Attorney John A. Birdsall Admitted to The Bar of The United States Supreme Court



On Nov. 4, 2013, Attorney John A. Birdsall traveled to Washington D.C. to be admitted to practice before the United States Supreme Court. Admittance to the bar of the United States Supreme Court is a great honor for any lawyer. John is particularly proud of this accomplishment. While it is rare for a case to reach the United States Supreme Court, this honor is a validation of John’s experience and dedication which has made him one of Wisconsin’s best criminal defense lawyers. In order to receive this honor, a current member of the Supreme Court Bar must file a motion of nomination and then that motion must be granted by the Chief Justice of the Supreme Court.

Originally submitted: Sunday, 15 December 2013 07:35

M Magazine Leading Lawyers 2012 – John Birdsall & Theodore Perlick Molinari

This year, M Magazine turned to Avvo –, a Seattle-based company that rates and profiles dental, legal and medical professionals.  Avvo’s proprietary algorithm rates all attorneys on a 10-point scale, factoring in peer endorsements as well as experience, education, training, speaking, publishing and awards. These dynamic ratings are regularly refreshed based on new information gleaned from attorneys as well as from licensing and disciplinary authorities.

John Birdsall and Theodore Perlick Molinari are constantly working in and out of the courtroom to be the best at practicing defense law.  In the past year both John and Theodore have experienced great success in the courtroom for their clients.  Sometimes this success came in the form of significant acquittals.  Sometimes they were simply able to achieve great outcomes for their clients even in very difficult circumstances.  John was awarded the very rare honor of receiving a Hanson Advocate Prize for acquittal in a homicide trial.  Theodore won several jury trials in DUI and criminal cases in addition to serving on the State Bar Board of Governors.  All of this great legal work in and out of the courtroom has brought both John and Theodore the great achievement of 10 out of 10 “Superb” ratings on which has proven itself as an authority on the evaluation of an attorneys caliber and ability.

This 10 out of 10 “Superb” rating is what M Magazine used to choose it’s Leading Lawyers in Milwaukee.

Originally posted: Monday, 10 September 2012 20:18

Featured in the Wisconsin Law Journal: DNA evidence used to get an acquittal



Attorney John A. Birdsall was brought the case of State vs. Lewis which he knew would be a challenge. John saw promise in this case and he was confident that he could win.  After a lengthy process and thorough investigation, John was able to get an acquittal for his client based partially on circumstances of DNA evidence found at the scene. Click here to read the article on the Wisconsin Law Journal.

I have a preliminary hearing tomorrow

I have a preliminary hearing tomorrow. What should I do?

Never, Ever, Try to Represent Yourself

Without a strategic and effective legal argument, it will be extremely difficult to defend yourself and your rights against the charges being filed against you. If you are forced by circumstances to go to court without legal counsel, ask the court for an adjournment so that you can get an attorney.

Seek and Enlist the Services of a Lawyer

Seek the services of a lawyer who is experienced in criminal law and has a record of success. While no lawyer can ever guarantee a specific outcome (and beware of one who does), an experienced attorney can mount legal defenses and constitutional challenges that you simply would not think of or know to apply. This will give you a much better chance of winning your case.

Know the Purpose of the Preliminary Hearing

At the preliminary hearing, the judge determines whether or not there is probable cause that a felony has been committed. If there’s not probable cause, the case is dismissed. If there is, however, a trial is set. Cases are rarely dismissed at this stage, but the defense can use the preliminary hearing to find holes in the prosecution’s case and to lock in witness testimony in preparation for the trial. At the preliminary hearing, the District Attorney may add additional charges and may attempt to “remand” the defendant back into custody, even if the defendant is currently out on bail.

Should I allow police inside?

The police are at my door right now and they want to search the house. Should I allow them inside?


Instead, demand a warrant. This requires that the police go to a judge and show probable cause that evidence of a crime is in the house, and they must be able to detail what that evidence is. If you consent to a search without a warrant, you will lose your right to challenge the search in court. Warrants can only be issued using “reliable” information. If the search is illegal and not based on credible information, you can bring a motion to suppress as evidence anything that was taken, meaning it will not be allowed at your trial.

Even if you think you have nothing to hide, you have nothing to gain by consenting.

The police are at my door. Should I talk?

The police are at my door right now and want to question me. Should I talk?

Do Not Succumb to Seemingly Informal Questioning

Most cases that end up being charged criminally are the result of interrogations such as this. It’s almost always a bad idea to talk to police until after you know what they’re looking for, even if you believe you’re not in trouble or that you’ve done nothing wrong.

Be Wary of Your Words

Keep in mind that anything you say may be used to incriminate you. Seemingly harmless statements such as “I may have hit the guy” and “I had a beer a few hours ago” may turn into “the suspect admitted to hitting the victim” and “the suspect had been drinking.”

