​PAUL A. KSICINSKI LAW
IF THERE IS NO STRUGGLE, THERE IS NO PROGRESS
38 South Main Street, #1056
Oconomowoc, WI 53066
Phone: 414-530-5214
Web: paulksicinskilaw.com
Email: pksicinski@gmail.com
 
Defense attorneys are intimately familiar with rocks and hard places. This so-called "predicament" is really just the omnipresent, on-going cost-benefit calculation counsel must perform as a matter of course throughout trial. As the prosecution presents its case, defense counsel must carefully consider, in real time, every piece of evidence as it comes in throughout the entirety of the proceeding. Upon hearing each piece of information, often for the first time, he must assess its accuracy against the information in his possession, weigh its likely impact on the jury, consider how it might strengthen or weaken his theory of defense, determine its effect on evidence yet to be introduced, and analyze its compliance with evidentiary rules. And he must do all of that in the heartbeat that passes between when he hears the evidence and he rises to announce his objection. This he must do upon pain of forfeiting the claimed error.  State v. Coffee, 2020 WI 1 ¶56 DANIEL KELLY, J. (concurring).

I do not watch enough professional basketball to figure out the status of Lebron James.  I do know ESPN rated him as one of the most successful and influential basketball players of all time.  He not only knows how to shoot hoops, but he knows how to use his head.  For instance, his house was spray-painted with racist graffiti.  At the news conference about the incident, James said that when he learned of the slur, he thought about the mother of Emmett Till. After her 14-year-old son was lynched in 1955, she insisted there be an open coffin so people could see for themselves the brutality of the murder.  He said, “No matter how much money you have, no matter how famous you are, no matter how many people admire you, being black in America is — it’s tough,” says James. “And we got a long way to go for us as a society and for us as African-Americans until we feel equal in America.”  He also once wore a shirt saying, “I Can’t Breathe” instead of his Cleveland Cavaliers jersey in the team’s Dec. 8, 2014 game against the Brooklyn Nets. The protest T-shirt invoked the last words of Eric Garner in Staten Island, New York who died as a police officer put him in a chokehold.

So what is the big deal here anyway?  Who cares if the system is fair as long as the “bad guys” are punished?
The “big deal” is that there is a “growing consensus to make reforms to the juvenile and criminal justice systems to ensure that criminal laws are enforced more fairly and efficiently.  Unwarranted disparities and unduly harsh sentences undermine trust in the rule of law and offend the basic principles of fairness and justice.  In an era of limited resources and diverse threats, there is a public safety imperative to devote the resources of the criminal justice system to the practices that are most successful at deterring crime and protecting the public.”  President Obama fact sheet.

Before you just blow off this statement as political rhetoric, take a look at the Chicago Gun Project (CGP).  See Andrew V. Papachristos, Tracey L. Meares & Jeffrey Fagan, Attention Felons: Evaluating Project Safe Neighborhoods in Chicago, 4 J. EMPIRICAL LEGAL STUD. 223, 224 (2007).  The CGP examined how offenders’ perceptions of the law and social networks influence their understanding of legal authority and subsequent law-violating behavior.  The findings suggest that while criminals as a whole have negative opinions of the law and legal authority, these offenders are more likely to obey the law when they believe in (a) the substance of the law, and (b) the legitimacy of legal actors, especially the police. 

This means that deterrence-based law enforcement policies like creating fear based on police presence does not work.  Many policies of the criminal system are based on increasing the threat and actual use of formal sanctions, such as police saturation patrols, judges being tough on crime, three-strikes laws, mandatory minimum sentencing guidelines, and increased penalties for certain types of crimes. In other words, fear based forced compliance with the law does not create compliance with the law.  See, Tom R. Tyler, Why People Obey the Law (Princeton University Press 2006) (people obey the law if they believe it's legitimate, not because they fear punishment).  Tyler suggests that lawmakers and law enforcers would do much better to make legal systems worthy of respect than to try to instill fear of punishment. He finds that people obey law primarily because they believe in respecting legitimate authority.

It is a sad comment on society that it takes a basketball player to teach proper law enforcement policies

In the story The Pedestrian, Leonard Mead, is a citizen of a television-centered world in 2053.  In the city, sidewalks have fallen into decay. Mead enjoys walking through the city at night, something which no one else does. "In ten years of walking by night or day, for thousands of miles, he had never met another person walking, not one in all that time." On one of his usual walks, he encounters a police car.  Mead tells the car that he is a writer, but the police do not understand, since no one buys books or magazines in the television-dominated society.  The police cannot understand why Mead would be out walking for no reason.  The police decide to take him to the Psychiatric Center for Research on Regressive Tendencies. As the police car passes through his neighborhood, Mead says, "That's my house.", and points to a house warm and bright with all its lights on unlike all other houses. There is no reply.  End of story
 
Can you believe being picked up by police and being taken to a mental hospital because you were on a nighttime walk?
There a a bunch of Wisconsin laws and/or ordinances which restrict basic human activities of public activities, such as loitering, which is defined as “wandering or strolling around from place to place without any lawful purpose.” The laws grants the police the power to approach anyone on the street who they believed was violating the law and ask what they are doing.  Anyone see a problem with that?  Do the police have the right to define if a citizen is engaged in a lawful purpose?  As Bill Nye says, before you answer consider this:

America’s constitutional tradition, which protects the rights of people to freedom of movement and association. These guarantees always have included the right to freely use the public ways, parks and other forums of our cities for the lawful purposes of engaging in family activities, and communicating with others about matters both personally important and of public concern. Roberts v. United States Jaycees, 468 U.S. 609 (1984); Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).  Incidentally, given the times we live in today this freedom of movement includes the right to move across national lines.  The first formal recognition of a right to foreign travel at common law was ch. 42 of the Magna Carta. The power of the King to prevent departures through the writ of Ne Exeat Regno was at one time a potent weapon of the monarchy, but the writ fell into disuse, For the common law background see Note, Passports and Freedom of Travel: The Conflict of a Right and a Privilege, 41 Geo. L.J. 63, 64-70 (1952). In America, Ne Exeat Regno survived as an equitable writ against absconding debtors. Parker, The Right to Go Abroad: To Have and to Hold a Passport, 40 Va. L. Rev. 853, 868 (1954).  See also, Boudin, The Constitutional Right to Travel, 56 Colum. L. Rev. 47 (1956).

Court decisions have condemned the inherent vagueness of loitering laws as was mentioned above. Thornhill v. Alabama, 310 U.S. 88, 100 (1940); Shuttlesworth, 382 U.S. at 90-91; Palmer v. City of Euclid, 402 U.S. 544, 545 (1971); Papachristou, 405 U.S. at 162-71. The ordinance's vague prohibition on behavior without an apparent purpose fails to provide any standard by which people can measure their conduct. Papachristou, 405 U.S. at 165; Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). Similarly, the law provides no guidance to police officers. Kolender v. Lawson, 461 U.S. 352, 360 (1983).  “This ordinance is void for vagueness, both in the sense that it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute and because it encourages arbitrary and erratic arrests and convictions.“  Papachristou, 405 U.S. at 162.  Such laws are the “garbage pail of the criminal law” and suffer from “procedural laxity which permits `conviction' for almost any kind of conduct and the existence of the House of Correction as an easy and convenient dumping-ground for problems that appear to have no other immediate solution.”  Foote, Vagrancy-Type Law and Its Administration, 104 U. Pa. L. Rev. 603, 631 (1956).  The law is subjectively enforced to permit a law-abiding citizen to comport “to the lifestyle deemed appropriate by the [ ] police and the courts.”  Papachristou, 405 U.S. at 170.

In Papachristou Justice William Douglas, writing on behalf of the court, ultimately referenced a right that today is not readily known to most Americans: the right to free movement: “[t]he difficulty is that these activities are historically part of the amenities of life as we have known them.   These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence. They are embedded in Walt Whitman's writings, especially in his "Song of the Open Road." They are reflected, too, in the spirit of Vachel Lindsay's "I Want to Go Wandering," and by Henry D. Thoreau.” Id. at 164.  Police, therefore, should not be permitted to use mere suspicion of criminal activity to interrupt the daily life of people.  Laws which interfere with an individual’s right to stand or walk on public sidewalks, the “right to freedom of movement” cannot be left to “the whim of any police officer.”  Shuttlesworth, 382 U.S. at 90. 

The Brennan Center for Justice released a first-of-its-kind report, The Steep Costs of Criminal Justice Fees and Fines: A Fiscal Analysis of Three States and Ten Counties, revealing that court-imposed fees and fines thwart rehabilitation, fail to make communities safer, and are an insufficient source of government revenue.
 
The Brennan Center’s report analyzes ten counties within Florida, New Mexico and Texas, as well as statewide data for those three states. Among the report’s key recommendations are: (1) states and localities should pass legislation to eliminate court fees imposed to fund the government; (2) states should institute a sliding scale when assessing fines based on ability to pay; (3) courts should stop jailing individuals for their failure to pay court-imposed fees; and (4) states should stop suspending driver’s licenses for people who are unable to pay their fees and fines.
 
