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State's Top Court Says Local Man Can Be Retried
URL: http://www.mapinc.org/drugnews/v04/n940/a05.html
Newshawk: Is My Medicine Legal YET? www.immly.org
Pubdate: Thu, 01 Jul 2004
Source: Racine Journal Times, The (WI)
Copyright: 2004, The Racine Journal Times
Contact: opinion@journaltimes.com
Website: http://www.journaltimes.com/
Details: http://www.mapinc.org/media/1659
Author: Jeff Wilford
Bookmark: http://www.mapinc.org/pot.htm
(Cannabis)
Bookmark: http://www.mapinc.org/hallucinogens.htm
(Hallucinogens)
STATE'S TOP COURT SAYS LOCAL MAN CAN BE RETRIED
RACINE - Racine County prosecutors are free to re-try a Burlington man
on charges of bail jumping, after the
Wisconsin Supreme Court ruled Wednesday that a second trial would not be
double jeopardy. The ruling overturns an earlier appeals court
ruling.
Wyatt Daniel Henning, 21, of Kansasville, was originally charged with
two counts of possession of drugs with intent to deliver - marijuana and
LSD - and three counts of bail jumping. A jury in 2001 found him
innocent of the drug dealing charges, but convicted him for the bail
jumping charges. The jury appeared to have based its verdict on a
belief that Henning was guilty of drug possession, a lesser included
offense, although they didn't return a verdict on it.
The problem, the Second District Court of Appeals had ruled, was that
jurors had not been instructed on lesser included charges and Henning's
guilt on bail jumping charges depended entirely on his guilt of either
drug
dealing charge. The appeals court reversed the convictions, and said
to re-try Henning for bail jumping would amount to double jeopardy -
putting him on trial twice for the same crime.
Double jeopardy is prohibited by the U.S. Constitution.
Prosecutors appealed that decision to the state Supreme Court.
Henning's case started in January 2001 when a Burlington police officer
arrested him on outstanding warrants. During the arrest, the
officer saw Henning put a packet of marijuana in a car he had been
sitting in.
At the time of his arrest, Henning was out of jail on bail pending
felony charges against him. A condition of his bail was that he
not be arrested.
At his trial, lawyers agreed that if Henning were convicted of the drug
charges, he would automatically be guilty of bail jumping. Lawyers
also agreed on an all-or-nothing approach - that Henning would either be
convicted of possession with intent to deliver and bail jumping, or
found innocent of all charges.
But when jurors asked if they could consider the lesser charge of drug
possession, Judge Stephen Simanek said yes. Seven minutes later,
the jury acquitted Henning of drug dealing but convicted him for bail
jumping.
Henning appealed. He has been free on bond pending the outcome of
all the appeals.
Three justices disagreed with the Supreme Court's ruling. In a
dissent opinion, Justice N. Patrick Crooks wrote that prosecutors
had been unable to prove the more serious drug dealing charges at trial
and allowing them a second chance to prove the lesser charge of drug
possession equals double jeopardy. Prosecutors made a strategic
choice in the first trial to link the outcomes of bail jumping to the
drug dealing charges, lost, and should have to live with it.
"The gamble the state made ... proved unsuccessful,"
Crooks wrote.
Assistant District Attorney Sharon Riek, who prosecuted Henning in 2001,
said whether or not Henning is re-tried depends on whether or not
Henning is willing to plead guilty or no contest to avoid one.
"If he wants a trial, the state will re-try the case," Riek
said. |
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