By Margo Kirchner
A Racine County judge on Thursday dismissed all charges against Daniel G. Scheidell, who served 20 years in prison for sexual assault before a court finally allowed him to present evidence that strongly suggested the attack was committed by someone else.
Racine County Circuit Court Judge Mark Nielsen granted the state’s motion to dismiss, after Racine County Assistant District Attorney Dirk Jensen said the state could not meet its burden in a new trial.
One of Scheidell’s supporters in the gallery clapped as the judge dismissed the case.
Scheidell’s conviction was vacated in 2015, but Attorney General Brad Schimel’s Department of Justice unsuccessfully appealed that decision twice.
A jury convicted Scheidell in October 1995 of attempted first-degree sexual assault and armed robbery following a trial based heavily on testimony of the victim, J.D.
J.D. awoke in her apartment early one morning in May, 1995, to find a knife-wielding man straddling her waist. The perpetrator during the attempted assault wore a black knit ski mask and jacket over his head and never spoke. J.D. managed to retrieve a pistol from her nightstand and the man left.
She was certain he was her upstairs neighbor, Scheidell, based on the man’s “distinctive body and walk” and part of the face she saw while she struggled with him.
When police arrived, they found Scheidell coming down the stairs, looking like he just woke up. He gave a voluntary statement and allowed police to search his apartment, but found nothing incriminating. They searched the alley – nothing.
At trial, defense counsel sought to offer evidence of a different, similar sexual assault that occurred five weeks after the attack on J.D., when he was in custody. The second assault occurred about four blocks away from J.D.’s residence, and many of the facts of the crime, including mode of entry, weapon, mask, time of day, and build of the assailant, were similar.
The assailant in the second crime, however, got away and was not identified.
Scheidell’s trial judge denied admission of the evidence because there was not any evidence directly connecting a third person to the crime Scheidell was accused of committing.
The jury found him guilty in October 1995 and Scheidell appealed all the way up to the State Supreme Court. He lost there, with the court ruling that mistaken-identity evidence is not admissible when a defendant tries to show that some unknown person committed the crime.
Scheidell applied to the Wisconsin Innocence Project for help. In 2013, the Innocence Project obtained a DNA profile from the second sexual assault and matched the profile to a Wisconsin inmate serving time for a 1998 sexual assault.
Scheidell moved for a new trial to present evidence that a now known perpetrator committed the crime for which Scheidell had been convicted.
In June 2015, Racine County Circuit Court Judge John Jude granted the motion and vacated Scheidell’s conviction. Scheidell was released on bond shortly thereafter.
Although the state appealed, a three-judge Wisconsin Court of Appeals panel (including two conservative Gov. Scott Walker appointees) affirmed the grant of a new trial in the interest of justice.
“It is undoubtedly reasonable to conclude that this new evidence casts doubt upon whether justice was done in the original proceeding,” Appeals Judge Brian K. Hagedorn wrote in a concurring opinion. The Supreme Court denied the Schimel team’s request for review and sent the case back to Racine for a new trial.
Thursday, at a hearing set for argument on a motion to modify bond, Jensen, the assistant district attorney, moved for dismissal based on additional investigation.
Nielsen granted the motion and dismissed the case without prejudice, meaning the state could theoretically file it again. The judge gave defense attorney Patrick Cafferty until Oct. 2 to file a new motion with legal support for his position that the case should be dismissed with prejudice, meaning it cannot be filed again.
Scheidell sighed audibly several times when he approached his family and friends after the hearing.
Cafferty said that he is “thrilled for this gentleman” and attributed Scheidell’s release to the work of many lawyers.
Cafferty indicated that Scheidell’s original trial counsel, in particular Debra Patterson, worked hard to get the evidence of the second assault admitted:
“The work the lawyers did early on laid the foundation” and “they deserve the credit,” he said
Updated 9/21/2017 to reflect Gov. Walker's veto.
Updated 9/20/2017 to reflect adoption by the full Legislature.
By Gretchen Schuldt
Gov. Scott Walker vetoed a budget amendment that would have forced judges to determine what legislators were thinking when they adopted a legislation, even if the legislation did not reflect those thoughts.
Both the Assembly and the Senate approved a budget amendment that would have blocked municipalities from enforcing any ordinance that defeated the purpose of a state law or violated "the spirit” of the law. Judges, of course, would be the ones to referee disputes over the provision.
Walker saved them the trouble by axing it.
"I am vetoing this provision because I object to inserting a broad provision which may violate home rule under the Wisconsin Constitution for cities and villages," he said in his veto message. "The statutes already provide the ability to regulate matters of statewide concern that could affect political subdivisions."
The amendment spoke ill of the Legislature’s ability to do its job: “Oh, judges, if the law we adopted doesn’t prevent that city from taking that particular action that we don’t like, can you fix it for us from the bench?”
The amendment would, according to the Legislative Fiscal Bureau, "prohibit a political subdivision, defined as a county, city, village, or town, from enforcing an ordinance if any of the following applies: (a) a statutory provision expressly prohibits the political subdivision from enforcing the ordinance; (b) the ordinance logically conflicts with a statutory provision; (c) the ordinance defeats the purpose of a statutory provision; or (d) the ordinance violates the spirit of a statutory provision. ."
And whose interpretation of “spirit of the law” were judges supposed to accept? That of the sponsors of the original legislation? What if the interpretation was different between legislators? Was there going to be a survey of those who voted in favor of a bill to figure out what they thought the bill meant?
