What's wrong with the Jury Instructions?

Bob Green spells out the problems with the Jury Instructions given to the jury by Judge Madden at Don's trial. From the facebook page.

Trial trancript 97-cf-60 page 576

Jury instruction read by The Honorable Patrick J. Madden....

"The third element requires that the Defendant caused great bodily harm to Ms. Vargovich. Great bodily harm means serious bodily injury. Injury which creates a substantial risk of death or which causes serious permanent disfigurement or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury is great bodily harm."

There are three types of First Degree Sexual Assault in Wisconsin.

940.225 Sexual assault.

(1) FIRST DEGREE SEXUAL ASSAULT.
Whoever does any of the following is guilty of a Class B felony:

(a) Has sexual contact or sexual intercourse with another person
without consent of that person and causes pregnancy or great
bodily harm to that person.

(b) Has sexual contact or sexual intercourse with another person
without consent of that person by use or threat of use of a dangerous
weapon or any article used or fashioned in a manner to lead
the victim reasonably to believe it to be a dangerous weapon.

(c) Is aided or abetted by one or more other persons and has
sexual contact or sexual intercourse with another person without
consent of that person by use or threat of force or violence.

Don Miller was charged with two counts of First Degree Sexual Assault/w use of a deadly weapon.

That is 940.225(1)(b)

After reading the proper instruction for 940.225(1)(b), The Honorable Patrick J. Madden went through the instruction again.

Only, as you see above, this time he read the instruction for 940.225(1)(a)

Here is where he sites which instruction he is reading......

Trial transcript 97-cf-60 page 575

"First degree sexual assault as defined in Section 940.225(1) (a) of the Criminal Code of....."

So what does this mean?
It means that the Jury was told that they could find Don Miller guilty of a crime he was never charged with.
A crime Don and his Attorney never had a chance to defend.

It means Don Miller deserves a new trial.

Bob