PROSECUTORS SAY VICTIM SHOULD NOT HAVE BEEN EXCLUDED FROM TRIAL UNDER 2020 AMENDMENT TO STATE CONSTITUTION
By Gretchen Schuldt
The Milwaukee County District Attorney’s Office is appealing a contempt of court finding against one of its prosecutors. The prosecutor deliberately defied a judge who ruled that a victim could not attend the trial of the woman accused of misdemeanor battery and disorderly conduct against her until after that victim testified.
The prosecutor, Assistant District Attorney Thomas L. Potter, sent an email to the primary victim in the case – there were two victims – acknowledging that Circuit Judge Kori Ashley issued the sequestration order, then added, “I am nevertheless inviting you to attend the opening statement because I believe Judge Ashley’s order to be inconsistent with Wisconsin law, and wish to have it reviewed by an appellate court.”
Potter argued before Ashley that state law and “Marsy’s Law,” a victims' rights amendment to the Wisconsin Constitution adopted by voters in April 2020, gave victims the right not to be physically excluded from the courtroom, according to a brief filed Wednesday by District Attorney John Chisholm and Assistant District Attorney Julie Knyszek.
Specifically, Marsy’s Law gives victims the right to “attend all proceedings involving the case” if they ask to do so. It also states that rights given to victims will not infringe on defendants’ federal constitutional rights, such as the right to due process.
Defendant Arielle A. Simmons, represented by attorney Colleen Cullen, argued that sequestration was justified because the victims were criminal defense lawyers and would be more likely to shape their testimony to fit the state’s theory of the case, according to the brief.
Ashley, according to the brief, ruled that the “defense theory of the case” made sequestering the victims until after they testified necessary.
After Potter sent the email, he assured Ashley that he was simply trying to preserve the issue for appeal and did not mean to show disrespect. She found him in contempt, as he wanted her to do, and fined him $500. She stayed the fine pending the appeal, according to online court records.
Ashley, the brief said, did not rule on the exclusion issue until right before the start of the trial.
“Only through the finding of contempt was an opportunity for review of victim exclusion made available,” Chisholm and Knyszek wrote. “The release of incriminating information at trial cannot be undone; likewise the improper exclusion of a victim causes irreparable harm, regardless of the outcome of that trial.”
The reason Ashley gave for sequestering the victims was not specific enough, the brief said.
“The only basis for these assertions was that both victims were criminal defense attorneys who have tried cases and were thus aware of the court system,” Chisholm and Knyszek wrote. “Their knowledge and experience in trying criminal cases somehow meant they could not be trusted to testify truthfully. As Potter would argue, the fact that the victims were officers of the court was hardly reason to deny their right to attend the trial; such an ‘employment status’ argument presumed bad faith and made no sense.”
State law also gives victims certain rights to attend proceedings during the testimony of others, they said. Physical sequestration, while it can be useful, “has been strictly limited for excluding victims.”
“Neither Simmons nor the circuit court cited to a single case, from any court, which held that a witness sitting through a trial, and then testifying, violated a defendant’s federal constitutional right to due process,” they said.
No opposing brief has yet been filed.
Simmons ultimately took her case to trial. A jury acquitted her of misdemeanor battery and convicted her of disorderly conduct, also a misdemeanor. Ashley fined her $400 and made her record eligible for expungement.
By Gretchen Schuldt
The Wisconsin Institute for Law and Liberty is appealing a circuit court decision preserving a scholarship program designed to increase student diversity in colleges.
WILL argues that Jefferson County Circuit Judge William F. Hue got it wrong when he said the Minority Undergraduate Retention Program, operated by the state’s Higher Education Aids Board, survived “strict scrutiny,” the most-stringent level of judicial review. The program provides grants of $250 to $2,500 per year to students who are Black, American Indian, or Hispanic, or who are former citizens of Laos, Vietnam, or Cambodia. Eligible students also must attend private, nonprofit colleges or technical colleges.
Hue found the state had compelling interests in post-enrollment racial diversity and providing financial aid to students who might not otherwise have access to it. Those interests, WILL said in a brief filed Tuesday, were “not previously recognized by other courts.”
Hue also found that no race-neutral alternative would serve the state’s interests and that the program was sufficiently temporary and was narrowly tailored because it did not take money from other aid programs, WILL said.
The state has not yet filed a reply brief.