A lot of Wisconsin judges have said that they and their colleagues should not have the power to legislate from the bench.
Supreme Court Justice Rebecca Bradley, for example, said “Justices should apply the law as it is written, guided by principles such as judicial restraint and respect for the separation of powers among the three branches of government.” (Emphasis added)
And Justice Daniel Kelly, in his application for a Supreme Court seat, trotted out U.S. Supreme Court Chief Justice John Roberts’ comparison of a judge’s role to that of a baseball umpire who only calls balls and strikes.
"Changing the decisional standard after the act has already occurred is, by definition, antithetical to the rule of law,” Kelly wrote. “So, for example, it is unjust to change the strike zone after delivery of the pitch because it prevents the pitcher from knowing where to throw the ball."
He continued: “Post hoc adjustment of the strike zone is the essence of judicial activism. It usurps the legislature’s forward-looking function by reading into the past a new rule of decision. It causes the law to lose both its certainty and its predictive capacity. People are no longer able to plan their actions to comport with the law. They are at constant risk that today’s lawful behavior may be transformed into unlawful tomorrow should a judge exercise legislative, instead of judicial, authority.”
And it’s not just Supreme Court justices who eschew the kind of activism being pushed by Republican legislators.
Appeals Court Judge Timothy G. Dugan, appointed to his post by Walker, wrote in his application that “Courts do not have the authority to attempt to cure what judges perceive as social wrongs or problems that the legislature has chosen not to address. Those policy decisions rest in the hands of the legislature."
And Sauk County Circuit Judge Michael P. Screnock, running as a conservative for State Supreme Court, said in his Circuit Court judicial application to Walker, “It is important to our system of government that the judicial branch take care not to usurp the roles of the other two branches when called upon to interpret and apply the laws. Accordingly, I believe strongly that while it is the role of the judicial branch to say what the law is, as Chief Justice Marshall declared, it is not the province of the judiciary to decide cases on its view of what the law ought to be.”
The Legislature wanted the courts to divine legislative intent; fix legislative sloppiness; ascertain the size and shape of a particular law’s “spirit,” and then decide whether it was violated.
This amendment told courts to guess at the unspoken desires and intents of the Legislature, even though those may vary greatly among legislators.
It was a fatally flawed amendment, designed not to improve the administration of justice, but to remove from the Legislature the responsibility of legislating.
By Margo Kirchner
Even if he serves just one term, President Donald Trump may influence the U.S. Court of Appeals for the Seventh Circuit more than any of his four immediate predecessors. Trump has a remarkable opportunity to fill from four to nine of the court’s 11 seats.
The Seventh Circuit sits in Chicago and decides appeals from federal trial courts in Wisconsin, Illinois, and Indiana. The court has 11 full-time, active judge positions plus several “senior judges” who may take a reduced caseload in semi-retirement. The judges generally sit in three-judge panels.
The President picks nominees for appointment to the court; they take the bench if confirmed by the Senate.
Federal judges may take senior status or retire under the Rule of 80---at age 65 if they have served at least 15 years on the bench, age 66 with 14 years, and so on. When a judge chooses senior status or full retirement (or, in unfortunate circumstances, dies), the President gets to name a successor.
With the surprise retirement of Circuit Judge Richard Posner a couple weeks ago, four spots on the Seventh Circuit are available for Trump to fill. Circuit Judge Ann Claire Williams took senior status in June 2017. Circuit Judge John Daniel Tinder took senior status in early 2015. And the seat of Circuit Judge Terence T. Evans has famously been vacant since January 2010.
When Trump took office in January, he acquired over 100 judicial vacancies, exceeding the vacancies inherited by Presidents Barack Obama (54) and George W. Bush (81). The Republican Senate’s delay in moving nominees forward during the latter years of the Obama presidency accounts for many of the vacancies, and the situation gives Trump an opportunity for long-lasting impact.
Trump is moving quickly to fill the vacancies and recently picked up his pace. On Sept. 11, Trump proposed his tenth slate of nominees for federal courts around the country. In total, Trump has nominated 53 individuals for judgeships, and 34 of those nominations came since mid-July. The Senate already confirmed six of the nominees.
Trump’s nominations to date cover the Evans and Tinder spots. The two remaining Seventh Circuit spots, allocated to Illinois, may require negotiation with that state’s two Democratic senators, but Trump has three years left in his term to get nominees for those positions through the Senate. If he fills all four seats, some three-member panels of the Seventh Circuit may consist completely of Trump appointees.
And these four seats are not the end of Trump’s possible reach. Five of the seven active Seventh Circuit judges are eligible for senior status or full retirement. Only Circuit Judges David Hamilton and Diane Sykes are younger than 65, and all of the judges over age 65 meet the service requirement and can retire.
Will the Seventh Circuit become "Trump's Tribunal"?
Chief Judge Diane Wood and Circuit Judge Frank Easterbrook are still under 70. But Circuit Judge Michael Kanne is 78, Circuit Judge Ilana Diamond Rovner is 79, and Circuit Judge Joel Flaum is 80. The average age of the Seventh Circuit active judges is 70 years old (though Senior Judge William Bauer makes that seem young---he continues hearing appeals at age 91). In contrast, the average age of the judges of the Eighth Circuit, which covers appeals in Minnesota and six other states to Wisconsin’s west, is 64.
