Point #4: not transactionally related

"This count is not "transactionally related" based on the 7 criteria Wisconsin uses to determine this (see State v. Richer, State v. Burke)."

During the hearing regarding the amended charge (i.e. re-introducing the count 17 months after it was dismissed), the court allowed the charge to proceed stating:

"The count probably could have stayed in the information as transactionally related."

~ Judge Alan B. Torhorst - Hearing on Amendment

I don't know about you, but I wouldn't want our government to be charging people based on a count being "probably" transactionally related… 

 

Here are the specifics are of why it should not be able to be considered transactionally related:

 

In State v. Burke in 1990, the Wisconsin Supreme Court ruled that counts should be considered transactionally related (i.e. "not wholly unrelated") based on the following 7 criteria:

  1. Parties involved

  2. Witnesses involved

  3. Geographical proximity

  4. Time

  5. Physical evidence

  6. Motive

  7. Intent

 

In the case of State v. Burke, all 7 criteria were clearly matched to all 4 counts in question in that case.

 

Then in 1993, the Wisconsin Supreme Court decided State v. Richer where the decision included language stating,

 

"the presence or absence of one or more of the seven factors would not control the court's decision. Rather, the state asserts, each serves to guide the court's review of the district attorney's exercise of authority… The seven factors form a general framework for determining whether counts can be added to the information and yet meet the goals of the preliminary hearing."

 

The case's ruling was that Mr. Richer's charges of drug sales of the same nature that were 9 days apart were not transactionally related based on the consideration of these 7 criteria. 

 

The decision was made despite"two charges which rely in part on proof of the same elements and the same parties may be otherwise completely unrelated to each other." 

 

In other words, when the court used the 7 criteria to evaluate whether or not two of the same type of crimes with the same parties involved were deemed not transactionally related. 

 

How much more "wholly unrelated" (i.e. not "transactionally related") is Martell's charge? 

 

  • The witnesses were different 

  • The victim(s) were different

  • The geographical location was different

  • The crime itself was different (armed robbery vs. burglary)

  • The time was different

  • The physical evidence was different

  • Even the motive and intent could be argued to be different.

In short, there is essentially no way to argue that Martell's charge/count was "as transactionally related" as the two counts in question in State v. Richer, which were declared unrelated by the Wisconsin Supreme Court. 

 

Therefore, the State should not have allowed Martell's charge to proceed.

The Amendment Hearing

The Amendment Hearing

In 2010, 17 months after Martell's preliminary hearing, the state "allowed the count to proceed" and approved amending the case to include the count stating that the count was "transactionally related" to the other counts.

Here is an excerpt showing the Assistant District Attorney arguing that point:

In 2010, 17 months after Martell's preliminary hearing, the state "allowed the count to proceed" and approved amending the case to include the count stating that the count was "transactionally related" to the other counts.

Here is an excerpt showing the Assistant District Attorney arguing that point:

Now, we know what the Wisconsin supreme court has ruled in the past, but the circuit court judge does not seem to follow that precedent:

His decision was as follows:

The Point

The judge allowed the count to proceed saying that it could "probably be considered transactionally related." He did this in spite of many years of precedent indicating the supreme court of Wisconsin would not concur.

Conclusion

Clearly, Martell's count in question did not meet the criteria of being "transactionally related" yet the circuit court used this as the basis to include it in the criminal trial, which violates Martell's rights.

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