The release of the Brennan Center’s report follows the U.S. Supreme Court’s unanimous ruling in Timbs v. Indiana that the Eighth Amendment’s prohibition of excessive fines applies to state governments as well. On remand, the Indiana Supreme Court determined that the state’s seizure of Timbs’s vehicle was a fine. The Brennan Center and others filed a friend-of-the-court brief in Timbs, which argued that civil asset forfeiture is a violation of the Eighth Amendment.

In the movie Tomorrow Never Dies, Pierce Brosnan as James Bond gets to drive his car by remote control before demolishing it in James Bond style.  The first time Bond drives his BMW he is not even inside the car.  What happens if that is done in real life and James Bond would be drunk?  Could the police pull him over for drunk driving?  Believe it or not, this is not just an academic question.  Just ask “Timmy."

“Timmy” is the name of the client who was kind of in the same position as James Bond in Tomorrow Never Dies.  However, “Timmy” was not charged with drunk driving for driving his car by remote control.  “Timmy” actually did James Bond one better:  He was charged with drunk driving for driving his drone while intoxicated! 

Upon turning 18 years old, “Timmy” got his drone.  As his birthday party, Timmy and his buddies went out to a park and fly the drone around for laughs.  They also brought along some beer.  Lots of beer.  Timmy decided it would be fun if he took pictures from his drone of people as they were walking around.  He also mistakenly flew the drone over a county jail.  Needles to say that behavior got the attention of law enforcement which apparently did not like James Bond or Timmy buzzing the jail with his drone.  Among other things, Timmy was charged with drunk driving of his drone.

 “Drones” are “powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, and can fly autonomously or be piloted remotely. A drone may be expendable or recoverable.”  Wis. Stat. Sec. 941.292 (1).  See also, Wis. Stat. Sec. 114.105 (1) (a) (Drone" means an aircraft operated without the possibility of direct human intervention from within or on the aircraft.); See also, Public Law 112-95, Section 331(8).  Wis. Stat. Sec. 941.292 refers to weaponized drones.  The B4UFLY app is an easy to use tool to help recreational drone flyers know where they can and cannot fly with interactive maps. The new app is now available to download for free at the App Store for iOS and Google Play store for Android.  National Drone safety Week has a helpful publication here.  This publication makes it clear that the FAA sees operating a drone subject to the same regulations as driving a car: “Just like cars and planes – we need to keep the roads and airways secure for everyone – commuters, hobbyists, general public.”

A drone which is not weaponized is “any contrivance invented, used, or designed for navigation of or flight in the air, but does not include spacecraft.”  Wis. Stat. Sec. 114.002 (3).  See also, 49 USC § 40102.  To operate aircraft “means the use, navigation or piloting of aircraft in the airspace over this state or upon any airport within this state.”  Wis. Stat. Sec. 114.002 (17).  While aircraft would typically refer to an airplane, the phrase “contrivance invented, used, or designed for navigation of or flight in the air” could include a drone as well.  Wis. Stat. Secs. 114.105 (1)(a) and 114.002(3).  Regardless of aircraft type, the responsibility to fly safely applies equally to all manned and unmanned aircraft operations.  A summary of FAA rules for drones can be found here.
Flying a drone around in Wisconsin “unless at such a low altitude as to intentionally interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous or damaging to persons or property lawfully on the land or water beneath.”  Wis. Stat. Sec. 114.004.  Further, it is a felony offense to put a weapon on a drone.  Wis. Stat. Sec. 941.292.  Further, if you fly any drone, with or without weapons, over any “correctional institution,” you can be required to forfeit not more than $5000.00.  Wis. Stat. Sec. 114.045.  A drone cannot be operated in a manner that interferes with, any manned aircraft.  Section 336 of Public Law 112-95.

Finally Wisconsin law prohibits a person from operating an aircraft “in the air or on the ground or water while under the influence of intoxicating liquor or controlled substances or controlled substance analogs under ch. 961 or a combination thereof, under the influence of any other drug to a degree which renders him or her incapable of safely operating an aircraft, or under the combined influence of intoxicating liquor and any other drug to a degree which renders him or her incapable of safely operating an aircraft.”  Wis. Stat. Sec. 114.09.  Violation of the statute carries serious jail time, anywhere from 30 days to 6 months which can be increased depending on the level of your intoxication.