WILL, representing five plaintiffs opposed to the program, contended in its District II Court of Appeals brief that Hue did not properly apply strict scrutiny standards. Instead, he relied on a U.S. Supreme Court case, Grutter v. Bollinger, “with a starkly different policy and some law review articles rather than the entire body of admissions case law,” WILL argued.
In Bollinger, the Supreme Court ruled that the Equal Protection Clause did not prevent the University of Michigan Law School from considering race in admissions decisions to obtain the benefits that come from a diverse student body. The court found that the school’s individualized review of student applications meant that acceptance or rejection would not be automatically based on race.
It is undisputed, WILL said in its brief, “that the Grant program excludes large swaths of students from consideration solely based on their race. The barred groups include not only Caucasian students, but students from India, China, Afghanistan, and the Middle East. A student who is not a member of one of the preferred racial groups selected by the Legislature in the 1980s is ineligible, full stop, no matter the extent of the student’s need."
WILL wrote that “In fact, appellants have located no policy in higher education or otherwise that provides a complete racial bar and still survives strict scrutiny."
By Gretchen Schuldt
A transgender young man who sought a confidential name change to reflect his gender is not entitled to it because he could not show that publication of his name change petition would more likely than not put him in physical danger, the state Court of Appeals ruled.
While another judge might rule differently, Brown County Circuit Judge Tammy Jo Hock did not abuse her discretion in refusing to grant the request, Appellate Judge Gregory B. Gill Jr. wrote for the three-judge District III Court of Appeals panel. Gill was joined in the decision by Appellate Judges Thomas M. Hruz and Lisa K. Stark.
Robert, as he is identified in the decision, began questioning his gender identity when he was young and began wearing men’s clothing and going by his male name in elementary school.
“Students ‘verbally abused’ Robert for wearing men’s clothes and for using a ‘male’ name, and they reportedly called Robert ‘a fat ugly lesbian,’ ” Gill wrote. “According to Robert, these same students also ‘kicked and punched’ him.”
A teacher repeatedly said that Robert ‘had bad parents’ because they allowed him to wear male clothing and use a male name, Gill wrote. The same teacher called Robert ‘an ugly little girl’ ” and, when he cried, “the teacher threatened to audiovisually record Robert so that others could see that he was ‘acting like a girl and not like a boy,’ ” Gill said.
In middle school, students called Robert derogatory names, threatened him, and beat him up. A note left in his locker told him to kill himself.
The resulting anxiety led Robert to be hospitalized in a psychiatric unit, Gill said.
Robert transferred schools and things got better, though one student bullied him and one teacher refused to use his preferred pronouns.
Outside of school, though, the bullying continued, Gill said. Kids in the neighborhood called him names, threatened to shoot him with a BB gun, and beat him up.
He had sex change surgery and now physically appears as a 17-year-old boy.
Hock rejected Robert’s name change petition without holding a hearing on the matter. She found that the “test is not whether a person is uncomfortable with public disclosure of a name change but rather if the publication required under Wisconsin statutes would endanger the individual.”
Robert already was using his male name with family members, at school, and in personal dealings, she said. Anyone who has contact with him knows that he is transitioning and uses a male name, she said.
Robert appealed the ruling, arguing, among other things, that the law required him only to show that he could be endangered by the petition’s publication and that the word “endanger” includes physical, mental, or emotional harm.
The state, in opposing Robert, argued that he must show that it is more likely than not that he could be physically endangered if the name change is published. Showing that he faced the mere possibility of endangerment is insufficient, the state argued. It also said “endanger” referred only to physical harm.
“While we agree that we cannot ignore the legislature’s use of the word ‘could,’ Robert’s interpretation would essentially erase the requirement that a petitioner prove endangerment by a preponderance of the evidence because anything is ’possible,’ ” Gill wrote.
Instead, he said, “the burden is on a petitioner to demonstrate the likelihood of a future event, and he or she must demonstrate that it is more likely than not that future endangerment is possible.”
The appeals panel also agreed with the state that “endanger” does not include mental harm. The intent of the confidentiality statute, as shown through legislative correspondence to the bill’s drafters, was to “allow a victim of domestic abuse to petition the court for an exemption” to publishing a name change petition, Gill wrote.
While not conclusive, the note “confirms that ‘endanger’ deals with physical harm, not emotional or mental harm,” he said.
