentionally Aid and Abet" theory is most often used by prosecutors to charge a person who does not directly commit the crime, I will focus on that concept.

A person intentionally aids and abets the commission of a crime by either:

1) Actually assisting the person who directly commits the crime (i.e. "B" comes along with "A" and acts as a lookout, "B" is a party to the crime); or

2) Is ready and willing to assist the person who directly commits the crime and the person who directly commits the crime knows of the willingness to assist. (i.e. "A" tells "B" that he is going to rob a bank one week from the day of their conversation and "B" tells "A" that if he comes to learn of anything that will prevent the successful completion of the crime he will notify "A", "B" is a party to a crime.)

A person does not intentionally aid and abet the commission of a crime if he is only a bystander or spectator and does nothing to assist the commission of the crime. (i.e. "A" is dealing drugs out of the kitchen of his home. He sells to people who come to the back door. "B" is in the home visiting "A"'s sister who is "B" girlfriend. If there is no interaction between "B" and "A", "B"'s presence in the home does not subject him to any criminal liability.

Case Law

State v. Rundle, 176 Wis.2d 985 (1983). For aiding and abetting, a person needs to engage in some conduct, verbal or overt, that as a matter of objective fact aids another in committing the crime AND the person must have a conscious desire or intent that the conduct will in fact yield such assistance.

State v. Simplot, 180 Wis.2d 383 (Ct. App. 1993). There is no need for the jury to be unanimous regarding the alternative ways for a person to be a party to a crime. So long as all twelve agree that the person either directly committed the crime or aided and abetted the commission that is sufficient.

Holland v. State, 91 Wis.2d 134 (1979). Party to a crime statute does not create a separate and distinct offense. It sets forth a ways to be involved in the commission of a substantive crime. Also, there is often overlapping between being an aider and abettor and a conspirator.

State v. Whiting, 136 Wis.2d 400 (Ct. App. 1987). To convict a person of being a party to a crime there need only be evidence showing that the person was a willing participant. for example, merely locating a homicide victim and bringing the shooter and victim together is enough.

State v. Marshall, 92 Wis.2d 107 (1979). A person need not perform an act which constitutes an essential element of a crime in order to be an aider and abettor. A person need only undertake some conduct.

State v. Zalenka, 130 Wis.2d 34 (1986). Proof of acts which can support liability as a party to a crime is separate from proof of the underlying criminal act.

State v. King, 120 Wis.2d 285 (Ct. App. 1984). Mere presence and ambivalent conduct at the scene of a crime is insufficient to support a conviction as a party to a crime.

State v. Williquette, 125 Wis.2d 86 (Ct. App. 1985). An omission may constitute aiding and abetting only if a person has a legal duty to act. (A parent has a legal duty to protect one's child and failing to protect one's child from the other parent may constitute aiding and abetting.)

State v. Martinez, 150 Wis.2d 47 (1989). Being ready and willing to assist the commission of a crime is "some conduct" that as objective fact aids another.

Bethards v. State, 45 Wis.2d 606 (1970). A lookout can properly be held vicariously liable for the crime of another.

Clark v. State, 62 Wis.2d 194 (1974). Supplying a gun; loading the gun is sufficient for party to a crime liability.

State v. Charbarneau, 82 Wis.2d 644 (1978). When a person is ready and willing to render aid that person is an aider and abettor. This is a reasonable assumption since this tends to further the criminal objective by providing support.

In the Interest of R.B., 108 Wis.2d 494 (Ct. App. 1982). Mere presence at a party, even though the juvenile had knowledge that beer would be there and its accessibility to him is insufficient to constitute possession of beer.

State v. Doney, 114 Wis.2d 309 (Ct. App. 1983). A co-conspirator is an agent in a criminal venture. Persons who enter into a conspiracy become ad hoc agents for one another.

Conclusion

The concept of party to a crime involves an intent to be involved in the commission of a crime and some conduct in furtherance of the crime. "Just being present" at a crime scene or "just knowing" that a crime is being committed alone does not make one criminally liable for the conduct of the criminal actor. To sum it up, to be a party to a crime requires "mens rea."

