RECEIVED

STATE OF WISCONSIN 01-03-2019

COURT OF APPEALS
CLERK OF COURT OF APPEALS
DISTRICT II OF WISCONSIN
___________
Appeal No. 2018AP1897-CR

STATE OF WISCONSIN,
Plaintiff-Respondent,

-vs.-

MORGAN E. GEYSER,
Defendant-Appellant.

ON APPEAL FROM THE FEBRUARY 1, 2018, ORDER OF

COMMITMENT, FILED IN THE WAUKESHA COUNTY
CIRCUIT COURT, THE HONORABLE MICHAEL O.
BOHREN, PRESIDING.
WAUKESHA COUNTY CASE NO. 2014CF596

DEFENDANT-APPELLANT’S BRIEF
AND SHORT APPENDIX

Respectfully submitted by:

Matthew S. Pinix, 1064368

PINIX & SOUKUP, LLC

1200 East Capitol Drive, Suite 360
Milwaukee, Wisconsin 53211
T: 414.963.6164
F: 414.967.9169
matthew@pinixsoukup.com
www.pinixsoukup.com

Attorneys for Defendant-Appellant

 TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............................................ii

STATEMENT OF THE ISSUES ......................................... 1

STATEMENT ON ORAL ARGUMENT AND

PUBLICATION ................................................................... 3

STATEMENT OF THE CASE ............................................ 3

ARGUMENT..................................................................... 14

I. THE ADULT COURT LOST JURISDICTION OVER GEYSER

WHEN THE STATE FAILED AT THE PRELIMINARY
HEARING TO DISPROVE THAT SHE ACTED IN
IMPERFECT SELF-DEFENSE. ....................................... 15

A. Wisconsin’s adult courts have limited original

jurisdiction over child offenders. ...................... 15

B. Wisconsin’s unique preliminary hearing

procedure for children in adult court tests the
court’s jurisdiction. ............................................ 17

C. At Geyser’s preliminary hearing, the State failed

to prove that she committed an offense
conferring original adult court jurisdiction; the
adult court thus lost jurisdiction. ...................... 19

1. Imperfect self-defense mitigates first-

degree intentional homicide to second-
degree intentional homicide. .................... 19

2. Proof of imperfect self-defense at a child’s

adult-court preliminary hearing can defeat
the court’s jurisdiction............................... 20

3. The court found sufficient facts establishing

that Geyser acted in imperfect self-defense;
the juvenile court thus had exclusive

i
 jurisdiction, and her case should have been
discharged. ................................................. 22

II. GEYSER DID NOT KNOWINGLY, INTELLIGENTLY, AND

VOLUNTARILY WAIVE HER CONSTITUTIONAL RIGHTS
PRIOR TO HER CUSTODIAL STATEMENTS; THOSE
STATEMENTS SHOULD HAVE BEEN SUPPRESSED. ...... 25

A. Geyser did not knowingly and intelligently

waive her constitutional rights; her post-Miranda
custodial statements should be suppressed. ... 26

B. Geyser’s custodial interrogations were

involuntary; her statements should have been
suppressed. ......................................................... 29

CONCLUSION ................................................................. 36

CERTIFICATION ............................................................. 37

CERTIFICATION OF APPENDIX CONTENT .............. 38

TABLE OF AUTHORITIES

CASES

Adams v. United States ex rel. McCann, 317 U. S. 269

(1942).............................................................................. 27

Arizona v. Fulminante, 499 U.S. 279 (1991) ...................... 25

Bruton v. United States, 391 U.S. 123 (1968)..................... 25

Colorado v. Connelly, 479 U.S. 157 (1986) ......................... 31

Conn. Nat’l Bank v. Germain, 503 U.S. 249 (1992) ............ 23

Etherly v. Davis, 619 F.3d 654 (7th Cir. 2010) ............ 30, 31

Fare v. Michael C., 442 U.S. 707 (1979) ....................... 30, 33

ii
Fond du Lac County v. Town of Rosendale,
149 Wis. 2d 326, 440 N.W.2d 818 (Ct. App. 1989) ...... 23

Gilbert v. Merchant, 488 F.3d 780 (7th Cir. 2007) ............. 31

Haley v. Ohio, 332 U.S. 596 (1948) ........................ 29, 30, 33

Hardaway v. Young, 302 F.3d 757

(7th Cir. 2002) .............................................. 30, 31, 33, 34

In re Gault, 387 U.S. 1 (1967) ............................................ 30

J.D.B. v. North Carolina, 564 U.S. 261 (2011).................... 30

Jackson v. Denno, 378 U.S. 368 (1964) ............................... 29

Johnson v. Zerbst, 208 U.S. 458 (1938) .............................. 27

Miranda v. Arizona, 384 U.S. 436 (1966) ..................... 25, 26

Moran v. Burbine, 475 U. S. 412 (1986) ............................. 27

North Carolina v. Butler, 441 U.S. 369 (1979) ................... 27

Patterson v. Illinois, 487 U.S. 285 (1988) ........................... 27

People v. Bernasco, 562 N.E.2d 958 (Ill. 1990) ....... 27, 28, 29

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ................ 30

State ex rel. Kalal v. Cir. Ct. Dane Cty.,

2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110 ...... 23, 24

State v. Dunn, 121 Wis. 2d 389, 359 N.W.2d 151

(1984).............................................................................. 17

State v. Felton, 110 Wis. 2d 485, 329 N.W.2d 161

(1983).............................................................................. 20

State v. Head, 2002 WI 99, 255 Wis. 2d 194,

648 N.W.2d 413 ........................................... 19, 20, 21, 22

iii
State v. Hindsley, 2000 WI App 130, 237 Wis. 2d 358,
614 N.W.2d 48 ............................................................... 26

State v. Hoppe, 2003 WI 43, 261 Wis. 2d 294,

661 N.W.2d 407 ................................................. 25, 30, 31

State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145,

699 N.W.2d 110 ..................................................... passim

State v. Kilgore, 2016 WI App 47, 370 Wis. 2d 198,

882 N.W.2d 493 ............................................................. 30

State v. Kleser, 2010 WI 88, 328 Wis. 2d 42,

786 N.W.2d 144 ..................................................... passim

State v. Lee, 175 Wis. 2d 348, 499 N.W.2d 250

(Ct. App. 1993) .................................................. 26, 27, 29

State v. Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364

(1992).............................................................................. 26

State v. Oakley, 2001 WI 103, 245 Wis. 2d 447,

629 N.W.2d 200 ............................................................. 14

State v. Pitsch, 124 Wis. 2d 628, 369 N.W.2d 711

(1985).............................................................................. 15

State v. Riekkoff, 112 Wis. 2d 119, 332 N.W.2d 744

(1983).............................................................................. 14

State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279,

746 N.W.2d 457 ............................................................. 17

State v. Toliver, 2014 WI 85, 356 Wis. 2d 642,

851 N.W.2d 251 ..................................................... passim

Theriault v. State, 66 Wis. 2d 33, 223 N.W.2d 850

(1974).............................................................................. 33

United States v. Bruce, 550 F.3d 668 (7th Cir. 2008) ........ 34

iv
United States v. Castaneda-Castaneda, 729 F.2d 1360
(7th Cir. 1984) ................................................................ 30

United States v. Wilderness, 160 F.3d 1173

(7th Cir. 1998) ................................................................ 34

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. V .......................................... 25, 30, 31

U.S. Const. Amend. VI ..................................................... 25

U.S. Const. Amend. XIV .................................................. 25

Wis. Const. Art. 1, § 8 ....................................................... 25

STATUTES

Wis. Stat. § 753.03 ............................................................. 16

Wis. Stat. § 938.01(1) ......................................................... 16

Wis. Stat. § 938.01(2) ......................................................... 16

Wis. Stat. § 938.12(1) ............................................. 16, 19, 21

Wis. Stat. § 938.183(1)(am) ............................. 11, 16, 19, 21

Wis. Stat. § 939.32 ....................................................... 16, 17

Wis. Stat. § 939.48 ............................................................. 24

Wis. Stat. § 940.01(1)(a) .................................................... 16

Wis. Stat. § 940.01(2)(b) ............................................ passim

Wis. Stat. § 940.05 ............................................................. 16

Wis. Stat. § 970.032(1) ............................................... passim

Wis. Stat. § 971.31(10) ....................................................... 14

v
 TREATISES

Antonin Scalia, A Matter of Interpretation (Princeton

Univ. Press 1997) .......................................................... 23

JOURNAL ARTICLES

Thomas Grisso, Juveniles’ Capacities to Waive Miranda

Rights—An Empirical Analysis, 68 Cal. L. Rev. 1134
(1980).............................................................................. 28

ACTS

1995 Wis. Act 77................................................................ 15

INTERNET SOURCES

Marble Hornets, Entry # 1, (available at

https://www.youtube.com/watch?v=Bn59FJ4HrmU
) (last visit Dec. 17, 2018) ................................................ 4

Marble Hornets, https://www.youtube.com/user/

MarbleHornets (last visit Dec. 17, 2018) ....................... 3

Slender Man, Wikipedia,

https://en.wikipedia.org/wiki/Slender_Man (last
visit Dec. 17, 2018) .......................................................... 3

OTHER SOURCES

Wis. JI-Criminal 1014 ................................................. 20, 23

vi
 STATEMENT OF THE ISSUES

First Issue: Jurisdiction

Morgan E. Geyser was barely twelve-years-old

when she and a friend attempted to kill another young
girl. Geyser undertook that attempted killing in part to
protect her and her family from what the circuit court
found was her clear fear of death. The State of Wisconsin
charged her with attempted first-degree intentional
homicide, which automatically conferred adult-court
jurisdiction. The matter thus proceeded in adult court.