The Wisconsin Justice Initiative is calling on Gov. Tony Evers to eliminate several court fees and surcharges or redirect them to support the underfunded state court system.
The state’s $6.6 billion surplus presents the perfect opportunity to ease court-imposed financial burdens on litigants, WJI President Craig Johnson said in a letter to Evers.
“It’s time for the state to step up and fund its court system,” Johnson said. “It should not place the burden on poor people, and it should not demand payment for purposes unrelated to the specific case at issue. At the very least, money collected through the courts should be used to adequately fund the courts. It should not be just another source of money for unrelated purposes.”
The governor also should include in his 2023-2025 state budget proposal funding for municipal courts to provide language interpretation services and a mandate that they do so, Johnson said.
Interpretation services are not required for most municipal court cases, meaning that defendants can be found guilty of offenses and fined without understanding the charges against them or what is discussed in court. Failure to pay the forfeitures can lead to a jail sentence.
Johnson listed several steps Evers should take to erase or redirect court fees and surcharges. They include:
Tables of court fees and surcharges are here.
By Gretchen Schuldt
The state Supreme Court will hear arguments Tuesday in a case that could have a profound impact on how hospitals and doctors treat patients and the degree of control patients have over their medical care.
At issue is whether patients or their representatives can demand treatment that their caregivers believe is below an adequate standard of care.
The Court of Appeals, in a 2-1 decision, ruled in May that Aurora Health Care did not have to administer ivermectin to John Zingsheim, a COVID-19 patient. Ivermectin, promoted by some as a COVID treatment, is primarily used as an anti-parasitic in farm animals and is given to humans to treat some parasites and scabies. It has not been approved by the FDA for COVID-19 treatment.
Aurora declined to administer the drug, requested by Zingsheim’s representative, Allen Gahl, who is the plaintiff in the appeal. Waukesha County Circuit Judge Lloyd Carter first ordered Aurora to administer ivermectin, then said Gahl should find a physician willing to administer the drug and to whom Aurora could grant credentials to practice in its hospital. Once credentialed, that doctor would have permission to go to the hospital and administer the ivermectin to Zingsheim.
Aurora appealed and won. Then-Appellate Judge Lori Kornblum wrote that Gahl “failed to identify any law, claim, or recognized cause of action under Wisconsin law by which a patient may compel a health care professional to administer a course of treatment contrary to that medical professional’s judgment,” so the lower court “erroneously exercised its discretion in granting Gahl injunctive relief.”
Appellate Judge Shelley A. Grogan, in dissent, said Carter ruled reasonably when he issued the injunction directing Aurora to credential a doctor willing to give the treatment to Zingsheim.
Aurora, in its brief to the Wisconsin Supreme Court, agreed that Gahl failed to meet legal standards to be granted the relief he sought. In addition, it argued, “There is no authority that would give hospital patients a legal right to demand a specific treatment against the medical judgment of their providers.”
Aurora is represented by attorneysJason J. Franckowiak, Michael L. Johnson, and Randall R. Guse.
Karen Mueller, the lawyer representing Gahl, said in her appeal brief that “It has been established in the record that the hospital relies heavily on the CDC and the FDA for directions on what drugs to give and what drugs to withhold from their patients.”
Mueller accused Aurora of “strict and blind adherence to unconstitutional edicts, guidelines and administrative rules of federal agencies who had loftier goals than keeping John Zingsheim and many other Wisconsin citizens alive.”
Both parties have allies in the case. The Wisconsin Medical Society and the American Medical Association filed a joint amicus brief supporting Aurora. Two groups, the Front Line COVID-19 Critical Care Alliance and the Association of American Physicians and Surgeons, are weighing in on behalf of Gahl.
The AMA and Medical Society said reversing the appellate decision would mean that doctors will be forced “to choose between the law and their ethical duties, potentially exposing patients to harm and physicians to liability.”
Ivermectin is not-an FDA-approved COVID treatment, attorneys Patricia Epstein Putney and Melita M. Mullen wrote.
“To the contrary, the FDA cautions that taking ivermectin – even in amounts approved for human consumption – can interfere with other medications” and cause a variety of reactions ranging from nausea to “seizures, coma, and even death,” they wrote.