Daubert Revisited -- The Role of the Trial Judge

By John DiMotto

It has been a little over four months since Daubert became the "law of the land" in Wisconsin with respect to the introduction of expert testimony. To date, I have yet to have a case where any lawyer has made an issue out of any expert testimony. It is my sense that unless the science/topic/subject matter is really unusual that Daubert will not be an issue that will take up too much time in the litigation. However, that remains to be seen. Therefore, it is very important that every judge understand the critical role the judge has in the resolution of Daubert motions.

Qualifications

I believe that the admission of expert testimony under Daubert requires three conditions precedent -- that is, three levels of "Qualifications."

1) The expert witness must be "qualified" to discuss the science/topic/subject matter. The expert must have special expertise by education, training or experience.

2) The science/topic/subject matter must be "qualified" for admission. This requires that the principles and methodology must be reliable and valid enough to be considered by the trier of fact.

3) The expert witness must have properly applied the "qualified" science/topic/subject matter principles and methodology to the facts in the case.

Daubert Test

The test under Daubert is not the correctness of the expert's conclusions but the soundness of the expert's methodology. Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010). The correctness of conclusions and the weight to be given to the conclusions is a consideration for the trier of fact. This is not to be a concern of the court.

Role of the Court

The role of the court when addressing a Daubert issue is to analyze the expert testimony in the context of its field to determine if it is acceptable science. Boyd v. City and Cnty of S.F., 576 F.3d 938 (9th Cir. 2009). The term "science" is a broad concept. It encompasses technical science as well as street science. The role of the court when addressing a Daubert issue is a flexible one. its overarching subject is scientific validity. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1973). Trial judges must understand that their role is truly one of serving as a gatekeeper. Trial judges are to be concerned with reliability. Overall relevancy is reserved for the trier of fact. Daubert does not take the case out of the hands of the attorneys. Vigorous cross examination, presentation of contrary evidence and careful instructions on the burden of proof are traditional and appropriate means of attacking shaky but admissible evidence. These attorney "tools of the trade" are the safeguards. Daubert, supra. If the trial judge determines that the science/topic/subject matter is valid, the expert is qualified and the expert has properly applied the principles and methodology to the facts, the test is met and the evidence is admissible.

How the Court Should Exercise its Powers

In Wisconsin, Daubert issues are to be addressed by the trial court as preliminary questions of fact under 901.04. I believe that this is a determination that can be made one of four ways:

1) Pretrial paper review. (i.e. Summary Judgment)

2) Pretrial evidentiary hearing.

3) At trial.

4) No hearing needed (where there is not dispute as to the expert, the science/topic.subject matter or expert's application of principles to facts)

Each case is different and the decision as to how to make the determination of fact rests within the sound discretion of the trial court.

Scheduling Orders

It will be critical for the trial judge to craft a scheduling order to address Daubert. I believe that the trial judge should have a six point order in order to address and resolve a Daubert motion in an orderly fashion.

1) Set a deadline for disclosure of plaintiff's experts, submission of written expert reports with supporting materials. The submissions should:

a) Set forth the expert's ultimate opinions.

b) Set forth the basis of the expert's opinions.

c) Address each of the Daubert factors and the Committee Comments to the 2000 Amendments to the Federal Rules factors.

d) Provide any case law where the science/topic/subject matter has previously been deemed reliable and admissible for Daubert purposes.

e) Set forth counsel's position with respect to how the court should make its 901.04 determination.

2) Set deadline for completing discovery of plaintiff's experts.

3) Set deadline for disclosure of defendant's experts, submission of written expert reports with the same supporting materials required of plaintiff's counsel.

4) Set deadline for completing discovery of defendant's experts.

5) Set deadline for filing of Motions in Limine to exclude Daubert evidence.

6) Set status date to address how the court should resolve the Daubert Motions in Limine.

Conclusion

It is incumbent upon the trial judge to take control over the Daubert issue at the scheduling conference in order to keep control over the case. It is the role of the attorneys to educate and persuade the trial judge on the ultimate Daubert decision to be made. It is the role of the trial judge to ensure that the attorneys provide the court with the tools needed to resolve the Daubert issue in the case.