If even two of the five eligible judges take senior status, retire, or die in the next two years and Trump has time to get a nominee through the Senate by the end of 2020, Trump appointees could constitute a majority of the court even if Trump serves only one term. The likelihood of a Trump-packed court greatly increases if Trump wins a second term---will Judge Flaum still want to serve as an active judge at age 85?
In comparison, during their eight years in office President Obama filled one Seventh Circuit seat (Judge Hamilton), President George W. Bush filled two seats (Judges Tinder and Sykes), and President William Clinton filled three (Judges Wood, Williams, and Evans). President George H.W. Bush appointed one Seventh Circuit judge (Judge Rovner) during his four-year term. The last president with an opportunity like Trump’s was Ronald Reagan; he appointed eight judges to the court during his eight years in office.
"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications.
Name: R. Michael Waterman
Appointed to: St. Croix County Circuit Court
Appointment date: April 10, 2015 (elected to a 6-year term in April 2016)
Law School – Hamline University
Undergrad – Muhlenberg College
High School – Eden Prairie High School
1995 - present – Attorney, Mudge, Porter Lundeen and Seguin, S.C., Hudson, WI
1990 - 1997 – Adjunct professor, Milliam Mitchell College of Law, St. Paul, MN
Office of Lawyer Regulation, District 8 Investigation Committee
State Bar of Wisconsin
St. Croix Valley Bar Association
Minnesota State Bar Association
Wisconsin Defense Counsel
Defense Research Institute
U.S. District Court, Western District of Wisconsin
U.S. District Court, Eastern District of Wisconsin
U.S. Court of Appeals, Seventh Circuit
U.S. District Court, District of Minnesota
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: General practitioner with emphasis on civil litigation, mostly insurance defense, and appeals. Also handles cases involving real estate disputes, business transactions and contracts. Handled other types of cases, including criminal cases, earlier in his career.
Number of cases tried to verdict or judgment: Jury, 15; non-jury, 90; arbitration, 10; administrative bodies, 20.
Cases on appeal: 74 cases fully litigated, meaning they were briefed and an opinion was issued. This number does not include cases that ended through a no merit report, dismissal for lack of jurisdiction, or voluntary dismissal because of a settlement.
List and describe the two most significant cases in which you were involved:
Linden v. Cascade Stone Co. (2005 WI)
I represented West Bend Mutual Insurance Company from the trial court through Supreme Court. West Bend Mutual and several others were sued by the Lindens, who alleged their new home was poorly constructed. The case confronted a recurring situation where plaintiffs would disregard contractual remedies and sue contractors in tort. The Supreme Court affirmed the trial court 's ruling that the economic loss doctrine barred the Lindens ' tort claims.
Linden is significant because it had a visible and immediate impact on construction litigation, and it is frequently cited and relied upon by courts and practitioners. Linden prevents plaintiffs in construction disputes from suing in tort and making an end run around contractually bargained for performance standards and remedies. This gives strength and meaning to contracts where the risk of loss and associated costs can be bargained for and allocated between the parties. As a matter of public policy this is far preferable than forcing the public to subsidize a system in which plaintiffs make tort recovery despite choosing to forgo contract warranties in exchange for a lower price.
Marian C. Hawkins and Helen Berry Lloyd v. Brian E Bath, (Bankr. W .D. Wis. No. 06-223). I represented Marian Hawkins and Helen Lloyd, two sisters who were fraud victims of Brian Bath. Mrs. Hawkins and Lloyd were in their 80s when they opened accounts with Mr. Bath's financial services company. Both women entrusted Mr. Bath with their entire life savings and believed their money was invested in savings bonds and T-bills. Mr. Bath betrayed them by embezzling their money and eventually losing it in a high-risk real estate venture in Florida.
The case is significant for several reasons. Litigation was started when Mr. Bath filed for bankruptcy. The litigation uncovered a massive fraud, involving numerous victims besides my clients. The evidence obtained in discovery was handed over to state and federal authorities. State regulatory authorities revoked Mr. Bath 's licenses to sell insurance and financial services, and injunctions were issued to prevent him from obtaining licenses in other states. Federal law enforcement started an investigation. I secured a sizeable judgment against Mr. Bath, but it was over shadowed by the deaths of Mrs. Lloyd and Mrs. Hawkins, who lived their final days in despair and were never fully made whole.
Involvement in judicial, non-partisan or partisan political campaigns:
Katie Thurmes (D), St. Croix County Clerk of Court (2014). The candidate was my former legal assistant. I wrote letters to the editor, made phone calls to supporters, and donated money.
John Trojack (R), Minnesota House of Representatives (1996).
Republican Party of Minnesota, precinct delegate (1988, 1996).
Please list all judicial or non-partisan candidates that you have publically endorsed in the last six years:
Hon. Eric J. Lundell (2014) - St. Croix County Circuit Court
Hon. Howard Cameron (20 14) - St. Croix County Circuit Court
Hon. Scott R. Needham (2012) - St. Croix County Circuit Court
Hon. Gregory A. Peterson (2005 & 2011) - Wisconsin Court of Appeals
Describe any additional involvement in professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of your application:
Hamline University Mock Trial Program, volunteer judge
Hudson Lions Club, President of the Sunrise Branch
State Bar of Wisconsin Mock Trial Program, volunteer judge
St. Croix County Circuit Court, volunteer mediator for small claims cases
St. Croix Valley Youth Court, youth mentor
St. Croix Valley Bar Association, free legal clinic volunteer attorney
Western Wisconsin Photography Club
Wild River Triathlon Club
YMCA of St. Croix Valley, board member
Youth baseball, soccer and basketball coach
Describe any pro bono legal work in the last five years:
Volunteer at the Free Legal Clinic of the St. Croix Valley Bar Association.