On October 18, 2019 USA Today had an opinion column with the writer being Donald Trump.  A political response by Bernie Sanders can be found here.  Readers response to the opinion column  here was headed: “Trump and his party are on a wildly unpopular mission to gut Medicare and protections for pre-existing conditions.”  A fact check of the statements of fact in the Donald Trump opinion column are shown to be false here.
 
Some would say erroneous statements by Trump should not be allowed in the press.  Others will say that the responses criticizing the Trump column is unpatriotic.  Both statements are wrong.  . U.S. Supreme Court Justice Benjamin Cardozo reasoned in Palko v. State  Connecticut, 302 U.S. 319 (1937) that: “[f]reedom of thought... is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of this truth can be traced in our history, political and legal.”
 
The first response is incorrect because erroneous statements should be allowed in the newspapers.  As Thomas Jefferson said, “let them [who make erroneous statements] stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it.”  This contemplates that intelligent response to Trump’s statements must be allowed.
 
That brings us to the second response and why it is also wrong.  Benjamin Franklin wrote, “It is the first responsibility of every citizen to question authority.” So before we agree to serve in the military, before we voice support for a president or other government official, we must be willing to dissent. And I believe this can take the form of questioning authority.  Theodore Roosevelt tells us: “To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American people.”  Franklin and Roosevelt are telling us we must question the authority of even the president of the United States.
 
The take away to this is that intelligent skepticism may be thought of as a way to overcome despair or cynicism, it is to say “Yes, we’re not perfect, but we’re trying.” It’s easy to get cynical about our country and the way it’s being run (just look at national debates of everything from gun control to the Supreme Court). But patriotism is saying no to cynical feelings, believing in our ideals even when we don’t live up to them.
 
A skeptic must be free to criticize our nation and our government.  In fact, patriots should be the most fervent of critics when it comes to the way their nation is being run. But this criticism comes from a place of hope, not one of despair. Patriots criticize because they know their nation can be better.  Bryan Zollinger is a Republican Idaho State Representative who said, “If our nation is to survive, it must have a national narrative that seeks not to blame but to inspire, not to divide but to unite, not to demean but uplift.” I totally take exception to the implication that criticizing the government can’t be done by a patriot and someone who loves their country and that such criticism is demeaning of Our Constitution is one of the most inspiring and culture changing pieces of work ever struck by man. It has held this nation together for two centuries. Progressives and liberals do not hate Idaho or the United States of America. To say or promote such an idea is fomenting division. It is not unity.”

Whatever you think of the impeachment President Trump, as a U.S. citizen, it is your duty as a citizen to understand the impeachment process to advise your government representative about your thoughts on the process.
An impeachment inquiry is a process to determine whether the House of Representatives will vote on impeachment and on what grounds. If the inquiry leads to a vote on impeachment in which a majority of representatives vote yes, then the president is impeached, which means the matter is referred to the Senate for a trial. In the Senate, if 2/3rds of senators also vote yes, then president would be removed from office.

A Simple Timeline for Impeachment and RemovalImpeachment in the House of Representatives① Impeachment Inquiry On Sept. 24, 2019, Speaker of the House Nancy Pelosi announced that the House of Representatives will move forward with an official impeachment inquiry. This announcement alone is enough to begin official impeachment proceedings, starting with the directive that six House committees continue their investigations of the President “under that umbrella of impeachment inquiry.”

② Investigative Authority In the cases of Presidents Nixon and Clinton, a resolution was necessary to grant the House Judiciary Committee with authorities to conduct an investigation into impeachment. However, under the current House rules, the committee already has those authorities. ← We are here.

③ Committee Reports After investigating, committees will report their findings to the House as a whole. In the past, the House Judiciary Committee has voted on whether to recommend impeachment and has reported an impeachment resolution with specific allegations of misconduct. Each investigating committee may report separate findings.

④ Vote on Impeachment The House would then vote on an impeachment resolution containing articles of impeachment, which are the charges of misconduct. This vote only requires a simple majority for passage. If passed, the subject of the inquiry is impeached — which means the matter is referred next to the Senate.

Trial in the Senate⑤ Preparation for a Trial If the House chooses to impeach, there will be a trial in the Senate to determine if the President is guilty. To start this process, the House will select “managers” to present evidence to the Senate and to subpoena witnesses, and the Senate will issue a writ of summons to the impeached official to appear.

⑥ Trial The trial is roughly analogous to a criminal court trial, with the House managers playing the role of the prosecution, the Senate as the jury, the Chief Justice of the Supreme Court as the judge, and the impeached official is the defendant. However, the Constitution is clear that it is not a criminal trial, since the standards for evidence and conviction are up to the Senate.