The Interaction and Interplay Between The Collateral Source Rule, Principles of Subrogation and The Made Whole Doctrine in Wisconsin

By John DiMotto

Three of the most difficult Rules/Principles/Doctrines in the Civil Practice of Law that have a direct impact on the award of damages are The Collateral Source Rule, The Principles of Subrogation and The Made Whole Doctrine. On the surface, these concepts seem straightforward. However, in reality, nothing is further from the truth. The interaction and intersection of these Rules/Doctrines have generated much litigation and will undoubtedly continue to do so, forever. This past week, in Fischer v. Steffen, 2011 WI 34, the Wisconsin Supreme Court discussed each of these Rules/Doctrines. Today, I would like to examine them.

The Collateral Source Rule (CSR)

Wisconsin's tort law recognizes the CSR. see Rixmann v. Somerset Pub. Sch., 83 Wis.2d 571 (1978). The CSR provides that a tortfeasor's liability to an injured individual is not reduced because the injured individual received payments from some other source. see Payne v. Bilco Co., 54 Wis.2d 424 (1972). The CSR is part of a policy seeking to deter negligent conduct by placing the full cost of wrongful conduct on the tortfeasor. see American Standard Ins. Co. v. Cleveland, 124 Wis.2d 258 (Ct. App. 1985). The tortfeasor is not relieved of the obligation to the plaintiff simply because the plaintiff had the foresight or good fortune to get benefits from a collateral source (ie. insurance). see Ellsworth v. Schelbrock, 235 Wis.2d 678 (2000). The CSR applies to insurance companies, Medicare and Medical Assistance. In fact, it is not limited to "paid for benefits" but applies to gratuitous medical services provided by the State. see Thoreson v. Milwaukee and Suburban Tranp. Corp., 56 Wis.2d 231 (1972). The CSR places on the tortfeasor full responsibility for the loss he/she caused. The reimbursement rate is not dispositive. The plaintiff can recover the value of the services. see Ellsworth, supra. The plaintiff is entitled to recover without limitation to the amounts paid. Limiting the plaintiff's potential recovery to amounts paid is contrary to Wisconsin's rule of valuation of medical expense damages, the CSR and Principles of Subrogation. see Koffman v. Leichtfuss, 246 Wis.2d 31 (2001). If there is any windfall, the party to profit is the person injured not the tortfeasor. see Powers v. Allstate Ins. Co., 10 Wis.2d 78 (1960).

Principles of Subrogation

Subrogation involves the substitution of one party in place of another with reference to a legal right or claim. see Houle v. School District of Ashland, 267 Wis.2d 708 (Ct. App. 2003). Subrogation is a legal doctrine which permits an insurer to stand in the shoes of the insured to pursue recovery from a responsible tortfeasor. It is a derivative right. see Fischer v. Steffen, 2001 WI 34, supra. The law invokes subrogation to avoid unjust enrichment once an insured has been fully compensated. see Muller v. Society Ins., 309 Wis.2d 410 (2008). The insurer succeeds in relation to the debt and gives to the substitute all the rights, priorities and remedies of the insured for whom the insurer is substituted. Once the insurer pays, it has the right to stand in place of the insured pursuant to contract for insurance and may seek to recoup its outlay from the tortfeasor. In such instance, the insured is normally precluded from seeking the same recovery from the tortfeasor. The right of subrogation normally trumps the CSR although there are two exceptions: first, when the plaintiff is not made whole, the plaintiff gets priority over the insurer and, second, when the insurer waives its right of subrogation the plaintiff may pursue the subrogation claim. see Fischer v. Steffen, 325 Wis.2d 382 (Ct. App. 2010). However, if a subrogated insurer pursues its subrogation claim via settlement or arbitration, the result is binding on the plaintiff and subrogation trumps CSR. see Fischer v. Steffen, 2011 WI 34, supra.

Made Whole Doctrine (MWD)

The MWD prevents competition between the injured party and subrogated insurer when the injured party's damages exceed a limited pool of funds from which recovery may be had. Under MWD, the injured party should be the first to tap into the limited pool of funds and recover on any loss. When some cannot be fully paid, the loss should be born by the subrogated party. The subrogated party has no right to share in any money recovered from the tortfeasor until the plaintiff is "made whole." see Garrity v. Rural Mutual Ins. Co., 77 Wis.2d 537 (1977). An insured is to be made whole, but no more than whole. see Rimes v. State Farm Mut. Auto Ins., 106 Wis.2d 263 (1982). An insured giving a general release and settling a case is not being made whole. see Rimes, supra. The test for wholeness depends on whether the insured has been completely compensated for all the elements of damages not merely those damages for which the insurer has indemnified the insured. Subrogation is only occasioned when the insured receives an award by judgment or otherwise which pays all elements of damages including those for which the insurer indemnifies the insured. see Rimes, supra.

