So what do you do when your client is guilty? Craig Mastantuono spoke at a training seminar on criminal sentencing hearings last week at the State Public Defender’s Conference, sharing his thoughts on this very subject. His outline for that talk addresses this often misunderstood and difficult process.
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Criminal Sentencings, or, What do you do when your client is guilty?
Friday, November 11th, 2011Case Results: MLO secures dismissals of carrying concealed weapon criminal charges.
Tuesday, August 2nd, 2011Mastantuono Law Office secured dismissals in two separate carrying concealed weapon criminal cases by arguing to the prosecutors that the specific facts, and our client’s character and background, warranted such results. Both cases resolved before Wisconsin’s new CCW law was passed. Once that law goes into effect later this Fall, we expect that there will be many more arrests and cases arising from questions about what the law authorizes and prohibits. Given our vast experience in gun law cases, Mastantuono Law Office will be at the forefront of these cases, and will blog about them here. Stay tuned.
Case Results: UPDATE MLO successfully challenges the constitutionality of law that automatically bars individuals from possessing a firearm following a civil court proceeding.
Tuesday, July 19th, 2011In a decision today, a Milwaukee County Circuit Court Judge dismissed the State’s case against our client, in a case further described below. This is a victory for our client, and for our Constitutional right to possess a firearm, particularly in one’s home and for protection. The law authorizes the government to place reasonable restrictions on firearms. However, Attorney Rebecca Coffee successfully argued today that a one-size-fits all prohibition on gun possession, under any and all circumstances, for individuals following a civil court proceeding was unconstitutional as applied to our client.
In Wisconsin, individuals who are subject to a domestic abuse civil injunction automatically lose their constitutional right to possess a firearm, under any circumstances, for any reason. A domestic abuse injunction is granted if a Court finds “reasonable grounds to believe” that the respondent has engaged in, or may engage in, domestic abuse of the petitioner. If a court grants the injunction, the statute automatically requires a respondent to surrender any firearms. This automatic ban does not contain any exceptions, other than for law enforcement officials, including no exceptions allowing an individual to possess a firearm for protection or self-defense in his or her home. The statute also does not make available any argument by a respondent, or finding by a court official, that the particular individual should not be subject to the automatic prohibition. Mastantuono Law Office has argued that this automatic ban of a fundamental constitutional right following a civil proceeding, violates our client’s right under the U.S. and Wisconsin Constitutions to keep and bear arms for self-defense and protection, a right recently re-affirmed by the United States Supreme Court in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
The case is currently pending before the trial court in Milwaukee. This blog will be updated with the result of the case.
IN THE NEWS: Mastantuono Law Office continues to receive inquiries from those affected by the current “gap” between privileged and unlawful behavior.
Wednesday, April 20th, 2011Tow Operator Won’t Be Charged: He was arrested after robbery suspects shot
By Gitte Laasby, Journal Sentinel
April 19, 2011A tow truck driver who shot two men suspected of robbing him will not face charges for carrying a concealed weapon, the Milwaukee County district attorney’s office announced Tuesday.
“We look at the fact that this was a citizen placed in great danger by the conduct of others and he was forced to make a choice to use self-defense,” said Kent Lovern, a spokesman for the district attorney’s office. “Those facts really predominated our decision-making.”
The 28-year-old tow truck driver was called to the 9300 block of W. Silver Spring Drive on the city’s northwest side to tow a car around 12:30 p.m. Friday when two men robbed him at knife point, police said. After handing over money, the driver struggled with the assailants, who cut him with a knife. The driver then took out a gun and shot both of the men, 18 and 22. The shooting victims suffered non-life-threatening injuries, police said.
Lovern said the district attorney expects to issue charges against the robbery suspects Wednesday.
But the driver will not be charged with a misdemeanor because he acted “lawfully in self-defense,” Lovern said. That’s although Wisconsin, Illinois and the District of Columbia are the only places in the nation where it’s illegal to carry a concealed weapon, according to the National Rifle Association.
