Criminal Defense
Criminal Defense Lawyers
If you have been charged with a serious crime, don't lie down and let the state run over you. When you are facing criminal arrest or investigation, you need an attorney who can thoroughly defend your rights. Michael Cohen has the experience you need when you are arrested or accused of a criminal charge. He has the knowledge and skill necessary to represent you at any and all stages of the process. Attorney Cohen handles all types of criminal cases, from DUIs, minor infractions and misdemeanors to more serious felony charges.
At our Eau Claire law office, criminal lawyer Michael Cohen will fight for you. He will relentlessly subpoena evidence and other materials so he understands both the strengths and the weaknesses of the state's case against you. Then he will conduct his own investigations to challenge the prosecutor's charges.
Attorneys at our law offices understand how the police and the government think. As a member of the Wisconsin Association of Criminal Defense Lawyers (WACDL) - Board of Directors, Michael Cohen uses experience to get results. By combining his knowledge, skills and experience, he is able to handle even the most difficult cases effectively. In fact, Attorney Cohen has built a record of success handling cases other lawyers said were impossible to win.
Attorney Cohen handles many different criminal charges on behalf of clients throughout Wisconsin. Some of these areas include:
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Our job as criminal lawyers is to put together the most effective defense possible to ensure you are found not guilty. That is the bottom line. More often than not, it works out. Criminal defense lawyer Michael Cohen has won serious felony cases other lawyers turned away.
MENTAL STATES
Almost all crimes have a mens rea, or mental state. The prosecutor has to prove that the accused has a criminal mental state before the person can be convicted. The reason for this rule is that identical conduct can be criminal or legal, depending on what the person is thinking. Some of the types of mens rea are discussed below.
Criminal Intent
When criminal intent is an element of a crime, such intent is indicated by the term "intentionally", the phrase "with intent to", the phrase "with intent that", or some form of the verbs "know" or "believe".
"Know" requires that the actor believes that the specified fact exists.
"Intentionally" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result. In addition the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word "intentionally".
"With intent to" or "with intent that" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result.
Criminal intent does not require proof of knowledge of the existence or constitutionality of the section under which the actor is prosecuted or the scope or meaning of the terms used in that section.
Criminal intent does not require proof of knowledge of the age of a minor even though age is a material element in the crime in question.
Criminal Recklessness
"Criminal recklessness" means that the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk.
Criminal Negligence
"Criminal negligence" means ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another.
Solicitation
Whoever, with intent that a felony be committed, advises another to commit that crime under circumstances that indicate unequivocally that he or she has the intent to do that act.
Conspiracy
Whoever, with intent that a crime be committed, agrees or combines with another for the purpose of committing that crime, if one or more of the parties to the conspiracy does an act to effect its object, is guilty of that same crime.
Attempt
An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that the actor does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.
DEFENSES
A defense in a criminal case is a set of facts, which, if believed, mandate a finding of not guilty. A selection of defenses defined by Wisconsin statutes is below.
Intoxication
An intoxicated or a drugged condition of the actor is a defense only if such condition:
- Is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed; or
- Negatives the existence of a state of mind essential to the crime.
Mistake
An honest error, whether of fact or of law other than criminal law, is a defense if it negatives the existence of a state of mind essential to the crime.
A mistake as to the age of a minor or as to the existence or constitutionality of the section under which the actor is prosecuted or the scope or meaning of the terms used in that section is not a defense.
Adequate Provocation
"Adequate" means sufficient to cause complete lack of self-control in an ordinarily constituted person.
"Provocation" means something which the defendant reasonably believes the intended victim has done which causes the defendant to lack self-control completely at the time of causing death.
Privilege
The fact that the actor's conduct is privileged, although otherwise criminal, is a defense to prosecution for any crime based on that conduct. The defense of privilege can be claimed under any of the following circumstances:
- When the actor's conduct occurs under circumstances of coercion or necessity
- When the actor's conduct is in defense of persons or property
- When the actor's conduct is in good faith and is an apparently authorized and reasonable fulfillment of any duties of a public office
- When the actor's conduct is a reasonable accomplishment of a lawful arrest
- When the actor's conduct is reasonable discipline of a child by a person responsible for the child's welfare
- When for any other reason the actor's conduct is privileged by the statutory or common law of this state
Coercion
A threat by a person other than the actor's coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes him or her so to act is a defense to the crime.
Necessity
Pressure of natural physical forces which causes the actor reasonably to believe that his or her act is the only means of preventing imminent public disaster, or imminent death or great bodily harm to the actor or another and which causes him or her so to act, is a defense to a prosecution.
Self-Defense and Defense of Others
A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force, which is intended or likely to cause death, or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.
Provocation affects the privilege of self-defense as follows:
(a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant.
(b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant.
(c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.
(d) The privilege of self-defense extends not only to the intentional infliction of harm upon a real or apparent wrongdoer, but also to the unintended infliction of harm upon a 3rd person, except that if the unintended infliction of harm amounts to the crime of first-degree or 2nd-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, first-degree or 2nd-degree reckless injury or injury by negligent handling of dangerous weapon, explosives or fire, the actor is liable for whichever one of those crimes is committed.
(e) A person is privileged to defend a 3rd person from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend himself or herself from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such that the 3rd person would be privileged to act in self-defense and that the person's intervention is necessary for the protection of the 3rd person.