Doctors can administer off-label prescriptions if they minimize risk, the treatment is backed by evidence and clinical experience, and the treatment is shown to improve patient outcomes, they said.
“Novel treatments do not become part of the standard of care simply because they are ethically attempted, however,” they said. “And physicians do not breach ethical or legal duties by declining to administer them. Consequently, even if a physician could ethically treat COVID-19 with ivermectin, patients have no legal or ethical entitlement to that care.”
The Physicians and Surgeons group, in supporting Gahl, said Grogan’s dissent was right and that Wisconsin law “does fully recognize the right of a patient ‘to request and receive medically viable alternative treatments.’ That right would be meaningless if a powerful, revenue-maximizing business such as Aurora could interfere with access to treatment without judicial review, as the panel majority decision mistakenly establishes.”
The FDA found “decades ago” that ivermectin is safe, attorneys Rory E. O’Sullivan and Andrew L. Schlafly wrote in the brief. Many physicians have prescribed it for countless COVID-19 patients, they said.
“Yet Aurora blocked access to that physician-prescribed medication by patients trapped in its hospital,” they said. “Aurora never disclosed to the public that patients who admit themselves to that hospital will be automatically denied this medical care that is widely available outside of its hospital. As Aurora benefits enormously from its nonprofit tax status in purportedly serving the public, it can hardly hide behind its private status now to evade judicial review for how it senselessly blocked access to medication by all the patients hospitalized there for COVID-19.”
Attorney Joseph W. Voiland, writing for the Critical Care Alliance, said overturning the Court of Appeals decision would “preserve the equitable and statutory authority…of trial judges to grant temporary injunctive relief, particularly in matters where a patient is on their deathbed without many, if any, other option.”
Mueller, Schlafly, and Voiland have represented and advocated for conservative causes in the past, such as arguing that the 2020 presidential election was “stolen” (Mueller), filing suit to challenge the Affordable Care Act (Schlafly), or submitting an amicus brief for Sen. Ron Johnson in Wisconsin’s ballot-box case (Voiland).
By Roy Rogers
I wish I didn’t have to pick up the proverbial pen and write this as I am forced to revisit prior tragedies and traumas of our society. However, for context and clarity of current events it is necessary. It starts with a headline: “10-year-old Wisconsin boy charged as an adult in fatal shooting of mother over Amazon order of VR headset.” Yes, a tragedy of immense pain for a family, a community, a nation. There’s hurt, pain, anger, frustration, confusion, questions, and emotional fatigue as the community and the courts react and respond to the reality that in Wisconsin a 10-year-old is under the original jurisdiction of the adult criminal court if charged with a homicide offense. See Wis. Stat. § 938.183(1)(am).
I am sorry if this starts off and comes off as an emotional appeal, but 10 years old is 10 years old! Our great and progressive State of Wisconsin should not be charging 10-year-olds in adult criminal courts, subjecting them to the state’s harshest penalties. A 10-year-old facing up to 60? In our state? The community was shocked at a 10-year-old being charged as an adult — but not the courts. In fact, our lawmakers in their wisdom thought this to be a good idea when they codified this sentiment in 1995. See 1995 Wisconsin Act 77. This has been the law in Wisconsin for more than 26 years. It is time for us to revisit and rethink this immediately!
But how did we get to where we are today, where we are charging 10-year-olds as adults? We have to revisit another tragic event. In 1991, an 11-year-old Racine boy stood on the roof of a community center and shot a man dead as he left the building. The boy had been put up to this by some older teens. However, under the then-existing law, the 11-year-old could not be charged as an adult and was sent to a treatment center. At that time, Racine County Circuit Court Judge Dennis Barry (now deceased) was outraged that the 11-year-old could not be charged as an adult. So he vowed to revise the juvenile justice code to make this a new reality, partnering with Bonnie Ladwig, a Republican representative (also now deceased) who served on a committee tasked to revise the code.
The reason this law needs to be revisited is that it was born out of frustration and reaction to a tragic event that provided no simple solutions. What do you do with an 11-year-old who was used by two teen gang members to commit an egregious act? Our lawmakers were under the spell of the now-debunked popular myth of the '90s about the rise of “juvenile super predators.” In addition, the lawmakers did not have at their disposal the solid research we have from the neuroscience community concerning adolescent brain development. In simple terms, the research empirically demonstrates that children are different than adults and should be treated differently than adults because of the “diminished culpability” of the juvenile.