“It’s certainly a violation of the law. You end up balancing the conduct of the victim, mere possession of the weapon, with the reason why the weapon was ultimately used,” Lovern said. “The statute itself does not contain language that would contain a right of self-defense. But in a case like this, you have to look at the totality of facts and make an equitable consideration of, what is someone allowed to do in order to prevent use of force against them?”
To attorneys and activists, the case raises a problem of inconsistency in state law when it comes to gun rights.
About five years ago, Milwaukee criminal defense lawyer Craig Mastantuono was faced with a similar situation when he represented pizza deliverer Andres Vegas, who shot two would-be robbers in a seven-month period. Mastantuono successfully had Vegas’ confiscated guns returned to him. But the Wisconsin Supreme Court wouldn’t review the state’s age-old general ban on concealed weapons, which Mastantuono said is unconstitutional because it conflicts with Wisconsin’s 1998 constitutional amendment affirming the right to bear arms for self-defense and security.
“You can’t have a general ban saying under no circumstance can anyone carry in concealed fashion, and then have a constitutional right to carry arms for security and defense. It creates confusion for people and it gives prosecutors all the power. So it’s real murky waters,” especially for people who work dangerous jobs and want to carry guns for protection, he said.
“They put themselves at risk and carry an arm for purposes of security. The only reason this guy isn’t prosecuted is because he was being robbed. If he’d just been pulled over (by police) he would have been prosecuted.”
Mastantuono argues that complicates the decision as to who gets charged with a crime and who doesn’t and leaves citizens confused about what is and is not allowed.
The state Legislature passed concealed-carry bills in 2003 and 2006, but Gov. Jim Doyle vetoed them, said Nik Clark, president of the pro-concealed-carry group Wisconsin Carry Inc.
He said solving the issue would require repealing the concealed carry ban and the vehicle-carry statute. Clark said his group is working with tea party members and Republican legislators to get another concealed carry law passed.
Other states either authorize a permit to carry concealed weapons, or have enacted carry-concealed statutes with explicit exceptions for specific locations or circumstances, Mastantuono said.
“This issue is going to keep arising,” he said. “I don’t know that changing the law and allowing for concealed carry will deter robbery attempts, but it will clarify the law for those who put themselves in risky employment situations.”
IN THE NEWS: Mastantuono Law Office contacted for comment on racial profiling.
Saturday, March 5th, 2011Bill Puts Racial Profiling Data at Risk
March 4, 2011
By Jack Zemlicka, Wisconsin Law JournalThe ongoing collection of age, race and gender data by police during routine traffic stops to assess the existence of racial profiling could be an evidentiary resource for attorneys.
But a legislative push to repeal the mandate jeopardizes the chances the data will provide any value to the criminal justice system.
On Feb. 23, the state Senate passed Bill 15, which would undo the current law passed as part of the 2009-11 budget that took effect Jan. 1.
The State Bar of Wisconsin opposes the repeal and some defense attorneys argued ongoing collection of data during stops could provide ammunition to suppress evidence in cases where racial profiling is suspected and also to challenge the credibility of police.
Milwaukee criminal defense attorney Craig Mastantuono, of Mastantuono Law Office SC, said any substantial data could be particularly useful in “borderline” cases to raise the issue of whether an officer disproportionately pulls over people of a certain race.
“Then profiling becomes more germane of an inquiry and keeping data can help,” he said.
Reliable data to support a history of initiating stops of people of primarily one race invites a challenge of police practice, said criminal traffic lawyer Basil Loeb of Schmidlkofer, Toth & Loeb LLC, Wauwatosa.
“That can certainly go to their credibility and be used early on in a proceeding to determine whether the stop or arrest is valid,” he said.But others questioned the practical significance the data would have on cases.
Given that officers have constitutional protection for pretext stops for a minor violation such as a broken taillight, criminal defense attorney Michele Anne Tjader suggested the data would have minimal impact on the outcome of a case.
“I don’t think it would have been used in an evidentiary sense as far as providing defense counsel with a basis to challenge traffic stops and so forth,” she said.
Tjader, of Tjader Law SC, Madison, said the data would be more beneficial from a policy standpoint in that law enforcement could evaluate any racial inconsistencies in traffic stops.
