How can someone be found not guilty by a jury of his peers and still be sent to prison? Because he was on probation at the time he was charged with the crimes and his supervision was revoked. Damien Payne took his felon in possession of a firearm and carrying a concealed weapon case to jury trial and won. But revocation hearings are administrative in nature and thus have a lower burden of proof. So despite beating his case in the criminal court, he was still returned to prison for violating the rules of his probation.
Comparing Revocation Hearings to Criminal Trials
A revocation hearing is an administrative hearing conducted by the Department of Administration. The revocation process is initiated by the offenders probation agent when it is alleged that the offender has violated the rules of supervision. A rules violation can be as minor as missing an office visit, or as serious as being charged with a crime. In Payne’s case, he was charged with two new crimes. Being charged with a crime will almost always result in the offender’s agent initiating revocation proceedings.
The offender is afforded the right to counsel at the hearing, but there is no jury or elected judge. Rather, the presiding judge is an administrative law judge, a lawyer employed by the Department of Administration. Testimony is taken from witnesses and the agent. But unlike criminal trials, almost all hearsay is permitted and other rules of evidence are relaxed. And the most important difference is the burden of proof. In a criminal trial, defendants must be proven guilty by proof beyond a reasonable doubt. The burden is far lower in revocation hearings – proof by a preponderance of the evidence.
If the administrative law judge determines that a rule was broken and revocation is appropriate, the offender will be revoked and returned to custody. The offender can appeal the decision, but even the appeal does not get to the circuit court at this stage. Rather, the appeal is to the Division of Hearings and Appeals, another state agency. Only after that point can the offender appeal to the circuit court. But the offender is not afforded an attorney or any assistance is petitioning the circuit court to review the decision.
Revocation even after acquittal
Wisconsin administrative code and appellate cases state that simply because someone was acquitted in a criminal proceeding does not bar revocation for the same conduct while on supervision. And that’s how Payne was allowed to be revoked despite being found not guilty at his criminal trial.
If this seems backwards and does not make sense, the attorneys at Meyer Van Severen, S.C. agree with you. If you or someone you know are facing revocation and have a corresponding criminal case pending in the circuit court, contact us immediately. You must be aware of the possible consequences of how decisions made in the circuit court can affect your revocation hearing and vice versa. Our new associate Alexander Perwich is quickly becoming an expert at handling revocation hearings, and Attorneys Meyer and Van Severen have handled dozens of revocation cases throughout their career. Contact us today!