In the last decade, the United States Supreme Court has relied on and accepted the research as the basis of numerous policy-changing decisions. The courts have established that children are categorically less deserving of the harshest forms of punishment. See Roper v. Simmons, 543 U.S. 551 (2005); Miller v. Alabama, 567 U.S. 460 (2012). In Miller, the court reiterated that children are fundamentally different from adults and the sentencer must take into accounts a juvenile’s “lessened culpability” and “greater capacity to change.” Miller, 567 U.S. at 465. The changes that made it possible to charge 10-year-olds as adults in Wisconsin are a product of good intentions fueled by bad science, bad policy, and the politics of race.
Believe it or not, there was a time when the “children’s court” did not exist. Children and adults accused of crime were lumped together in their treatment. This began to change in 1899 in Illinois with the establishment of the first juvenile court. Wisconsin followed suit with its juvenile court in 1901. Recognizing the need for two systems in the 1900s, we have somehow lost our way and gone backwards in the 21st century, as our laws deem it appropriate to treat 10-year-olds with adult charges and adult sanctions. With what we know now in law, public policy, and science, how can we be all right with a 10-year-old treated as an adult to punish him, when it is quite obvious he has serious emotional and behavioral issues that need to be treated — not in a punitive environment but in a patient and parental setting. This 10-year-old may have some messed up things going on, but he is not a monster. He needs help on so many levels, as he will eventually deal with the grief of not having a mom.
If this child is kept in the adult court, he will be exposed to an extreme sentence for his age and will not receive the treatment needed. This child will potentially go untreated until he can he learn how to read and write properly and get his GED, which are prerequisites before any treatment in the adult system. In the meantime, how do we cancel out puberty for this child in an adult setting? And let us not be ignorant of the fact that hundreds of 14- to 16-year-olds have lived in maximum security prisons in Wisconsin for decades. With his charges, the reality of this child staying in a juvenile home until he is 17 or 18 is not realistic. To keep him in the adult system is cruel and unusual and is the equivalent of executing a child, creating a pseudo adult — because there is no such thing as a 10-year-old adult.
Let me wrap this up with a story — a true and tragic story. In 1858 in Mobile, Alabama, an enslaved 10-year-old black boy named Godfrey was accused of murdering another child. Godfrey was charged, tried, found guilty, and, after his judgment was upheld, subjected to the harshest penalty of the day. Godfrey was hanged at the age of 10. I have to believe that we are a better society than the pre-Civil War 1858 slave society that felt it was okay to hang a 10-year-old as if he was deserving of the state’s worst form of punishment. Godfrey v. State, 31 Ala. 323 (1858).
I have to believe we are better. In the name of Godfrey, we have to be better.
Roy Rogers is a Wisconsin Justice Initiative board member. He is a data solutions processor at Quad Data Solutions and a preentry and reentry liaison and information analyst for the nonprofit organization The Community. He also is a public speaker and advocate with the Wisconsin Alliance for Youth Justice.
Rogers committed himself to juvenile justice issues while serving 28 years as a juvenile lifer in the Wisconsin prison system. Now, after release, he counsels and mentors at-risk youth. He is committed to the philosophy of restorative justice, criminal justice reform, and second-chance opportunities for juveniles waived into adult court and sentenced as adults.
Chief Judge Mary Triggiano reported that Milwaukee County Circuit Court is emerging from the pandemic, and the public and justice system participants can look forward to the future with optimism.
The misdemeanor court backlog is gone, and 475 jury trials have taken place since July 2020. Although “it was no cake walk,” the court’s commitment to public health and safety allowed the court to reopen more quickly than other courts around the state, she said.
Triggiano gave a state-of-the-court address at the Milwaukee Bar Association’s luncheon meeting on Wednesday, October 12.
“Sometimes things worked out” but other times the court “had to go back to the drawing board,” she said.
She called the pilot misdemeanor night court run by Judge Christopher Dee a success and noted the addition of multiple felony courts to address the felony court backlog, with reserve judges and court reporters hired using extra funding. Milwaukee County’s felony backlog still makes up about 12% of the backlog statewide, she said.
She thanked Deputy Chief Judges Judge William Pocan and Carl Ashley for their assistance in guiding the court through the pandemic while managing their own caseloads. She also thanked Wisconsin Court of Appeals Judge Maxine Aldridge White “for always taking [her] phone calls” and providing advice.
