Law Life: The importance of jury instruction

 Jean DiMotto, The Daily Record Newswire

When there’s no objection to jury instructions, how can they be faulty enough to warrant reversal?

A pair of Wisconsin Court of Appeals cases answers the question: when improper instructions cause the real controversy not to be fully tried.

Instructions on defense

In the first example, State v. Langston Austin, the defendant was accused of two stabbings during a physical confrontation, but asserted both self-defense and defense of others against the charges of first-degree recklessly endangering safety.

The case was submitted to the jury under instructions for first-degree recklessly endangering safety and also for the lesser-included offense of second-degree RES.

At issue was how Circuit Judge Dennis Cimpl instructed the Milwaukee County jury on self-defense and defense of others for both degrees of RES.

When instructing on first-degree RES and self-defense, Cimpl did not tell the jury that the state had the burden of disproving self-defense beyond a reasonable doubt. When instructing on second-degree RES, he declined to repeat the instruction on self-defense and failed to give any instruction on defense of others.

No objection was made to any of the jury instructions. The jury convicted Austin of both counts of the lesser-included offense of second-degree RES. The case was appealed.

In a July decision authored by District I Court of Appeals Judge Joan Kessler, the court first clarified that self-defense is an affirmative defense, which is a defense that defeats the prosecution’s charges even if all the facts in the criminal complaint are true. Therefore while the defendant bears the burden of production, the state bears the burden to disprove an affirmative defense.

The state had argued that self-defense in crimes of recklessness, as here, was a negative defense, one that serves to negate only an element of the prosecution’s charges. As such, an additional burden of proof instruction is not required.

The state based this argument on the comments to the two self-defense instructions contained in the pattern jury instructions. The Wisconsin Criminal Jury Instructions Committee designed one self-defense instruction for intentional crimes and the other for reckless crimes. Cimpl followed the statement of law in these comments.

Although the pattern instructions and their comments are highly regarded, the Court of Appeals found fault with the comments, teaching instead that self-defense is an affirmative defense regardless of the intentional or reckless nature of the crime charged.

It is complicated to give jury instructions with lesser-included crimes. Here, Cimpl also had to weave in not one but two instructions on defenses for both the primary and lesser-included charges.

It is a contextual minefield for error. Here, the first error was invoked by the Court of Appeals disagreeing with the advice on the law in the pattern jury instructions. But the lack of adequate instruction on defense of others with the lesser-included crimes was an error caused by the circuit court.

“By not properly instructing the jury, the circuit court failed to provide it with the proper legal framework for analyzing [the] question” of whether, when Austin stabbed the two victims, he was acting in his or another’s defense.

Accordingly, the real controversy was not tried, and the court reversed the convictions in the interests of justice. The decision will be published.

An unpublished example

In contrast, a labored August per curiam decision from the District IV Court of Appeals, State v. Donyil Anderson Sr., will not be published but is instructive because it illustrates another scenario where jury instructions were improper.

The factual context in the Anderson case was the second phase of criminal proceedings after Anderson’s Alford plea to charges of first-degree intentional homicide and attempted first-degree intentional homicide. A trial was held on the responsibility phase of the case since Anderson had pleaded not guilty by reason of mental defect.

He claimed that at the time of commission of the charged crimes, he suffered from a temporary mental defect caused by four factors: a pre-existing mild impairment in ability to control himself, an inappropriately treated major depressive disorder, a side effect of his taking a prescription medication, and his ingestion of alcohol.

Anderson presented both lay and expert witnesses in support of his claim. But the jury found he did not meet his burden of proof.

The sole issue on appeal was a pattern jury instruction that read, “A temporary mental state which is brought into existence by the voluntary taking of drugs or alcohol does not constitute a mental defect.”

Anderson strenuously objected to the language “voluntary taking of drugs” because he was not taking illegal drugs but rather a prescription medication at the behest of his doctor. The state countered that taking a prescription medication that has intoxicating side effects which Anderson was aware of constituted voluntary taking of drugs.

Although Anderson replied to this argument, the Court of Appeals found the reply insufficiently specific. Accordingly, it ruled that Anderson waived his objection to the pattern instruction which was given by Rock County Circuit Judge James Daley.

Nonetheless, the appeals court acknowledged that a jury could interpret the language “voluntary taking of drugs” as voluntarily putting into one’s mouth a prescription medication given upon a doctor’s advice.

“That sensible interpretation of the instruction is contrary to case law holding that the use of prescription drugs, in keeping with medical directions, is generally not voluntary,” the court wrote.

Because the jury could have wrongly interpreted the instruction, the real controversy – whether Anderson took the medication pursuant to his doctor’s advice and whether consuming that medication caused Anderson to have a temporary mental defect – may not have been fully tried, and the convictions were reversed in the interests of justice.

Despite quite different facts, both cases call attention both to the rare circumstance where the pattern instructions are not legally suitable to the facts at hand, and to the importance of properly instructing a jury.


Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge.