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By Alexandria Staubach
In honor of National Voter Registration Day and Constitution Day, WJI is highlighting two new complaints filed by Law Forward. WJI believes that fair and equitable access to the ballot box is a fundamental right of every citizen of Wisconsin. If you still need to register to vote we encourage you to do so here. The Law Forward impact litigation law firm has filed two complaints with the Wisconsin Election Commission (WEC) alleging that the Town of Thornapple and its town clerk violated state and federal law when conducting the April and August elections. The complaints seek orders forcompliance with the law for future elections. Both complaints request expedited review in time for November’s election. State and federal law require access to voting systems that permit those with disabilities to cast their ballots independently and securely. The new complaints to the Wisconsin Election Commission say Thornapple, in Rusk County, is breaking these laws after abandoning electronic voting. According to the complaints, the April election was conducted in Thornapple by paper ballot and then hand counted, with no alternative or accommodation for the visually impaired or those who otherwise cannot privately and independently vote on paper. After the April election, a July 8, 2024 letter from the U.S Department of Justice warned that Rusk County needed “at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities available at each polling place.” Nevertheless, Thornapple's August election took place on paper as well. Wisconsin law provides for compliance reviews for any elector of a jurisdiction or district served by an election official who seeks to contest perceived abuses of election administration. One complaint requests a compliance review on behalf of Erin Webster, a Thornapple voter, who ran for Rusk County Board of Supervisors in the spring election and was provided a paper ballot on which her name did not appear, according to the complaint. Webster cast her ballot electronically in every prior election since 2009, and the town had otherwise used electronic voting machines. Under Wisconsin law, municipalities may elect to administer elections by paper ballot if they have populations below 7,500. Webster’s complaint alleges that the same law that permits paper ballots for municipalities under 7,500 people also prohibits reversion back to hand counting of paper ballots without the WEC’s permission, which Thornapple did not receive. The second compliance review complaint was brought on behalf of Disability Rights Wisconsin. The complaint alleges that federal and state law require a municipality to make voting accessible to voters with disabilities. Further, the complaint alleges, federal law requires any voting system to have a means to notify voters if they have selected more than one candidate for a single office, plus the opportunity to redress the error. “By ceasing to use electronic voting equipment and instead exclusively using paper ballots completed and tabulated by hand, Respondents are no longer using voting systems that are accessible for individuals with disabilities in a manner that provides the same opportunity for access and participation (including privacy and independence) as for others,” the Disability Rights Wisconsin complaint asserts. It mentions visually impaired voters and those who may struggle to fill out a ballot by hand being disenfranchised by the paper system. The Ladysmith News, a local paper in Ladysmith, Wisconsin, this summer covered the Rusk County Board’s decision to count ballots by hand. The article described a July presentation given by Mark Cook of Hand Count Road Show, supposedly a one man “subject matter expert on election vulnerabilities who had traveled the county in his camper trailer, educating folks about election systems and how they can go wrong.” According to the reporter, “a number of local governmental officials were in the audience and saw how Cook showed exactly how voting machines can be easily manipulated.” The Webster complaint is available here. The Disability Rights Complaint is available here.
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By Alexandria Staubach An old convent is getting new life as a “House of Studies” for men who were formerly incarcerated and are now working to obtain their college degrees. Thrive for Life has arrived in Milwaukee, hoping to achieve the same success they’ve experienced with two similar homes in New York City. The first of its kind, according to Thrive for Life, Ignacio House opened in New York City in 2019 with a novel concept: a transitional supportive learning community, exclusively for the formerly incarcerated. A dorm, with a mission. Founded by Father Zachariah Presutti, a Jesuit priest and former chaplain at Rikers Island, Ignacio House currently serves 15 formerly incarcerated men who have scholarships to one of eight partnering universities, which include Columbia and NYU. The second house of studies, Abraham House, began in 1993 as an alternative-to-incarceration program under a different provider and since 2023 has been merging into Thrive. As at Ignacio House, residents receive comprehensive continuity of care, including therapeutic and wellness resources, personal and spiritual mentorship, and individualized learning plans, while adhering to stricter house rules. According to Thrive’s website, the two houses have served more than 3,000 formerly or currently incarcerated individuals, and 100% of their resident scholars have avoided recidivism and are on track to complete a trade school program or university degree. WJI recently visited Thrive’s Milwaukee House of Studies and spoke with Christa Pipitone, soon to be the senior regional coordinator for the Milwaukee Thrive for Life program. Located in Halyard Park, the house can accommodate a house manager and up to 11 scholars, whose stays will typically range from six months to two years. To get a room, individuals who were formerly incarcerated will need to apply and be accepted. Once they’re in, Thrive for Life provides a community of people committed to its men’s success, said Pipitone. “We are continuity of care,” said Pipitone.
Like the houses in New York, in addition to providing a roof over residents’ heads, the program will help residents with every aspect of making themselves “whole” and “healed,” Pipitone said. From health services to employment, the team at Thrive is “invested in the whole person, in demonstrating to these men that people care,” Pipitone said. “We’re likely giving many of these of guys a first chance,” she said. “We want to be that for them.” Thrive’s program is faith-based but nondenominational. “It’s important to us that the scholars have some higher power,” said Pipitone, but applicants need not be Catholic or even Christian. She highlighted that the houses in New York have welcomed both Muslin and Jewish scholars and that there are no rules around faith if applicants are grounded in a “higher power.” Community service in the Halyard Park neighborhood will also be part of the experience. Scholars will be expected to engage in service projects that serve the community they’re in. Abraham House in New York, runs a local food pantry, for example. The scholars will also be expected to participate in creating community among themselves. A sit-down Sunday dinner will be expected, a Catholic mass will be held in the house’s chapel (though attendance is not mandatory), and household chores will be allocated. It is communal living with purpose, said Pipitone. Residents will be expected to maintain employment. They will sign a “covenant agreement,” the terms of which include affordable rent, charged on a sliding scale based on take home pay. Like other aspects of the program, rent is not about the money. It’s about “giving the men a track record,” a rental history they can take with them to a new landlord, Pipitone said. Pipitone hopes it won’t feel like “all work and no play.” While alcohol and drugs are off limits, “the scholars will set the tone.” She hopes it will be a place where the men want to be—where they will enjoy Bucks and Packers games and study or play games in the common areas, investing in themselves and their shared experiences as students. Pipitone told WJI that Thrive hopes to strike a balance between structure and independence. The Milwaukee House is nearly complete. Pipitone anticipates it will host its first cohort beginning in October. She is actively searching for a house manager, who will hopefully live on site and help usher in the first class, and a social worker. Thrive has a strong preference for formerly incarcerated individuals to fill these roles. She encourages those interested to reach out to her directly at [email protected].