⑦ Deliberation Similar to a jury, the Senate meets in closed session to deliberate the substance of the trial.

⑧ Vote on Conviction Finally, the Senate votes on each article of impeachment separately. These votes require a ⅔rd majority to convict, which results in removal from office. The Senate may also vote on whether the convicted official becomes disqualified from holding a government position again, for which only a simple majority is required.
Appealing a Conviction⑨ Judicial Review Impeachment proceedings have been challenged in federal court on a number of occasions. In the unlikely event that the president is impeached and the Senate convicts him, there may be lawsuits to appeal the conviction. However, courts have said in the past that Congress’s power to impeach is broad and in many cases is not subject to judicial review.
 
What’s happening now
Democrats and Republicans both generally now agree on the facts — that President Trump asked Ukraine and China to investigate an election rival — but disagree on whether that action warrants impeachment.
Six House committees — including the House Intelligence, Foreign Affairs, and Oversight committees — will submit what they consider evidence of impeachable acts to the Judiciary committee which may then draw up charges, called articles of impeachment.
Support an impeachment inquiry
See the breakdown in the link below this section.  There are two vacancies in the House: Representative Sean Duffy, Republican of Wisconsin, left office in September, and Chris Collins, Republican of New York, resigned on Tuesday.   SOURCE: New York Times, https://www.nytimes.com/interactive/2019/us/politics/trump-impeachment-congress-list.html?mtrref=impeachment.guide&gwh=C353B306E481DD87F246359FB7B871D0&gwt=pay&assetType=REGIWALL
 
What charges are being considered for President Trump?Foreign Assistance in the Election The White House has said that in a July 25, 2019 phone call, President Trump asked Ukraine president Volodymr Zelenskyy for a “favor” to investigate the President’s chief political opponent and to locate the Democratic National Committee (DNC)’s 2016 email server, and on Oct. 3, 2019, President Trump suggested Ukraine and China should open an investigation during a press conference. The President asked Zelenskyy to coordinate the investigations with the President’s personal lawyer, Rudy Giuliani. Although framed as an official investigation into corruption, the focus on the President’s political opponents and the involvement of the President’s personal lawyer suggest the President’s intent was political. Foreign entities are prohibited by law from making contributions to political campaigns, including by providing favors of material value, and an impeachment charge could be based on a violation of law or perceived norms for foreign interference in elections.

Extortion or Quid Pro Quo One of the President’s foreign policy goals has been to get European countries to step up their support for military security, rather than relying on the United States. According to the White House, in the July 25, 2019 Trump-Zelenskyy phone call, the President told Zelenskyy that he thought the United States’s security aid to Ukraine made the nations’ relationship not “reciprocal,” and then in his next sentence asked Zelenskyy for the “favor” described above. Shortly before the call, the President had halted that security aid and postponed a potential visit by Zelenskyy to the White House. Although not stated in clear words on the call, the President and Zelenskyy likely understood the President as asking Ukraine to make the relationship reciprocal by performing the favor — a quid pro quo. Withholding aid and a White House visit to coerce Ukraine to perform an investigation would be extortion (even if Zelenskyy found out about the withheld aid and visit later). Both quid pro quo and extortion are generally accepted tools in foreign policy and well within the President’s foreign policy powers — so long as the President is conducting foreign affairs.

Emoluments According to the White House, in the July 25, 2019 phone call between President Trump and Ukraine president Volodymr Zelenskyy, Zelenskyy said he had stayed at the President’s Trump Tower property on his last visit to the United States, among other thanks and praise, to which the President responded positively. Since the President personally benefits from business at his properties, foreign leaders’ stays at his properties may be a constitutionally prohibited emolument.

Coverup – Mishandling Records A verbatim transcript of the July 25, 2019 Trump-Zelenskyy phone call was filed in a location meant for classified materials, the White House confirmed, even though the call did not involve classified information, according to the whistleblower complaint, in order to restrict access to it. It was also reported that a transcript of a call with China was placed in the same system. Several laws including the Presidential Records Act require presidential records like the verbatim transcript to be preserved but may not require that the records be stored in any particular electronic system. (What has often been described as the public transcript of the call is actually a summary of the call produced by the White House — it is not known whether the White House accurately summarized the verbatim transcript.)