At a subsequent preliminary hearing, Geyser

argued that she did not commit attempted first-degree
intentional homicide, but rather attempted second-degree
intentional homicide. The latter crime cannot be
prosecuted in adult court when committed by a child.
Consistent with the rules governing preliminary
hearings for children originally in adult court, Geyser
adduced physical evidence and witness testimony
establishing that her homicidal act was motivated by her
belief that she had to kill lest she or her family be killed.

The circuit court found as a matter of fact that

Geyser acted under the actual belief that she was
protecting herself and her family from death. In other
words, the circuit court found facts establishing the
affirmative defense that mitigates first-degree
intentional homicide to second-degree. Nonetheless, the
circuit court bound her over for trial in adult court
because it found that she also acted for reasons other
than self-defense.

Statement of the issue

Whether the circuit court erred in binding Geyser

over for trial in adult court when it concluded as a matter
of fact that she had established the affirmative mitigation
defense to attempted first-degree intentional homicide

1
and adult courts do not have original jurisdiction over
attempted second-degree intentional homicide offenses?

The circuit court answered no.

Second Issue: Constitutionality of Statement

Geyser was arrested shortly after her crime. Over

the next seven and a half hours, she made multiple
custodial statements to law enforcement. Some of her
statements occurred before she was given Miranda
warnings, and some followed. At no point before police
finished interrogating her did they allow her to talk with
her parents, even though they had come to the station to
check on her.

Three weeks after Geyser’s statements to police,

she was deemed incompetent to stand trial by two
evaluators. Her incompetence was based on her age, her
unfamiliarity with the legal system and attendant rights,
and her severe mental illness. As those evaluators
explained, she simply did not understand the basic
elements of her legal rights to even know how an
attorney might help her. It was not until five months after
Geyser’s custodial statements—during which time she
was purposefully educated as to the legal system and her
rights within it—that Geyser could understand the basics
of her rights.

Statement of the issue

Whether a barely twelve-year-old, severely

mentally ill person who is disallowed parental support
during a custodial interrogation, suffering from active
delusions, and hours earlier attempted to kill under the
true belief that it would protect her from a fictitious
character can knowingly, intelligently, and voluntarily
waive the constitutional rights to which she is entitled in
a criminal proceeding when, still three weeks later, she is
found not to understand those basic rights?

2
 The circuit court answered yes.

STATEMENT ON ORAL ARGUMENT AND

PUBLICATION

Geyser’s case presents unique facts and

infrequently occurring legal questions. Oral argument
and publication are both appropriate, and she requests
them.

STATEMENT OF THE CASE

Twelve-year-old Morgan Geyser tried to kill her

best friend because she believed that, if she did not,
Slender Man would kill her or her family. (R.326:168.)

Slender Man is a fictional character born to the

internet during a 2009 contest calling for the creation of
paranormal images.1 Slender Man, Wikipedia,
https://en.wikipedia.org/wiki/Slender_Man (last visit
Dec. 17, 2018). A participant in that contest uploaded two
images of children that included “a tall, thin, spectral
figure wearing a black suit.” Id. Fake quotes referencing
killing and the kidnapping of children accompanied
those pictures and named the character. Id. In less than a
year, what had been a single person’s contribution to a
photoshop contest became a canon of artistic creation
from numerous sources comprised of written stories,
images, memes, and even a YouTube channel. Id.; see also
Marble Hornets, https://www.youtube.com/user/
MarbleHornets (last visit Dec. 17, 2018).

Four years later, eleven-year-old Anissa Weier

would introduce Geyser to the Slender Man legend.
(R.327:37, R.326:95.) Geyser, too, was eleven-years-old.

1 The name of that fictional character is stylized throughout the

record as both “Slender Man” and “Slenderman.” In quotation to
the record, no alteration is made. However, in original text, this
brief uses “Slender Man,” consistent with the character’s original
appellation.
3
(See R.327:37.) And, she was suffering from an early onset
psychotic disorder. (R.331:27.)

When Geyser was a toddler, she thought that a

man bearing some similarity to Slender Man’s character
had visited her. (R.43:5.) When she “saw the Slender Man
silhouette, . . . she recognized that as [the] man who had
visited her throughout the years [since] she was three or
four.” (R.355:180-81.) Of course, Slender Man had never
actually visited Geyser; the interactions were a
hallucination and a byproduct of her mental illness.
(R.43:3.) But Geyser’s mental illness was then unknown,
undiagnosed, and untreated. (R.331:42-43.) Her
hallucinations persisted throughout her youth, and
Geyser came to accept them as reality. (R.331:38-39.) She
thus was ill-equipped for her first encounter with the
Slender Man legend and unable to understand the
character as fictional. (R.327:27.) To Geyser, Slender Man
was real. (Id.) Her continuing encounters with the
legend’s various internet iterations did nothing to stifle
that belief. (See id.) After all, much of the internet lore
about Slender Man takes the form of first-person
accounts and found footage detailing real-life
experiences with Slender Man. See, e.g., Marble Hornets,
Entry # 1, (available at https://www.youtube.com/
watch?v=Bn59FJ4HrmU) (last visit Dec. 17, 2018).

Geyser became obsessed with Slender Man.

(R.326:21-22.) She talked about him constantly. (Id.:53,
66-67.) She printed out articles and pictures and showed
them to people to try to convince them of his existence.
(Id.:67.) She drew the Slender Man symbol on her
Barbies. (R.327:84-86, R.75.) She kept entire notebooks at
home and at school devoted to the subject. (R.326:39, 52,
R.327:88-91, R.77-R.83.) She secreted away frightening,
self-made Slender Man art. (R.327:91-102, R.62-R.68,
R.83-R.93.) And, she came to possess two dangerous and
nearly fatal ideas.

4
 First, she wanted to become Slender Man’s proxy,
which is like a member of his group. (R.329:40.) To
accomplish that, Geyser would have to murder someone.
(Id.) Second, Geyser believed that if she did not do what
Slender Man wanted—namely to kill to become his
proxy—he would, in turn, kill her or her family. (Id.:40-
41.) If she displeased him, he could kill her and her
family almost instantaneously; he could kill you in as
little as three seconds. (R.326:113.)

Motivated by those two beliefs, Geyser conspired

with Weier to kill PL. (R.329:40-41.) Geyser first met PL
in the fourth grade, and the two became close friends.
(R.326:20, 180.) In sixth grade, Geyser introduced PL to
Weier, with whom Geyser had become friends. (Id.:22.)
The day after the three girls had celebrated Geyser’s
twelfth birthday party, Geyser and Weier took PL to
some nearby woods where they repeatedly stabbed her
with a kitchen knife. (Id.:23, 32-33.) Afterward, Geyser
and Weier set off on a trek to find and join Slender Man,
intending to abandon their families for a life in the north
woods. (Id.:98.) Their plan—which underscored the
severity of Geyser’s mental illness—was to hike more
than three hundred miles to the Nicolet National Forest
to find Slender Man and join him in his mansion. (See id.)
The two girls did not know precisely where they would
find the mansion, but the finer points of their plan
became irrelevant when sheriff’s deputies found them
hiding in some tall grass near the freeway and arrested
them. (R.344:12.) It was 2:15 in the afternoon. (Id.:49-50.)

At the officers’ direction, the two girls came out of

the tall grass and surrendered. (Id.:13.) They were
immediately taken into custody. (See id.:13-14.) A
uniformed officer handcuffed Geyser and took her to the
back of his squad car. (Id.:14-16, 29, 36.) After a few
questions, the officer “read [Geyser] her Miranda
warning” from a standard issue departmental form.
(Id.:16-17; see also R.204.) When the officer asked whether
Geyser understood her rights, “she replied, Uh-huh.”

5
(R.344:17.) Her response was “more of a grunt” than an
actual answer, and so the officer pressed her: “Do you
understand your rights; I need a yes or no, not just an
utterance.” (Id.:17-18.) After the fully-uniformed, armed
officer who towered over Geyser and held her
handcuffed by the side of the road ordered her to do
better with her answers, she answered “yes” each time
he asked whether she understood her rights. (Id.:14, 17-
18, 36.) On subsequent questioning, Geyser told the
officer that “[she] and another girl had stabbed a girl and
they were forced to stab her.” (Id.:19.) The officer then
put Geyser in his squad car and drove her to the police
department. (Id.:21.) She made no additional statements
to that officer, but “she made utterances,” including one
about “going to the Kettle Moraine Forest to live with . .
. Slender Man.” (Id.:21-22.) At no time did Geyser ask for
an attorney or for her parents to be present. (Id.:57-58.)
According to the officer, “[s]he was 100 percent
cooperative.” (Id.)

At 4:05 p.m.—nearly two hours after her arrest and

transport to the police department—Geyser was taken to
“a very bare,” “ten feet by ten feet” room with nothing in
it other than “a table and two chairs.” (Id.:69-70.) Geyser
would ultimately remain in that barren room for another
“five and a half hours.” (Id.:82.) In the beginning, a police
officer “stood by with her.” (Id.:70-71.) But, for about
“two and a half hours of dead time[,] . . . she was sitting
there by herself.” (Id.:83, 96-97.)