By Alexandria Staubach
Now banned in California courtrooms and potentially on its way out in Colorado, Hawaii, Minnesota, and New York, excited delirium syndrome would seem to be questionable and out of vogue, but in at least one Wisconsin courtroom recently, police showed continued reliance on it to defend their actions. Excited delirium syndrome has been described as a mental state of agitation, combativeness, aggression, and apparent immunity to pain. The term or syndrome has been used for decades to justify violence against criminal suspects, who often end up brutalized by law enforcement, but it has largely been discredited in the medical community. At an August excessive-use-of-force trial in the Eastern District of Wisconsin federal court before Judge Pamela Pepper, counsel for five Green Bay police officers raised excited delirium as part of their defense. Attorney Jasmyne Baynard told the jury that plaintiff Terrell Wendricks displayed “superhuman strength” when the officers attempted to detain him inside an apartment in August 2018. Defendant Aaron Walker redoubled Baynard’s claim in his trial testimony when he described anomalous behavior by Wendricks. Walker said Wendricks seemed to “gather strength” as officers deployed tasers, pepper spray, batons, and the “c-lock” restraint technique. Wendricks displayed “excited delirium,” said Walker, who offered no medical credentials and relied on his training and experience to bolster the theory. Although a 2009 position paper by the American College of Emergency Physicians (ACEP) concluded that excited delirium was a “real syndrome,” the paper was withdrawn in October 2023. The ACEP reversed its earlier conclusion, saying “The term excited delirium should not be used among the wider medical and public health community, law enforcement organizations, and ACEP members acting as expert witnesses testifying in relevant civil or criminal litigation.” In January, California became the first state to ban the use of excited delirium. The legislation was supported by the California Medical Association, which said the controversial diagnosis received “fresh scrutiny” in the wake of George Floyd’s 2020 death, and followed the American Medical Association’s 2021 decision to oppose the use of excited delirium as a medical diagnosis. Colorado followed, passing a law in August that proscribes training law enforcement office in use of the term, other than to educate about its history. The new law also prohibits law enforcement from using the term in any incident report and bans a coroner from using excited delirium as a cause of death on a death certificate. The Colorado bill took effect on Aug. 7. Minnesota introduced a bill in February (HF 4118) that specifically prohibits use of excited delirium as a defense for officers' use of force and prohibits law enforcement agencies from training officers on the detection or use of excited delirium. It further prohibits law enforcement officers from receiving credit for any continuing education course that includes training on the detection of excited delirium or use of the term. The bill is still pending in the Minnesota Legislature. Asked for Milwaukee County's position on the questionable syndrome, Dr. Wieslawa Tlomak, chief medical examiner, directed WJI to the National Association of Medical Examiners (NAME), which accredits her office. NAME’s public position on excited delirium is that “although the terms ‘Excited Delirium’ or ‘Excited Delirium Syndrome’ have been used by forensic pathologists as a cause of death in the past, these terms are not endorsed by NAME or recognized in renewed classifications . . . . Instead, NAME endorses that the underlying cause, natural or unnatural (to include trauma), for the delirious state be determined (if possible) and used for death certification.” The use of excited delirium to justify use of force isn’t problematic just in a civil suit. The implications on the street are worse. A 2024 investigative report by the Associated Press in collaboration with the Howard Center for Investigative Journalism and FRONTLINE found that at least 94 people died between 2012 and 2021 as a result of being given sedatives and restrained by police—practices allegedly justified by excited delirium syndrome, according to the AP’s findings. The situation is further exacerbated by excited delirium’s biased application to Black and brown people. In a May PBS Wisconsin interview, Dr. Julie Owen, a psychiatrist and Medical College of Wisconsin professor who has researched the subject, said, “usually, there’s a skewing of the use of this term with young men, young men of color, and young men of color who probably, at a later phase of examination, are found to be utilizing some sort of what we call sympathomimetic or a stimulant-like substance.” The AP investigation included a Black Eau Claire man, Demetrio Jackson, who died in police custody after being given a sedative as a form of restraint. Meanwhile, Wisconsin’s instances of police encounters that turn fatal are on the rise. "Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is.  Name: Bridget J. Schoenborn Appointed to: Waukesha County Circuit Court Appointment date: May 24, 2024, to term ending July 31, 2025 Education: Law School – University of Wisconsin-Madison Undergraduate – California Polytechnic State University, San Luis Obispo, California High School – St. Lucy’s Priory High, Glendora, California Recent legal employment: May 2008-present – Assistant U.S. attorney, U.S. Department of Justice, Milwaukee, Wisconsin June 2005-May 2008 – Pro se law clerk, U.S. District Court for the Eastern District of Wisconsin, Milwaukee, Wisconsin Bar and administrative memberships: State Bar of Wisconsin U.S. District Court for the Eastern District of Wisconsin U.S. Court of Appeals for the Seventh Circuit General character of practice: Serves as a Criminal Division trial and appellate attorney representing the United States in all stages of the investigation and prosecution of federal offenses with an emphasis on complex narcotics offenses and related financial crimes. Responsible for the day-to-day prosecution of narcotics trafficking offenses, including drug conspiracies, illegal internet pharmacies, money laundering offenses, and violent crime. Pre-trial preparation of prosecution memoranda, search and seizure warrant affidavits, obtaining wiretap interception orders, criminal complaints, indictments, and plea agreements. Describe typical clients: Over the past 15 years, I have specialized in various practice areas, with particular emphasis on the following: drug conspiracies; illegal internet pharmacies; gang prosecutions; dogfighting offenses; firearms violations; money laundering and structuring offenses; and cryptocurrency seizures. Number of cases tried to verdict: 6 List up to three significant trials, appeals, or other legal matters in which you participated as a judge or lawyer in the past seven years: United States v. Sanchez Vargas, et al., Case No. 20-Cr-127 (E.D. Wis.)(Hon. Pamela Pepper): In this matter, I represented the United States in all stages of the proceedings. This prosecution was based on a DEA investigation that began after an individual in Oconomowoc, who was purchasing controlled substances from an illegal internet pharmacy, committed suicide. The controlled substances, including Tapentadol, Carisoprodol, and Tramadol, were sold online without a prescription and mailed to customers across the country. Two California-based co-conspirators involved in shipping the controlled substances were convicted. This case was significant because it stopped the illegal distribution of pharmaceuticals through the website. Dates of involvement were: 2020 to 2023. Defense counsel: Gabriela Leija, Martin Pruhs, and Paul Basseliz. United States v. Gerardo Lara, et al., Case No. 21-Cr-204 (E.D. Wis.)(Hon. Lynn Adelman): In this matter, I am co-counsel in the prosecution of fourteen defendants charged with firearms violations, structuring offenses, and conspiracy to distribute crack and powder cocaine in Wisconsin and Illinois. To date, ten defendants have been convicted and sentenced. This case was significant because the conspiracy had connection to kilogram level cocaine distributors and many of the convicted defendants were career offenders who had significant criminal records. Dates of involvement are: 2021-present. Defense counsel: Michelle Jacobs, Edward Hunt, Eric Hart, Matt Ricci, Jeffrey Purnell, Kathleen Quinn, Christopher Cherella, Michael Hart, Martin Pruhs, Craig Johnson, and Angela Kachelski. United States v. Approximately 32,133.63 Tether (USDT) Cryptocurrency from Binance Account Number Ending 8770, Case No. 22-Cv-989 (E.D. Wis.)(Hon. Pamela Pepper): In this matter, the government pursued forfeiture of Tether cryptocurrency on grounds that it constituted wire fraud proceeds and was involved in money laundering. Specifically, between May 26 and May 28, 2022, A.D. provided $30,200 in U.S. currency in gift cards and Bitcoin to an individual falsely claiming that there was a warrant for victim A.D.'s arrest. The fraudster eventually converted A.D.'s money into Tether cryptocurrency, which was stored at Binance. The government tendered a seizure warrant to Binance and commenced judicial forfeiture of 32,133.63 Tether. After serving the Binance account holder via email and certified mail at his residence in India, and receiving no claim to the property, the government obtained default judgment and forfeited the asset. This case was significant because asset forfeiture enabled the return of fraud proceeds to victim A.D. Dates of involvement were 2022-2023. Experience in adversary proceedings before administrative bodies: I have not practiced before an administrative agency. However, as part of my criminal case responsibilities, I have prosecuted defendants whose terms of probation and extended supervision were revoked by an Administrative Law Judge. In connection with my civil practice, and as part of the forfeiture referral process, I am familiar with administrative law issues arising in matters handled by federal law enforcement agencies. Describe your non-litigation experience (e.g., arbitration, mediation). In the criminal context, my non-litigation experience consists primarily in reviewing, drafting, and obtaining search and seizure warrants. I have prepared hundreds of search warrants for physical locations (residences, storage units, safety deposit boxes), electronic search warrants (email and social media accounts), and Title III wiretap intercepts. In the civil context, my non-litigation experience consists of preparing seizure warrants and conducting depositions. Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: Not applicable Previous runs for public office: Not applicable All judicial or non-partisan candidates endorsed in the last ten years: Not applicable Professional or civic and charitable organizations: Elm Grove Police and Fire Commission, member, June 2022-present Elm Grove Woman’s Club, member, January 2022-present State Bar of Wisconsin, Diversity Clerkship Program Selection Committee, participant, 2020, 2021, 2022 Eastern District of Wisconsin Bar Association, co-chair, Criminal Committee, 2012-2018 Significant pro bono legal work or volunteer service: From approximately 2006 to 2008, I was a member of the Eastern District of Wisconsin Bar Association Pro Bono Commitee. As a part of this committee, I reviewed policies and procedures for appointing pro bono attorneys to represent pro se parties in federal court. From approximately 2010 to 2014, I was a member of the Elm Grove Junior Guild. This organization has a strong emphasis on philanthropy, and for several years I was on the Memorial Day Parade Committee, which is responsible for organizing the annual parade in Elm Grove. Quotes: Why I want to be a judge: I want to serve as a Waukesha County Circuit Court Judge because I want to be the fair and impartial person who makes the thorough, well-informed, and challenging decisions needed to guide parties through litigation. I believe that this position is a natural progression from my current public service experience. I was a law clerk for nearly three years and have served as an Assistant United States Attorney for more than fifteen years. After seeing the judiciary from the inside, helping judges and drafting opinions, and then as a litigant, appearing before numerous district court and magistrate judges to argue on behalf of the United States, I believe that serving on the judiciary is where I need to go next to serve the people of Wisconsin. My qualifications for the position of being a circuit court judge have evolved. First, as a law clerk, I was in awe of the judges I worked with and for. My clerkship helped me appreciate the many-faceted role of a judge: to engage in thoughtful decision making, to learn about new areas of the law, to consider their judicial demeanor and appreciate that they are the public face of the court system, and, most importantly for me as a young lawyer, to be conscientious. As an example, I recall Magistrate Judge Patricia J. Gorence advising me to read pro se submissions carefully, because one meritorious argument could be nestled amongst dozens of others, nearly all of which were handwritten. Then, as a prosecutor, I sought to persuade judges to accept my reasoning and recommendations. Representing the United States, I am tasked with the ultimate goal of seeking justice. Justice, I learned, does not in every case call for a severe sentence or villainizing a perpetrator. Among many things, it means treating everyone, including defendants, with fairness and respect. As an example, I recall a case in which Judge Rudolph T. Randa sentenced the defendant, who had been incarcerated much of his life, to a significant term of prison based on his possession of a firearm and fentanyl. After imposing sentence, Judge Randa wished the defendant well and ask him to visit the judge's chambers upon his release from prison. I seek to be a circuit court judge because I have learned so much, both about what works and what does not, and I want to emulate the great judges I had the privilege of working with. I aspire to the conscientiousness of Magistrate Judge Gorence, the emotional awareness of Judge Randa, the preparedness of Judge William C. Griesbach, and the intellectual rigor of Judge Lynn Adelman. With this experience in mind, I believe that I am ready to serve as a Waukesha County Circuit Court Judge. Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin. In Doubek v. Kaul, 2022WI931, the Wisconsin Supreme Court held that the Wisconsin disorderly conduct statute, Wis. Stat. § 947.01(1), is not a disqualifying predicate offense for purposes of carrying a concealed weapon. Doubek is important because, as the law currently stands, individuals may legally possess firearms even after having been convicted of domestic violence-related disorderly conduct, thereby exposing the public to an unacceptable risk of gun violence. Thankfully, Doubek’s dissent and the Attorney General’s proposed legislation demonstrate a desire to fix this legal loophole and reduce the risk of danger to the community. Daniel Doubek was convicted of disorderly conduct after breaking into his estranged wife’s trailer by smashing a window in the door, brandishing a 2 x 4 as a weapon, and loudly threatening her, telling her she “was dead.” When she yelled to the neighbors for help, he threatened to, “let her have it.” During this time, the couple’s four year old daughter slept nearby. Years later, Doubek successfully sought and obtained a concealed weapon license. However, in connection with a 2019 audit, the Wisconsin Department of Justice determined that he failed to meet one of the licensing requirements, namely he was “prohibited from possessing a firearm under federal or state law.” The federal law at issue, 18 U.S.C. § 922(g)(9), makes it illegal for an individual convicted of a misdemeanor crime of domestic violence to possess a firearm. Based on Doubek’s disorderly conduct conviction, the Department of Justice believed he was precluded from possessing a firearm and revoked his license. Doubek successfully argued before the Supreme Court that the disorderly conduct statute, section 947.01(1), is not a “misdemeanor crime of domestic violence” because it did not have “as an element, the use or attempted use of physical force, or the threatened use of deadly weapon.” Accordingly, he was not a prohibited person under federal law and was entitled to a concealed weapon license. The Court agreed with Doubek and the case was reversed and remanded. Although correctly decided, Doubek highlights a glaring omission in the Wisconsin Statutes. As Justice Jill Karofsky explained in concurrence, “although Doubek is legally correct, this result is as nonsensical as it is dangerous. In the realm of domestic violence, threats to kill, like the one Doubek made to his wife, more than double the risk of femicide.” And when a domestic abuse perpetrator, who has engaged in threats to kill or any other type of domestic violence, has access to a gun, the lethality risk for his victim increases significantly. Recognizing this deadly combination, Congress enacted a federal firearm ban on domestic violence misdemeanants, section 922(g)(9), limiting domestic abusers’ access to guns. On November 13, 2023, Attorney General Josh Kaul announced legislation to reorganize the crime of disorderly conduct and the definition of domestic abuse so that individuals convicted of domestic violence- related disorderly conduct offenses will be prohibited from possessing firearms, seeking to have Wisconsin join the effort to prevent this unacceptable risk of violence. Two or three judges whom I admire and why: Patricia J. Gorence, Magistrate Judge In June 2005, Magistrate Judge Gorence hired me as a pro se law clerk. The pro se law clerks worked for all of the judges in the Eastern District of Wisconsin, conducting research and writing, preparing orders and opinions, and monitoring and moving civil dockets. At the time, I was a young mother and Magistrate Judge Gorence had grown children of her own. She was the first federal female magistrate in Milwaukee. As an advocate for women’s education and employment, and my direct supervisor, Magistrate Judge Gorence played a huge role in shaping me as a young lawyer. Beyond her personal guidance, I learned from watching Judge Gorence as she encouraged parties to reach agreements but was willing to make tough decisions when they could not. She crafted thorough and well-researched opinions, explaining her decisions in practical terms. Judge Gorence wanted the parties to feel heard, and often displayed compassion and empathy, but at the same time kept the proceedings moving at a steady pace. Finally, she treated everyone in her courtroom, from her staff and clerks, to attorneys and defendants, equally and with respect. Lynn Adelman, District Court Judge From 2005 to 2008, I worked with Judge Adelman as a pro se law clerk. It was immediately clear how much Judge Adelman loves being a judge and engaging with the law. Beyond his trial court responsibilities, he often sits by designation on the Court of Appeals for the Seventh Circuit and publishes articles about legal issues that are important to him. Working as a law clerk for Judge Adelman was not easy – his high standards demanded much of my research and writing skills – but I am a better lawyer as a result. Since