Kodanko waits alone for the bus in a three-sided plexiglass bus shelter in downtown Milwaukee. Three men approach. Stewart and Moore enter the bus shelter, while their companion, Levy, remains outside. They block Kodanko’s exit from the shelter. Stewart says to Kodanko, “Give us some change, man.” When Kodanko refuses, Stewart repeats his request three or four time in an increasingly loud voice. Stewart then begins to reach into his coat. Moore says, “Put that gun away.” At the same time, Levy enters the shelter and tells his companions, “Let’s go.” The three of them enter a restaurant across the street. Moore returns a few minutes later to make small talk with Kodanko. In due course, the police arrest Stewart for attempted robbery. But was it really a robbery attempt, or just aggressive panhandling?
This is the subject of State v. Stewart, 420 N.W.2d 44 (Wis. 1988), which I teach in my Criminal Law course. The case resonates with me on several different levels.
First, there are the personal connections to the case. Not only am I regular rider of Milwaukee buses, but I often find myself downtown waiting in a particular three-sided plexiglass shelter — wondering if this was the scene of the Stewart heist. Moreover, as someone who has lived all of his adult life in cities — often in or close to economically depressed neighborhoods — I have often been the subject of requests for change, and have sometimes feared for my own safety from especially persistent or belligerent panhandlers. So, I can’t help but identify with Kodanko, probably more so than with any of my other Criminal Law victims.
And, putting myself in Kodanko’s shoes, I’m not sure if I would have felt that Stewart actually crossed the line from aggressive panhandling to attempted robbery. (Interestingly, Kodanko himself did not report the incident to police, perhaps reflecting a certain ambivalence on his part, too.) The evidence strikes me as equivocal. There are certainly aspects of the encounter that smack of intentional intimidation, and I can understand why Kodanko later testified that he felt threatened. On the other hand, no one ever touched him, raised a hand to him, or displayed a weapon. Also, the way Stewart quickly backed down and then simply walked away to the restaurant across the street (where he could be easily found by the police) are hardly indicative of an intent to rob or a guilty mind.
Stewart was nonetheless convicted, and the Wisconsin Supreme Court affirmed this result. The Supreme Court’s opinion is used to teach the elements of attempt liability. And it’s hard to quarrel with the way the court analyzed each element; you can see why, taking each element separately, the trier of fact could have rationally decided that the element was satisfied by the evidence introduced at trial. Still, I can’t avoid the sense that somehow the forest has been lost for the trees. In a system that takes the presumption of innocence seriously, and that demands proof of guilt beyond a reasonable doubt, it strikes me that Stewart’s true intentions remain a little too uncertain to support a felony conviction.
And, indeed, there may not even be any “true intentions” to find. This, for me, is the deepest level on which Stewart resonates, that is, as an illustration of the shortcomings of conventional mens rea analysis (particularly as embodied in the Model Penal Code).
Criminal law is premised on the patently false assumptions that people act on the basis of rational deliberation; that actions are guided by durable, consciously perceived purposes; and that a trier of fact can reliably reconstruct those purposes after the fact on the basis of evidence introduced at trial. In real life, we know that our decisionmaking is more intuitive than logical; our minds are constantly flitting from one idea to the next; our actions often feel disconnected from any conscious exercise of will; and our motives are multifaceted, dynamic, and often opaque even to ourselves (let alone twelve jurors). To be sure, these irrational (or, perhaps more accurately, arational) tendencies are all a matter of degree, and, in some criminal cases, the defendant seems to have acted in a manner sufficiently close to the rational actor model that we can feel reasonably comfortable making use of the overly tidy culpability categories of modern criminal law. Stewart is not one of those cases. What was Stewart “really” thinking? Trying to get some money? Trying to have some fun with his friends? Trying to rattle the cage of “the man”? Was he acting on unconscious or semiconscious impulse, or did he have a conscious plan? If he did have a plan, did it change from the time he reached the shelter to the time he started yelling to the time he reached for his pocket to the time he headed for the restaurant? If his purposes changed, or were multifaceted, which should control for determining his criminal liability? Was there in some sense a dominant purpose? Based on a cold record twenty years after the fact, I have no idea what the right answer is to these questions. More importantly, I suspect that Stewart himself does not know.