Appeal Seeks To Establish Right to Trespass on Clinic Property To Stop Involuntary Abortions

TMLC ^ | 2-12-2003 | staff

[Catspaw]

Here's the info about the post-conviction relief in Goodman's on-line case file. I note that there had been an appeal (the post-conviction relief would've been at the trial court level), but the appeal was dismissed subsequent to entry #65.

Note 65:

Additional text
Postconviction Motion and Decision - Court vacates the defendant's conviction and will schedule a final pre-trial and new trial in this matter. http://ccap.courts.state.wi.us/servlet/us.wi.state.courts.internet.access.GetJSP?JSP=CourtRecordEvents&CaseNumber=00CM004739&CountyNumber=13&CountyName=Dane&SessionIdentifier=

[BlackElk]

We agree and disagree on this. The defendant would not be challenging the criminal trespass law itself. A defense of necessity essentially concedes a violation of the underlying criminal trespass statute but seeks to trump the statute by an application of a common law defense. "Even if I did superficially violate the statute, so what? After all my reasons were sufficient at law to justify the violation and prevent my conviction."

By analogy, all jurisdictions have laws rendering homocide or assault of a person criminal acts, BUT, even if a given jurisdiction has no self-defense statute, one may raise the common law defense of self-defense. One of the Dirty Harry movies has Harry Callahan explaining why he felt justified in shooting and killing a man on the other side of the street. Harry said: He was chasing a woman and had a butcher knife raised. I decided that he was not taking up a collection for the Red Cross. That would be the common law of defense of another and one does not have to be a police officer to exercise it. It is also known as "vicarious self-defense." No one argues that statutes criminalizing homocide or assault are invalid when raising such defenes. Rather, by raising the defense, one is saying: Even if the criminal law wqas violated, there should be no conviction because the action that appears to have violated the statute is suffciently excused by overriding and intervening causes.

It is very likely that nothing is being challenged other than a trial court ruling on the admissibility of evidence which, if believed, would make out a common law defense of necessity. A plea of nolo contendere (I choose not to contest) leads to a guilty finding for the purposes of the criminal matter only (it is typically not usable in a civil action by the "aggrieved" landowner or lessee). A plea of guilty would be useful to a plaintiff landowner or lessee in a civil action for damages. The key to a nolo contendere plea from the point of view of the prosecution and court is judicial effciency and avoiding the unnecessary expenditure of time and financial resources on a contested trial. It sounds like the Appellate Court overruled the trial judge, ordered a new trial and ordered the necessity defense admissible. The state may choose to appeal to the state Supreme Court (whatever its name) of Wisconsin. The defendant may choose, with the agreement of the prosecution, to stipulate to a written set of facts mutually prepared as to the criminal offense and then have the sole issue at trial be the necessity defense.