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On Behalf of | Aug 23, 2019 | Firm News

Wisconsin gains jurisdiction over a person when:

(a) The person commits a crime, any of the constituent elements of which takes place in this state.
(b) While out of this state, the person aids and abets, conspires with, or advises, incites, commands, or solicits another to commit a crime in this state.
(c) While out of this state, the person does an act with intent that it cause in this state a consequence set forth in a section defining a crime.
(d) While out of this state, the person steals and subsequently brings any of the stolen property into this state.
(e) The person violates s. 943.201 or 943.203 and the victim, at the time of the violation, is an individual who resides in this state, a deceased individual who resided in this state immediately before his or her death, or an entity, as defined in s. 943.203 (1) (a), that is located in this state.
(f) The person violates s. 943.89 and the matter or thing is deposited for delivery within this state or is received or taken within this state.
(g) The person violates s. 943.90 and the transmission is from within this state, the transmission is received within this state, or it is reasonably foreseeable that the transmission will be accessed by a person or machine within this state.   Wis. Stat. Sec. 939.03.

The Wisconsin Supreme Court has characterized § 939.03 as relating to the personal jurisdiction of the court.  State v. Smith 131 Wis. 2d 220, 239,240, 388 N.W.2d 601 (1986).  See also, Platz, The Criminal Code, 1956 Wis. L. Rev. 350, 359-60.  The limitations in § 939.30 assure a sufficient relationship between the defendant and the State of Wisconsin to constitutionally exercise authority over him.  Id. at 239.

A question arises about how Wisconsin gains jurisdiction over someone not living in Wisconsin.  Normally, that is gained by the extradition process.  U. S. Const. Art. IV, § 2, cl.2, provides: “A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.”  See also, Uniform Acts in Criminal Proceedings, Wis. Stat. Chap. 976.  There were early challenges to this uniform act when it was adopted in states but it was found constitutional despite going farther than what was provided in the Constitution.  State v. Kriss, 62 A. 2d 568 (Md. 1948); People v. Herberich, 276 App. Div. 852, 93 N. Y. S. 2d 272 (1949) aff’d mere., 301 N. Y. 614, 93 N. E. 2d 913 (1950); English v. Matowitz, 148 Ohio St. 39, 72 N. E. 2d 898 (1947).

Sometimes law enforcement does not like to have to follow legal procedures.  The question then arises can law enforcement kidnap someone in one state and force them to appear in another state?  The person who is thus kidnapped and brought for trial into the state having jurisdiction over the subject matter of the crime may urge that the court has no jurisdiction over the person of the defendant (or, if it has jurisdiction, that it should not exercise this jurisdiction) in view of the illegal manner in which his presence in the state was obtained. In the reported cases he usually raises this issue of jurisdiction over the person either in the trial court by a plea to the jurisdiction, or by applying after the abduction for a writ of habeas corpus in a state or federal court.  Under the Federal Rules of Criminal Procedure, rule 12(b) (2), it has been held that a kidnapped defendant must challenge personal jurisdiction by a pre-trial motion; it is too late to raise the issue by a motion in arrest of judgment after verdict. United States v. Rosenberg, 195 F. 2d 583 (2d Cir. 1952). Failure to raise the point early constitutes a waiver. Id.

It is of particular note that early decisions found that where a defendant was properly in custody on a federal case, he could be brought before a state court for trial.  Ponzi v. Fessenden, 258 U. S. 254 (1922).  Likewise, the U.S. Supreme Court has found nothing in the U.S. Constitution from stopping one state from kidnapping a person and forcing him to appear in another state for trial.  Mahon v. Justice, 127 U. S. 700 (1888). Two justices dissented on the ground that the Constitution “clearly implies that there shall be no resort to force.” Id. at 716. See Ker v. Illinois, 119 U. S. 436 (1886) (where police can be held liable civilly to the victim for false imprisonment or assault and battery, no need to forbid a trial under the due process clause of the kidnapped person.).  A later case dealing with federal control over state jurisdiction over a defendant abducted from another state, Frisbie v. Collins, 342 U. S. 519 (1952), did not mention the extradition provisions of the Constitution or statutes.  The Frisbie decision was reached despite 18 U.S. Code § 1201. Kidnapping (Lindbergh Law) which provides severe criminal penalties for “[w]hoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person …when the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense.”  See also, 34 U.S.C. § 12601 which makes it unlawful for State or local law enforcement officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or laws of the United States.  The types of conduct covered by this law can include, among other things, excessive force, discriminatory harassment, false arrests, coercive sexual conduct, and unlawful stops, searches or arrests. However, in order to be covered by this law, the misconduct must constitute a “pattern or practice” — it may not simply be an isolated incident.  Thus, one incident of kidnapping is permissible.

What of the due process clause which provides the government “shall deprive any person of life, liberty, or property, without due process of law”?  The due process clause, as applied to state criminal procedure, has been said to embrace “principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”  Snyder v. Massachusetts, 291 U. S. 97, 105 (1935).  Due process requires all that is “implicit in the concept of ordered liberty,”  Palko v. Connecticut, 302 U. S. 319, 325 (1937). and, as applied to state criminal procedure, “denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice.”  Lisenba v. California, 314 U. S. 219, 236 (1941).  Doesn’t kidnapping someone in one state and forcing him to appear in another state violate due process?  In short answer, the Frisbie court said prior decisions denying any due process violation by such action “rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a [state] court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.”  Frisbie at 522.  All the process that is due a person is to be notified of the charges and get a fair trial.  See also, Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056 (2016) where Justice Clarence Thomas, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito, held the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband.  Thus, police have a free pass to violate the rights of individuals — just so long as they find evidence of a ‘crime.’  Justice Elena Kagan wrote a dissenting opinion, in which Justice Ginsburg joined in full, where she argued that the majority’s ruling “creates unfortunate incentives for the police”

Since federal law permits illegal conduct by the police to bring a person into court, what of state law?  Some states originally barred kidnapping in the name of law enforcement.  For instance in State v. Simmons, 39 Kan. 262, 18 Pac. 177 (1888), the court stated: “It would not be proper for the courts of this state to favor, or even to tolerate, breaches of the peace committed by their own officers, in a sisterstate… [Jurisdiction should not be sustained when obtained only] in violation of some well-recognized rule of honesty or fair dealing, as by force or fraud .. . [Such jurisdiction] would not only be a special wrong against the individual .. .but it would also be a general wrong against society itself a violation of those fundamental principles of mutual trust and confidence which lie at the very foundation of all organized society, and which are necessary in the very nature of things to hold society together” 18 Pac. at 178-9.  Simmons was overruled by implication in Foster v. Hudspeth, 170 Kan. 338, 224 P. 2d 987 (1950),

Sadly, Wisconsin, like many states, does not see a problem with police breaking the law to enforce the law..  In State v. Smith, was held that “an illegal arrest as a jurisdictional defect is not a constitutional mandate. A defendant cannot claim immunity from prosecution “simply because his appearance in court was precipitated by an unlawful arrest,” nor does an illegal arrest serve as a defense to a valid conviction.”  State v. Smith at 236.