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No Waiver Analysis

By: dmc-admin//June 23, 2004//

No Waiver Analysis

By: dmc-admin//June 23, 2004//

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Ultimately, the decision really has no bearing on whether defendants can challenge the sufficiency of evidence even though they failed to do so at trial.

There is one thing on which all of the justices agree — even if a direct appeal could not be made, a defendant could file a postconviction motion, claiming ineffective assistance of counsel, and the merits would still have to be considered.

The real question is whether permitting direct appeal will result in “sandbagging” that could not occur if defendants had to take the ineffective assistance route.

The lead opinion dismisses this concern, stating, “After an accused has been found guilty and convicted, he or she has the burden to prove that no reasonable jury could have come to the conclusion that it did. This burden is heavy, and appellate courts give great deference to jury verdicts. It is therefore unlikely that an accused or defense counsel will try to sandbag the State and the circuit court rather than make the proper objections and motions during trial.”

The Sykes’ concurrence agrees: “I recognize that defendants generally will not want to strategically ‘save’ their sufficiency of the evidence arguments until appeal, and therefore the risk of ‘sandbagging’ with sufficiency of the evidence arguments is low.”

Only Prosser disagrees, predicting, “the result of the majority opinion is that the state can and will be sandbagged by defendants who remain silent until it is too late for the court to react.”

So, is Prosser being a cynic, or are the other justices being naïve, when it comes to this issue?

It may be the latter. The decision whether to sandbag is not made by defendants, but by their defense attorneys. They are not the ones sitting in jail pending appeal.

Also, an attorney may, unlike the defendant, know that no reasonable jury would acquit the defendant, and treat the trial as not a means for acquittal, but a means to accumulate arguments for appeal.

Finally, the defendant may be spending the next couple years in jail anyway, regardless of the outcome on the particular charge for which the state has failed to produce sufficient evidence, and the only question is how long he will stay there.

So, sandbagging is a real possibility in some cases; the question is, which ones.

In a simple case, with few elements, no potential lesser-included offenses, and no possibility for amendment to a similar, but not lesser-included, offense, there is no incentive to sandbag.

However, in a case such as the one at bar, there could be a reason to sandbag. Even if the defendant had prevailed in his argument — that no force was used — he would still be guilty of a lesser-included sexual assault offense, and likely be off to prison. However, it is possible that the attorney doesn’t want to give the jury the option of finding him guilty of that.

The attorney may believe that there is a better chance of acquittal if the jury has an all-or-nothing choice; and that, if the jury chooses “all,” it can be remedied on appeal. That’s a motive to sandbag.

Likewise, suppose the State charges the defendant with burglary, but in the course of the trial, it becomes evident that the defendant actually committed just a theft (not a lesser-included-offense), either because he never actually entered a building to commit the theft, or that he actually had permission to enter the building from which he stole.

Wisconsin’s liberal pleading rules would permit the State to amend the charge to theft, even after the close of evidence, if the defendant moves to dismiss for insufficiency of evidence, and the court agrees. If an attorney thinks that the jury would find the defendant guilty of theft, he has motive to sandbag, rather than file the motion, and hope the prosecutor doesn’t amend the complaint on his own.

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challenge not waived

Come appeal, it would be all-or-nothing, with double jeopardy barring any retrial if the defendant prevails. A motion during trial creates a middle option — theft instead of burglary. A defendant may prefer the all-or-nothing option, especially if the evidence isn’t there to support burglary.

Or, suppose that a defendant is charged with burglary, but in the course of the trial, the evidence shows that the defendant never actually entered the building, but was an accomplice on the outside. Again, Wisconsin’s pleading rules would permit the State, put on notice of the inadequacy of its proof, to amend the charge to burglary, party to a crime, at anytime.

If a party to a crime instruction would likely result in a guilty finding, an attorney may be tempted to sandbag, and not challenge the evidence of burglary until appeal, hoping again that the prosecutor does not amend the complaint on his own.

Thus, Prosser’s concern about sandbagging is not unfounded. However, we may never know how frequently it occurs. If insufficient evidence claims had to be made via ineffective assistance cla
ims, the attorney would have to testify about his reasons, or absence of reasons, for not moving to dismiss.

With these appeals being made on direct appeal, instead, such testimony will not be given, and the frequency of sandbagging will remain a mystery to all.

– David Ziemer

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David Ziemer can be reached by email.

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