Coverup – Withholding Whistleblower Report Although the whistleblower report was written on Aug. 12, 2019 and was deemed by a Trump-appointed nonpartisan civil servant to be credible, it was withheld from Congress by a Trump-appointed political appointee, the Director of National Intelligence, possibly in violation of existing law that requires that credible complaints be forwarded confidentially to Congress.

Key Documents
Text messages between ambassadors Taylor and Sondland and special envoy Volker. https://foreignaffairs.house.gov/_cache/files/5/0/50759349-fe81-4444-a990-65c92528de82/50EE8A2F1CFC493A98876200762152FC.chairmen-letter-on-state-departmnent-texts-10-03-19.pdf  (July 25-Sept. 9, 2019, 2019; released Oct. 3, 2019)
Video of President Trump suggesting Ukraine and China should investigate Joe Biden, https://www.cnn.com/2019/10/03/politics/trump-biden-call-xi-secure-server/index.html (Oct. 3, 2019)
Here is the whisleblower complaint, https://assets.documentcloud.org/documents/6430388/20190812-Whistleblower-Complaint-Unclass.pdf (Aug. 12, 2019; released Sept. 26, 2019)
Trump-Zelenskyy Call Summary, https://www.nytimes.com/interactive/2019/09/25/us/politics/trump-ukraine-transcript.html (July 25, 2019; released Sept. 24, 2019)
Chronology
Ambassadors’ Roles Text messages between U.S. ambassadors released by the House Foreign Affairs Committee on Oct. 3, 2019 show a debate over whether President Trump was withholding aide to Ukraine and a White House visit by the Ukrainian president in exchange for an investigation into Joe Biden. Kurt Volker, a part-time, volunteer “special envoy” to Ukraine, was also interviewed on Oct. 3, 2019 by the same committee in a closed sesssion — Democrats and Republicans have given inconsistent accounts of the substance of the interview. It was also reported that a previous ambassador to Ukraine was fired earlier in the year for not pushing Ukraine on the investigation. And on Oct 4., 2019, Ukraine said it would open an investigation.
Confirmation President Trump asked Ukraine and China to investigate Joe Biden during a press conference on the White House lawn [video], also on Oct. 3, 2019.
 
Key Documents Released On Sept. 25, 2019, the White House released a summary of the Trump-Zelenskyy call. After the Senate and House voted unanimously on Sept. 24-25, 2019 on non-binding resolutions demanding access to the whistleblower complaint, and minutes before the Director of National Intelligence’s Sept. 26, 2019 appearance before the House Intelligence Commitee, the White House made the complaint available to Congress, which then made it available to the public.
Inquiry Opened In September 2019, it became known that a government employee filed a whistleblower complaint documenting that on July 25, 2019, President Trump urged Ukraine president Volodymr Zelenskyy to investigate alleged actions by presidential candidate Joe Biden, Trump’s chief 2020 election rival at the time. The President also asked Ukraine to locate the Democratic National Committee’s 2016 email server (which was hacked by Russia in an effort to help the President win the 2016 election), and to do both investigations in collaboration with the President’s personal lawyer. On Sept. 24, 2019, Speaker of the House Nancy Pelosi announced an inquiry into the impeachment of President Donald Trump would begin.
Previous Impeachment Votes This is not the first time impeachment of President Trump was proposed — in fact, the House of Representatives has already voted on impeachment three times, rejecting impeachment each time. In December 2017 the House voted 58 to 364 and in January 2018 the House voted 66 to 355 against impeachment based on Trump’s equivocating comments after the white supremacy march in Charlottesville, Virginia and his calls as a presidential candidate to ban all Muslim immigration. In July 2019, the House voted 95 to 332 against impeachment based on Trump’s racist tweet that four congresswomen should “go back” to where they came from. [See how representatives’ votes changed.]
SOURCE: GovTrack.us, https://impeachment.guide/

The art of the criminal system is drawing lines.  For instance, the criminal system takes a lot of time in trying to draw the line between guilt and innocence.  But in the words of Justice Frankfurter, “In law, as in life, lines have to be drawn. But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere. The line must follow some direction of policy, whether rooted in logic or experience. Lines should not be drawn simply for the sake of drawing lines.”  Pearce v. Commissioner of Internal Revenue, 315 U.S. 543, 558 (1942) (dissenting, Frannkfurter, J.)

Unfortunately, some states have arbitrarily drawn a line in the criminal system.  In 1996 Kansas adopted the mens rea approach to the insanity defense which “allows evidence of mental disease or defect as it bears on the mental element of a crime but abandons lack of ability to know right from wrong as a defense.”  In a few words, Kansas drew a line in the criminal system that allowed people who had a mental disease or defect to be criminally punished.  Kansas (along with Alaska, Idaho, Kansas, Montana and Utah) wants people to know that people with a mental disease or defect should be in prisons not in mental hospitals.  Do not let that mental disease or defect fool you!  Kansas says just because you are crazy you are still rational to justify criminal punishment.