Conclusion

The Wisconsin Supreme Court in Fischer, supra, indicated that the Collateral Source Rule, Principles of Subrogation and the Made Whole Doctrine work in tandem. They are equitable doctrines and ordinarily work together to further the goals of an injured party recovering for his/her loss and the tortfeasor to pay for damages he/she inflicts. However, there are no "black letter" rules. The interaction and application of these rules/principles/doctrines are heavily influenced by the facts of each case. As a result, we can expect to see much more litigation addressing the interplay between them.

Minor Guardianship of the Person Under Chapter 54

By John DiMotto

In Wisconsin, a guardianship of the person and a guardianship of the estate for a minor can be created either under Chapter 54 or under Chapter 48. In this blog, I will examine the Chapter 54 Guardianship of the Person for a Minor.

A Guardianship of the Person for a Minor creates a legal relationship between "the ward" -- the child for whom a guardian has been appointed by the court and "the guardian" -- the individual appointed by the court to provide for the essential requirements for health and safety and personal needs of a minor. Furthermore, in all respects the guardian must honor his/her fiduciary obligation to exercise the degree of care, diligence, and good faith when acting on behalf of the ward, advocate for the ward's best interests and exhibit the utmost degree of trustworthiness, loyalty and fidelity in relation to the ward.

Before a court can appoint a guardian of the person for a minor, it must be shown that there is a need for the appointment of a guardian and that the person seeking the guardianship is appropriate and qualified to serve.

Under 54.34(1), any person may petition for the appointment of a guardian for a minor. However, 54.15 sets forth that if one or both of the parents of a minor are suitable and willing, the court shall appoint one or both as guardian unless the courts finds that the appointment is not in the proposed ward's best interest. Where a non-parent seeks to become guardian, before the court can appoint the non-parent the must be evidence that is clear and convincing that the parent/s are unfit, and if so, that appointment of the non-parent is in the best interest of the child.

In every Chapter 54 guardianship action, the court must appoint an attorney to serve as Guardian Ad Litem (GAL) for the minor child. 54.40(3) sets forth the responsibilities of the GAL. The GAL is THE advocate for the best interests of the minor and functions independent of the petitioner and all other persons interested in the action. The GAL is the "Voice" for the best interests of the child.

Under 54.42, there is a right to a jury trial, a right to counsel and a right to be present at the hearing. Jury trials, however, are rare. Most petitioners and wards want a court trial.

Under 54.44, the burden of proof is on the petitioner seeking the guardianship to establish by clear, convincing and satisfactory evidence that there is a need for a guardian -- that grounds exist for the appointment of a guardian. Whether the proposed guardian is suitable is a determination made by the court and the court alone.

Under 54.44, the hearing on the petition must be held within 90 days of the filing of the petition. There is no provision in the statute for any extensions. If the hearing is not conducted in a timely fashion, the court loses competency to act and jurisdiction to proceed. The 90 day time limit does not require that the hearing be concluded within 90 days, only that it commence within 90 days.

Under 54.46, at the conclusion of the hearing the court shall either dismiss the petition, if the petitioner fails to meet the burden of proving the necessity for the guardianship or shall grant the petition and enter a determination and order appointing a guardian and setting forth the specific powers granted to the guardian.

Under 54.64, the guardianship remains in effect until the child reaches the age of 18 years unless it is terminated for good cause at an earlier time.

It is important to note that whenever the petition for a minor guardianship of the person has the potential of supplanting the "natural guardianship" rights that attend parenthood, THE condition precedent is proof of the "unfitness" of the parent/s which must be established by clear, convincing and satisfactory evidence. This is known as "The Barstad Rule" from Barstad v. Frazier, 118 Wis.2d 549 (1984). Only if "unfitness" is proven does the court consider what is in the best interest of the child.