Triggiano indicated that despite the court’s best efforts, the public health crisis took a toll on court staff, causing a wave of resignations and retirements. In addition, the court is impacted by the shortage of defense attorneys available for appointment by the State Public Defender.
However, recent funding has allowed for the hiring of eight law clerks for the civil division. The court has received a grant for an eviction diversion coordinator. And Triggiano and Clerk of Court George Christenson worked on a budget that increases staff pay to attract and keep high-quality employees.
The court also plans to expand its mental health court, she said.
Following Trigginao’s talk a panel of three judges answered questions about the court’s adoption of videoconferencing for court proceedings.
Judge Jane Carroll indicated that videoconferencing “is here to stay” and was one good thing that came out of the pandemic. The court now needs to figure out how to best incorporate it going forward, she said.
Judge David Feiss remarked that virtual proceedings have made the court rethink its operations. For instance, criminal court had often held “cattle calls” with many cases given the same time for appearance and a full courtroom waiting for cases to be called, he said. Virtual proceedings caused a shift to staggered schedules, which “has improved the quality of the services we provide,” he said.
Judge Kevin Martens noted that virtual proceedings may have increased access for some self-represented parties who previously faced challenges in getting to the courthouse.
Martens was chief of the civil division during the pandemic and estimated that the length of time civil cases took to resolve probably doubled during the pandemic. However, even though resources may have been taken from the civil division to help the criminal division tackle the backlog there, the pandemic impacted the civil division less than the criminal division because many civil hearings could easily move to a virtual format.
Carroll echoed that comment. Because the family division does not hold jury trials and rarely involves someone in custody, that court was able to move very quickly to virtual proceedings, she said.
Martens indicated that when jury trials returned to the courthouse the entire civil division was allowed only one civil trial per week. That number is now up to four trials per week, he said.
By Gretchen Schuldt
A woman had a reasonable belief that she was not free to leave a parking lot after police officers parked in a way that made it difficult for her to drive away, shined a “take down” spotlight into her car, and knocked on her car window and announced themselves as law enforcement, the State Court of Appeals ruled last week.
District IV Appellate Judge Brian W. Blanchard, in upholding a decision by Jefferson County Circuit Judge William V. Gruber to suppress evidence, found that the state did not “show that the court clearly erred in finding that a reasonable person in (Annika) Christensen’s position would have had, in the words of the court, an ‘actual or perceived inability to’ drive away from the police.”
Blanchard remanded the case back to Circuit Court, where Gruber had already dismissed the four misdemeanor counts filed against Christensen.
Christensen, then 21, was arrested in November 2019 as she and a passenger sat in her car in a parking lot about 6:49 p.m. The lot, owned by the Department of Natural Resources, had a single entrance/exit, and trees blocked Christensen from driving forward or to the right, according to the decision.
Town of Lake Mills Police Sgt. Ryan Walters, who was with Officer Vincent Pagliaro, drove a police truck into the lot and parked behind Christensen’s car and another car parked next to it, Blanchard wrote. The officers activated their take-down lights.
Pagliaro testified in Circuit Court that Christensen’s car drew his attention because “it was parked while there was snow falling, it was running, its windows were fogged, and it was sitting in the dark,” according to a defense brief filed by attorneys Teuta Jonuzi and Tracey A. Wood. They added: “Pagliaro acknowledged that it would not be uncommon for fogging of windows to occur when it is cold outside and the heat is turned on in the vehicle.”
Walters, though, said “he did not note the window fogging until he approached Christensen’s vehicle, and it was not part of his decision-making process in electing to make contact with Christensen’s vehicle,” Jonuzi and Wood wrote. “Similarly, he did not note any signs of drug activity with the vehicle before he made contact with Christensen. Per Walters, had Christensen attempted to drive her vehicle away, she would not have been free to do so.”
Walters testified in Circuit Court, they wrote, that neighbors had complained about drug activity in the lot and that he had previously arrested people for drug offenses there.
A subsequent open records request to the Lake Mills Police Department revealed, however, that there had been only one previous drug arrest in the parking lot.
Walters later testified that he had arrested three juveniles in the lot five years earlier and that those were the only arrests he had made. There had been no drug-related contacts in the lot since then, Wood and Jonuzi wrote.