Not once within the seven and a half hours

between her arrest and completed confession was Geyser
allowed to talk with her parents. (Id.:83, 96-97.) In fact,
police never even offered her that opportunity.
(R.326:186-87.) According to the interrogating detective,
it simply “wasn’t an option;” no such offer would ever
be made. (R.326:186-87.) Of course, Geyser’s parents
were worried. (Id.:187.) They came to the station during
her interrogation. (R.344:91-92.) But the interrogating
detective came out and told them merely “that [his] goal

6
was to get [Geyser] some help.” (R.326:186-87, R.344:91-
92.). He failed to mention that he was interrogating their
daughter to prove that she tried to kill PL. (See id.)

Back in the interview room, the detective read

Geyser her Miranda warnings from the standard form.
(R.344:74-75; R.208.) The form includes a line that reads,
“Understanding the above rights, are you willing to
speak with me?” (R.208.) Geyser initialed next to that
statement and signed below it. (Id.) But she was hesitant
to do so; “[s]he wanted to know why she had to sign.”
(R.344:76.) The detective told her that her signature
would show people that she “sort of understood it.”
(R.362 NERI at 34:13-34:43.)2 It would be proof that they
had “talked about” the form and “couldn’t switch
anything or change anything later.” (R.344:76, NERI at
34:13-34:43.) By signing it, he said, she would be
“acknowledging, ‘Yeah this is what [he] said to [her] and
this is what [she] underst[oo]d.” (NERI at 34:13-34:43.)
He did not tell her that signing the form would indicate
that she understood her rights and was knowingly,
intelligently, and voluntarily giving them up. (R.344:76.)
For her part, Geyser did not question the detective about
any of her rights; her twelve-year-old friend Weier had
told her about them before. (NERI at 33:53-34:09.)
According to the detective, Geyser “was willing to waive
[her] rights and speak to [him],” and so the interrogation
commenced. (R.344:76.)

As would later come out during competency

proceedings, Geyser did not fully understand the legal
system or how it applied to her even three weeks after she
signed the Miranda form. (R.322:52.) “Within the
moments” of her competency evaluation’s
commencement, “Geyser evidenced poor insight into her
mental health as well as into her legal situation.” (Id.:62

2The recording of Geyser’s statement was transmitted by the circuit

court as a Non-Electronic Record Item (NERI) and not assigned a
record number. (R.362.) It is hereinafter cited to as (NERI at
HH:MM:SS).
7
(emphasis added).) She had no prior experience with the
criminal justice system. (Id.:55.) She was “seemingly not
understanding the severity of the situation that she [was]
in.” (Id.) She knew generally about the court, the
prosecutor, and the defense attorney, but she needed a
“tutorial and discussions” to “grasp at a basic level what
factually those various concepts might mean and how they
might apply” to her. (Id.:52-53 (emphasis added).) Even
though Geyser could be tutored to understand “several
discreet legal concepts,” she nonetheless was not—even
three weeks after her custodial interviews—
“spontaneously familiar with many of the concepts that
[the interviewer] asked her about.” (Id.:55, 72.) Geyser
lacked the “developmental maturity” to “truly
understand . . . how [an attorney] might be of assistance
to her.” (Id.:76 (emphasis added).)

Geyser’s “cognitive and emotional immaturity,”

as well as “her lack of familiarity and contact with the
legal system” rendered her “not competent to proceed.”
(Id.:62, 84.) In other words, she was too young, too
inexperienced with the criminal justice system, and too
unfamiliar with applicable legal concepts to even “know
how [an] attorney might help her in her case.” (R.22-7.)
She “lack[ed] substantial mental capacity to rationally
and factually understand her charge and be of
meaningful assistance in her defense.” (R.322:62.) Geyser
could become competent, but to get there she needed to
close the “gaps in her fundamental knowledge of court
procedures,” including “how those various concepts
might apply in her case.” (Id.:79.)

Further impeding Geyser’s competency was her

“early onset psychotic disorder.” (R.331:27.) When
Geyser was questioned by police, she was “impaired” by
her “mental illness” but “not consumed” by it. (Id.:24-25.)
A psychologist who met with Geyser days after she was
charged noted that she “appear[ed] distracted” and
would “look[] about the room as if listening to
something,” despite the fact that “there [wa]s no sound.”

8
(Id.:37.) Geyser routinely hallucinated that fictional
characters were talking to her wherever she went. (Id.:38-
39.)

That same mental illness allowed Geyser’s belief in

Slender Man, and soon after her statement to police she
told one evaluator “that [Slender Man] is a person who
she has a strong bond with, that she idolizes and believes
to be real.” (R.322:59.) Days after Geyser’s statement to
police, a psychiatrist noted that her “primary concern
was” not her own legal self-interests, but instead “her
relationship with Slender Man” and not “angering” him
because, “if she somehow upsets Slender Man, not only
hers, but her family’s lives could be in danger.”
(R.322:96-97.) That psychiatrist found that Geyser’s
Slender Man beliefs so impugned her ability to work in
her own self-interest that they prevented her from being
able “to work effectively with an attorney to defend her
own interests.” (Id.:96.) Her primary motivation was to
appease Slender Man rather than to protect herself from
any adverse legal consequences—of which she knew
little. (Id.:96-97.) Furthermore, she did not understand
what it would mean to serve time in prison, thinking that
it would not be any big deal. (Id.) Those thought
processes—a part of her mental illness—caused her to
underappreciate the serious trouble that she was in, even
as she was locked in jail. (Id.)

It took three months of targeted education for

Geyser to understand the legal system, the proceedings,
and how to assist in her defense. (R.43:3, 10.) By then, five
months had passed since Geyser’s statements to police.
(See id.:10, R.1:1, 4-5.)

But, back on the day of her statements, the

interviewing detective saw no problem asking Geyser
incriminating questions. (R.344:74.) He thought she was
“a very intelligent girl” and that “she’d be able to
willingly and knowingly either invoke [her] rights or
waive [them].” (Id.) At no point did he “observe anything

9
about [Geyser] that caused [him] to hesitate in going any
further.” (Id.:77.)

The detective started his interview by questioning

Geyser regarding innocuous things like the approaching
last day of school and her upcoming sixth-grade
graduation. (NREI at 29:00-29:04, 29:10-29:18, 29:38-
29:40.) Without any mention of the fact that Geyser
would surely be kept in custody if she admitted to
attempted murder, he asked whether she would
graduate and noted that school would be over in a couple
of weeks. (Id.) At one point, Geyser asked whether her
statement would get her arrested, which the detective
did not answer. (Id. at 45:55-46:09.) She was obviously
unaware that she was already under arrest and that a
criminal case was already being developed against her. (See
id.)

Immediately after the detective did not answer her

question about possibly being arrested, Geyser accepted
his instruction that what was “important here [wa]s to
tell the truth.” (Id. at 46:11-46:18.) She “kn[e]w that it’s
important to tell the truth,” she explained, because she
had once been suspended for taking a mallet to school.
(Id. at 46:19-46:29.) She seemed to equate the discipline
that she received for that incident with the anticipated
punitive consequences that may befall her for the
incident with PL, and thus justify her talking to police.
(See id.) On the heels of that equivalence, Geyser
launched in to a seemingly uninhibited telling of the
stabbing story. (See, e.g., id. at 48:42-56:29.)

After completely recounting what occurred,

Geyser asked the detective whether she would later
“regret giving [him] th[e] information.” (Id. at 58:20-
58:22.) In response, the detective assured her that his
“goal” was simply “to try to get [her] some help,” to quit
her having to re-live PL’s agonized screams, and to be
sure that she would not “have to worry about hurting
anybody anymore.” (Id. at 58:22-58:33.) To that

10
explanation, Geyser answered, “OK,” and the
interrogation continued. (Id.) The detective failed to
mention that, in addition to the reasons he did give,
Geyser’s statement would also be used as evidence to
prove her commission of one of the most serious felonies
in Wisconsin. (See id.) When Geyser later apologized to
the detective for “putting [him] through all this trouble,”
he dismissed her concern: “I think that you need some
help, somebody to talk to, and trying to sort out some of
these things that you’ve got going on.” (Id. at 2:59:58-
3:00:09.)

After Geyser’s confession, the State charged both

she and Weier in adult court with attempted first-degree
intentional homicide. (R.1.) Despite the girls’ age,
Wisconsin law required the State to file such charges in
adult court. Wis. Stat. § 938.183(1)(am). The girls’ cases
tracked together, and the court held a joint a preliminary
hearing. (R.326.)

At the two-day preliminary hearing, the State

presented evidence from only law enforcement officers.
(See id.:2-3.) The officer who had taken the victim’s
statement parroted it into the record, relevantly
explaining the victim’s identification of Geyser and
Weier as her assailants and the circumstances of the
stabbing. (Id.:17, 23-36.) The officer who found the victim
after the stabbing testified about that and the victim’s
injuries. (Id.:77-80.) Then, the detectives who had
interviewed Geyser and Weier testified as to the girls’
individual confessions. (Id.:84-117, 148-76.) With that, the
State rested. (Id.:220.)

On cross-examination and during her own case,

Geyser presented evidence establishing her belief in
Slender Man, as well as his dangerousness and
inescapability. She wanted to prove that she had acted in
imperfect self-defense, and thus that her case should be
discharged from adult court. (See R.97:1.) To that end, she
showed that, aside from the incident with PL, she had no

11
“other history of violence.” (R.326:58, 180.) A forensic
psychologist testified that Geyser had “an enduring
predominant belief in . . . the reality of Slenderman” that
was “unyielding to rational information.” (R.327:17-18,
20.) “[T]he crux” of Geyser’s explanation regarding what
had happened with PL was that she “was motivated to
do the bid[d]ing of Slenderman,” which she would do at
“any cost to her.” (Id.:22, 27-28.) Geyser showed her
“clear and settled . . . perspective that had she not acted
on behalf of Slenderman, he could have very well killed
her or her family and that she didn’t want to die.” (Id.:23.)