Regardless of the results, the data collection would be most useful in analysis, rather than case strategy, said Milwaukee County District Attorney John Chisholm.
“Race is almost never a factor in an individual case review,” he said. “But the information is always there, so the benefit is really more of a macro review of the process and trying to determine discrepancies.”
Proponents of the repeal argued the data collection during traffic stops is duplicative and tedious, given that race, gender and age are already collected on citations.
Mastantuono called those arguments “baloney” and said the data collection requires little more than checking a box.
“Let the data speak for itself,” he said. “It sounds to me that people fear the answers.”
But more than two months of empirical data would be needed to paint an accurate picture of police practices.
The impetus for the collection of racial and gender-based data during stops is rooted in a 1999 task force appointed by Gov. Tommy Thompson, which recommended police record the data to “build accountability and protect the integrity of law enforcement agencies.”
In 2007, Gov. Jim Doyle advanced the initiative by forming the Commission on Reducing Racial Disparities in the Wisconsin Justice System. A report was issued the following year and recommendations that law enforcement conduct a county-by-county baseline study of racial disparity using existing traffic citation and arrest data to determine disparity levels in the state were adopted in the 2009-11 state budget.
IN THE NEWS: Attorney Mastantuono answers questions from the Wisconsin Law Journal’s Rick Benedict.
Friday, October 29th, 2010Mastantuono’s Goal: To Keep Kids Out of Trouble
October 28, 2010
By Rick Benedict, Wisconsin Law JournalIn the competitive legal profession, having a name that stands out doesn’t hurt.
But Milwaukee lawyer Craig A. Mastantuono offers much more to clients than just a memorable combination of consonants and vowels.
Since 1992, the criminal defense lawyer has successfully represented citizens in state and federal court, beginning with his time in the State Public Defender’s Office defending people facing drug prosecutions.
He started Mastantuono Law Office SC in 1999 and has successfully challenged the state’s concealed carry law and also defends children charged with delinquent or criminal behavior.
Mastantuono has said that he would prefer to never have to defend another child facing criminal allegations. To that end, he helped establish the annual fundraiser Lawyers for Boys & Girls and also the Lawyer Life Coaching Project, which pairs attorneys with children from the Boys & Girls Clubs for mentoring.
This week, Mastantuono shares his thoughts on the profession and also taps into his inner child for Asked & Answered.
Wisconsin Law Journal: If you could develop one CLE course for credit, what would it be about?
Craig A. Mastantuono: I’m a criminal defense lawyer. A topic rarely CLE’d in this area: Teaching Clients How to Say ‘I’m Sorry’ During Allocution at a Sentencing Hearing. They’re really on the spot at that moment, and almost any ordinary person can mess that moment up. Of course, the larger topic of criminal sentencing hearings is also one I rarely see CLE’d well.
WLJ: What can you spend hours doing that isn’t law-related?
Mastantuono: Dining and socializing out and road biking.
WLJ: What is your favorite website and why?
Mastantuono: I don’t know about favorite, but I’m on JSOnline a lot. I like my local news as its happening. Facebook too – it’s mental French fries.
WLJ: Which actor would play you in a movie and why?
Mastantuono: One who isn’t too expensive. If they’re making a movie about me, we’re on a low budget.
WLJ: What is one thing attorneys should know that they won’t learn in law school?
Mastantuono: Anticipate and know your audience, whether court, counsel, or client.
WLJ: What is the first concert you went to?
Mastantuono: Rush at the Rosemont Horizon in Chicago, 1984. Embarrassing. Such a typical male teen.
WLJ: If you could trade places with someone for a day, who would it be and why?
Mastantuono: Mayor Richard M. Daley of Chicago. My dream job in my hometown.
WLJ: What is the hardest thing to tell a client?
Mastantuono: That they are in trouble. Hearing that creates the same anxiety in us as when we were kids. That doesn’t change.
WLJ: What is the one luxury item you cannot live without?
Mastantuono: Navigation system on my car. Once I got one, couldn’t go back.
WLJ: If you were State Bar President for a day and could make one permanent change to the profession, what would it be?
Mastantuono: I’d make every prosecutor spend a month representing people accused of crime. Perspective can be an amazing thing.