joining the U.S. Attorney’s Office, I have appeared before Judge Adelman hundreds of times, and often in connection with my most significant cases. For example, during the summer of 2009, I prosecuted United States v. Bowie, Case No. 07-Cr-123 (E.D. Wis.), a week-long trial with numerous cooperating defendants as witnesses and dozens of wiretap intercepts as exhibits. At sentencing, Judge Adelman agreed that the defendant and his serious crimes posed a danger to the community and imposed a sentence of 253 months’ imprisonment. In the countless sentencing hearings I have had with him since, Judge Adelman and I do not always agree about the sentencing factors, offense enhancements, or guidelines ranges. However, regardless of the outcome, I immensely respect Judge Adelman for his intellectual honesty. I always feel heard and am confident that, although I may not get the outcome I seek, he is always prepared and thoughtful, using intellect and reason to support his findings. The proper role of a judge: Wisconsin Circuit Court Judges pledge to support the constitution of the United States and the constitution of the State of Wisconsin, and to faithfully and impartially discharge their duties. It is the proper role of a judge to follow the statutory text and apply binding precedent, regardless of their personal beliefs. A judge should instill confidence in, and promote respect for, the legal system. I believe that a judge can accomplish this in the following ways. First, a judge must be as prepared as possible. This means reading the parties’ submissions and being ready to respond in court and in writing. It also means remaining present and meaningfully considering the arguments, issues, and facts raised on the record in open court. Next, a judge’s impartiality is critical. A judge must be committed to making thorough and intellectually honest decisions, and keeping an open mind until all of the issues are fully presented. Next, a judge should treat all those who appear in a courtroom fairly and equally. It is important to make litigants feel seen and heard, even though they may not receive the exact outcome they seek. The judge serves all parties in the courtroom, as well as the public outside the courtroom. This means getting to the heart of an issue quickly, making decisions, and keeping a caseload moving. Finally, a judge must be able to make difficult decisions. Many times, the parties in a courtroom are at the lowest point in their lives. Their liberty, parental rights, business, and way of life may be at stake. During these especially trying times, the parties turn to the courts to make decisions for them. A judge must be able to make thorough, well-informed, and efficient decisions.  Shoenborn (left) at her investiture on Aug. 15, 2024. Photograph by Margo Kirchner. By Alexandria Staubach The Wisconsin Court of Appeals recently held that the right to counsel attaches during Milwaukee County’s written probable cause process, meaning a defendant has the right to counsel for any subsequent critical stages of prosecution.  White Chief Judge Maxine White wrote for the three-judge District 1 panel in State v. Robinson, joined by Judges Sara Geenen and Pedro Colón.
When a person is arrested without a warrant in Milwaukee County, judges and court commissioners routinely find probable cause, order detention, and set bail using an all-paper review process. The paper probable cause process, named a “CR-215” process for the form used by judges and court commissioners to make the finding, details the officer’s basis for arrest. Based on the officer’s narrative, a judge or court commissioner checks a box to indicate whether they believe probable cause for arrest exists. Percy Robinson was arrested on Dec. 19, 2017, for bank robbery. Within 48 hours, a Milwaukee County circuit court commissioner reviewed a CR-215, found probable cause that Robinson committed the offense, and set bail at $35,000. On Dec. 22, law enforcement conducted an in-person lineup. The lineup included Robinson, and the bank teller identified him as the person who committed the robbery. No attorney was present on Robinson’s behalf. The State then issued a criminal complaint against Robinson for robbery of a financial institution. Robinson was convicted following a jury trial. He appealed, arguing, among other things, that he received ineffective assistance of counsel because his trial attorney failed to challenge the lineup identification, which occurred without counsel present after his right to counsel had attached. The court of appeals agreed about the right to counsel, concluding that “Milwaukee County’s CR-215 process signals a ‘commitment to prosecute,’” and that the Sixth Amendment right to counsel attaches during that process, creating a right to counsel for any later "critical stages" of prosecution. “The initiation of judicial criminal proceedings is far from a mere formalism,” White wrote. “(T)he CR-215 process shifted Robinson from a person under investigation to the accused in the criminal justice system. Therefore, it is reasonable that the shift arising out of the CR-215 process attaches Sixth Amendment guarantees.” The state argued that Robinson’s right to counsel had not attached during the CR-215 process because Robinson was not physically present when the CR-215 form was evaluated and signed by the circuit court, and the process consequently lacked necessary formalities. The court rejected the argument. “The lack of an in-person court hearing does not negate that the CR-215 process was the first formal proceeding against Robinson in this case,” White wrote. “An ‘accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused liberty to facilitate the prosecution.’ By that point it is too late to wonder whether he is accused within the meaning of the Sixth Amendment, and it makes no practical sense to deny it,” White wrote. The court then found that an “identification lineup occurring after the probable cause determination and bail setting, such as the CR-215 process, is a critical stage of the prosecution,” with a right to counsel. While Robinson’s appeal ultimately failed on other grounds, the court, citing U.S. Supreme Court law, recognized that when a conviction “’may rest on a courtroom identification’ that was ‘the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.’” Counsel’s presence, not participation, “’is relied upon to prevent unfairness and lessen the hazards of eyewitness identification at the lineup itself,’” wrote White, citing Wisconsin Supreme Court law. Going forward, an accused will have the right to counsel for any critical stage after a CR-215 finding. When and whether an accused’s right to counsel attached during the CR-215 process had been the subject of state and federal litigation since at least 2009. Federal courts in Wisconsin had held that a right to counsel attaches after the CR-215 process is complete, but no consistent answer had been developed by state courts. The Robinson court concluded that the law is now settled on the matter. By Margo Kirchner It’s late on a Friday evening in June and four string musicians wait at the ready for something they do not want to happen: a fatal shooting in Milwaukee. They sit on call at Central Methodist Church, prepared to leave for the scene of a shooting to play classical chamber music to comfort and heal the community. Founder, music director, and violist Dayvin Hallmon frequently checks his laptop for the list of 911 calls, looking for reports of a shooting or shots fired. The other musicians talk and check their phones. One plays the piano for an hour. A stack of board games is available, though not used that night. Hallmon takes a few moments to shout at three people headed behind the shed off the church’s parking lot, telling them they are trespassing and need to leave. Violinist Churchill Caruthers has played with the ensemble since it began in 2019. Cellist Autumn Maria Reed is a composer of instrumental music in multiple genres and also plays string bass. Violinist Fatima Gomez arrived last that evening, coming from a mariachi gig. The musicians are members of the Black String Triage Ensemble. Throughout the summer, the ensemble of volunteers designates certain weekend evenings to be on call to respond to shootings in Milwaukee. On-call time can last five or six hours, to midnight or beyond. Hallmon says the ensemble is the first and only one of its kind in the world. No other city has this. The group’s mission is to use music, especially music by Black and Latin composers and artists, to address pain, foster healing, promote love, call for justice, and guard against hopelessness. For now, the ensemble focuses on playing at scenes of fatal shootings and various rallies or protests, the latter for peacekeeping purposes. They’ve played at scenes of drug overdoses and car crashes, too. In response to fatal shootings, “to speak to the life circumstances that give rise to such a horrifying event, a concert at the scene is necessary to dissipate and repel those negative forces. By being present among the people and playing music at a time when it is needed the most, we can transform the public space into a place of recovery, healing and hope for the community,” reads the group’s website. “We don’t have to live destroyed and broken,” Hallmon told Wisconsin Justice Initiative in an interview. “If there isn’t a cultural mind shift, this (violence) is going to continue,” he said. “What’s amazing to me is how everybody is burdened” by shootings—it’s not just the person shot and the person pulling the trigger, he said. Sometimes “the circumstances are so outrageous that there can be no justification for it, and law enforcement has to reckon with that. It destroys everybody,” he said.