The State offered no rebuttal and never presented

any expert testimony challenging Geyser’s mental illness
or her Slender Man beliefs. (See id.:115.)

Following the preliminary hearing, the circuit

court made specific findings of fact, which is required
when a child is originally in adult court. (R.329:40-42; A-
Ap.) It found that sometime in “December of 2013 or
January [of] 2014,” Geyser, with Weier, developed a
“plot to kill P.L.” so that they could “ingratiate
[themselves] with Slenderman.” (Id:40; A-Ap 41.) “[E]ach
[girl] believed in Slenderman’s existence,” thinking him
to be “a tall, pale, faceless person, somewhere between
six feet and 14 feet tall, [with] tendrils coming from his
back [who] preyed upon small children.” (Id.:40-41; A-
Ap 42-43.) Slender Man had appeared to “[b]oth [girls] at
various times . . . in dreams or [in] visions.” (Id.:41; A-Ap
42.) Geyser and Weier “concluded that killing someone
permitted them to become proxies of Slenderman,” as
well as “prove to the skeptics that [he] existed.” (Id.:40;
A-Ap 41.) Additionally, Geyser and Weier “believed that
Slenderman would kill their families if they did not kill
P.L.” (Id.:41; A-Ap 42.) As of the date of the preliminary
hearing, “Geyser continue[d] to believe that Slenderman
exist[ed].” (Id.)

The circuit court expressly found “four parts to

[Geyser’s] Slenderman belief concept:” (1) “[b]elief in

12
Slenderman;” (2) “a need to kill to become a proxy to be
with Slenderman;” (3) “a need to kill to prove [to] the
skeptics that Slenderman exists;” and (4) “a need to kill to
protect self and protect the family from Slenderman.” (Id.:41
(emphasis added).) Given those factual findings, the
court was “concerned with the existence of the
mitigating circumstances in the affirmative defenses.”
(Id.:42;; A-Ap 43.) It was “also concerned with the
interplay between those four components,” wondering,
“What was the motivating factor for the killing or the
attempted homicide[?]” (Id.) Ultimately, the court
concluded that Geyser was motivated both by fear “for
[her] li[fe] and the lives of [her] family”—which it called
“the most dramatic part”—but also by “the other
portions of the belief system,” which the court found
were “as present in more greater terms than the
statements with regard to protect the family.” (Id.)

Based on those factual findings, the circuit court

could not conclude “that the mitigating circumstances
exist[ed]” showing attempted second-degree intentional
homicide. (Id.) The court thus found probable cause that
Geyser had attempted first-degree intentional homicide
and bound her over for trial. (Id.:42-43; A-Ap 43-44.)

Geyser later filed a motion challenging the

constitutionality of her custodial statements. (R.190.) She
argued that she had not knowingly, intelligently, and
voluntarily waived her constitutional rights prior to
confessing. (Id.:15-20.) The circuit court held a hearing at
which two law enforcement officers testified about the
circumstances of Geyser’s statement. (See R.344:2.)
Additionally, on the parties’ agreement, the recording of
Geyser’s statement was entered into evidence. (Id.:6-7,
64.) The circuit court denied Geyser’s motion in its
entirety based upon both the testimony at the hearing
and the content of her recorded statement. (R.345:27-28;
A-Ap 76-77.) It reasoned that she had knowingly,
intelligently, and voluntarily waived her constitutional

13
rights prior to speaking to police. (R.218, R.345:28; A-Ap
77, 87.)

Ultimately, Geyser pleaded guilty to attempted

first-degree intentional homicide. (R.279, R.353:19.) The
parties asked the court to find that Geyser, though guilty,
was not responsible by virtue of her mental illness, which
it did. (R.353:3, 39.) At sentencing, the court ordered that
Geyser be committed to the Department of Health
Services for forty years. (R.355:185, R.296; A-Ap 1.)

This appeal follows. (R.298, R.312.)

ARGUMENT

Geyser herein asserts two grounds for relief. First,

she argues that the adult court lost jurisdiction after the
preliminary hearing when the circuit court concluded as
a matter of fact that the State had not rebutted her proof
that she acted in imperfect self-defense. See Wis. Stat. §
970.032(1) (“court shall order juvenile be discharged”
unless State proves crime over which adult court has
“original jurisdiction”). Second, she contends that the
circuit court erred in refusing to suppress her custodial
statements. See State v. Jerrell C.J., 2005 WI 105, ¶ 17, 283
Wis. 2d 145, 699 N.W.2d 110.

As a threshold matter, Geyser notes that those

errors are reviewable despite her guilty plea. See State v.
Riekkoff, 112 Wis. 2d 119, 123-24, 332 N.W.2d 744, 746-47
(1983); Wis. Stat. § 971.31(10). Wisconsin has long
recognized that a guilty plea does not waive
jurisdictional defects, State v. Oakley, 2001 WI 103, ¶ 23,
245 Wis. 2d 447, 629 N.W.2d 200, and does not disallow
appellate challenge to the admissibility of the
defendant’s statement, Section 971.31(10). The issues she
presents are properly before this Court for review.

14
I. THE ADULT COURT LOST JURISDICTION OVER
GEYSER WHEN THE STATE FAILED AT THE
PRELIMINARY HEARING TO DISPROVE THAT SHE
ACTED IN IMPERFECT SELF-DEFENSE.

In what follows, Geyser does not contest the circuit

court’s factual findings. The circuit court made
numerous findings of fact when deciding whether to
bind her over, and those findings must be upheld unless
clearly erroneous. State v. Pitsch, 124 Wis. 2d 628, 634, 369
N.W.2d 711, 714 (1985). Instead, Geyser argues that, on
the found facts, the circuit court erred in binding her
over. This Court owes no deference to the lower court’s
ultimate bindover decision. State v. Toliver, 2014 WI 85, ¶
24, 356 Wis. 2d 642, 851 N.W.2d 251. Instead, “the
question of whether there is sufficient evidence to
support a bindover is a question of law subject to de novo
review.” Id.

In short, Geyser argues that the circuit court

reached an erroneous legal conclusion when it refused to
mitigate her crime based on self-defense. The court
accepted that Geyser acted in self-defense, but not only
in self-defense. The court then refused to recognize
Geyser’s affirmative mitigation defense because she had
dual motivations for her homicidal act. It is Geyser’s
position that, because Wisconsin law does not require
that self-defense be the sole motivation for a person’s
action before qualifying for the defense, the circuit court
erred as a matter of law in binding her over in adult
court.

A. Wisconsin’s adult courts have limited

original jurisdiction over child offenders.

In 1995, the Wisconsin legislature substantially

revised the body of statutory law dealing with children
who break the law. 1995 Wis. Act 77; see State v. Klesser,
2010 WI 88, ¶¶ 40-42, 328 Wis. 2d 42, 786 N.W.2d 144.
Naming the revised statutes the “The Juvenile Justice
Code,” our legislature ensured that most children who
15
commit crimes do not enter the adult court system, but
instead are held accountable for their crimes in a separate
juvenile court system. Wis. Stat. § 938.01(1). To keep
Wisconsin’s children from adult court, our legislature
imbued the juvenile court system with “exclusive
jurisdiction” over most child offenders. See Wis. Stat. §
938.12(1) (emphasis added). Children who, without the
Juvenile Justice Code, would otherwise be criminally
prosecuted in adult court are instead subject to a special
court system purposed on “equip[ping] juvenile
offenders with competencies to live responsibly and
productively.” Wis. Stat. § 938.01(2); see also Wis. Stat. §
753.03 (adult courts have general jurisdiction over “all . .
. criminal actions . . . unless exclusive jurisdiction is given
to some other court” (emphasis added)). However, the
exclusive jurisdiction of Wisconsin’s juvenile court
system is not without limit. Wis. Stat. §§ 938.183(1),
970.032(1).

For child offenders who are believed to have

committed certain, specific crimes, the legislature gave
“exclusive original jurisdiction” to “courts of criminal
jurisdiction.” Wis. Stat. § 938.183(1)(a)-(c). One such
crime is attempted first-degree intentional homicide.
Wis. Stat. § 938.183(1)(am). Another is second-degree
intentional homicide. Id.

Thus, if a child intentionally tries but fails to kill

another person, jurisdiction lies with adult court (that’s
attempted first-degree intentional homicide). Wis. Stat. §§
938.183(1)(am), 939.32, 940.01(1)(a). Likewise, if a child
intentionally kills another person under certain
mitigating circumstances, then adult court jurisdiction
also applies (that’s second-degree intentional homicide).
Wis. Stat. §§ 938.183(1)(am), 940.01(2)(b), 940.05.
However—as will be important in what follows—
original adult court jurisdiction does not apply to a child
who intentionally tries but fails to kill another person
under certain mitigating circumstances (that’s attempted
second-degree intentional homicide). See id., Wis. Stat. §

16
939.32. In short, adult court jurisdiction exists over a
child offender who either attempts to kill without
mitigation or actually kills with mitigation.3 On the other
hand, the juvenile court has exclusive jurisdiction over a
child whose attempt to kill was mitigated.