IN THE NEWS: Mastantuono Law Office contacted to discuss domestic violence homicides.
Tuesday, January 19th, 2010Domestic Violence Homicides Up
January 18, 2010
Wisconsin Law Journal StaffA preliminary report from the Wisconsin Coalition Against Domestic Violence (WCADV) revealed a dramatic spike in domestic violence homicides last year.
According to the organization, there were 60 domestic violence-related deaths in 2009, compared to only 36 in 2008.
“Tensions are certainly high in some homes and I’d imagine the economy might be a part of that,” said Waukesha defense attorney Jennifer R. Dorow.
She hasn’t had a domestic violence-related homicide case this year, but has “gotten some repeat customers” recently for lesser charges.
Kohler & Hart LLP attorney Brian Kinstler recently successfully defended a Sheboygan woman accused of killing her husband, who had abused her for more than a decade, on New Year’s Day 2009.
He suggested that there may be more women offenders in domestic violence-related homicides than in the past.
“Based on my contact with domestic violence counseling centers, I’ve sensed that there has been an increase in the number of women who are essentially taking things into their own hands,” he said.
Tony Gibart, Policy Coordinator for WCADV, said preliminary numbers show an increase in the number of female perpetrators.
“It’s still in the single digits, but there is definitely an increase,” he said.
Harder to try
Criminal defense lawyers suggest that the higher numbers could make domestic violence cases harder to win, as district attorneys seek tougher punishments.
“When domestic violence is high on a district attorney’s radar, my clients will have to jump through more hoops to get considered for formal diversion programs,” said Dorow, a former prosecutor now at Huppertz & Dorow SC in Waukesha. “Pre-trial offers get tougher and there is less room for negotiation.”
That means someone who was referred to a treatment program for a misdemeanor offense two years ago may not get the same opportunity for counseling if their case comes across the prosecutor’s desk again.
Veteran criminal defense attorney Craig A. Mastantuono agreed.
“If it’s a case that goes to trial, we need to be twice as diligent,” said Mastantuono, of Mastantuono Law Office SC in Milwaukee.
If you’re handling a case for a client accused of homicide in the domestic violence context, Mastantuono said, the first step is to explore whether a self-defense argument is viable.
Things such as a documented history of abuse in a relationship or witness testimony on the dynamic of the relationship between the accused and the decedent can help bolster a self-defense claim.
Kinstler noted that a defendant’s testimony alone is not always enough to prove repeated abuse.
He said that in his case, he was able to track down records dating back to 1995. He also recommended researching police calls for evidence of prior instances of abuse.
“Interviewing friends and confidants, police contacts and contacts that clients may have gone to at domestic violence resource centers all can help in making a case,” Kinstler advised.
But absent a solid self-defense argument or unique circumstances, domestic violence homicide cases can be tough to win, Mastantuono said.
“They are tough to mitigate,” he said, “because a person accused of domestic violence is not sympathetic.”
Kinstler said when he was picking his jury for the trial in Sheboygan, the vast majority of the initial pool revealed either a personal or family history of domestic violence.
“I think that jurors are generally more aware of domestic violence issues than you might expect,” he said. “I was amazed.”
IN THE NEWS: Mastantuono Law Office’s annual Holiday Party for Boys & Girls Clubs of Greater Milwaukee at the Ethan Allen/Wales Juvenile Correctional Institution
Monday, November 30th, 2009The Holidays Bring Out Their Best
November 30, 2009
Wisconsin Law Journal StaffSpoiler alert: If you’re a child planning on attending the Milwaukee Society of the Polish Center’s Christmas party on Dec. 13, or if you are or will be a patient (of any age) at St. Francis Hospital in Milwaukee on Dec. 2, stop reading right now!
For those of you who are still reading, I regret to inform you that Santa Claus does not exist. The Santa who’ll be in the house on those days is really Milwaukee County Circuit Court Judge Dennis R. Cimpl.
Cimpl was recruited for the role of St. Nick five years ago for the Society party. Not long afterward, Judge Michael J. Skwierawski tapped him to play Santa at the hospital, where Skwierawski’s extended family carols and gives out ornaments every year.