The officers differed in how far they said they parked behind Christensen’s car. Pagliaro said about 30 feet, while Walters said about 10 feet, Blanchard wrote in his decision.
Both said Christensen had room to leave, “although Sgt. Walters testified that ‘[i]t would have been tight,’ ” Blanchard wrote.
Walters said he did not know whether Christensen would have been able to leave in “one maneuver” or whether she would have to “back up and pull forward to go around the back side of my vehicle.”
Gruber found Walters’ testimony more convincing and accepted it. Blanchard said video of the truck’s position was not included in the appellate record and so he accepted the Circuit Court’s finding.
After Walters activated the spotlight, Blanchard wrote, Pagliaro got out of the police truck and approached Christensen’s car on the passenger side. He announced he was a police officer and knocked on the front passenger-side window. The passenger rolled down the window and the smell of burned marijuana wafted out of the car.
Christensen was charged with possession of marijuana, possession of paraphernalia, and two counts of possession of narcotics, all misdemeanors.
The state, on appeal, argued that the officers’ initial contact with Christensen was a “consensual encounter” and that Fourth Amendment protections did not kick in.
Gruber, Jefferson County District Attorney Monica Hall wrote in prosecution briefs, “did not find that Ms. Christensen could not have driven away, just that it would have been difficult for her to do so.” That, she said, is similar to cases in which the state Supreme Court ruled that stopped individuals were not “seized” for Fourth Amendment purposes.
Hall argued that Walters’ testimony that Christensen would not be free to leave was irrelevant.
“Rather, the analysis is whether, under a totality of the circumstances, an innocent reasonable person in Ms. Christensen's position would feel free to leave under the circumstances,” she wrote. The state maintains that a reasonable person in Christensen’s position would have felt free to do so, she said.
Blanchard disagreed. While not the determining factor, he said, “the presence of uniformed officers arriving on the scene in a marked truck, with at least one of the officers getting out and approaching the car on foot, weighs in favor of a seizure. I reject the State’s thinly developed argument to the contrary.”
By Gretchen Schuldt
A judge erred when he used new research into the brain development of young adults to grant Jan. 1, 2023, parole eligibility to a man previously sentenced to life without parole, the state Court of Appeals has ruled.
Existing case law prohibited Outagamie County Circuit Judge John DesJardins, now retired, from using the research as a “new factor” in Jonathan Liebzeit’s case “because the research and its conclusions were well known at the time of Liebzeit’s sentencing in 1997,” Appellate Judge Gregory B. Gill wrote for the three-judge District III Court of Appeals panel. He was joined in the opinion by Appellate Judges Lisa K. Stark and Thomas M. Hruz.
DesJardins sentenced Liebzeit in 1997 to life without parole for his role in the 1996 murder of Alex Schaffer.
Liebzeit, who had just turned 19, and two other men, Daniel Mischler and James Thompson, lured Schaffer into sewer tunnels where Liebzeit hit him repeatedly with a baseball bat, including in the head. The other two men held Schaffer in a pool of water until he stopped moving.
The medical examiner determined that Schaffer died by a combination of drowning and blunt force trauma.
The state Department of Corrections, in a pre-sentence report, noted Liebzeit’s long history of drug abuse, particularly with inhalants; his participation in a drug and alcohol treatment program; and his failed effort to get admitted to Winnebago Mental Health Institute due to suicidal tendencies.
In 2019, 22 years after sentencing Liebzeit, DesJardins attended a judicial education seminar, where he learned about new research on brain development in emerging adults. He later wrote to Liebzeit’s appellate counsel and the state “suggesting that a sentence modification may be appropriate based on new scientific research…that was not available at the time of the 1997 sentencing,” Gill wrote.
Liebzeit’s lawyer, Rex R. Anderegg, filed such a motion, citing both the new research and Liebzeit’s brain damage stemming from inhalant use. Information about the brain damage, included in a separate report concerning Liebzeit’s drug treatment, was not presented to the court at sentencing.
DesJardins held a hearing, Gill wrote.
“The court concluded that Liebzeit had proven by clear and convincing evidence that both the new scientific research on brain development in emerging adults, and Liebzeit’s brain damage resulting from his own inhalant use constituted new factors,” Gill wrote.