To discern what court has proper jurisdiction, the

Juvenile Justice Code provides a preliminary hearing
procedure for children in adult court that is “different
from” the one afforded to adult defendants. State v.
Kleser, 2010 WI 88, ¶ 55, Toliver, 2014 WI 85, ¶ 10, Wis.
Stat. § 970.032(1).

B. Wisconsin’s unique preliminary hearing

procedure for children in adult court tests
the court’s jurisdiction.

Every person who is originally prosecuted in adult

court is entitled to a preliminary hearing. See Wis. Stat.
§§ 970.03, 970.032. For adult offenders, a preliminary
hearing is the first time the factual sufficiency of the
State’s case is tested in an adversarial hearing. State v.
Schaefer, 2008 WI 25, ¶ 32, 308 Wis. 2d 279, 746 N.W.2d
457. Such hearings provide an “independent screening
function” and “a check on the prosecutorial power of the
executive branch.” Id. ¶ 33. At any such hearing, the State
is required to prove that “there is probable cause to
believe a felony has been committed by the defendant.”
Wis. Stat. § 970.03 (emphasis added). While an adult
offender’s preliminary hearing checks prosecutorial
power, it “is not a mini-trial on the facts; its purpose is
merely to determine whether there is sufficient evidence
that charges against a defendant should go forward.”
Schaefer, 2008 WI 25, ¶ 34; State v. Dunn, 121 Wis. 2d 389,
398, 359 N.W.2d 151, 155 (1984). “[T]he court need not
find probable cause as to the specific felony charged in the
complaint as long as the state presents enough evidence

3 Obviously, the Juvenile Justice Code enumerates other grounds

for original adult court jurisdiction. However, none applies here,
and discussion is purposefully limited to the relevant provisions.
17
to establish probable cause to believe that some felony has
been committed by the defendant and that the defendant
should be bound over for trial.” Kleser, 2010 WI 88, ¶ 56
(emphasis in original).

But, when it comes to children whose cases are

originally in adult court, preliminary hearings are
“different.” Id. ¶ 55. Whereas the State must prove only
the commission of some felony at an adult’s preliminary
hearing, it must prove the commission of a specific felony
at a child’s preliminary hearing. Id. ¶¶ 56-57; compare
Wis. Stat. § 970.03 with Wis. Stat. § 970.032. “The principal
purpose of the specific probable cause finding is to
ensure that the adult court has exclusive original
jurisdiction over the juvenile.” Toliver, 2014 WI 85, ¶ 10.

Indeed, the “manifest purpose” of a child’s adult-

court preliminary hearing goes “beyond assuring that
the prosecution against a juvenile is well grounded,” and
instead “determine[s] whether the adult court has
exclusive original jurisdiction.” Id. ¶ 28. “[T]o assure that
the criminal court has ‘exclusive original jurisdiction’”
over a child offender, the court “must determine whether
there is probable cause to believe that the juvenile has
committed ‘the violation’ of which he or she is accused in
the criminal complaint.” Klesser, 2010 WI 88, ¶ 57
(quoting Wis. Stat. § 970.032(1)) (emphasis in original).
“‘If the court does not make that finding, the court shall
order that the juvenile be discharged’” from adult court,
“although proceedings may be brought” in juvenile
court. Id. (quoting Wis. Stat. § 970.032(1)) (emphasis in
original) (some alteration omitted). Importantly, in the
absence of such a finding, the adult court cannot “retain
exclusive original jurisdiction of the juvenile.” Toliver,
2014 WI 85, ¶ 3.

18
 C. At Geyser’s preliminary hearing, the State
failed to prove that she committed an
offense conferring original adult court
jurisdiction; the adult court thus lost
jurisdiction.

The State brought Geyer’s case in adult court on

the allegation that she had committed attempted first-
degree intentional homicide. At the preliminary hearing,
however, Geyser presented evidence and argument that
there was probable cause showing only attempted
second-degree intentional homicide. As was earlier
discussed, an adult court can retain jurisdiction over a
child for whom probable cause exists showing attempted
first-degree intentional homicide. Wis. Stat. §§ 938.12(1),
938.183. But such jurisdiction cannot be retained when
probable cause exists to show only attempted second-
degree intentional homicide. Id.

1. Imperfect self-defense mitigates

first-degree intentional homicide to
second-degree intentional homicide.

“Intentional homicides are divided into two

categories, first-degree and second-degree.” State v.
Head, 2002 WI 99, ¶ 60, 255 Wis. 2d 194, 648 N.W.2d 413.
Our supreme court has explained that “[t]he difference
between the two degrees of homicide is the presence or
absence of mitigating circumstances.” Id. ¶ 62. As is
relevant to Geyser’s case, imperfect self-defense is one
mitigating factor the presence of which turns first-degree
homicide into second-degree homicide. Id. ¶ 85, Wis.
Stat. §§ 940.01(2) & (3).

Imperfect self-defense is an “affirmative

mitigation defense.” Head, 2002 WI 99, ¶ 89. It exists
whenever a person acts with both “an actual belief that
the person is in imminent danger of death or great bodily
harm, and an actual belief that the use of deadly force is
necessary to defend herself” or others. Id. ¶ 88 (emphasis
in original), Wis. Stat. § 940.01(2)(b). The defense exists
19
so long as the person actually believed both things,
regardless of whether those beliefs were in fact
reasonable. Id.

The initial burden is on the defendant to produce

“‘some’ evidence supporting the defense.” Head, 2002 WI
99, ¶¶ 111-12 (quoting State v. Felton, 110 Wis. 2d 485, 507,
329 N.W.2d 161 (1983)). Thereafter, to disprove
mitigation and defeat the defense, the State must be able
to prove “that the defendant did not have an actual belief
in one or both elements.” Id. ¶ 89 (emphasis in original).
When deciding whether mitigation applies, the
reasonableness of the defendant’s beliefs is irrelevant; all
that matters is what the defendant actually believed. Id.
¶¶ 103-04. If the State fails to prove that the defendant (1)
did not actually believe that death or great bodily harm
was imminent or (2) did not actually believe that deadly
force was necessary, then the State cannot avoid
mitigation from first- to second-degree intentional
homicide. Wis. Stat. § 940.01(2)(b), Head, 2002 WI 99, ¶¶
89-90, 103; see Wis. JI-Criminal 1014.

2. Proof of imperfect self-defense at a

child’s adult-court preliminary
hearing can defeat the court’s
jurisdiction.

A child originally in adult court “has a strong

incentive and should have the right to attempt to negate”
at her preliminary hearing the specific offense with
which she is charged so as “to deprive the criminal court of
its ‘exclusive original jurisdiction.’” Kleser, 2010 WI 88, ¶ 60
(emphasis added), Toliver, 2014 WI 85, ¶ 29. To that end,
a child whose case is originally in adult court is “able to
introduce evidence” at the preliminary hearing “in an
effort to get the charge reduced.” Klesser, 2010 WI 88, ¶
62. A child “defendant must be given some latitude in
attacking the specific offense charged if a successful
attack would . . . negate the exclusive original jurisdiction
of the criminal court.” Id. ¶ 65 (emphasis in original); see

20
also Toliver, 2014 WI 88, ¶ 32 (upholding bindover
because defendant “did not introduce any evidence to
support a reduced charge”).

As detailed above, establishing an imperfect self-

defense claim mitigates attempted first-degree
intentional homicide to attempted second-degree
intentional homicide. Wis. Stat. § 940.01(2)(b). Whereas
the latter crime is one over which the juvenile court has
exclusive jurisdiction, successfully establishing an
imperfect self-defense claim at a child’s adult-court
preliminary hearing “negate[s] the exclusive original
jurisdiction of the criminal court.” See Kleser, 2010 WI 88,
¶ 65, Wis. Stat. §§ 938.12(1), 938.183(1)(am). In Toliver, the
supreme court upheld the adult-court bindover of a child
charged with attempted first-degree intentional
homicide specifically because he “did not introduce any
evidence to support a reduced charge” at his preliminary
hearing. 2014 WI 85, ¶ 32. Toliver pointedly cautioned
that its outcome may have been “different” if the child
“had introduced evidence of mitigating circumstances to
support a charge that was not consistent with the exclusive
original jurisdiction of the adult court.” Id. ¶ 34
(emphasis added). If Toliver had asserted a mitigation
defense, wrote the court, “it would be difficult” to affirm
the bindover. Id.

Geyser thus had “a strong incentive” to aver her

imperfect self-defense claim at her preliminary hearing
and require the State to disprove it, which she did. Kleser,
2010 WI 88, ¶ 60. Unlike the defendant in Toliver, Geyser
placed her imperfect self-defense in issue by testimony
and exhibits, thereby triggering the State’s burden prove
otherwise. Toliver, 2014 WI 85, ¶ 32; see Head, 2002 WI 99,
¶¶ 111-12. Given that Geyser’s imperfect self-defense
was proffered in the context of a preliminary hearing, the
State bore the burden to disprove it by probable cause.
Wis. Stat § 970.032(1). In other words, the State needed to
show probable cause for the court to believe that Geyser

21
“did not have an actual belief in one or both elements.”
See Head, 2002 WI 99, ¶ 89.

3. The court found sufficient facts

establishing that Geyser acted in
imperfect self-defense; the juvenile
court thus had exclusive jurisdiction,
and her case should have been
discharged.

