Two blog posts in one week! What’s the occasion, you ask? Recall that there were two criminal defense wins in the Court of Appeals out of Barron County. In yesterday’s post, I discussed State v. Sprague, in which the defendant finally won the right to actually hold the prosecutor to their agreement to recommend 5 years of initial confinement at his sentencing. Unfortunately, this victory was announced over five years after Mr. Sprague was sentenced. NOT IDEAL, GUYS.

Some may consider Mr. Sprague’s victory to be a Pyrrhic one even in the absence of the delay. After all, Mr. Sprague is still convicted, and after he’s resentenced his conviction will still be the same. The folks who think that are probably the same folks who ask defense attorneys about their win-loss records. Sometimes a favorable outcome at sentencing is a great victory, and can be even better than a trial win. Perhaps you’ll be surprised to hear me admit this, but some defendants are guilty, and sometimes the State actually has the evidence to prove it. But for the reader who thinks only a complete acquittal counts as a defense victory, I present to you State v. Kelsy Wooldridge (2022-AP-1927).

Officer Prinsen pulled over Ms. Wooldridge’s vehicle, and she consented to a search of her vehicle. (DON’T DO THIS.) Officer Prinsen found a syringe that “had a bloody substance inside the tube and on the point of the needle” inside her purse, at which point

Prinsen then walked over to Wooldridge, showed her the syringe, and told her that he found it in her purse, after which she nodded. At no point did Wooldridge suggest that the syringe belonged to someone else or that she had a medical reason to possess it. Prinsen then asked Wooldridge if she had used methamphetamine, and she “acknowledged that she did,” with the most recent time being “[a]pproximately one week prior.” Prinsen did not ask Wooldridge if she had recently used the syringe, if she knew what was inside of it, or if she had put the syringe in her purse. After speaking with Wooldridge, Prinsen seized the syringe as evidence.

Ms. Wooldridge was charged with possession of methamphetamine, and was convicted at trial. To understand what makes this case interesting requires an explanation of what the prosecution must actually prove at a jury trial for this type of offense, and the Court of Appeals provides as good an explanation as any:

The circuit court instructed the jury on the elements of possession of methamphetamine, including that the State was required to prove: (1) Wooldridge possessed and had actual physical control of the substance; (2) the substance was methamphetamine; and (3) Wooldridge knew or believed that the substance was methamphetamine. The court also instructed the jury that it “cannot look into a person’s mind to determine knowledge or belief. Knowledge or belief must be found, if found at all, from the defendant’s acts, words, and statements, if any, and from all the facts and circumstances in this case bearing upon knowledge or belief.” See WIS JI—CRIMINAL 6030 (2024). The court further instructed that, in weighing the evidence, jurors “may take into account matters of your common knowledge and your observations and experience in the affairs of life”; that the jury’s duty was “to scrutinize and to weigh the testimony of the witnesses and to determine the effect of the evidence as a whole”; and that the jury was “the sole judge[] of the credibility” or “believability of the witnesses and of the weight to be given to their testimony.” See WIS JI—CRIMINAL 195 (2000); WIS JI—CRIMINAL 300 (2023).

Read about enough cases and you’ll see all three of these elements challenged in different trials. Sometimes the issue at trial is whether the defendant actually possessed the thing. Sometimes the issue is whether the thing is actually the drug alleged, or even a drug at all. And sometimes the issue is whether the defendant knew that the thing they possessed was the drug.

The defense brief lays out rather well why the evidence at trial wasn’t enough to prove beyond a reasonable doubt that Ms. Wooldridge knew that she possessed methamphetamine. The plunger on the syringe was already pushed all the way down. All the officer could see inside it was a red residue, and no liquid. The analyst from the Wisconsin State Crime Lab testified that the residue could not be identified by sight, and that methamphetamine isn’t red. Instead, the analyst had to perform several chemical tests to identify the presence of methamphetamine, and couldn’t determine the actual amount present.