For peacekeeping, the intent is to inject music into a tense space to deter violence. Maybe if violence holds off, we can have a moment of reconciliation, Hallmon said. The night in June thankfully passed without the need for a concert. The quartet piled into two cars (a cello and music stands take up a bit of space) around midnight to drive to the location of a possible shooting, but they found no police presence there. The musicians act as a team, driving to a scene together from their on-call site. When asked what the Black String Triage Ensemble needs most, Hallmon immediately responded with “a van,” big enough to transport cellos, basses, and people. Many of the group’s musicians, including Hallmon, do not own or have access to a car. He could have a quartet or quintet on call, but no one there with a vehicle to get them to the scene of a shooting. The ensemble planned to play peacekeeping concerts during the Republican National Convention, but they pivoted that Tuesday night, July 16, to instead play a concert at King Park, where Columbus, Ohio, police shot and killed Samuel Sharpe Jr., an unhoused man, earlier in the day. That evening, eight musicians and a clergy member gathered at Village Church MKE in downtown Milwaukee and drove to King Park just after a memorial gathering ended. Violist Miguel Barrenechea; violinists Jane Han and Christopher Washington; cellist John Hodges; and chaplain Tom Gaulke joined Hallmon, Caruthers, Reed, and Gomez. A group of people still stood at the corner of W. Vliet and N. 14th streets, with vigil candles burning. Gomez emphasized that the ensemble should play for those remaining even if others had already left. The musicians set their music stands on the sidewalk and tuned their instruments in the dark while Gaulke talked with people in the park and on the street. He explained what the musicians were doing and answered questions, some posed by media members with lanyards showing RNC credentials. Hallman told WJI that it is very helpful to have a clergy member with them to talk with the crowd, as musicians need to focus on playing. The need for flexibility and on-site adjustments is clear. The musicians do not know the conditions at a scene when they arrive. Hallmon said “anything can go down. Just because law enforcement has secured the scene doesn’t necessarily mean the drama’s done. It’s still active and live.” The group needs to find the right location for playing—a place where they can be heard but not be in the way, Hallmon said. He wants the ensemble to be present without taking up space. “The music should take up the space, not you,” he said. Timing is important. The ensemble has arrived at a scene too early, even before the medical examiner. They found people too angry then, Hallmon said. Yet several hours after a shooting is likely too late. But “there’s a point when you can be there just kind of after folks have figured out what’s happened and are wrestling to find that spot of comfort, and speak in that moment,” Hallmon said. The group usually does not play right away, instead getting a feel for the particular scene and the people there. They play a selection of classical music, jazz, soul, spirituals, blues, and tango. The music is organized into two programs based on five stages of grief, plus a sixth stage of faith. The team talks about what music should be played at the scene. “As a crew of musicians, we feel the moment together,” Hallmon said. “It’s all of those little calculations.” The ensemble does not coordinate with law enforcement. They do not ask for permission to play. People at a scene sometimes have initially objected, but then have told the group that the music was a blessing and what they needed. There’s this thing about people being ready to hear,” Hallmon said. As the octet played at King Park on July 16, several individuals prayed around lit candles along the side of the street. A helicopter circled overhead several times. A man walking by remarked that he had not seen string instruments since high school or junior high.