The circuit court found that Geyser believed in

Slender Man when she tried to kill PL and continued to
believe in him at the time of her preliminary hearing. The
court also found that Geyser believed that killing PL
would both prove Slender Man’s existence and allow her
to become a proxy. Additionally—and most important to
the issue before the Court—Geyser “believed that
Slenderman would kill [her] famil[y] if [she] did not kill
P.L.” (R.329:41.) According to the circuit court, Geyser’s
“belief concept” had four components: (1) “[b]elief in
Slenderman;” (2) “a need to kill to become a proxy to be
with Slenderman;” (3) “a need to kill to prove [to] the
skeptics that Slenderman exists;” and (4) “a need to kill to
protect self and protect the family from Slenderman.” (Id.
(emphasis added).)

The circuit court’s factual findings thus make

clear its recognition that Geyser had multiple
motivations for her crime. On the one hand, she acted in
defense of herself and of others based on the fear that if
she did not kill, Slender Man would kill her or her family.
(Id.) On the other hand, she acted to become Slender
Man’s proxy and prove his existence. (Id.) Both
motivations were equally “present,” but the latter was
there in “more greater terms.” (Id.)

Despite finding that Geyser had acted in defense

of others based on her actual belief in Slender Man and
his threat to her and her family, the court nonetheless
concluded that she had not established “the mitigating
circumstances” constituting imperfect self-defense. (Id.)
22
The court reasoned that Geyser was not entitled to
mitigate her crime based on imperfect self-defense
because other things motivated her crime in addition to
self-defense. (Id.)

But the law does not require that a person act only
in defense of self or others to qualify for mitigation. See
Wis. Stat. § 940.01(2)(b); see also Wis. JI-Criminal 1014.
Instead, mitigation applies whenever “[d]eath was
caused because the actor believed he or she or another
was in imminent danger of death or great bodily harm
and that the force used was necessary to defend the
endangered person, if either belief was unreasonable.”
Id. Nothing in the plain language of the mitigation statute
exempts situations in which a person causes a death both
in self-defense and for some additional reason. Id. There
is no sole-motivation requirement in the statute. Id. But
that is precisely what the circuit court concluded in
Geyser’s case: because she acted in self-defense and for
other reasons, she was not entitled to mitigation.

“One of the maxims of statutory construction is

that courts should not add words to a statute to give it a
certain meaning.” Fond du Lac County v. Town of
Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818, 821 (Ct.
App. 1989). The circuit court’s reasoning violates that
maxim; it reads into the mitigation statute a sole-
motivation requirement where none exists. It has been
“‘stated time and again that courts must presume that a
legislature says in a statute what it means and means in
a statute what it says there.’” State ex rel. Kalal v. Cir. Ct.
Dane Cty., 2004 WI 58, ¶ 39, 271 Wis. 2d 633, 681 N.W.2d
110 (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253-54 (1992)). Courts are “not at liberty to disregard the
plain, clear words of [a] statute,” but instead must act in
accordance with “‘what the lawgiver promulgated.’” Id.
¶¶ 46, 52 (quoting Antonin Scalia, A Matter of
Interpretation 17 (Princeton University Press 1997)).
Neither the circuit court nor this Court should read a
sole-motivation requirement into the affirmative

23
mitigation defense statute when the legislature saw fit
not to include one.

Even Wisconsin’s specific self-defense statute

supports the proposition that there is no sole-motivation
requirement known to Wisconsin’s self-defense law. See
Wis. Stat. § 939.48; see Kalal, 2004 WI 58, ¶ 46 (looking to
that statue appropriate because “[c]ontext is important to
meaning,” including the language of “closely-related
statues.”) Nowhere does the self-defense statute’s
language constrain the defense to situations in which a
person is motivated only by defense of self or others. Id.
The existence of secondary motivations is not a
recognized impediment to the defense. Id. Instead, so
long as a person can show that they acted in defense of
self or others, the legal defense applies. Id. Thus, the
presence of secondary motivations for a homicidal act
does not defeat a person’s ability to avoid criminal
liability on self-defense grounds. Surely, if the State can
prove that some secondary motivation was the person’s
only motivation, then the State can disprove self-defense.
But it is incumbent on the State to disprove that the
person was motivated by defense of self or others. Proof
that the person acted for additional reasons does not
disprove that the act was also done in self-defense.

The circuit court thus reached an erroneous legal

conclusion when it denied Geyser’s affirmative
mitigation defense because there were multiple
motivations for her homicidal act, one of which was self-
defense. Merely because Geyser’s homicidal acts may
have had secondary motivations in addition to
defending herself and her family does not defeat her
imperfect self-defense claim. It must be recognized that
the circuit court did not conclude that the State had
disproven Geyser’s imperfect self-defense claim. Instead,
the court found that she acted both in imperfect self-
defense and to advance her own self-interests. Insofar as
the law does not require Geyser to have acted only in self-
defense to qualify for mitigation, the State’s failure to

24
disprove her imperfect self-defense claim deprived the
adult court of original jurisdiction. By statute, Geyser’s
case should have been discharged following the
preliminary hearing with the State having the option to
commence proceedings in juvenile court.

II. GEYSER DID NOT KNOWINGLY, INTELLIGENTLY,

AND VOLUNTARILY WAIVE HER CONSTITUTIONAL
RIGHTS PRIOR TO HER CUSTODIAL STATEMENTS;
THOSE STATEMENTS SHOULD HAVE BEEN
SUPPRESSED.

The Supreme Court has long recognized that “[a]

confession is like no other evidence, ‘the defendant’s
own confession is probably the most probative and
damaging evidence that can be admitted against [her].’”
Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting
Bruton v. United States, 391 U.S. 123, 139-40 (1968) (White,
J. dissenting)).

Statements made by a person during custodial

interrogation cannot be admitted into evidence unless
they were obtained by “the use of procedural safeguards
effective to secure the privilege against self-
incrimination.” Miranda v. Arizona, 384 U.S. 436, 444
(1966). The government’s use of statements otherwise
obtained violates the constitutional guarantee of due
process. State v. Hoppe, 2003 WI 43, ¶ 36, 261 Wis. 2d 294,
661 N.W.2d 407; U.S. Const. Amend. XIV, Wis. Const.
Art. 1, § 8. To safeguard against improperly obtained
confessions, the law requires that police inform a person
of certain constitutional rights before questioning.
Miranda, 384 U.S. at 444. Specifically, a person must be
told that “[s]he has the right to remain silent, that
anything [s]he says can be used against h[er] in a court of
law, that [s]he has the right to the presence of an
attorney, and that if [s]he cannot afford an attorney one
will be appointed.” Id. at 479; See U.S. Const. Amends. V
& VI. If a person thereafter chooses to waive effectuation
of those rights, the interrogation may proceed, and any

25
ensuing statements can be used against the person in
court. Id. However, the person’s waiver of those rights
must be “intelligent and knowing as well as voluntary.”
State v. Lee, 175 Wis. 2d 348, 357, 499 N.W.2d 250, 254 (Ct.
App. 1993). Otherwise, the waiver is invalid and the
statements thereafter obtained must be suppressed.
Miranda, 384 U.S. at 479.

Thus, “[w]hen the State seeks to admit statements

made during custodial questioning, it must make two
separate showings: it must establish that the suspect was
informed of [her] Miranda rights, understood them, and
knowingly and intelligently waived them; and it must
establish that the statement was voluntary.” State v.
Hindsley, 2000 WI App 130, ¶ 21, 237 Wis. 2d 358, 614
N.W.2d 48 (emphasis added). The failure to establish
either showing is grounds for suppression. Id.

When deciding whether a person’s statement

should have been suppressed, appellate courts “examine
the application of constitutional principles to historical
facts.” Jerrell C.J., 2005 WI 105, ¶ 16. In so doing, the
circuit court’s factual findings are upheld unless clearly
erroneous; the ultimate constitutional question is
reviewed independently. Id. Thus, this Court owes no
deference to the circuit court’s legal conclusions
regarding the admissibility of Geyser’s statement.

A. Geyser did not knowingly and

intelligently waive her constitutional
rights; her post-Miranda custodial
statements should be suppressed.

There is no doubt that Geyser was twice told about

her constitutional rights and twice elected to proceed
without their invocation. However, “[t]he police are not
absolved of responsibility by merely reading a defendant
his or her Miranda rights.” State v. Mitchell, 167 Wis. 2d
672, 694, 482 N.W.2d 364, 373 (1992). Instead, a valid
waiver of one’s constitutional rights necessitates “‘an

26
intentional relinquishment or abandonment of a known
right or privilege.’ In other words, the accused must
‘kno[w] what he is doing’ so that ‘his choice is made with
eyes open.’” Patterson v. Illinois, 487 U.S. 285, 292 (1988)
(quoting Johnson v. Zerbst, 208 U.S. 458, 464 (1938) and
Adams v. United States ex rel. McCann, 317 U. S. 269, 279
(1942)). The person giving up her rights must have “a full
awareness of both the nature of the right being
abandoned and the consequences of the decision to
abandon it.” Moran v. Burbine, 475 U. S. 412, 421 (1986).
“An express written or oral statement of waiver of the
right to remain silent or of the right to counsel is usually
strong proof of the validity of that waiver, but is not
inevitably either necessary or sufficient to establish
waiver.” North Carolina v. Butler, 441 U.S. 369, 373 (1979).

Instead, deciding whether a person validly waived

her constitutional rights requires consideration of “the
particular circumstances involved, including the
education, experience and conduct of the accused.” Lee,
175 Wis. 2d at 364, 499 N.W.2d at 257. After all, “a
mentally ill person may ‘confess’ at length quite without
external compulsion but not intelligently and knowingly,
while a perfectly rational person on the torture rack may
confess intelligently and knowingly but without free
will.” People v. Bernasco, 562 N.E.2d 958, 962 (Ill. 1990)
(decision heavily relied upon in Lee, 175 Wis. 2d at 356-
57, 364-65, 499 N.W.2d at 257).

