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Justices probe lawyers in double jeopardy case

Wisconsin Supreme Court justices on Tuesday grilled lawyers in the case of an Ozaukee County woman who was challenging sex assault convictions on the grounds that the state cannot not charge her for two crimes when her misdeeds had stemmed from only one action.

Heather Steinhardt was convicted in 2014 of failing to protect a child and being party to a crime of first-degree sexual assault. She pleaded no contest to both charges and was sentenced to 22½ years in jail, plus 15 years of extended supervision.

The questions in Steinhardt’s appeal to the high court include whether the charges against her violated the rule against double jeopardy, whether Steinhardt’s no-contest plea waived her right to be free from double jeopardy and whether Steinhardt’s trial counsel was ineffective for failing to bring up the double-jeopardy issue.

Steinhardt is arguing the state should have charged her with only one crime because she only took one action — leading the child in the case into a room where she was sexually assaulted by her step-father, Steinhardt’s husband.

The state, on the other hand, is arguing that Steinhardt was properly charged for two crimes because she committed two acts: bringing the child into the room and doing nothing while the child was sexually assaulted three times.

Appearing for Steinhardt on Tuesday was Assistant State Public Defender Nicole Masnica. Deputy Solicitor General Kevin LeRoy appeared on behalf of the state.

Justice Michael Gableman was not present at the oral arguments. Before the arguments began, Chief Justice Pat Roggensack said Gableman would be joining them later.

Masnica began her argument by saying the case was a due-process challenge, prompting questions from both justices Shirley Abrahamson and Dan Kelly.

Abrahamson asked Masnica what the standard analysis should be for a due-process challenge of this sort. Kelly asked Masnica about the arguments she had made in her briefs.

“Did you make the due-process analysis in your briefs?” he asked. “Did you make a distinction between double jeopardy and due process in your briefs?”

Justices Abrahamson, Ann Walsh Bradley and Annette Ziegler pressed LeRoy on where the law should draw the line between aiding and abetting a sexual assault and failing to aid a child.

Ziegler asked whether the child’s step-father could have been charged not only with child sexual assault but also failure to aid a child.

Bradley observed that any parent or guardian, under the state’s interpretation of state law, could be charged with two crimes if they aid in a sexual assault, whereas the perpetrator of the assault would be charged with only one crime.

“You’re going too far, it seems to me,” said Bradley. “Tell me why you aren’t.”

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