Volunteer mediator for the St. Croix County Circuit Court.
Member of the State Bar of Wisconsin Modest Means Pane, accepting cases on a pro bono or discounted-fee basis.
Member of the State Public Defender Assigned Counsel roster for appeals and other post-conviction relief.
Annually donate more than 50 hours of pro bono work to local non-profits, civic organizations, youth sports clubs and low-income persons.
Why I want to be a judge – Two words: public service. From an early age, I was taught to do well in school, work hard at a meaningful job, and if ever the opportunity presented itself, contribute through public service.
Public service is one of the highest callings. Everyone derives benefits from those who serve. Consequently, everyone should contribute back to society by serving at their highest and best capacity.
I have enjoyed the fruits of our great nation and state. They have allowed me to fulfill my educational and vocational goals. I have given back as a volunteer in a variety of functions, but I can have a greater impact as a judge. If I am fortunate to be appointed judge, I will serve the community at my highest and best capacity, utilizing my education, nearly 20 years of legal experience and a lifetime of sensibility and good judgment.
I submit this application for judge with no agenda, except a commitment to the rule of law and a desire to serve the public.
Best Wisconsin or U.S. Supreme Court decision in the last 30 years – State ex rei. Ozanne v. Fitzgerald (2011)
The Supreme Court's decision in Ozanne is noteworthy for many reasons, but I will address the most salient. First, the Court had the courage and fortitude to end the extraordinary efforts to thwart the legislative process and enactment of Act 10. Despite lacking majorities in the Assembly and Senate, opponents of Act 10 resorted to ultra vire methods to derail the Act. The Court repudiated those tactics and cleared the way for duly enacted legislation to become law. In a lot of respects, I see Ozanne in the same scope as Bush v. Gore. Both cases put an end to the perpetual and divisive use of the courts to undermine the will of the majority and the rule of law.
The second reason why Ozanne is significant is because it respects the separation of powers and was an exercise of judicial restraint. The trial court invaded the province of the legislative branch by passing judgment over the internal operations of the legislature. It then invaded the executive branch by enjoining the implementation of a law that was signed by the Governor. The Supreme Court correctly recognized this unlawful incursion and swiftly rectified it, despite strong opposition from within and outside the Court.
Lastly, Ozanne is significant because it reaffirmed the rule of law. The trial court was indifferent to Supreme Court precedent that prohibited courts from interfering in the legislative process. The Court's decision (and Justice Prosser's concurrence, in particular) renounced such disregard for the law. The Supreme Court got it right.
Worst Wisconsin or U.S. Supreme Court decision in the last 30 years – In the Interest of Jerrell C.J., (2005)
One of the worst Wisconsin Supreme Court decisions in the past 30 years is In the Interest of Jerrell C.J. ... because the majority legislated from the bench and invaded the province of the legislative and executive branches. Statewide policy was created by four justices, who were guided by little more than court briefs and a belief that they were acting for the common good.
The Jerrell case involved a 14-year-old whom police apprehended as a robbery suspect. The police questioned the boy for 5 1/2 hours without counsel or his parents. He eventually confessed to his involvement in the robbery. A unanimous court suppressed the boy 's confession because it was involuntary and coerced. If the Court stopped there, Jerrell would be unremarkable.
When judges depart from text, the law becomes contrived, arbitrary and unreliable, all of which are unacceptable. -- St. Croix County Circuit Judge R. Michael Waterman
Under the guise of "superintending authority," four members of the Court pronounced new law. The majority required all future custodial interrogations of juveniles to be electronically recorded where feasible and without exception when questioning occurs at a place of detention. Interrogations that do not conform would be inadmissible.
The majority usurped the role of the legislative and executive branches of government by creating law. Although many police departments recorded interviews, legislation did not require it. This was a point of frustration for the majority. However, instead of staying within the confines of Constitutional responsibilities or calling for legislative action, the Jerrell majority took the matter into their own hands, bypassing the legislative process and creating law. The majority then invaded the province of executive authority by prescribing a particular law enforcement practice. The attorney general, police chiefs and other executives are responsible for determining police practices, not the courts.
Some may not see Jerrell as troublesome because the legislature eventually enacted section 938.195, which codified the policy created in Jerrell. Some may say, "no harm, no foul." I categorically reject that notion. The federal and state Constitutions separate powers in three branches of government as a check and balance of power. For it to succeed, the rule of law must be respected and followed, and that means exercising restraint. Regrettably, the Jerrell majority saw "superintending authority" as limitless and included the ability to make policy. I am concerned that Jerrell will be a blueprint for future incursions into the legislative and executive functions of government.
Judicial philosophy – During his confirmation bearing, John Roberts compared a judge to a baseball umpire. He said a judge’s job is "to call balls and strikes and not to pitch or bat." No one goes to a ball game to see the umpire; the same is true of a judge.