At the time that Geyser twice expressed a

willingness to waive her rights, she was an extremely
mentally ill, barely twelve-year-old girl with no prior
experience in the criminal justice system. She had not
been given an opportunity to talk with her parents before
or during her statements. She did not appreciate the
seriousness of the legal consequences that might befall
her if she gave up her rights. Her delusional devotion to
Slender Man clouded her judgment. She was more
interested in serving Slender Man’s bidding than in
helping herself. Even three weeks after her statements,

27
Geyser still did not understand various legal concepts
involved with a criminal prosecution or even how her
attorney could help her. It is worth noting that, at the
time of her competency evaluations, Geyser knew what
an attorney was—she had by then met and been to court
with her own attorney several times. But even then, Geyser
still had no idea of what use her defense attorney might
be to her. It took three months of targeted education for
Geyser to gain sufficient knowledge such that she
understood the legal system and her constitutional
rights, including her right to counsel.

To suggest that Geyser, under those

circumstances, could knowingly and intelligently waive
her constitutional rights is a mockery of those words.

If intelligent knowledge in the Miranda context

means anything, it means the ability to understand
the very words used in the warnings. It need not
mean the ability to understand far-reaching legal
and strategic effects of waiving one’s rights, or to
appreciate how widely or deeply an interrogation
may probe, or to withstand the influence of stress or
fancy; but to waive rights intelligently and
knowingly, one must at least understand basically
what those rights encompass and minimally what
their waiver will entail.

Bernasco, 562 N.E.2d at 964 (emphasis added). During her

competency evaluations, Geyser had to be tutored to
“grasp at a basic level what factually those various
concepts might mean and how they might apply” to her.
(R.322:52-53 (emphasis added).) Given her ignorance of
the criminal justice system, she was not “spontaneously
familiar” with the legal concepts involved in a criminal
prosecution, including her constitutional rights. (Id.:55,
72.) Geyser was simply too young, too inexperienced,
and too mentally ill to “truly understand . . . how [an
attorney] might be of assistance to her.” (Id.:76 (emphasis
added)); see also Thomas Grisso, Juveniles’ Capacities to
Waive Miranda Rights—An Empirical Analysis, 68 Cal. L.
Rev. 1134, 1161 (1980) (children younger than fourteen

28
cannot constitutionally waive their rights to silence and
legal counsel).

Thus, when Geyser agreed to waive her rights, she

did not do so knowingly and intelligently. Bernasco, 562
N.E.2d at 964. “Formulas of respect for constitutional
safeguards cannot prevail over the facts of life which
contradict them.” Haley v. Ohio, 332 U.S. 596, 601 (1948).
The record clearly demonstrates that Geyser lacked the
resources to “understand basically what [her] rights
encompass[ed] and minimally what their waiver w[ould]
entail.” Bernasco, 562 N.E.2d at 964 (emphasis added).
Geyser’s custodial statements should therefore have
been suppressed, regardless of their voluntariness. Lee,
175 Wis. 2d at 361, at 499 N.W.2d at 255-56.

B. Geyser’s custodial interrogations were

involuntary; her statements should have
been suppressed.

Even if this Court concludes that Geyser validly

waived her constitutional rights, her custodial
statements should nonetheless be suppressed because
they were involuntarily made.

[T]he Fourteenth Amendment forbids the use of

involuntary confessions not only because of the
probable unreliability of confessions that are
obtained in a manner deemed coercive, but also
because of the “strongly felt attitude of our society
that important human values are sacrificed where
an agency of the government, in the course of
securing a conviction, wrings a confession out of an
accused against his will,” and because of “the deep-
rooted feeling that the police must obey the law
while enforcing the law; that in the end life and
liberty can be as much endangered from illegal
methods used to convict those thought to be
criminals as from the actual criminals themselves.”

Jackson v. Denno, 378 U.S. 368, 385-86 (1964) (citations

omitted). “[W]hen a suspect is in police custody, there is
a heightened risk of obtaining statements that ‘are not the
29
product of the suspect’s free choice.’” State v. Kilgore,
2016 WI App 47, ¶ 17, 370 Wis. 2d 198, 882 N.W.2d 493
(quoting J.D.B. v. North Carolina, 564 U.S. 261, 268-69
(2011)). The voluntariness of a confession turns on
whether the person “made an independent and informed
choice of his own free will, possessing the capability to
do so, his will not being over-borne by the pressures and
circumstances swirling around him.” United States v.
Castaneda-Castaneda, 729 F.2d 1360, 1362 (7th Cir. 1984)
(citation omitted); see also Hoppe, 2003 WI 43, ¶¶ 34-36. It
depends on the totality of the circumstances and must be
evaluated on a case-by-case basis. Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973); Etherly v. Davis, 619
F.3d 654, 661 (7th Cir. 2010) (stating that the Schneckloth
test applies to juveniles, but that their confessions must
be examined with “special care”). This includes an
evaluation of individual characteristics, such as “age,
experience, education, background, and intelligence”
and “whether [the person] has the capacity to
understand the warnings given him, the nature of his
Fifth Amendment rights, and the consequences of
waiving those rights.” Fare v. Michael C., 442 U.S. 707, 725
(1979).

“The Supreme Court in the past has spoken of the

need to exercise ‘special caution’ when assessing the
voluntariness of a juvenile confession, particularly when
there is prolonged or repeated questioning or when the
interrogation occurs in the absence of a parent, lawyer,
or other friendly adult.” Hardaway v. Young, 302 F.3d 757,
762 (7th Cir. 2002) (citing In re Gault, 387 U.S. 1, 45 (1967);
Gallegos, 370 U.S. at 53-55; Haley, 332 U.S. at 599-601). The
court in Hoppe explained the test for voluntariness as
follows:

The relevant personal characteristics of the

defendant include the defendant’s age, education
and intelligence, physical and emotional condition,
and prior experience with law enforcement. The
personal characteristics are balanced against the
police pressures and tactics which were used to

30
 induce the statements, such as: the length of the
questioning, any delay in arraignment, the general
conditions under which the statements took place,
any excessive physical or psychological pressure
brought to bear on the defendant, any inducements,
threats, methods or strategies used by the police to
compel a response, and whether the defendant was
informed of the right to counsel and right against
self-incrimination.

261 Wis. 2d 294, ¶ 39 (internal citations omitted). “[I]t is

the totality of the circumstances underlying a juvenile
confession, rather than the presence or absence of a
single circumstance, that determines whether or not the
confession should be deemed voluntary.” Gilbert v.
Merchant, 488 F.3d 780, 793 (7th Cir. 2007). Ultimately, the
court must consider whether the confession arose from
“excessive coercion or intimidation.” Etherly, 619 F.3d at
661 (quoting Hardaway, 302 F.3d at 765). Admission of an
involuntary confession violates an individual’s Fifth
Amendment right to remain silent. Colorado v. Connelly,
479 U.S. 157, 167 (1986).

Geyser’s unique situation made her custodial

statements involuntarily. Although “coercive or
improper police conduct” is a “necessary prerequisite”
for involuntariness, the conduct “need not be egregious
or outrageous in order to be coercive.” Jerrell C.J., 2005
WI 105, ¶ 19. Even “subtle pressures are considered to be
coercive if they exceeded the defendant’s ability to
resist.” Id. “When the allegedly coercive police conduct
includes subtle forms of psychological persuasion, the
mental condition of the defendant becomes a more
significant factor in the ‘voluntariness’ calculus.” Hoppe,
2003 WI 43, ¶ 40.

Geyser’s age and mental illness left her unable to

resist even the slightest coercion. “[T]he condition of
being a child renders one ‘uncommonly susceptible to
police pressures.’” Jerrell C.J., 2005 WI 105, ¶ 26 (quoting
Hoppe, 2003 WI 43, ¶ 46). At the time of her interview,
Geyser was twelve-years-old. Our supreme court has
31
before noted that the “young age of 14 [is] a strong factor
weighing against the voluntariness of [a child’s]
confession.” Id. Geyser was two years younger than that.

As for education, Geyser was in sixth grade.

Although she was a smart child, she lacked a basic
knowledge of the legal system to understand how it
applied to her. She seemingly equated the punitive
consequences of bringing a mallet to school with those
she might face for having killed someone, and thus
thought it was important to tell the truth of what she had
done. Despite being under arrest and held in custody for
several hours, she asked the interrogating detective
whether her statement would get her arrested. She had
no comprehension of what consequences might befall
her, asking the detective if she would regret confessing
her crime and whether it might cause her to go to prison.
Her severe mental illness caused her to conflate fiction
with reality. She cared more about serving Slender Man
than she did about acting in her own self-interests. She
lacked “a realistic understanding of what it might mean
to spend a long time in prison.” (R.322:97-98.)

During her statement, Geyser’s description of

stabbing her close friend goes on at length with a little
change in mood. (See, e.g., id. at 1:08:22-1:08:40.) She flatly
describes the horrific occurrences of her crime—
repeatedly calling it necessary—and similarly mentions
being sent to prison—which she called “a weird place.”
(Id. at 1:05:10-1:05:13.) All of that seems to have no impact
on Geyser’s mood. But then, when she was asked about
a rumor that she set a fire in her basement, she reacted
with surprise; her cats lived in the basement and she
“would never hurt them; [she] loved [her] cats; [her] cats
[we]re important.” (Id. at 1:11:53-1:12:00.) Here is child
who is confessing to a serious crime that could possibly
imprison her for decades and her most significant
concern is the well-being of her cats.