That first year, Cimpl studied the not-so-simple rules for being Santa.
Central among them: Never promise a child a gift; but you may express optimism that it will be under the tree in exchange for good behavior if his or her parent, who’s likely snapping a photo, gives the nod.
He says for the first few years, he used to don the suit at home before driving to the events.
“The looks I got from people, driving my little red car on the freeway,” Cimpl recalls.
One year, he locked his keys in his car. He was fumbling around outside, looking not-so-jolly, and not wearing the hat, wig and beard, when he saw a group of children approaching. Realizing the gravity of the situation, he quickly adjusted his attitude and put his gear back on.
Now he dresses up onsite, so he’s not forced to be in character unexpectedly. He’s also more careful with the keys.
Parties focus on philanthropy
Milwaukee County Circuit Court Judge Jane V. Carroll has been doing a little extra holiday shopping for the past four years that she’s been assigned to Children’s Court.
She takes “elves” — her own children — with her on her shopping trips to help her pick out and wrap gifts for children in the foster care system in Milwaukee. They receive a child’s name and wishlist; this year, Carroll took on five.
The family distribute the presents at a party hosted by the Bureau of Milwaukee Child Welfare. Now in its fifth year, the event’s guests of honor are about 250 children. Also attending are countless foster parents, social workers, judges, lawyers, court staff, people from all walks of life, and of course, Santa Claus. There are games, activities and a full meal is served.
Carroll says, “It’s something that’s completely positive and fun for these families.
“During the rest of the year, we see their struggles and challenges, so it’s nice to let them know we care. It’s a very concrete, specific way to give back. My own kids and I enjoy that we get a name, an age and a wishlist; we get to learn a little about them, and help make them happy.”
This year’s party is on Dec. 11 at the Northside YMCA, Urban Campus Center at 1350 W. North Ave. To get involved, call Kelly Bell at (414) 220-7919.
Another holiday party is held … in jail?
Absolutely, says Milwaukee criminal defense attorney Craig A. Mastantuono. His firm, Mastantuono Law Office, annually sponsors an event for youth who attend the Boys & Girls Clubs of Greater Milwaukee at the Ethan Allen/Wales Juvenile Correctional Institution.
“These are kids who’ve been sent to juvenile corrections — or prison — and who have earned the privilege to attend the Boys & Girls Club within the institution,” Mastantuono explains.
“Moving through prison gates and walls to get to one spot of positive in an otherwise depressing environment is emotional. The Clubs’ motto — ‘the positive place for kids’ — is never more apparent than when one visits this particular club.
“It’s always the most moving holiday event that I attend during the season, by far. These kids, many there for very serious offenses, show themselves, in that setting, to be kids like any other, who appreciate someone with whom to celebrate the holidays,” says Mastantuono.
Mastantuono and his co-workers organize the event and recruit volunteers, who bring food and gifts. Among them this year will be Milwaukee County Assistant District Attorney Katharine F. Kucharski, Milwaukee Municipal Court Judge Derek C. Mosley, and a few others “who think that these kids deserve to know that someone cares about them.”
In attendance are the kids and their families, and Boys & Girls Club staff.
The date of this year’s party has not been determined. Any financial assistance is appreciated. Contact Cynthia McPhedran at cynthiam@boysgirlsclubs.org to donate.
Finally, the La Crosse County Bar Association will get together to honor staff at its Christmas party on Dec. 18 at Logistics Health.
But some attendees just can’t stop working. They’re members of the La Crosse chapter of the Paralegal Association of Wisconsin, and they’re busy collecting non-perishable food items and donations for the Hunger Task Force and West Avenue Food Emergency Resource, as well as food pantries for local schools.
Now in its eleventh year, the drive typically results in dozens of bags of groceries and several hundred dollars for the cause.
Marlane Myhre, a paralegal at Hale Skemp Hansen Skemp & Sleik in La Crosse, is one of the four organizers. It’s a fairly time consuming task, post-party, to transport the food. But they love the reactions they receive from the donees, especially the schools.