I wholeheartedly endorse Justice Roberts' view of the role of a judge. A judge must function within the Constitutional grant of authority, not outside it. That means a judge needs to be faithful to the Constitution, to legislative text and to judicial precedent. A judge cannot deviate from the law because he or she thinks the law is unwise or finds the outcome undesirable.
This judicial philosophy necessarily involves the utmost respect for text. The intent of the legislature is determined by the plain language of the statutory text. The same goes for the Constitution. When judges depart from text, the law becomes contrived, arbitrary and unreliable, all of which are unacceptable. In order for the public to conform to the law and have respect for it, the law that's written must be the law that's applied.
Any other information you feel would be helpful to your application: I have submitted this application with the highest respect for the office of circuit court judge and complete understanding of the responsibilities the office entails. During this application process, I have been truly humbled by the encouragement I received from judges, attorneys, clients and friends. Their faith in me is uplifting.
For me, the office of judge is not about gaining power or prestige. A judge is a public servant and must earn the respect of the people he or she serves. The office of judge is not a capstone to a career or a bridge to retirement. A judge must work hard to stay abreast of the law and administer it decisively and without unreasonable delay.
At 44 years old, I am in my prime working years, and I have the energy and desire to fulfill the responsibilities of the job. I am also at a point in life where I do not have any outside distractions. I have no dependent children. My wife and I are happily married. We are both in good health, and we are financially secure. If I am appointed, I will be able to devote my complete attention to the job.
I also submit my application with the highest respect for the role a judge plays in the tripartite system of government. I pledge to be faithful to the Constitution, uphold the rule of law, and protect the integrity of the courts.
Yup, still ugly.
The demographics sure say something about police practices. 85% of cases originated in the City of Milwaukee and 75% were made in Milwaukee in the area north of I-94.
Move along, people. Nothing to see here. Don't look any closer.
You can read more about each of these 40 cases - all of them filed in 2016 - on The Pot Page.
By Margo Kirchner
Pregnant women in Wisconsin remain at risk of being thrown in jail and forced into treatment despite a federal judge’s determination that the state’s “cocaine mom” statute is unconstitutional.
U.S. District Judge James D. Peterson last spring declared the law impermissibly vague and blocked its enforcement statewide. State Attorney General Brad Schimel immediately appealed, however, and the law remains in effect while the litigation continues.
Here’s what happened to two women under the law.
In May 2013, Alicia Beltran, then 28, learned she was pregnant. A few weeks later, she sought prenatal care at a clinic in Washington County. She informed a physician’s assistant that she previously abused Percoset, which contains an opioid, but recently finished a course of Suboxone to treat her addiction. The physician’s assistant recommended that Beltran take a second course of Suboxone and, when Beltran refused (believing she already kicked her Percoset use), the clinic reported her to a Washington County social worker.
In July 2013, five law-enforcement officers arrested Beltran at her home, handcuffed her, and took her to a doctor for evaluation. The doctor declared Beltran and her pregnancy to be healthy and said he did not consider inpatient drug treatment to be necessary. Nevertheless, the officers drove Beltran to the county jail.
An assistant district attorney filed an action against Beltran under the cocaine-mom law and an attorney was appointed for Beltran’s fetus. Beltran was taken in handcuffs and shackles to a courtroom, where she requested an attorney. The commissioner said none would be provided until the next hearing. Beltran was ordered to a treatment facility, where she tested negative for all drugs. The court held Beltran at the facility for over two months, scheduling a jury trial for late October. Beltran went to federal court to challenge her detention; the ADA, in response, dismissed the cocaine-mom action against Beltran and had her released.
In 2014, Tamara Loertscher, then 29, was unemployed and could no longer afford medication for her hypothyroidism. Without the medication she suffered depression and fatigue and began using marijuana and methamphetamine a few times a week.
When Loertscher in August 2014 suspected she was pregnant, she went to a hospital to confirm it. She acknowledged her drug use to hospital personnel but told them she planned to stop using drugs to have a healthy baby. She checked into the hospital for care and received the thyroid medication she needed. But the hospital reported Loertscher to the Taylor County Department of Human Services, saying her behavior with drugs and alcohol put her fetus in serious danger.
Taylor County appointed a lawyer to represent Loertscher’s fetus. Loertscher, however, was not entitled an appointed lawyer yet. While in the hospital, Loertscher had to appear by phone, with little notice, in a temporary physical custody hearing. Loertscher said she did not wish to speak without legal representation and refused to participate. The court commissioner considered this a waiver of appearance, continued without Loertscher, and ordered her held at the hospital and then transferred to an inpatient drug treatment facility.
Loertscher, though, checked herself out of the hospital.
After another hearing, at which Loertscher represented herself, the court found her in contempt and ordered her to report to either the inpatient treatment facility or jail. Loertscher spent 18 days in jail, during which time she received no prenatal care and experienced pain and cramping. She was not permitted to see an obstetrician. When Loertscher refused to take the redundant pregnancy test required by the jail doctor, she was placed in solitary confinement.
Loertscher on her own found a list of Taylor County public defense attorneys and contacted one;, a public defender was appointed. Loertscher was released after she signed a consent decree that required an alcohol and drug-abuse assessment and weekly drug testing at her own expense. All tests were negative. Loertscher delivered a healthy baby.
The cocaine mom law (also known as Act 292) allows medical staff or county social workers to report and detain a pregnant woman if they think she “habitually lacks self-control” regarding alcohol or drugs “to a severe degree” with a “substantial risk” of an effect on or danger for her fertilized egg, embryo or fetus.