32
 Finally, Geyser had no prior experience with law
enforcement. “In cases where courts have found that
prior experience weighs in favor of a finding of
voluntariness, the juvenile’s contacts with police have
been extensive.” Id. ¶ 28 (citing Hardaway, 302 F.3d at 767,
Fare, 442 U.S. at 710) (emphasis added). Geyser’s total
unfamiliarity with police and the circumstances of
custodial interrogation weigh against a finding of
voluntariness. Id.

Against those personal characteristics must be

balanced the police pressures applied to Geyser. First,
“[t]he length of [Geyser’s] custody is also an important
factor” demonstrating the coercive nature of her
interrogation. Id. ¶ 32. It is well-established that “lengthy
interrogation or incommunicado incarceration c[an] be
strong evidence of coercion.” Id. In Jerrell C.J., the
“duration of [the child]’s custody and interrogation was
longer than the five hours at issue in Haley, 332 U.S. 596,”
and “significantly longer than most interrogations.” Id. ¶
33 (emphasis added). Similarly, Geyser was in custody
and interrogated longer than the child in Haley: seven
and a half hours. Thus, her “lengthy custody and
interrogation is . . . evidence of coercive conduct.” Id.

Second, Geyser was not allowed to talk with her

parents. Wisconsin has long held that, when police “‘fail
to call [a child’s] parents for the purpose of depriving the
juvenile of the opportunity to receive advice and
counsel,’” it is “‘strong evidence that coercive tactics
were used to elicit the incriminating statements.’” Id. ¶
30 (quoting Theriault v. State, 66 Wis. 2d 33, 48, 223
N.W.2d 850 (1974)). Although Geyser did not ask to
speak with her parents, the opportunity was never
offered to her. And, the interrogating detective admitted
that he would not have permitted such contact even if
she had asked. Certainly, the police are not at all required
to inform a juvenile’s parents that the juvenile is being
questioned or honor a juvenile’s request that a parent or
other adult (other than a lawyer) be present during

33
questioning, Hardaway, 302 F.3d at 765. However, “‘[i]t is
easier to overbear the will of a juvenile than of a parent
or attorney, . . . in marginal cases—when it appears the
officer or agent has attempted to take advantage of the
suspect’s youth or mental shortcomings—lack of
parental or legal advice could tip the balance against
admission.’” United States v. Bruce, 550 F.3d 668, 673 (7th
Cir. 2008) (quoting United States v. Wilderness, 160 F.3d
1173, 1176 (7th Cir. 1998)). In Geyser’s case, the
purposeful deprivation of parental contact was coercive;
the police would not even have allowed her to talk with
her parents it she had requested it.

Finally, the psychological techniques applied to

Geyser show that her statement was involuntary. When
Geyser questioned the need to sign the Miranda form, the
detective did not detail her constitutional rights or
explain that her signature would later be used as proof
that she was giving them up. Instead, he told her that her
signature would show people that she “sort of understood
it.” (NERI at 34:18-34:29 (emphasis added).) It would also
be proof that she and the detective were “talking about
the same thing” so that later he could not “switch
something and say” that he “asked [her] something
different.” (Id. at 34:18-34:45.) Her signature would just
be her “acknowledging, ‘Yeah this is what [he] said to
[her] and this is what [she] underst[oo]d.” (Id.) In no way
does that exchange convey the significance of what
Geyser was doing in giving up her constitutional rights.
Quite to the contrary, it minimizes those rights and the
effect of Geyser’s waiver so as to ensure that she would
sign the form and confess.

The interviewing detective’s minimization of her

rights is entirely consistent with his ongoing
minimization of the seriousness of her situation, as well
as his mischaracterizations of the purpose of his
interrogation. The detective began the conversation with
grooming questions intended to make her feel more
comfortable and open. Those questions minimized the

34
seriousness and importance of the interrogation by both
their tone and content. While discussing Geyser’s
schooling, the detective asked questions suggesting
that—despite her crime—Geyser would still be
attending.

When Geyser asked whether she would regret

talking to the police, the detective told him that the
reason he was questioning her has merely “to get [her]
some help so [she] d[id]n’t have to hear [PL’s] screams
and d[id]n’t have to worry about hurting anybody
anymore.” (NERI at 58:22-58:33.) When she asked
whether her statement would “put [her] in prison” to
“rot and die,” the detective assured her that he “d[id]n’t
think” that she was “going to prison” or that she would
“rot and die there.” Instead, the police needed just
“somebody talk to [her] and try to figure out what the
best circumstances” would be for her. (Id. at 2:22:46).
When Geyser apologized for the “trouble” she was
causing the detective, he dismissed her concern on the
ground that she “need[ed] some help, somebody to talk
to, and trying to work out some of these things that [she
had] going on.” (Id. at 3:00:00).

The clear message to Geyser in the detective’s

responses is that her incriminating statements will be
used to help her, not to send her to prison or accomplish
anything that would make her regret making these
statements. These tactics are problematic when dealing
with an adult suspect of sound mind. But, Geyser was
not that sort of suspect. She “[wa]s vulnerable. She [wa]s
withdrawn from reality and . . . ma[d]e[] choices against
her own best interest.” (R.334:13.) As one psychologist
observed, she “[wa]s particularly vulnerable to what
goes on in her head and to what—and she’s withdrawn
from reality and her contact with her—or her
appreciation of it is impaired. Morgan will make choices
that are against her legal self-interest.” (R.331:66.) That
same psychologist also testified that Geyser “ha[d]n’t
developed skills for navigating adult life or even

35
approximating navigating stressors in adult life, and
she’s got the added stressor of a mental illness.”
(R.331:69.) Her serious mental illness was neither
diagnosed nor treated at the time of her custodial
statements.

Admittedly, the tactics police used with Geyser

may have passed muster with a fully-functional adult,
but Geyser was far from that. She was a twelve-year-old,
mentally ill child with no prior police contact or
experience in the criminal justice system who was held
in custody for seven-and-a-half hours. She was
questioned without being allowed to talk to her parents
or even have them present. She did not understand her
legal rights, including what an attorney could do for her.
The interviewing detective repeatedly minimized the
seriousness of her crime and the effect of confessing to it.
On balance, the tactics police used on Geyser were
coercive and most certainly overwhelmed whatever
minimal ability she had to resist. Under those
circumstances, none of her custodial statements can be
labelled as “voluntary” under any meaningful definition
of the term. They should have been suppressed.

CONCLUSION

Morgan Geyser was twelve-years-old when she

tried to kill her close friend because of her unreasonable
belief in the imminent danger that a fictional character
posed to her and her family. The juvenile court, not the
adult court, had exclusive original jurisdiction over her
crime, and the circuit court should have discharged her
adult-court case following her preliminary hearing. The
State could still have prosecuted Geyser; it merely would
have had to do so in juvenile court. Geyser asks this
Court to reach the same conclusion and to remand her
case to the circuit court with directions that it be
discharged pursuant to Wis. Stat. § 970.032(1).

36
 Furthermore, Geyser asks this Court to conclude
that her statements were obtained in violation of her
constitutional rights. If the Court does not hold that the
circuit court lost jurisdiction, then she asks that her case
be remanded to the circuit court for further proceedings
consistent with the determination that her statements
should have been suppressed.

Dated this 3rd day of January, 2019.

PINIX & SOUKUP, LLC

Attorneys for Defendant-Appellant

By: Matthew S. Pinix, SBN 1064368

CERTIFICATION

I certify that this brief conforms to the rules

contained in Section 809.19(8)(b) and (c) for a brief
produced using a proportional serif font, minimum
printing resolution of 200 dots per inch, 13 point body
text, 11 point for quotes and footnotes, leading of
minimum 2 points, maximum of 60 characters per full
line of body text. The length of this brief is 10,470 words,
as counted by the commercially available word
processor Microsoft Word.

I further certify that I have submitted an electronic

copy of this brief, excluding the appendix, if any, which
complies with the requirements of Section 809.19(12).

I further certify that this electronic brief is identical

in content and format to the printed form of the brief filed
as of this date. A copy of this certificate has been served
with the paper copies of this brief filed with the Court
and served on all opposing parties.

37
 Dated this 3rd day of January, 2019.

PINIX & SOUKUP, LLC

Attorneys for Defendant-Appellant

By: Matthew S. Pinix, SBN 1064368

CERTIFICATION OF APPENDIX CONTENT

I hereby certify that filed with this brief, either as a

separate document or as a part of this brief, is an
appendix that complies with Section 809.19(2)(a) and that
contains, at a minimum: (1) a table of contents; (2) the
findings or opinion of the circuit court; and (3) portions
of the record essential to an understanding of the issues
raised, including oral or written rulings or decisions
showing the circuit court’s reasoning regarding those
issues. I further certify that if this appeal is taken from a
circuit court order or judgment entered in a judicial
review of an administrative decision, the appendix
contains the findings of fact and conclusions of law, if
any, and final decision of the administrative agency. I
further certify that if the record is required by law to be
confidential, the portions of the record included in the
appendix are reproduced using first names and last
initials instead of full names of persons, specifically
including juveniles and parents of juveniles, with a
notation that the portions of the record have been so
reproduced to preserve confidentiality and with
appropriate references to the record.

Dated this 3rd day of January, 2019.

PINIX & SOUKUP, LLC

Attorneys for Defendant-Appellant

By: Matthew S. Pinix, SBN 1064368

38