Get Help

It’s vital to seek the help of a lawyer who specializes in criminal law and understands police tactics. When interrogating you, the police will often lie about evidence, pressure you, threaten you with arrest, assure you that all will be easier if you simply confess, or even tell you that you will “feel better after you confess.” An experienced criminal defense attorney can guide you through this process and advise you on what to say, and what to not say.

Silence Is Golden

Especially if you are nervous, tired, scared, or under the influence, it is best to exercise your Fifth Amendment right to silence until you’ve consulted a lawyer.

I or a loved one was just arrested

I or a loved one was just arrested. What should I do?

Obtain a Copy of the Criminal Complaint

Find out what charge is being brought against you, and get a copy of the criminal complaint. You can get this from the court file at the clerk’s office since these are public documents. This will give you a brief summary of the charges against you and who the witnesses are.

Determine the Nature of the Charge

Ask if the charge is for a misdemeanor or a felony. A felony will require you to be held in police custody until you appear in court, while a misdemeanor usually allows for immediate bond. Also, find out when your next court date is and, if possible, which judge will be presiding over your case.

Get Help

Seek legal help immediately, taking care to find an attorney who is experienced in criminal law.

Keep Quiet

Do not speak to anyone except your attorney, as everything you say can and will be used against you. This includes cellmates, lovers, friends, parents, siblings, and neighbors. By talking with anyone besides your lawyer, you risk turning them into potential witnesses, which will complicate the case

I want to appeal my sentence.

I was just sentenced and I want to appeal. What is my next step?

Know the Process

If convicted, a defendant may appeal his conviction by filing a Motion for Post-Conviction Relief with the trial judge, or by taking a direct appeal to the Court of Appeals. The conviction will either be reversed or upheld. If the conviction is reversed, a new trial will be held unless the prosecutor decides not to proceed. If the conviction is upheld, the defendant may try to get the Supreme Court to review the case. There is no automatic right, though, to have the case heard, and the Supreme Court only accepts about 6% of all cases filed. The Court of Appeals is designed to correct errors made by the trial court, including procedural errors, while the Supreme Court focuses mainly on constitutional issues that will have a broad, state-wide impact. The Supreme Court will not review for errors made during the trial unless the errors rise to a level that fundamentally caused an unfair trial.

File the Papers

If you wish to appeal your case, have your trial attorney file a Notice of Intent to Seek Post-Conviction Relief. This must be done within 20 days of sentencing. Once this has been done, seek the services of an attorney who specializes in criminal law and will be able to analyze the issues that may have a chance at appeal. These issues include illegal searches and seizure, lack of probable cause to stop or arrest, or a coerced confession.

Keep The Ball Rolling

The appellate attorney must order the transcript and file a Motion for Post-Conviction Relief with the trial court, or if the issues have been sufficiently addressed at the trial, file a Notice of Appeal with the Court of Appeals. Be aware that winning appeals is extremely time-consuming and intricate work, and it’s important that an experienced attorney with a proven track record is the one to handle your appeal.

The Pitfalls of Field Sobriety Tests

Horizontal Gaze Nystagmus (HGN)

In this test, the officer passes a pen in front of your face and you are asked to follow it with your eyes. If your eyes exhibit a jerkiness (nystagmus) during the passes, it indicates intoxication. However, the officer will have to admit that nystagmus can, and does, occur naturally in many people, and that stress and bright lights (which are present at most traffic stops) can bring on nystagmus.

Walk and Turn

The police officer will ask you to keep your hands at your side, walk heel-to-toe 9 steps (counting each aloud), turn and walk back. They will be looking to see if you’re off balance, if you stop, if your heel and toe didn’t touch, if you used your arms for balance, and more. There are many challenges to this test: the slope of the road, presence of gravel, heavy clothing in the winter, high heels, passing traffic dangers, distracting squad lights or spotlights.

One Leg Stand

Only pelicans are physically qualified to do this test – the rest of us bipedal creatures have a tough time! They will ask you to put your feet together and then raise one foot and count to 30 using “one thousand one,” etc. The same test conditions that are troubling for the Walk and Turn apply here.

How to Respond to Police Questioning


If the officers tell you that you are under arrest, do not fight. This will only add to your problems. Simply go with them and follow their instructions. You do not want to make them upset and hurt your chances of a better outcome.

Do Not Answer Questions

Officers will want to perform an initial investigation on scene. You have nothing to gain by telling them anything. Your words will be changed around and used against you. Even if you have not been cuffed, you still should not answer questions without an attorney present.

Assert Your Right to Remain Silent and Your Right to an Attorney

This step requires little explanation. The Constitution guarantees you both of these rights, so use them. Officers will promise the moon to you, but they will only deliver large periods of confinement.