Kansas wants the public to forget the deep-rooted principle of law that “[t]hose who are under a natural Disability of distinguishing between Good and Evil. . . are not punishable by criminal Prosecution whatsoever.” 1 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 2 (1739).  The significance of this line from England is that “the Eighth Amendment’s ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time the Bill of Rights was adopted.” Ford v. Wainwright, 477 U.S. 399, 405 (1986).

However, the prohibition against criminalizing the mental ill has older roots.  Law-breakers suffering “mental disease . . . [are] not punishable for criminal acts.” Davis v. United States, 160 U.S. 469, 484-85 (1895).  Also forget the ancient principle that for a system of criminal punishment to be just, there must be some measure of mercy accorded to those who cannot appreciate “right and wrong” or distinguish between “good and evil” because of a mental illness. Bernard Diamond and Anthony Platt, The Origins of the “Right and Wrong” Test of Criminal Responsibility and Its Subsequent Development in the United States: An Historical Survey, 54 CAL. L. REV. 1227 (1966).  As the American Bar Association has noted in its Criminal Justice Mental Health Standards, “[t]he Greek moral philosophers, at least as far back as fifth century B.C., considered the distinction between a culpable and nonculpable act to be among the ‘unwritten laws of nature supported by the universal moral sense of mankind.’” ABA CRIMINAL JUSTICE MENTAL HEALTH STANDARDS 324 n.8 (1989) (quoting B. JONES, THE LAW AND LEGAL THEORY OF THE GREEKS 264 (1956)).  Likewise, “[a]ncient Muslim law, Hebraic law, and Roman law all sought to absolve the mentally ill of criminal responsibility.” Andrew P. March, Insanity in Alaska, 98 GEO. L.J. 1481, 1493 (2010).

But hey….why should history get in the way of throwing the mentally ill in prison?  Well maybe because the moral purpose of the insanity defense is to implement society’s “judgment that individuals unable to understand or control their conduct deserve treatment, not punishment.” Stephen M. LeBlanc, Cruelty to the Mentally Ill: An Eighth Amendment Challenge to the Abolition of the Insanity Defense, 56 AM. U. L. REV. 1281, 1285 (2007).  As the United States noted that it is a “humane principle, existing at common law” that offenders should be punished only when they exhibit “sufficient mind to comprehend the criminality or the right and wrong of such an act.” Davis v. United States, 160 U.S. 469, 484-85 (1895). In our criminal justice system, “a criminal sentence must be directly related to the personal culpability of the criminal offender.” Tison v. Arizona, 481 U.S. 137, 149 (1987).

Skip forward to America today.  The issue of the insanity defense and guilt and innocence is before the United States Supreme Court.  In Kahler v. Kansas the issue is whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.  The Kansas Supreme Court upheld Kahler’s death sentence, rejecting his argument that the failure to allow him to raise an insanity defense violated the Constitution. The U.S. Supreme Court agreed to hear the case in March.

So where would you draw the line?

The Daily Beast explains that at Cremona, Italy’s Stradivarius Museum, peerless 18th century violins are protected by cameras, alarms, and armed guards stationed both in the museum’s hallways and inside a remote control booth.  Stradivarius violins are some of the most sought after and valuable instruments in the world. With instruments from the violin maker’s golden period of 1700 to 1725, it is a rare honor to set eyes, or hands, on one.

In Milwaukee, Wisconsin, circa 2008, however, the Lipinski Strad—a 1715 Stradivarius violin valued at over $6 million, and rumored to have once been touched by the Devil himself—was left in the hands of acclaimed musician Frank Almond, whose sole means of safeguarding it was hiding a cell phone in its case, for GPS-tracking purposes.  In 2014 Frank Almond was robbed of this one-of-a-kind Lipinski Stradivarius violin. 

I was to come in contact with this famous violin when I represented Universal Allah, a humble barber obviously way in over his head when he hooked up with the mastermind of the offense, Salah Salahadyn.

That story, entitled “Plucked” was to be told by Joel Van Haren who is an award-winning journalist and Emmy-nominated cinematographer at the 2019 Tribeca Film Festival at Village East Cinema on April 28, 2019 in New York City.