(f) A person is privileged to use force against another if the person reasonably believes that to use such force is necessary to prevent such person from committing suicide, but this privilege does not extend to the intentional use of force intended or likely to cause death.
Defense of Property and Protection Against Retail Theft
(a) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person's property. Only such degree of force or threat thereof may intentionally be used as the actor reasonably believes is necessary to prevent or terminate the interference. It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one's property.
(b) A person is privileged to defend a 3rd person's property from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend his or her own property from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such as would give the 3rd person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the 3rd person's property, and that the 3rd person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant's employee or agent. An official or adult employee or agent of a library is privileged to defend the property of the library in the manner specified in this subsection.
SENTENCING
Felonies and Misdemeanors involving habitual criminality are governed by truth in sentencing, which provides for bifurcated sentences. Regular misdemeanors are governed by more traditional penalty structures.
|
Class Felony |
Maximum Imprisonment |
Maximum Confinement (Years) |
Maximum Extended Supervision (Years) |
Maximum Fine |
Maximum Probation (Years) |
|
A |
Life |
Life |
|
|
|
|
B |
60 |
40 |
20 |
|
40 |
|
C |
40 |
25 |
15 |
$100,000 |
25 |
|
D |
25 |
15 |
10 |
$100,000 |
15 |
|
E |
15 |
10 |
5 |
$50,000 |
10 |
|
F |
12.5 |
7.5 |
5 |
$25,000 |
7.5 |
|
G |
10 |
5 |
5 |
$25,000 |
5 |
|
H |
6 |
3 |
3 |
$10,000 |
3 |
|
I |
3.5 |
1.5 |
2 |
$10,000 |
3 |
|
Misd. (habitual criminality) |
These two must add up to no more than two years. |
||||
|
A |
2 |
1.5 |
1 |
$10,000 |
2 |
|
B |
2 |
1.5 |
1 |
$1,000 |
2 |
|
C |
2 |
1.5 |
1 |
$500 |
2 |
|
Misd. (regular) (Bifurcated system does not apply) |
|||||
|
A |
9 months |
9 months |
N/A |
$10,000 |
1* |
|
B |
90 days |
90 days |
N/A |
$1,000 |
1* |
|
C |
30 days |
30 days |
N/A |
$500 |
1* |
A Wisconsin Sentence of Imprisonment has two components, confinement (prison) and Extended Supervision (parole). Imprisonment = Confinement + ES The minimum term of confinement is one year. The minimum term of ES is not less than 25% of the confinement. The minimum term of probation is one year for a felony, 6 months for a misdemeanor. Unclassified felonies and habitual criminality misdemeanors have a maximum confinement of 75% of the total length of the bifurcated sentence and a minimum ES of 25% of the confinement. The maximum term of probation may be increased by one year for each additional felony. *Several statutes can increase the maximum term of misdemeanor probation by an extra 1, 2, or even 3 years.
PROBATION-DEFERRED PROSECUTION
What is probation?
Probation is an alternative to prison. It is usually offered to first (or second) offenders whose crimes are not of the most serious nature, and who the court believes can benefit from rehabilitative services. These services might include treatment for alcoholism, domestic violence, sex offender issues, drug dependency, psychological issues, or anything else a person needs help with to become a law abiding member of the community. Compliance with these services is required to remain on probation.
On probation, a person is assigned to an agent, who monitors the person's progress, checks up on them, and makes sure they comply with the terms of probation.
Probation may also have a punishment component, including either jail time or electronic monitoring.
A person on probation will be ordered to pay probation service fees as well as any restitution owed to the crime victims involved in the case. A probationer will be ordered to perform community service.
Probation isn't easy. A lot is required of the participant, and the agent is authorized to intrude significantly into your personal life. (He can show up unannounced and search your house without a warrant.) However, it is also a way of avoiding prison. Good performance on probation can result in discharge. Poor performance can result in revocation, which will land a person behind bars.
What is "Deferred Prosecution"?
Deferred Prosecution can be a pretty sweet deal, usually only offered to people accused of fairly minor offenses who have no prior criminal history. A person who successfully completes deferred prosecution will have his case dismissed, and therefore will continue to have no criminal history. It's not all a bed of roses, though. Deferred prosecution agreements require defendants to plead guilty and then do several time consuming and sometimes expensive requirements. If the person fails, they have already entered a guilty plea, and they are taken back to court to receive a sentence and a criminal record. Because you give up your right to trial, it is really important not to enter into a deferred prosecution agreement unless you are really guilty of the charges.
Some of the standard requirements for a deferred prosecution agreement are:
- The agreement shall be in writing, signed by the district attorney or his or her designee, a representative of the department and the defendant.
- The defendant admits, in writing, all of the elements of the crime charged.
- The defendant participates in therapy or in community programs and to abide by any conditions imposed under the therapy or programs.
- The defendant performs community service.
- The defendant pays monthly fees to the State for administering the agreement, plus any fees for classes and counseling ordered.
- The defendant refrains from using alcohol or drugs, if these were part of the offense, and may be subject to random testing.
- Pay restitution (money to compensate a crime victim's loss).
Michael R. Cohen
Cohen Law Offices, LLC
17 South Barstow Street
Eau Claire, WI 54702
Telephone: 715-514-5051
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715-514-5051
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