“A lot of kids no longer have free or reduced-rate lunches from their schools because of the break. They really count on getting some food from their schools to take home with them,” Myhre says.
IN THE NEWS: Going the Extra Mile – Mastantuono Law Office attorney talks about helping clients prepare for appearance at trial.
Monday, October 19th, 2009Sprucing Up Your Criminal Client for Court
October 19, 2009
Wisconsin Law Journal StaffImage matters. And it especially matters when your criminal client is facing trial.
Lawyers need to convey the importance of wearing clothes which won’t be distracting or disrespectful, said attorney Paul E. Bucher.
“Never assume that your client knows how to dress for court,” said Bucher. “You will prove yourself wrong more than you prove yourself correct.”
At the same time, you don’t want to make your clients feel uncomfortable.
“The most important for thing for my clients is that they dress in way that makes them comfortable and not self-conscious,” said Madison attorney Christopher T. Van Wagner.
Appropriate attire can also depend on the image the attorney wants to convey to jurors, he said.
Someone who comes to court nattily attired, but is normally a jeans and T-shirt person could be seen as “putting on a show” for the jury, said Van Wagner, of Van Wagner & Wood SC.
Van Wagner represented a truck driver accused of assault and rather than have his client wear a suit, he told him to come to court casually dressed, complete with a hat the man wore regularly.
“We wanted the jury to understand that he was a simple-blue collar guy,” he said. “If he was uncomfortable, it would have been hard for the jury to pay attention.”
In some cases, attorneys have to dip into their own pockets to craft a wardrobe that fits the client’s personality.
Rebecca M. Coffee of Mastantuono Law Office SC in Milwaukee has gone shopping for a client the night before trial on more than one occasion.
“I’d say three or four times I’ve gone out and bought pair of pants or a nice shirt for clients simply because they don’t have anything or any family members in town to provide an outfit for them,” she said.
Attorney Raymond M. Dall’Osto said that when he did work for the State Public Defender’s Office in the 80s, he helped establish a “clients’ clothes closet” to provide defendants with some court-worthy wardrobe options that they would feel comfortable in.
Not too comfy
There’s a risk that allowing a client to be too comfortable can damage his or her credibility.
Dall’Osto recalled a robbery case in which he was summoned as a potential juror. During voir dire the defendant came to court wearing a black T-shirt which featured a skull and hatchet.
“As soon as I saw that shirt, as a juror my first thought was ‘I don’t like him and in the recesses of my mind, that person is guilty,’” said Dall’Osto, of Gimbel, Reilly, Guerin & Brown, (http://www.grgblaw.com/) in Milwaukee.
He typically recommends that clients dress for court as if they were dressing for church.
Bucher currently practices at Gatzke Ruppelt & Bucher SC in Waukesha but previously served as a district attorney. He said on at least on occasion, a defendant’s attire probably helped his case as a prosecutor.
“There was a drunken driving case that I felt like I got a conviction just by the person walking into court with an alcohol-related shirt on,” he said.
While criminal defense attorneys agree that sloppy or too-casual clients can be a problem, “overdressing” a client is also risky.
A defendant who appears with gaudy jewelry can be just as distracting to jurors as someone with a visible facial piercing, suggested Dall’Osto.
“In a fraud case someone with a $50,000 watch might be seen as too ‘Madoffian,’” Dall’Osto said. “Have a client be in something that is understated and neutral.”
Van Wagner often follows this standard rule of thumb.
“Never let clients dress better than their attorney,” he said.
Outside appearances count
Hurley, Burish & Stanton attorney Erik R. Guenther notes that the need for a professional appearance can extend outside of court.
If there is a trial with significant public interest, Guenther recommends controlling the client’s image in the media, even before opening arguments are made.
“I generally will try to provide a studio photo of a client [to the media] rather than a mug shot,” he said.
Assuming a client is not in custody, Guenther typically makes arrangement to have the person get a professional head shot done at a local studio. He then circulates the pictures to various media outlets that may have an interest in the case. He said that most choose to run the head-shot.
“It’s really not just white-collar crimes, but anything that generates media interest,” Guenther said. “It’s a way to remind people that there is a presumption of innocence and my client has a right to a fair trial.”