Authorities can take a woman into initial custody if they think she meets this standard, but she refuses to accept abuse treatment. If a court agrees, it can order the woman to treatment against her will and keep her in custody indefinitely. Loertscher self-medicated, but stopped upon learning she was pregnant; Beltran previously used drugs but was clean at the time she was ordered to a treatment facility. Both women planned no further drug use during pregnancy and therefore refused abuse treatment.
In Loertscher’s case, Judge Peterson found that the statute’s language, especially in light of current medical knowledge, fails to give fair warning about what conduct is prohibited and fails to provide authorities any meaningful standard for enforcement. But Judge Peterson’s April ban on enforcement of the cocaine-mom law was short-lived. Schimel and his department immediately appealed and sought a stay of Peterson’s order.
Though both Peterson and the Seventh Circuit Court of Appeals refused to stay the order, the state was undeterred and sought relief in the U.S. Supreme Court. On July 7 the Supreme Court stayed Peterson’s injunction while the appeal is pending. The parties filed appellate briefs over the summer, but no date for oral argument is set; a decision could come months or even a year after argument. Meanwhile, pregnant women in Wisconsin remain subject to a law that may very well be unconstitutional.
The long-term future of Peterson’s injunction is uncertain. Federal courts decide only live, ongoing disputes. The state’s first argument on appeal is that Loertscher no longer has a live dispute---not because her pregnancy ended (a legal doctrine permits continuation of a case involving pregnancy if the issue is capable of repetition) but because she moved out of state before Peterson issued his order.
On appeal, the state argues that Loertscher no longer has any stake in enforcement of the law: she “makes no plausible argument that, having moved out of Wisconsin, she will be subject to Act 292 in the future.” According to the state, “the fact that the present dispute involves a pregnancy-related law does not dictate a different result---this case is moot not because of the short duration of pregnancy, but because Plaintiff has moved out of Wisconsin” and fails to show that she intends to move back.
If the Seventh Circuit agrees with the state, Loertscher’s case will be dismissed as moot, the cocaine-mom law will remain on the books, and pregnant women who once used drugs but no longer do will remain at risk.
Ten medical and public health organizations, meanwhile, filed a friend-of-the-court brief in the Seventh Circuit saying Peterson was right to declare the law unconstitutionally vague. The organizations represent hundreds of thousands of healthcare providers nationwide and include the American Medical Association, the Wisconsin Medical Society, the American College of Obstetricians and Gynecologists, and the American Academy of Pediatrics.
They argue that research contradicts the state’s assumption that prenatal exposure to controlled substances causes inevitable harm. The organizations say Peterson “rightly concluded that ‘no one knows at what level drug or alcohol use will pose a risk to the unborn child’”; thus, an expectant mother cannot know when she would be subject to the law. After repeatedly taking a pain killer before learning of pregnancy? After smoking marijuana once a week for a month or two? After having a single glass of wine?
The organizations argue that the law deters women from being honest with medical personnel or seeking essential prenatal care in the first place. Moreover, the law puts pregnant woman and her fetus on opposite sides of a legal dispute, but their health cannot be separated from each other.
The National Coalition for a Civil Right to Counsel, in a second friend-of-the-court brief, sided with Loertscher in challenging the lack of legal representation at critical proceedings. Sexual predators and mentally ill individuals receive appointed counsel at all significant stages of confinement proceedings. Fetuses are appointed attorneys at the very start of cocaine-mom proceedings. Yet pregnant women, even if poor, are not appointed lawyers for the initial temporary-custody and plea hearings, which can result in forced treatment and involuntary confinement.
Loertscher’s and Beltran’s cocaine mom proceedings show that even when a woman requests counsel at these hearings her request may be ignored. Counsel may be appointed for a later fact-finding hearing, but only if the woman contests the case at the earlier hearings. Before any right to counsel arises, the woman must decide on her own how to plead, to demand a jury, and to demand that the fact-finding hearing be held within 30 days.
Loertscher and Beltran appear to be the only two women to have challenged the cocaine mom law in the 20 years since passage. Shortly after Beltran filed her federal case, authorities released her and dropped all abuse charges.
Beltran filed a type of case used to seek release. Because she obtained that release U.S. District Judge Charles N. Clevert, Jr. dismissed the case as moot while calling what happened to Beltran “extremely disturbing” and suggesting that the result may have been different in a civil rights case. Loertscher’s challenge uses civil-rights and declaratory action laws, which could allow the case to continue after her release or delivery of her baby.
etween 2005 and 2014, said Peterson in his decision, 3,326 reports of alleged unborn-child abuse were pursued by caseworkers. Some 467 of those reports were substantiated with some evidence. The briefs in Loertscher’s appeal suggest why challenges to the law are rare.
First is the law’s coercive nature. When a woman refuses to receive treatment “voluntarily,” she faces a temporary hold in custody and a formal petition for confinement and treatment. Such a choice may coerce women to simply submit to unwanted treatment.
Second, the woman proceeds though preliminary stages without the assistance of counsel, while her fetus has counsel and is pitted against the mother. Then, by the time the woman may find a lawyer on her own or be appointed counsel, she is closer to delivery and possibly unwilling to get involved in stressful litigation.