 Black String Triage Ensemble at the scene of the King Park shooting fatality, July 16, 2024. Photographs and video by Margo Kirchner. The idea of the Black String Triage Ensemble came to Hallmon while he was a Kenosha County Board supervisor walking around his district. Hallmon was elected to the Kenosha County Board at age 23 in 2008 and reelected several times, serving for 10 years. He represented District 7, Uptown Kenosha. Someone asked him what would happen “if a bunch of string players showed up after a crime scene and didn’t play Mozart” or “Orange Blossom Special,” he said. Hallmon ran for state office in 2012 but was unsuccessful. He moved to Milwaukee in 2018 and started Black String Triage Ensemble the next year. The ensemble is now part of a nonprofit, which includes the Black Diaspora Symphony Orchestra, a larger group of classical musicians of color joined by non-Black, non-Latinx musician colleagues (the latter group known as the Legion of the Soul). The orchestra’s repertoire emphasizes the work of Black and Latinx composers and focuses on the life experiences of people of color. The orchestra does not neglect standard repertoire, but “it’s just not the meat on the plate,” Hallmon said. “There’s enough stuff in symphonic music to tell everybody’s story.” Hallmon told WJI that before the Juneteenth concert he eagerly handed Milwaukee police officers his business card and invited them to come hear Joel Thompson’s “Seven Last Words of the Unarmed,” about the last words of seven Black men before they were shot by police. Other pieces at this year’s Juneteenth concert included Florence B. Price’s “Ethiopia’s Shadow in America,” Williams Grant Still’s “And They Lynched Him on a Tree,” and Black String Triage Ensemble musician Reed’s “Cries from OUR Soil.” (The multi-talented Reed’s composition “Brazilians” was performed by Brazil’s Orchestra Sinfonia Nacional in 2023, and her “Robin’s Eye View” was played by the Chicago Philharmonic this summer.) Each year the orchestra plays a memorial concert for missing and departed children. Other concerts have included issues of lynching and the victims of Jeffrey Dahmer. Hallmon has worked with teenagers at Riverside High School and children in programs at Milwaukee Public Schools and around the city. Elementary-age children have told him that they call their city “Killwaukee.” Hallmon believes policy reforms will not succeed in counteracting violence and recklessness. For instance, installing new traffic control barriers and curbs will not change the behavior of mischievous teenagers—it just gives them more to hit, Hallmon said. “There’s no policy in government or law to counteract” young boys stealing cars to impress girls. He sees potential in culturally relevant, trauma informed music and arts, though. Living in the inner city can create post-traumatic stress disorder, he said, and creative writing and music have worked to help veterans recover from the traumas of war. “Why can’t we apply that to the urban population?” he asked. He understands the benefits of sports, but sees a significant problem when kids in first grade say they want to be doctors or teachers but by third grade say they want to be in the NFL. Instead, being physically responsible for creating a sound, such as by placing a finger on a string and moving a bow, can “rewire your brain,” Hallmon said. Creating music can change not only the person listening, but also the musician, he said. In addition, he believes that five minutes of mindfulness via classical music played over the public address system in school each day could reduce behavioral issues. He thinks the Milwaukee Symphony Orchestra should partner with Milwaukee Public Schools and provide snippets of its recording catalog to make that happen. “Print this because it’s true,” he said. “Get it done.” Meanwhile, the ensemble and orchestra will continue to gather and to wait, hoping they will not be needed. When they are, they want their music to help move others toward healing, comfort, and conversations about violence and racism in Milwaukee. PBS created a short documentary about the Black String Triage Ensemble, available on the homepage of the group's website here. By Alexandria Staubach
On Wednesday a group of lawmakers and public sector employees met to discuss possible changes to the framework surrounding emergency detention and civil commitment of youth experiencing mental health crises. What was the Legislature's Study Committee on Emergency Detention and Civil Commitment of Minors looking to know? First, whether entities and individuals other than law enforcement should have authority to take minors into custody for emergency detention. Second, whether special emergency procedures should be developed to lower the bar for detention and commitment. The overwhelming advice from service providers was that expanding the scenarios under which children can be detained would do nothing to alleviate the underlying mental health crises that the state’s children face. Dr. Steven Dykstra of Milwaukee County’s Behavioral Health Division said expanding detention “would be a complicated journey and I don’t know that much would come out of it.” Dykstra instead encouraged the committee to recommit to expanding early intervention resources and tactics. Dystra discussed a teenage boy in Wauwatosa who was assaulting his mother. The boy’s father drove him to the police station; police in turn called Dykstra. Dykstra was able to get the youth to agree to commitment, avoiding detention and handcuffs. The boy was diagnosed with schizophrenia and responded well to medication. He went on to a modified school schedule and graduated high school. When he started at UW-Milwaukee, he met with administrators to develop a plan for his education and asked whether the school had police officers. Because of his previous crisis and because, according to Dykstra, he was not detained, he felt like he could go to the police if he had another episode. These types of interventions will result in the outcomes the committee is looking to achieve, Dykstra said. “We have lots of power to lock that kid up but very little power to address the underlying distress that drove [them] to that point,” he said. Dykstra highlighted a lack of communication between police, service providers, and families. “Systems that collect the data that demonstrate a mental health crisis … don’t communicate with one another. He said the system as currently conceived cannot connect the dots to identify when a child is on the verge of a mental health crisis, but medical professionals know that years spent in undiagnosed psychosis results in much worse outcomes. He cautioned that parents and children “don’t want to tell us about their symptoms because they’re afraid they’re going to get locked up.” Dr. Tony Thrasher, president of the Wisconsin Psychiatric Association, encouraged the committee to consider a specific modification to the laws governing commitment when schizophrenia is involved. “One situation in which we need to make it easier to hospitalize a young person [is in that] last stretch of time they are sliding toward mental psychosis,” Thrasher said. Specifically in the instance of schizophrenia, “if he’s not dangerous to anyone, I can’t make him go to the hospital, however we know that his long-term prognosis is heavily tied to dramatically different results with early intervention,” he said. “We’re very good at the defibrillation,” meaning emergency situations, said Thrasher, but “we’re missing the other 98% of how to get people well.” Sarah Henery, administrator of the Division of Milwaukee Child Protective Servies (CPS), said that not just in Wisconsin, but nationally, she has observed chronic issues, which are not acute, going unaddressed, highlighting that the state is essentially powerless in situations where a youth is not expressing an immediate desire to cause or inflict self-harm. Under current Wisconsin law, certain individuals may initiate 72-hour holds on a person who is mentally ill, developmentally disabled, or drug dependent, based on observed behavior that is dangerous to themselves or others. Juveniles may be subject to emergency detention if they are unable or unwilling to cooperate with voluntary treatment. Sen. Jesse James (R-Altoona) chairs the Legislative Council Study Committee on Emergency Detention and Civil Commitment of Minors, which examines the effectiveness of emergency detention and civil commitment laws and recommends legislation that may create more child-appropriate civil commitment procedures. Rep. Patrick Snyder (R-Schofield) is vice-chair. Other committee members include Sheila Carlson, Green Bay Police Department behavioral health officer; Jill Chaffee, vice-president of community based services for Lutheran Social Services; Maryam Faterioun, an addiction and substance abuse counselor in Waukesha; Judge Cody Horlacher of Waukesha County Circuit Court; Dr. Kristen Iniguez, a Marshfield physician who cares for children subject to abuse and neglect; Sen. LaTonya Johnson (D-Milwaukee); Sharon McIlquham, assistant corporation counsel for Eau Claire County; Rep. Shelia Stubs (D-Madison); and Katie York, deputy State Public Defender.  