Wisconsin Supreme Court rules attorney can concede guilt as strategy.

Byline: David Ziemer

In a multiple-count prosecution, an attorney can admit his client's guilt on one count as a strategy to win acquittal on the others, the Wisconsin Supreme Court held on June 17.

In doing so, the court overruled a published opinion of the court of appeals, State v. Gordon, 2002 WI App 53, 250 Wis.2d 702, 641 N.W.2d 183.

The court also held that a trial court's failure to submit one of the elements of a crime to the jury is subject to harmless error analysis, overruling State v. Howard, 211 Wis.2d 269, 564 N.W.2d 753 (1997), State v. Aliva, 92 Wis.2d 870, 532 N.W.2d 423 (1995), and State v. Krueger, 240 Wis.2d 644, 632 N.W.2d 211 (CT.App.2000), to the extent those cases established a rule of automatic reversal when a jury instruction omits an element of the offense.

In October 1998, Margaret Wilder obtained a domestic abuse injunction against Gary L. Gordon, her boyfriend of 12 years. Nevertheless, the two were living together in October 1999, when Wilder called the police to enforce the injunction, claiming that Gordon was verbally abusive, agitated, and possibly on drugs.

The police arrived and saw Gordon carrying a butcher knife and a steak knife. After Gordon fled outside, where officers searched for him, Gordon and the police eventually had an encounter, during which Gordon refused to drop the knives, and came towards an officer, who then shot Gordon twice.

Gordon was charged with violating the injunction, disorderly conduct while armed, and second degree recklessly endangering safety.

During the trial, Gordon testified and admitted that he had armed himself with the knives for the purpose of avoiding arrest.

During closing argument, Gordon's attorney stated, "Obviously running around the neighborhood with two knives is disorderly conduct and it is disorderly conduct while armed." Later, counsel asked the jury to acquit only on the other two charges.

The jury instruction on the disorderly conduct while armed count failed to inform the jury that, in order to acquit, it must find that Gordon possessed the weapon to facilitate the crime.

Gordon did not object, however, and the jury found him guilty of all three counts. He appealed, and the court of appeals affirmed the conviction for recklessly endangering safety, but reversed the convictions for violating a domestic abuse injunction and disorderly conduct while armed.

The State petitioned for review of the reversal of the disorderly conduct while armed count, but not the violation of the domestic abuse injunction. The Supreme Court granted review and reversed, in a decision by Justice Diane S. Sykes. Chief Justice Shirley S. Abrahamson dissented, in an opinion joined by Justice Ann Walsh Bradley.

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