That is, how could Ms. Wooldridge possibly know that there was methamphetamine in the syringe? Ms. Wooldridge consented to the vehicle search, and she even answered questions after Officer Prinsen found the syringe, acknowledging her methamphetamine use. But she was very lucky that Officer Prinsen apparently never actually asked her whether she had used that syringe, let alone knew that it had ever contained methamphetamine. If Officer Prinsen had been more thorough in his on-scene questioning, or if Ms. Wooldridge had visible fresh track marks on her arm, the circumstantial evidence may have been sufficient.

Reversals of jury convictions are very rare. The entire criminal justice system is built on the idea that the jury is the best entity to make determinations of fact based on the evidence presented at trial, and so jury verdicts are given great deference. If a jury finds a defendant not guilty, the State cannot appeal that verdict. And if a jury finds a defendant guilty, a defendant challenging that verdict must convince the reviewing court that, even considering the evidence in the light most favorable to the State, “no trier of fact, acting reasonably, could have found guilty beyond a reasonable doubt.” In other words, the Court of Appeals doesn’t consider whether the jury got it wrong; the Court of Appeals considers whether the jury couldn’t possibly have gotten it right. And in most criminal cases, there will usually be enough evidence somewhere in the record for a court to determine that, if you look at this testimony from this angle, and if you believed this testimony and not this testimony, then that would be sufficient to find the defendant guilty.

What a wonderful win for Ms. Wooldridge, right? Nothing Pyrrhic here, right? HAHAHA, YOU FOOL! HAVE YOU LEARNED NOTHING?

This case was filed against Ms. Wooldridge on March 9, 2021. The trial took started on the morning of May 5, 2022, and the guilty verdict came early enough in the afternoon for the court to have enough time to sentence her to a year of probation before the courthouse closed at 5:00 PM. The final appeal brief was submitted on April 26, 2023, eleven months into her twelve months of probation. But at least she never had to go to jail, right? HAHAHA, YOU FOOL! HAVE YOU LEARNED NOTHING?

Ms. Wooldridge’s probation was revoked in March 2023, and on April 18, 2023, she was sentenced to four months jail with work release, with 103 days credit for the time she had already spent in custody, presumably during the probation revocation proceedings. This one is hard to blame on the Court of Appeals, since Ms. Wooldridge was almost certainly back out of custody. And it’s difficult to fault the attorneys working on the appeal, which progressed at a relatively quick pace. I’d be more inclined to blame the circuit court if it had sentenced her to jail on the day of her trial, but it placed her on probation instead. I suppose the circuit court could have stayed that probation, but then she still would have been out on bail during the conduct that resulted in her revocation.

Frustrating, eh? Welcome to my life. Let me know what you think in the comments!

Two things about this article stand out to me. (Read it now. It's short enough.) The first is the jury's guilty verdict and the jurors' apparent reluctance to return it.

What the jury did was extraordinary. They felt bad for the young woman, pregnant with her second child, and agreed that she had made a dumb, youthful mistake. Reluctantly, they convicted her of the felony. But the fine they imposed was her daily pay as a maid, $60. And then they took up a collection and gave her the money to pay the fine.

“The general sentiment was she was a victim, too,” said the jury foreman, Jeffery Memmott. “Two of the women [jurors] were crying because of how bad they felt. One lady pulled out a $20 bill, and just about everybody chipped in.” Memmott then contacted the public defender in the case, and went to the home of Sandra Mendez Ortega. He gave her the jury’s collection, which totaled $80.

“Justice had to be done,” said another juror, Janice Woolridge, explaining why the panel imposed a felony conviction. “But there’s also got be some compassion somewhere. Young people make bad decisions. We just couldn’t pile on any more.”

If the jurors unanimously agreed that the defendant was proven guilty beyond a reasonable doubt, and unanimously agreed that "justice" required a felony conviction, then so be it. But that may not have been the case.

“We didn’t feel she should have been tried and convicted,” said Memmott, the foreman. “We tried every way we could to find some way of not convicting her. But the legal standard was very clear.” Two other jurors agreed that the felony conviction was appropriate, given the facts and the law.