Shirley S. Abrahamson. Photograph courtesy of the authors of www.shirleyabranamson.org. By Amy Rabideau Silvers An obituary in The New York Times called her “an indefatigable jurist known for her activist voice and tart dissents.” The Milwaukee Journal Sentinel’s obituary called her someone who crashed through barriers for women, earning “a national reputation as a leader in liberal judicial thought.” Others called Shirley Abrahamson a mentor and a friend. Abrahamson was the first woman appointed to the Wisconsin Supreme Court, serving 43 years on the bench, including 19 years as chief justice. At retirement, she was the longest-serving state court justice in the country, and she certainly remains the longest serving in Wisconsin history. Appointed by Gov. Patrick Lucey* in 1976, she went on to win four 10-year terms. For many of those years, she was the only woman on the bench. By the time she retired in 2019, five of the seven justices were women, later to be joined by a sixth. “Among jurists I have encountered in the United States and abroad, Shirley Abrahamson is the very best,” declared Supreme Court Justice Ruth Bader Ginsburg, in a videotaped tribute as Abrahamson retired. “The most courageous and sage, the least self-regarding. “She has been ever mindful of the people—all of the people—the law exists, or should exist to serve,” Ginsburg said. “As a lawyer, law teacher and judge, she has inspired legions to follow in her way, to strive constantly to make the legal system genuinely equal and accessible to all.” An early dream Abrahamson was born Shirley Schlanger, the daughter of Manhattan grocers Leo and Ceil Schlanger. Her parents were immigrants from Poland, and as the family story goes, little Shirley was 4 when she decided that she wanted to be president. At 6, she changed her mind and decided to become a lawyer. She later told the story of wanting a library card after the family moved for a time to New Jersey, while she was in grade school. “My mother and I went to the public library, but I couldn’t get a card because my parents didn’t own property,” Abrahamson recalled. “You see, your family had to own property to get a library card.” Her father ended up taking off work to find the landlord and persuaded him to write a letter. The situation left her feeling “that my family was put into this second-class position. … My father was running a successful grocery business, paid his bills, and why I couldn’t get a library card. … It just didn’t make sense … and it didn’t seem fair.” Fair was something she felt everybody deserved. Facing other challenges She graduated from high school at 16. She next graduated from York University in Manhattan, magna cum laude, and married Seymour Abrahamson. Together they relocated to Indiana University in Bloomington. There she graduated first in her law school class in 1956. She received no job offers. “She was a woman and she was Jewish,” said Wisconsin Supreme Court Justice Ann Walsh Bradley, speaking in an interview with Wisconsin Justice Initiative. “The dean of the law school told her she wouldn’t get a job, but he’d try to get her a job as a law librarian.” Instead, Shirley and Seymour—he earned a doctorate in genetics—moved to Madison. There Abrahamson studied with J. Willard Hurst, a UW law school professor and pioneer in legal history, earning a doctorate in 1962. That same year she was hired at La Follette, Sinykin, Doyle & Anderson—the first woman hired by a private law firm in Madison. Within the year, she became a named partner. Abrahamson soon began teaching at the law school. In 1966, she was offered a professorship in tax law. She accepted on the condition that the other woman on the faculty, Assistant Professor Margo Melli, also receive tenure.  Abrahamson in court (likely early to mid-1960s). Photograph created by Edwin Stein, courtesy of the Wisconsin Historical Society, image WJI 149705. A master at mentoring Along the way, she offered encouragement to countless others. Angela Bartell, now retired as a Dane County Circuit Court judge, remembers going to the UW Law School to meet with Abrahamson before enrolling in 1968. “She was one of two women professors—Margo Melli was the other,” Bartell told WJI. “My husband graduated from law school in 1968 and there were only four or five women in his class. And so I met with the two women on the faculty and said, ‘How did you do this?’ and they were both very encouraging.” The few women students found support with each other—and in the one women’s restroom in the old section of the law building, complete with a fainting-style couch. “You knew you could likely find women there,” she said. “It was a shelter—that’s really the only word for it—from the battle that was going on outside.” Women found an even bigger challenge at graduation, especially if they wanted to join a private practice. Bartell experienced that firsthand in 1971. “There was the question of whether clients would be comfortable with a woman lawyer. Would women lawyers be a viable economic resource? Were women tough enough to fight in an adversarial system? This is sounding quite quaint,” she said, with a laugh. “I had only one offer, though I graduated first in my class,” Bartell said. “So the profession was not open. I ended up joining the law firm where Shirley was a named partner, so I had a woman colleague. “It became a ritual for law firms to take the new woman and introduce her to Shirley Abrahamson,” she said. “It was a long and bumpy road, and Shirley was this high-performing, welcoming mentor to all, and that was for decades. She was such a pioneer.” Abrahamson was a founder of the Legal Association for Women, which began in 1974, for women in law in the Dane County area. “She was a mentor to women all over the state,” said former Justice Janine Geske, who joined her as the second woman on the Supreme Court in 1993. “Male attorneys would bring their daughters to meet her.”  Abrahamson at her 1976 swearing-in ceremony. Photograph by WiscNews, courtesy of authors of www.shirleyabrahamson.org. Queen of court outreach Abrahamson championed judicial outreach, helping to create programs that included the award-winning Court with Class program. Tens of thousands of students have visited the State Capitol to hear oral arguments and meet with a justice. Abrahamson also believed that the courts could go to the people, promoting the Justice on Wheels effort. That, too, continues. “Pick a county—from Kenosha to Superior, Door County to Rock County—and we go there and have legal arguments and meet with people in the community,” Bradley said. Then there’s the Tootsie the Goldfish lesson, in which kids get to “think like a judge.” “She was the queen of outreach for the courts,” Bradley said. Geske agreed. “She was always thinking of ways to connect people to the courts,” Geske said. That included traveling to speak to any group interested in the legal system. Her friends quipped that no distance was too great and no group too small to talk about the courts. “Before we were close friends, she called and asked if I would go speak because she was snowed in at JFK,” said Geske, who agreed to fill in. “There were maybe 12 people there.” Once while traveling in northern Wisconsin, she ended up in a boat with musky fishermen. “She caught the winning musky,” Geske said. “And she had it stuffed and hung on the wall of her chambers.”  Abrahamson presiding over a Justice on Wheels hearing. Photograph courtesy of the Wisconsin Supreme Court and authors of www.shirleyabrahamson.com.  Play the Toosie the Goldfish game by clicking on this graphic. Creating change and connections In other noteworthy efforts, Abrahamson served on the citizens’ committee studying how to reorganize the state courts in the 1970s. That resulted in the creation of the Court of Appeals. Study committee meetings were being held throughout the state, with one scheduled at the Madison Club. There was only one problem with that plan. “The club had no women members,” Bartell said. “And no women were allowed at the bar level. Shirley Abrahamson was not going to be allowed to attend the meeting. She took that up like a tigress. The committee pulled out of that location and they met elsewhere. “She fought not only so many battles herself but she served as a shield for other women coming up behind her,” said Bartell. Abrahamson was involved in writing Madison’s equal-opportunity law and served as director of the local American Civil Liberties Union chapter from 1967 to 1974. And, later as a justice, she partnered with tribal leaders, including the Wisconsin Tribal Judges Association, to hold the first conference for tribal and state court officials. “She had the first state courts conference ever in the nation,” Bradley said. “I remember sitting at a table with someone from a tribe in Alaska. People came from that far.” Time on Wisconsin Supreme Court During her long years on the court, Abrahamson participated in more than 3,500 cases, authoring 535 majority opinions, 493 dissenting opinions, and 326 concurring opinions. She did not mince words in her dissents. In a 1992 case, State v. Mitchell, the court ruled that an increased penalty in a hate crime case was unconstitutional. The U.S. Supreme Court later reversed that decision. Wrote Abrahamson: “Bigots are free to think and express themselves as they wish, except that they may not engage in criminal conduct in furtherance of their beliefs. The state’s interest in punishing bias-related criminal conduct related only to the protection of equal rights and the prevention of crime, not to the suppression of free expression.” A 2015 case involved whether Gov. Scott Walker had illegally coordinated with conservative groups during a recall effort. A divided Supreme Court decision ended the investigation. “Lest the length, convoluted analysis and overblown rhetoric of the majority opinion obscure its effect, let me state clearly,” she said in her