Barstad is the legal standard for minor guardianship in a dispute between a parent and non-parent third party. "Best Interests" is not the proper standard and is not to be considered unless "unfitness" is proven. This is because if "Best Interests" was the proper standard most young parents could not compete on an equal level with their established older relatives.

In addressing the Barstad standard, the court in In the Matter of the Guardianship of Clive Ro, 322 Wis.2d 615 (Ct. App. 2009), recognized that while transfer of legal custody from a parent to a third party does not have the finality of a Termination of Parental Rights (TPR), a change in custody may result in as complete a severance of child-parent times as does termination. The court went on to state that in the absence of compelling reasons, principles followed in TPR cases should be followed where change of custody from a parent to a third party is presented to the court. The court very strongly stated that parents' constitutional right to be a parent must be considered.

In my next blog, I will look at the provision for a minor guardianship under Chapter 48.

Sentencing -- The Ultimate Exercise of Discretion

By John DiMotto

As a Circuit Court Judge, I have been asked on numerous occasions over the years to participate in various seminars and conferences that have addressed sentencing matters. I am also routinely asked by people "how does a judge arrive at a sentence?" The answer is simpler than the exercise. A judge must analyze:

1) The nature and gravity of the offense.

2) The character of the offender.

3) The protection of society.

Based on the judge's analysis, he/she arrives at a sentence that he/she believes will account for all three of these sentencing factors.

In 2004, the Wisconsin Supreme Court in State v. Gallion, 270 Wis.2d 535, a case in which I was the trial judge, discussed sentencing considerations and revisited the issue of sentencing and set forth the requisite standards of the sentencing framework. The Wisconsin Supreme Court indicated :

1) Sentencing requires an exercise of discretion and that a strong presumption of reasonability is afforded to the trial court.

2) Appellate courts should not substitute their preference.

3) Discretion contemplates a process of reasoning.

a) This process depends on facts in the record or that are derived by inference from the record.

b) Discretion must be exercised on a rational and explainable basis. There must be a statement by the trial judge detailing the reasons for selecting the particular sentence imposed.

c) Discretion does not lend itself to mathematical precision.

4) The sentence imposed should call for the minimum amount of custody which is consistent with the protection of the public, gravity of the offense and rehabilitative needs of the defendant.

5) Probation should be considered as the first sentencing alternative and should be the sentence unless the court finds:

a) Confinement is needed to protect the public, or

b) The offender needs treatment in confinement or,

c) Probation would unduly depreciate the seriousness of the offense.

6) The Sentencing Framework should:

a) Specify the objectives of the sentence on the record.

* General Objectives are Protection, Punishment, Rehabilitation, Deterrence, Restorative Justice and Victim Restitution.

c) Identify which general objectives are of greatest importance.

d) Describe facts relevant to the objectives and explain in light of those facts why the particular component parts of the sentence imposed advance the specified objectives.

e) Identify factors considered in arriving at the sentence and indicate how those factors fit the objectives and influence the decision.

* Factors include -- the defendant's prior record; the defendant's history of undesirable behavior; the defendant's character; the results of a presentence investigation; the aggravated nature of the crime; the defendant's degree of culpability; the defendant's demeanor at trial; the defendant's age, education, and employment record; the defendant's remorse, repentance and co-operation; the defendant's need for close rehabilitative control; the rights of the public; the length of pretrial detention; read in offenses; the effect of the crime on the victim.

f) The sentence must be the minimum amount of time consistent with the gravity of the offense, the defendant's rehabilitation and protection of public.

g) Court must first consider probation.

h) Court must explain how the conditions of probation or Extended Supervision advance sentencing objectives.

i) Court must explain how incarceration time advances sentencing objectives.

7) Court must by reference to relevant facts and factors explain how the sentence's component parts promote the sentencing objectives.

8) Court should rely on information provided by others.

9) Character of the victim may be considered.

10) Victim's have sentencing rights.

Sentencing must never be a "knee jerk" reaction to a crime or to a defendant. Sentencing requires a balancing of multiple considerations. Sentencing is the most difficult decision that a circuit judge ever makes. Lives are in the balance -- of people and of the community as a whole.

Every judge takes this responsibility to heart every time he/she walks into a courtroom to do a sentencing. Justice demands nothing less.