Third, cocaine mom proceedings are not public. They occur in juvenile court, where files are sealed. The briefs in Loertscher’s appeal note only one additional publicly known case, which made the Racine paper in 2005. No public record means no public outcry and no awareness by attorneys who could advise the women affected.
If Loertscher’s case is dismissed because she moved out of state, perhaps another pregnant woman will step forward to challenge the cocaine mom law.
But how about repeal?
A bill that would ease the process for people convicted of crimes to get their records expunged advanced from an Assembly committee on a bipartisan(!) 10-2 vote.
The measure has broad support. The Metropolitan Milwaukee Association of Commerce registered in favor, as did the State Public Defenders office and the Texas Public Policy Foundation, a conservative group with ties to the Koch brothers, powerful political financiers.
No one registered against the bill. Rep. Evan Goyke (D-Milwaukee), who co-sponsored the bill, called the public hearing on it "phenomenal."
State Rep. David Steffen (R-Green Bay) is the lead sponsor of the measure.
"Under Wisconsin's current expungement law, many of our youthful offenders are forced to sit on the workforce sidelines," Steffen said in prepared testimony. "During a time when nearly every industry in Wisconsin is facing a workforce shortage, (this bill) plays a crucial role in connecting employers in need with this untapped workforce – which is why organizations such as MMAC and the Alliance of Wisconsin Retailers are engaged and supportive of the measure."
Goyke, in his prepared testimony, said that its retroactivity is an important feature of the bill. "Retroactivity is critical to give an opportunity for eligible individuals that never had a chance for expungement," he said. "Under our current procedure, individuals that never asked for expuntement at sentencing, or those that didn't know they could ask, don't have a remedy."
The State Bar of Wisconsin, in its testimony, said the bill provides the opportunity to "improve the lives of those who continue to struggle well into adulthood due to the consequences of poor choices as a young adult."
Under existing law, a judge may order a person's criminal record expunged of certain crimes the person committed before the age of 25. The law requires a judge to make the expungement order at the time of sentencing, with actual expungement occurring when the person completes the sentence.
Under the proposed change, the person could file a petition for expungement after completing the sentence, obviously well after sentence is handed down.
The judge would review the petition at a hearing or, if the victim waives the hearing, could take immediate action.
If the judge denies the petition, the defendant could not file a new one for two years. The person also would be limited to three petitions for the same matters.
The bill also would require the judge to explain the new expungement process at sentencing, and would allow the judge to order that a person's record not be eligible for expungement. The bill also would make publicly inaccessible court records and Crime Information Bureau records. Currently, expungement removes only court records.
"Any employer conducting the standard background check presently receives notice from the crime information bureau that the person has been convicted of a crime," the Wisconsin State Public Defender's office said in its testimony.
Members of the Assembly Criminal Justice and Public Safety Committee voting in favor of the bill were John Spiros (R-Marshfield), Jesse Kremer (R-Kewaskum), Jim Ott (R-Mequon), Todd Novak (R-Dodgeville), Kathleen Bernier (R-Lake Hallie), Scott Krug (R-Nekoosa), Goyke, Kessler (D-Milwaukee), JoCasa Zamarripa (D-Milwaukee), and David Crowley (D-Milwaukee).
Voting against it were Andre Jacque (R-DePere) and Cody Horlacher (R-Mukwonago).
We've got white people!
Two of the 30 Milwaukee County felony marijuana possession cases posted thus far on The Pot Page involved white defendants!
Of course, 28 -- about 94% -- of the cases involved non-white defendants.
Milwaukee County, incidentally, is about 65% white.
Milwaukee County and its insurer are locked in a battle over who should pay the $6.7 million jury verdict awarded to a former County Jail inmate who was repeatedly sexually assaulted by a former corrections officer.
The fight, if the county loses, could leave county taxpayers on the hook for the verdict. The county wants U.S. District Judge J.P. Stadtmueller to order its insurer to pay.
County Corporation Counsel Margaret Daun is alleging that Wisconsin County Mutual Insurance Corporation (WCMIC) deliberately delayed notification that it would not cover the county in the lawsuit brought by the inmate, and then sent the notification to the wrong county office.
WCMIC, in response, said it followed its usual protocol in sending the March 15 notification to the county Risk Management Director Amy Pechacek.
"I do not know why Ms. Pechacek apparently did not forward or otherwise provide a copy of that letter to the Corporation Counsel’s office, but WCMIC has never been instructed by Milwaukee County to send correspondence relating to insurance matters ... to the Office of the Corporation Counsel," said David Bisek, senior vice president of claims and litigation with Aegis Corp, which administers claims for WCMIC.
The dispute arises out of the lawsuit the inmate filed against the county and former Corrections Officer Xavier Thicklen, who sexually assaulted the inmate several times in the jail while she was pregnant. Thicklen eventually pleaded guilty to a single felony count of misconduct in office and was sentenced to three days in the House of Correction. He did not appear in court for the trial in the civil suit.
The jury found Thicklen was acting within the scope of his duties when he assaulted the inmate, making the county liable for his actions. Post-verdict motions that could reduce the amount awarded are pending.
Daun said she found out about the non-coverage issue the day after the verdict, when Bisek told contacted Pechacek and reminded her that WCMIC would not provide coverage.
Daun called the notificiation "abrupt and financially disastrous." After the corporation counsel's office confirmed it had not received notice of non-coverage, Pechacek found risk management's copy when she checked her files, Daun said.