But there was "some way of not convicting her" that all juries serving in criminal cases have: returning a verdict of "not guilty." "Jury nullification" refers to a jury's decision to find a defendant not guilty despite its unanimous conclusion that the government had proven the defendant's guilt beyond a reasonable doubt. Jurors are often told explicitly that they have no power to disregard the law, but the fact of the matter is that a not-guilty verdict cannot be challenged after it is returned, and the jury's basis for such a verdict cannot be examined.

Off with her head.

Perhaps the jury in this case knew this, but still believed that a felony conviction was appropriate. But the sentiment presented in some of the quotes in the article suggest that this may not have been the case. You may have noticed that I've made several references to the requirement that a jury verdict must be unanimous. This is particularly important in a case like this one, where emotions clearly ran high. If even one of these jurors had refused to agree to a guilty verdict, then there would have been no conviction. (On the other hand, then there could have been a second trial where the defendant would have received a more substantial sentence.)

Jury nullification is such a controversial topic that it cannot even be mentioned during a criminal trial, and certainly not affirmatively presented to a jury by a judge during that judge's instructions to the jury. As I mentioned earlier, the power of nullification is not a "power" given to juries, but rather the practical result of such a verdict being immune to challenge. In addition, our country's history is filled with juries deciding to ignore the evidence and law presented to them, but with the result being the conviction - and sometimes the lynching - of innocent defendants. I am not privy, of course, to the negotiations and other factors that may have impacted the prosecution's decision to seek a felony conviction for this defendant, but the party with the clearest power to prevent a felony conviction in the case was clearly the prosecution, not the jury.

The second thing that stands out to me is the victim's response:

A happy holiday story, right? Well what if you’re the woman whose rings were stolen? Although she was not pleased when the jury returned from their deliberations with only a $60 fine for the felony conviction, crime victim Lisa Copeland was appalled when she learned that the jury had also paid the fine.

“I just pray that they’re never in my shoes,” Copeland said. She said Mendez Ortega never accepted responsibility for the theft. “If she had accepted accountability, I would be okay with all of this. The fact that she won’t accept accountability makes it wrong.”

Copeland said Mendez Ortega told a lies from the start and then unfurled a tragic life story that  convinced the jury to impose a punishment of a $60 fine. “I was outraged,” Copeland said. “I was just flabbergasted. I didn’t think $60 equated to the crime at all.” She did not know the jury had taken up a collection for Mendez Ortega until she was contacted by a reporter.

To be clear, the stolen rings were returned. And one of the effects of these incidents becoming criminal cases is that the honest remorse that a defendant feels doesn't get communicated to the victim. When that remorse was clear during the police investigation, though, the responsibility to see that remorse communicated to the victim should fall on the police or the prosecutor. That didn't happen here.

Mendez Ortega reportedly felt bad about the theft, admitted to her boss that she had the rings and turned them over to him. The police were contacted and Mendez Ortega confessed to them as well, saying she returned the rings after learning they were valuable. The police had her write an apology letter to Copeland, in Spanish, which said in part, “Sorry for grabbing the rings. I don’t know what happened. I want you to forgive me.”

Copeland said she has never seen that letter, and that Mendez Ortega has never apologized to her in person. “Never saw it,” Copeland said. “Never heard about it until the trial, during sentencing.”

To be fair, I've never, to my knowledge, been a victim of this type of offense. But I hope I would feel just a little bit more empathy. At the very least, I hope I would be able to recognize that others may be able to feel some.

Lisa Copeland was amazed. “The fact that she confessed,” she said, “and they didn’t want to convict her? I don’t get this. That’s basically saying it’s okay to steal.”

No, it's not saying that. Whether one's conduct is wrong is not dependent on whether one is convicted of a crime for that conduct.

Then during the sentencing phase, Mendez Ortega took the stand. She faced a possible sentence of up to 20 years in prison and a fine of up to $2,500. She told the jury she had dropped out of school after sixth grade, that she first became pregnant at 15,  that she was pregnant again at 19 and had no job, according to court records.

“The whole time she was telling the sob story,” Lisa Copeland said,

Happy new year.