{"id":3951,"date":"2009-02-26T18:07:34","date_gmt":"2009-02-26T23:07:34","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=3951"},"modified":"2009-02-26T18:07:34","modified_gmt":"2009-02-26T23:07:34","slug":"favorite-wisconsin-cases-to-teach-state-v-stewart","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/02\/favorite-wisconsin-cases-to-teach-state-v-stewart\/","title":{"rendered":"Favorite Wisconsin Cases to Teach: State v. Stewart"},"content":{"rendered":"

\"\"<\/a>Kodanko waits alone for the bus in a three-sided plexiglass bus shelter in downtown Milwaukee.\u00a0 Three men approach.\u00a0 Stewart and Moore enter the bus shelter, while their companion, Levy, remains outside.\u00a0 They block Kodanko’s exit from the shelter.\u00a0 Stewart says to Kodanko, “Give us some change, man.”\u00a0 When Kodanko refuses, Stewart repeats his request three or four time in an increasingly loud voice.\u00a0 Stewart then begins to reach into his coat.\u00a0 Moore says, “Put that gun away.”\u00a0 At the same time, Levy enters the shelter and tells his companions, “Let’s go.”\u00a0 The three of them enter a restaurant across the street.\u00a0 Moore returns a few minutes later to make small talk with Kodanko.\u00a0 In due course, the police arrest Stewart for attempted robbery.\u00a0 But was it really a robbery attempt, or just aggressive panhandling?<\/p>\n

This is the subject of State v. Stewart, <\/em>420 N.W.2d 44 (Wis. 1988), which I teach in my Criminal Law course.\u00a0 The case resonates with me on several different levels.<\/p>\n

First, there are the personal connections to the case.\u00a0 Not only am I regular rider of Milwaukee buses, but I often find myself downtown waiting in a particular three-sided plexiglass shelter —\u00a0wondering if\u00a0this was the scene of the\u00a0Stewart<\/em> heist.\u00a0 Moreover, as someone who has lived all of his adult life in cities —\u00a0often 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.\u00a0 So, I can’t help but identify\u00a0with Kodanko, probably more so\u00a0than with any of my other Criminal Law victims.<\/p>\n

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.\u00a0 (Interestingly, Kodanko himself did not report the incident to police, perhaps reflecting a certain ambivalence on his part, too.)\u00a0 The evidence strikes me as equivocal.\u00a0 There are certainly aspects of the encounter that smack of intentional intimidation, and I can understand why Kodanko later testified that he felt threatened.\u00a0 On the other hand, no one ever touched him, raised a hand to him, or displayed a weapon.\u00a0 Also, the way Stewart quickly backed down and then simply walked away to the restaurant across the street\u00a0(where he could be easily found by the police) are hardly indicative of an intent to rob or a guilty mind.<\/p>\n

Stewart was nonetheless convicted, and the Wisconsin Supreme Court affirmed this result.\u00a0 The Supreme Court’s opinion is used to teach the elements of attempt liability.\u00a0 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.\u00a0 Still, I can’t avoid the sense that somehow the forest has been lost\u00a0for the trees.\u00a0 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\u00a0remain a little too uncertain to support a felony conviction.<\/p>\n

And, indeed, there may not even be any “true intentions” to find.\u00a0 This, for me, is the deepest level on which Stewart <\/em>resonates, that is, as an illustration of the shortcomings of conventional mens rea <\/em>analysis (particularly as embodied in the Model Penal Code).\u00a0<\/p>\n

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.\u00a0 In real life, we know that our\u00a0decisionmaking is more intuitive than logical; our\u00a0minds are\u00a0constantly flitting from one idea to the next; our actions often feel disconnected from any conscious exercise of will; and our motives are multifaceted, dynamic,\u00a0and often opaque even to ourselves (let alone twelve jurors).\u00a0 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.\u00a0 Stewart <\/em>is not one of those cases.\u00a0 What was Stewart “really” thinking?\u00a0 Trying to get some money?\u00a0\u00a0Trying to have\u00a0some fun with his friends?\u00a0 Trying to rattle the cage of “the man”?\u00a0 Was he acting on unconscious or semiconscious impulse, or did he have a conscious plan?\u00a0 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?\u00a0 If his purposes changed, or were multifaceted, which should control for determining his criminal liability?\u00a0 Was there in some sense a dominant purpose?\u00a0 Based on a cold record twenty years after the fact, I have no idea what the right answer is to these questions.\u00a0 More importantly, I suspect that Stewart himself does not know.<\/p>\n","protected":false},"excerpt":{"rendered":"

Kodanko waits alone for the bus in a three-sided plexiglass bus shelter in downtown Milwaukee.\u00a0 Three men approach.\u00a0 Stewart and Moore enter the bus shelter, while their companion, Levy, remains outside.\u00a0 They block Kodanko’s exit from the shelter.\u00a0 Stewart says to Kodanko, “Give us some change, man.”\u00a0 When Kodanko refuses, Stewart repeats his request three 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