Bisek, though, submitted a transcript from a voice mail Pechacek left for him the day the verdict came in that indicates she was aware of the non-coverage issue.
"Hey Dave it's Amy Pechacek," she said, according to the transcript. "Just calling on this ... award $6.7 million. We've got a reservation of rights sitting out there and so we're going to have to have a pretty quick - a pretty quick conversation about we're gong to be doing next on this. ..."
A reservation of rights is a notice that certain losses in a case may not be covered under the terms of the relevant insurance policy.
Daun also said the March 15 reservation of rights letter was not sent by certifîed mail and "did not contain any insignia of urgency . ... Indeed, it was not until post-trial review that the letter has now been discovered to have embedded within it a reservation of rights for denial of coverage to the County. ..."
Bisek, in response, attached to his affidavit a March email he sent to Pechacek. The letter was attached.
The email header referred to the name of the case, the attachment line referred to "Reservation of Rights" and the specific case, and the body of the email read "Attached please find a reservation of rights letter relating to the above referenced matter." It also said another copy was sent by U.S. Mail.
Daun alleged that Bisek admitted during a phone call that the county's notice of non-coverage was "purposefully delayed until the time had expired to appeal the summary judgment ruling in WCMIC's favor on coverage issues with respect to Thicklen. Deputy (Corporation Counsel Colleen) Foley and I were astonished that Mr. Bisek would so nonchalantly admit to what can only be called per se bad faith."
Bisek flatly denied that.
"I outlined the timeline of events and simply indicated that the reservation of rights letter was sent after the appeal time had expired for the final judgment WCMIC obtained with respect to Thicklen," he said in the affidavit. "Not once did I suggest that the reservation of rights letter was 'purposefully delayed' as Attorney Daun suggests."
"What is clear from all of the misstatements in Attorney Daun’s affidavit is that she was not privy to and/or did not review all of the relevant documents and communications before she submitted her affidavit," he said.
By Margo Kirchner
Let’s call U.S. Sen. Ron Johnson’s approval of attorney Michael Brennan’s nomination to the Seventh Circuit Court of Appeals what it is: hypocrisy. Action that Johnson two years ago condemned as repugnant to the best interest of the people of Wisconsin he now considers acceptable because it helps his own party.
Johnson, using his own words, broke his contract with Baldwin, blew up bipartisanship, and chose his party over us.
Together, Johnson, a Republican, and Democratic U.S. Sen. Tammy Baldwin established the Wisconsin Federal Nominating Commission to advise the senators about (among other positions) a judicial appointment for our state’s open seat on the federal appeals court. The Commission seeks out qualified candidates, interviews them, and recommends four to six finalists. The Commission consists of six members; each senator appoints three. The rules of the Commission prohibit recommending any judicial candidate who does not receive five affirmative votes.
In a May 22, 2015 press release still on his website, Johnson said the makeup of the Commission and the five-vote requirement help “ensure that the senators would nominate qualified judges rather than candidates who were on either extreme.” In another statement, Johnson described the requirements as creating a “fair process.”
This spring, the Commission accepted applications for the Seventh Circuit position, but didn’t recommend anyone because no candidate garnered five votes. Nevertheless, President Trump, presumably in consultation with Johnson, nominated Brennan for the seat, ignoring the results of the Commission. Brennan received four, not five, votes.
Johnson said soon after Brennan’s nomination that the White House “made a great decision” as Brennan “is eminently qualified and was the only candidate who received bipartisan support from the judicial nominating commission.
Two years ago two candidates, attorney Donald Schott and Milwaukee County Circuit Judge Richard Sankovitz, received the required five Commission votes for the same seat, but the Commission could not recommend them because it could not recommend the required minimum of four candidates. Baldwin notified the White House of all eight individuals the Commission interviewed. (President Obama eventually nominated Schott, though Schott was not confirmed.)
Here’s the hypocrisy. Johnson publicly decried Baldwin’s move, tweeting on May 22, 2015, that the “[p]rocess to find judges worked until @SenatorBaldwin blew up our bipartisanship” and stating in his press release that it was “unfortunate that Senator Baldwin chose partisanship and politics over what is in the best interest of the people of Wisconsin.”
Johnson told a reporter that Baldwin broke her contract with other senators when she forwarded all eight names to Obama.
Is a tit-for-tat justified---because Baldwin bypassed the Commission’s results two years ago Johnson can do the same? The Senate is not elementary school and consideration of lifetime judicial appointments should not involve retaliation against a fellow senator. Moreover, Johnson and Trump went significantly beyond what Baldwin and Obama did two years ago. Then, two candidates earned the required five votes, and Obama nominated one of those two. Brennan did not get the required five votes.
Johnson’s reneging on the rules of the Commission came just six months after he signed its amended charter, which maintained the five-vote requirement.
Amid talk of the Republican Senate eliminating the “blue slip” practice that allows a senator from a federal court nominee’s home state to block confirmation, Johnson appears the hypocrite again. Johnson used his blue-slip power back in 2011 to stop consideration of Obama’s first nominee for the Seventh Circuit seat.
Johnson’s endorsement of Brennan’s nomination suggests that Johnson will do whatever is politically expedient, notwithstanding his prior agreement to a “fair process.” Whether Brennan should be confirmed by the Senate is a separate matter. Wisconsinites of all political stances should be concerned with the process by which Brennan’s nomination came about---when those in the party in power without hesitation change the rules to get what they want.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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