[Catspaw]

Not quite accurate on the case status, Black Elk. From what I can gather, Goodman's previous guilty/no contest plea (it's impossible to tell which one he entered by the records on CCAP) was vacated by the appeals court and he's going to get a new trial in April. As far as I can tell, the appeal is only on the use of the necessity defense (which would have to have been denied by the trial court judge), not a direct challenge of the constitutionality of the law under which he's been charged. It may be that Goodman is challenging the law indirectly, but unless someone has the briefs, it's still difficult, if not impossible to tell what is being challenged beyond the use of necessity defense.

[BlackElk]

We agree and disagree on this. The defendant would not be challenging the criminal trespass law itself. A defense of necessity essentially concedes a violation of the underlying criminal trespass statute but seeks to trump the statute by an application of a common law defense. "Even if I did superficially violate the statute, so what? After all my reasons were sufficient at law to justify the violation and prevent my conviction."

By analogy, all jurisdictions have laws rendering homocide or assault of a person criminal acts, BUT, even if a given jurisdiction has no self-defense statute, one may raise the common law defense of self-defense. One of the Dirty Harry movies has Harry Callahan explaining why he felt justified in shooting and killing a man on the other side of the street. Harry said: He was chasing a woman and had a butcher knife raised. I decided that he was not taking up a collection for the Red Cross. That would be the common law of defense of another and one does not have to be a police officer to exercise it. It is also known as "vicarious self-defense." No one argues that statutes criminalizing homocide or assault are invalid when raising such defenes. Rather, by raising the defense, one is saying: Even if the criminal law wqas violated, there should be no conviction because the action that appears to have violated the statute is suffciently excused by overriding and intervening causes.

It is very likely that nothing is being challenged other than a trial court ruling on the admissibility of evidence which, if believed, would make out a common law defense of necessity. A plea of nolo contendere (I choose not to contest) leads to a guilty finding for the purposes of the criminal matter only (it is typically not usable in a civil action by the "aggrieved" landowner or lessee). A plea of guilty would be useful to a plaintiff landowner or lessee in a civil action for damages. The key to a nolo contendere plea from the point of view of the prosecution and court is judicial effciency and avoiding the unnecessary expenditure of time and financial resources on a contested trial. It sounds like the Appellate Court overruled the trial judge, ordered a new trial and ordered the necessity defense admissible. The state may choose to appeal to the state Supreme Court (whatever its name) of Wisconsin. The defendant may choose, with the agreement of the prosecution, to stipulate to a written set of facts mutually prepared as to the criminal offense and then have the sole issue at trial be the necessity defense.