DesJardins found that “the impact the brain damage may have had on Liebzeit’s impulse control was relevant to whether Liebzeit was likely to be successfully rehabilitated,” Gill said. DesJardins also found that “new scientific research on brain development in emerging adults had found that individuals between 18 and 21 years old function closer to adolescents aged 13 to 17, than adults aged 22 to 25 years old.”
DesJardins eventually granted the sentence modification making Liebzeit eligible for parole Jan. 1. His case still would have to be considered by the Parole Commission.
The appeals court, however, agreed with the state that nothing showed that Liebzeit’s inhalant use contributed to his impulsivity.
“At best,” Gill wrote, “the (drug treatment) report shows that his brain damage might have affected his concentration. But the crimes for which he was convicted were not impulsive crimes caused by an inability to concentrate.” The crime was not impulsive, but planned, Gill said.
DesJardins found at the time of sentencing that Liebzeit could not be rehabilitated.
Liebzeit’s “new science” argument fails because under state Supreme Court precedent, Gill wrote, “the research cannot constitute a new factor…because the conclusions reached by the research were well known when Liebzeit was originally sentenced in 1997.”
By Gretchen Schuldt
A court cannot refuse the return of property based on unproven allegations in a criminal complaint that never went to trial and that the defendant never had a chance to contest, the state Court of Appeals recently ruled.
“The state had a fair opportunity to introduce evidence that (John Dean) Pleuss used the shotgun in the commission of a crime during the initial proceedings but failed to do so,” Appellate Judge Brian W. Blanchard wrote for the three-member District IV Court of Appeals panel. He was joined in his decision by JoAnne F. Kloppenburg and Michael R. Fitzpatrick.
Before Pleuss, now 78, can get his gun back, however, he must return to Monroe County Circuit Court and demonstrate that his failure to file a motion for the return of property by the statutory deadline was excusable neglect. State law requires filing within 120 days of a defendant’s initial appearance; Pleuss filed his motion 127 days after his initial appearance, according to a brief filed by Assistant State Attorney General Donald V. Latorraca opposing the return.
Pleuss allegedly pointed a shotgun at a deputy on Oct. 1, 2020, and the deputy pushed the barrel away, according to the state's brief. As the two talked, Pleuss denied pointing it at the deputy. Pleuss also refused to show the deputy his driver’s license, instead displaying his concealed carry permit, the brief said.
Pleuss was arrested later that day and charged with intentionally pointing a firearm at or towards a law enforcement officer, disorderly conduct, and operating a vehicle without carrying or displaying a license. Pleuss had an initial appearance, according to a defense brief filed by attorney Steven L. Miller, but there were no other court proceedings before the charges were dismissed.
The state said the charges were dismissed in exchange for an apology from Pleuss and his participation in a gun safety course.
When Pleuss sought the return of the shotgun, the prosecutor told Circuit Judge Mark L. Goodman that the state met its burden of establishing that the shotgun was contraband.
“I think the state has done that by the filing of the criminal complaint that demonstrates probable cause of the crimes therein,” the prosecutor said.
Pleuss objected to the state’s total reliance on the complaint, arguing that the state did not meet its “‘burden…in any way, shape, or form,’” Blanchard wrote.
Goodman ruled that Pleuss missed the deadline for seeking return of the gun and that the state had proven, based on the complaint, that the shotgun was used in a crime.
The state, on appeal, said the allegations in the complaint were “substantive evidence” and were admissible hearsay in court. The panel, though, found that the complaint did not meet the standard of trustworthiness required for admissible hearsay as a public record.
"While it is true that a police report standing alone may be admissible evidence ... the State here unambiguously relied exclusively on the factual allegations in the criminal complaint as purported evidence and did not call a witness to offer the police report as piece of evidence," Blanchard wrote.
"The factual allegations in criminal complaints have no evidentiary value unless the applicant has admitted to them or at least failed to dispute them," he said.
Pleuss never admitted in any form that the charges against him were true, Blanchard said.
“In the circuit court Pleuss consistently objected to the state’s use of the allegations in the complaint as evidence,” he said.
The state, he said, “completely failed to meet its burden of proof.”
In returning the state’s missed-deadline argument to Circuit Court, the panel ruled that a flat declaration that the deadline was mandatory could negatively affect others, such as victims, who might have property seized during an investigation and might not even learn that their property is in law enforcement custody until after the 120 days have passed.
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