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ON THE DEFENSIVE: Thoughts on liberty and fair prosecution

The American system of criminal justice is based on the principle that a person remains innocent until proven guilty beyond a reasonable doubt. That is the way it should be. If a government determines that it is going to take away one’s liberty, it should only do so if it is absolutely certain that the defendant committed a crime. It is what makes our system of justice unique in many respects. We would rather let one hundred guilty go free than convict one innocent man.

For the most part, this system is still in place in our criminal justice system. When it comes to evidence, we aim to be especially fair as to what is admitted and what is not.

If the State wants to introduce DNA evidence to show that the defendant’s tissue is present on the murder weapon it must do several things. First, the tissue must be sent to the crime lab for examination and analysis. On that trip to the crime lab, the police must be extra careful to show that the chain of custody is uninterrupted.

Once the results are returned to the prosecutor, the prosecutor must then turn over that report and allow the defense to review it and have their own expert analyze it. Most importantly, whoever does the analysis for either side must come to court and testify to their findings and be subject to rigorous cross-examination.

This system has generally allowed us to have faith in the procedure, simply that all parties have the right to examine the evidence and have an opportunity to promote or challenge it.

One glaring exception in our current system is OWI enforcement. The traditional Constitutional rights take a back seat to the expediency and ease of convicting presumed intoxicated drivers. In a Constitutional world, any chemical sample of the breath, blood, or urine, would be taken and then preserved as evidence. Once it is preserved, it would be turned over to the opposing side for independent analysis. Each side could present their own theory as to why their analysis and system is better than the other and the jury would be able to decide which theory carried more weight.

Unfortunately, primarily for defendants, but also for those of us brave souls who choose to defend these cases, none of that is done. And to add insult to injury, not only is the sample not preserved, the system by which it is tested is presumed to be accurate.

State v. Disch, 119 Wis. 2d 461 (1984) tells us that a “recognized method of testing authorized by statute is entitled to a prima facie presumption of accuracy.” Accordingly, if a breath-alcohol instrument’s “method of testing” has been recognized as accurate and complies with the specifications of Wis. Stat. ß 343.305(6)(b) and Wis. Admin. Code TRANS. ß 311.04, it is afforded a presumption that its test results are accurate and reliable.

What this means is that the system is not open to cross-examination or critical analysis. So basically, you are guilty until proven innocent.

This is not the American way.

The current system has its roots in the difficulty the State had getting convictions in operating while intoxicated cases. Previously, it had to explain the testing system to juries each time a case went to trial. I can appreciate the fact that this would be a difficult task. But that does not mean that we should take shortcuts around the Constitution to achieve a certain goal.

If we really want to crack down on operating while intoxicated cases, why not have the system be one of treatment and rehabilitation, as opposed to punishment? Why do we need people to have criminal records? What good does that do? Why not give people a chance to get better and mend their ways without needing a conviction to memorialize their mistake. Why not just handle these and other substance abuse cases separately and get defendants connected with service providers that can provide meaningful help for them, as opposed to funneling them into a system that processes them out like widgets.

If we were to remove operating while intoxicated cases from the realm of criminal prosecution, not only would it dramatically lighten the burden on circuit courts, but we could still use the same criminally unconstitutional enforcement methods, while avoiding the Constitutional questions by removing the government ordered deprivations from the system. This approach would be much more intellectually consistent with our American principles of liberty and fair prosecution.

Granted, this is a dramatic departure from the traditional notions of crime and punishment, but if we want to achieve a society where there is respect for the law and the institutions that administer it, we must be consistent with our principles and fair with our punishments. Just a thought.

Theodore “T.J.” Perlick-Molinari is an associate with Birdsall Law Offices, S.C. in Milwaukee, where he has committed himself to the defense of people charged with serious criminal and drunk driving offenses. He represents Dist. 2 on the Board of Governors of the State Bar of Wisconsin. He can be reached at tjpm@birdsall-law.com.

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