The Indian Child Welfare Act in Children's Court Proceedings

By John DiMotto

Whenever a child is an enrolled member of an American Indian Tribe or a biological parent is an enrolled member of an American Indian Tribe and the child is eligible for enrollment, special federal and state statutory protections attend child custody proceedings including:

1) Placements made to foster care, institutions, guardians or conservators.

2) Termination of Parental Rights proceedings.

3) Preadoptive placements.

4) Adoptive placements.

However, these protections do not govern placements in:

1) Delinquency proceedings.

2) Award of custody in divorce proceedings.

The Declaration of Policy as set forth in 25 USC 1901 - 1963 (The Federal Indian Child Welfare Act [ICWA]) is twofold:

1) Protect the best interest of every American Indian child.

2) Promote the stability and security of Indian Tribes and families.

The Declaration of Policy as set forth in Wis. Stat. 48.028(2) (The State Indian Child Welfare Act [WICWA]) is also twofold:

1) Cooperate fully with Indian Tribes in order to ensure that the Federal ICWA is enforced in Wisconsin.

2) Protect the best interest of Indian children and promote stability and security of Indian Tribes and families by doing all of the following:

a) Establishing minimum standards for the removal of Indian children from their families and placing those children in out of home care placements, preadoptive and adoptive placements that will reflect the unique value of Indian culture.

b) Using practices, in accord with Federal ICWA, 8.028 and other applicable law, that are designed to prevent the voluntary or involuntary out of home placements and, when it is necessary, placing the Indian child in a placement that reflects the unique values of the Indian child's tribal culture and that is best able to assist the Indian child in establishing, developing and maintaining a political, cultural and social relationship with the Indian child's tribe and tribal community.

ICWA and WICWA apply to any Indian child custody proceeding regardless of whether the Indian child is in the legal custody or physical custody of an Indian parent, Indian custodian or any extended Indian family member or other person at the commencement of the proceeding and regardless of whether the Indian child lives on or off a reservation. If the child lives on a reservation the Indian tribe shall have exclusive jurisdiction over the child. Also, if an Indian child is a ward of a tribal court, the Indian tribe shall have exclusive jurisdiction over the Indian child. Furthermore, if the Indian tribe petitions for jurisdiction over an Indian child who does not live on a reservation, jurisdiction shall be transferred to the Indian tribal court a parent objects, the Indian tribe does not have a tribal court or there is good cause to deny the transfer. Good cause must be proven by clear and convincing evidence.

In any child custody proceeding in which ICWA and WICWA apply, the Indian Tribe and Indian custodian have the right to:

1) Intervene in the State court proceedings.

2) Notice of proceedings.

3) Examine all reports and documents filed with the court.

4) The right to court appointed counsel attends all Indian parents and Indian custodians.

Before an Indian child may be removed from the home of an Indian child's parent or custodian and placed out of home, the State must prove by clear and convincing evidence, including the testimony of one or more qualified experts that continued custody by the parent or custodian is likely to result in serious emotional or physical damage to the child and that active efforts have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian child's family and that those efforts have been unsuccessful. In TPR actions, the "serious emotional of physical damage" element must be proven beyond a reasonable doubt.

In terms of the "qualified experts" requirement, there is an order of preference for the selection of experts. The order of preference is as follows:

1) Member of the Indian tribe.

2) Member of another tribe.

3) Professional with substantial knowledge of Indian culture.

4) Layperson with substantial knowledge of Indian culture.

In terms of the "active efforts" requirement, 48.028(4)(g)1. sets forth nine activities that are to be undertaken. These include:

1) Evaluation of child's circumstances and development of a case plan.

2) Comprehensive assessment of family.

3) Timely notification to tribe about proceedings.

4) Extended family members notified and included in process.

5) Provision of natural and unsupervised family interaction in most natural setting where safe.

6) Available family preservation strategies offered and pursued.

7) Community resources identified and offered.

8) Monitoring progress of situation.

9) Consideration of alternatives.

Whenever a child custody proceeding involves an Indian child, it is of the utmost importance that ICWA and WICWA requirements be pursued with vigor. The best interest of the Indian child can only be obtained where there is sensitivity to the Indian child's tribal culture.