That film is coming to Milwaukee for the Milwaukee Film Festivel and will be shown at the Broadway Theatre Center, 158 N Broadway, Milwaukee, WI 53202 on Tues., Oct. 22, 2019 at 6:45 pm and at the Oriental Main, 2230 N Farwell Ave, Milwaukee, WI 53202 on Friday , Oct. 25, 2019 at 9:15 pm

In our internet society with boundless information at our fingertips, people try to take legal matters into their own hands.  Forgotten is the old saying of the person who represents him/herself in court has a fool for a client.  People continue to try to represent themselves in court after watching some TV show or reading an article on the internet.

That is dangerous.  Very dangerous.  Do you think you can do brain surgery because you watched “House” or “Gray’s Anatomy” on TV?

Rather than trying to represent yourself in court, consider hiring a lawyer for limited term representation.  The Wisconsin Bar has explained that limited scope representation allows attorneys to work on limited aspects of case. For instance, a lawyer might agree to draft a motion. A lawyer may agree to drafts briefs in litigation, but not to appear in court. Or, a lawyer may agree to appear in court, but only for one particular proceeding. 
The current Wisconsin Rules of Professional Conduct for Attorneys have explicitly allowed limited scope representation since 2007.  SCR 20:1.2(c) reads as follows: 

A  lawyer  may  limit  the  scope  of  the  representation  if  the  limitation  is  reasonable  under the circumstances and the client gives informed consent. Thus   the   Rules   explicitly   allow   limited   scope   representation   under   certain   circumstances.

Comment [6] to the Rule further explains:

A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may  exclude  specific  means  that  might  otherwise  be  used  to  accomplish  the client's  objectives. Such limitation may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

Judge John P. Anderson, Bayfield County Circuit Court & Attorney Mary K. Wolverton, Chairpersons of Limited Scope Representation Subcommittee of Planning and Policy Advisory Committee for the Wisconsin Supreme Court have explained that “[l]imited scope representation is one [ ]tool that can improve access to justice for some Wisconsin residents who may not wish to retain counsel throughout an entire legal proceeding or who may not have the resources for full representation.”

Judge John P. Anderson continues, “As a result of economic downturn, families have less money to spend at a time when their legal needs remain at least the same or are rising. The result is more people are using inappropriate legal documents purchased through online companies to file pleadings, affidavits, and other documents. At the same time, lawyers face economic challenges of their own in finding new clients willing and able to hire an attorney. Many self-represented litigants are unaware that they have the option of hiring an attorney to provide limited assistance. It’s a match based on mutual interest that would benefit everyone involved.”

Attorneys must determine whether it is reasonable to limit the scope of representation based on the circumstances at the time of the engagement.  The Chicago Bar has explained that this requires attorneys to consider both the complexity of the legal matter and the capabilities of the client.

Complexity of the Legal Matter:
• Is the case simple enough substantively, strategically, and procedurally to be broken down into discrete steps that can be easily divided between the attorney and the potential client?
Capabilities of the Client:
• Does the potential client have realistic expectations about their ability to handle all or parts of the case on their own?
• Does the potential client have the mental, physical, and emotional capacity to handle parts of the case on their own? When making this determination, an attorney should consider many factors including, but not limited to, disability status, English proficiency, and whether the potential client is a victim of trauma.
• Is the potential client capable of appearing independently in court?
• Does the potential client have the ability to follow instructions?
• Does the potential client have access to the technology needed to comply with e-filing and other court requirements and do they know how to use it?

If the answer to any of the above questions is “no,” the attorney should consider carefully whether limiting the scope of representation will be reasonable. However, the attorney should also keep in mind that reasonableness does not require the lawyer to predict that the client will prevail in the matter with limited scope assistance, but merely that there is a reasonable chance the litigant will do so.

Help where it’s needed
New Wisconsin limited scope rules expressly allow an attorney to appear on behalf of a client for a specific hearing or on a specific issue, provided everyone is given notice of that fact right away.  A good starting point for limited scope representation can be found here.  The new rules call for a written description of the limits on the scope of representation, but it doesn’t have to be anything fancy; many attorneys use a simple checklist, signed by the attorney and client, to take care of this requirement.  When the attorney has completed the scope of the work he or she has been hired to do, the attorney simply files a notice with the Court stating that fact, and the self-represented party is on their own from that point forward.
The new limited scope rules are good for the general public depending on the facts of a case. People who have limited income and are in need of legal assistance and guidance can focus their resources on issues in areas that will provide them the greatest benefit.  This will result in courts seeing fewer cases where unrepresented parties struggle with complex legal problems.