dissent. “The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment.” Some of her writing was for in-house reading only. “We used to circulate proposed decisions among the justices and conference those opinions,” Geske said of their shared time on the state Supreme Court. “Shirley would issue three-page, single-spaced memos on an opinion. I learned to appreciate what she was doing. She wanted my opinion to be as clear as possible, and her memos helped me write a better decision. She was the smartest and hardest working person I ever met.” Abrahamson began serving as chief justice in 1996, when she became the most senior member of the court. That changed in 2015, with a constitutional amendment to allow justices to select their own chief justice. Conservative justices quickly picked Justice Patience Roggensack. Abrahamson sued in federal court—lost and then appealed—before deciding the case would take too long. Instead, she vowed to remain “independent, impartial and nonpartisan, and help the court system improve.” She retired in 2019, a year after being diagnosed with cancer. She died of pancreatic cancer in 2020. Abrahamson was 87. And beyond Wisconsin Abrahamson earned a reputation throughout the country and internationally, especially well known for what has been called new federalism. “She was among a handful, not even a full handful, of judges and justices in the country really leading the charge of revitalizing state constitutions, and she was at the head of that,” Bradley said in an interview with the Milwaukee Journal Sentinel after Abrahamson’s death. Abrahamson concluded a 1982 law review article on new federalism by invoking the words of an 1855 decision (Attorney General ex rel. Bashford v. Barstow 4 Wis. 567, 758 (1855)) by the Wisconsin Supreme Court: “The people then made this constitution, and adopted it as their primary law. The people of other states made for themselves respectively, constitutions which are construed by their own appropriate functionaries. Let them construe theirs—let us construe, and stand by ours.” “The idea,” Bradley told WJI, “is that state constitutions may provide individual rights in excess of those given by the federal Constitution. Not fewer rights but more.” Abrahamson was considered for appointment to the U.S. Supreme Court as early as 1979 by President Jimmy Carter to fill a possible vacancy by Justice William J. Brennan Jr. (Brennan continued serving until 1990.) In 1993, Abrahamson was on the short list to replace Justice Byron R. White. President Bill Clinton instead chose Ginsburg. Setting the bar on ethics Abrahamson did more than talk about judicial ethics and independence. Judges, she believed, needed to be absolutely beyond reproach. “As a judge, you are not supposed to endorse partisan candidates,” Geske said. Abrahamson did not endorse any candidates or accept any gifts. “She had a hard-and-fast rule,” Geske said. “I could not buy her a cup of coffee. Ann (Walsh Bradley) and I would take her out for her birthday, and she would pay the check. No one could question her ethics.” Should any question of ethics arise, “I would think, ‘What would Shirley do?’” she said. Geske said Abrahamson would have been deeply concerned about questions involving judicial integrity, including the recent decision regarding presidential immunity. “She’d be going nuts at what’s going on right now, especially with the U.S. Supreme Court, at the partisanship and the bias,” Geske said. “That would have really bothered her.” Continuing a legacy Friends and colleagues believe that Shirley Abrahamson’s legacy has the power to inspire others to care about the judicial system. Toward that goal, they began the Chief Justice Shirley S. Abrahamson Legacy Committee. Projects include annual awards for law students committed to “social justice, an independent judiciary, and equal rights for all.” The reading room at the Wisconsin Historical Society has been dedicated in her honor. There’s a website about her with everything from a timeline and family photos to resources regarding her opinions. Committee members are exploring the possibility of a documentary about her life and influence. Should anyone think that Shirley Abrahamson was all serious business, just remember that Toostie the Goldfish is still teaching kids to think like a judge. “Shirley was fun,” Bradley said of her friend. “She had an absolute commitment to maintaining and restoring public trust in the judiciary,” said Bradley. “She believed in justice and equal justice for all.” Whatever the topic, Chief Justice Shirley Abrahamson had a way with words. Here are a few quotes, taken from the website dedicated to her legacy. More quotes may be found at www.shirleyabrahamson.org/quotes/.
*Note: This story was updated on Aug. 22, 2024, to correct the name of the governor who appointed Abrahamson. We apologize for the error. (Thank you careful readers!)  This project is supported by grants from   By Alexandria Staubach Milwaukee County Circuit Court has a new mental health docket, which its creators hope will streamline the civil and criminal aspects of cases where competency is at issue.  Sanders Judge Mark A. Sanders will preside over the new docket, which started accepting cases this month.
The docket is designed to address a significant backlog of cases that deal with competency and to incorporate and possibly expand the capacity of the current mental health treatment court. Legal competency is the ability of someone who has been charged with a crime to appreciate the charges and consequences and to participate in their defense. The new court got its start through the Milwaukee Community Justice Council (CJC), which comprises Milwaukee-area criminal justice agencies and local governments working collaboratively to “ensure a fair, efficient, and effective justice system that enhance(s) public safety and quality of life in our community,” according to its website. WJI recently discussed the new court with Chief Judge Carl Ashley, who chairs the CJC; Milwaukee County Chief Deputy District Attorney Kent Lovern, who co-chairs the CJC’s Mental Health Committee (and is running unopposed for district attorney in November’s election); and Tom Reed, vice-chair of the CJC and regional attorney manager of the Wisconsin State Public Defender’s Office. “It is not possible to overemphasize that the mental health docket is a reflection of deep concern at every level that individuals with mental health issues end up with the police and in jails, in situations that are not equipped to deal with these issues,” said Reed. “We envision phases,” said Ashley. He told WJI that he hoped the new docket will grow to further address the significant needs of those charged with criminal offenses and simultaneously dealing with mental disease. The COVID-19 pandemic resulted in a significant backlog of cases, said Ashley. He told WJI, he believed the court could improve outcomes and efficiencies, especially in competency cases. Ashley, Reed, and Lovern all told WJI that mental health is a significant issue in court efficiency. Each noted the desire for individuals with significant mental health issues to achieve just outcomes, while acknowledging that arriving at those outcomes requires significant time and resources from the court. Apart from improving efficiency for individuals that have been charged, the new docket will have a “corollary benefit,” said Lovern. He said the new docket will let other courts move at an improved pace. Ashley, who others indicate led the effort in engineering the new docket, said the court will initially deal only with cases in which competency, not guilty by reason of mental defect, or restoration to competency is an issue. Sexual assault and homicide cases will be excluded from the new docket; those cases will remain in other specific courts. The new docket is distinct from the mental health treatment court. The circuit court has had a mental health treatment court for more than 10 years, deemed “the longest pilot project ever” by Lovern. The current mental health treatment court program is small and voluntary. “It’s really not the fit for every case” Lovern told WJI. It is designed to connect participants with mental health treatment, community services, and “appropriate dispositions” to criminal charges relative to the seriousness of the participant’s mental illness and severity of the offense, Lovern said. Reed said the treatment court is designed to deal with individuals who display a significant mental illness and could benefit and improve with long-term intensive work and supervision. The new docket is also designed to help the whole court system run more efficiently, said Ashley. If an individual is found not competent, it may be that they can be restored through treatment either out of custody (conditional release) or in custody at Mendota, a state-run mental health facility. In cases where competency is an issue the court must first establish a lack of competency by hearing, which often requires the testimony of medical professionals, and then act upon that fact. One objective for the new court is to give the civil system, plus service providers and medical professionals, a dedicated court to deal with, Ashley said. “There are significant delays in just the competency path; some of those delays have to do with the state hospital not having enough beds,” Reed told WJI. However, “other problems arise,” too. “Every criminal court has to deal with competency, and the result is ‘yes,’ time tied up in hospitalization, but a lot of time is also tied up in the process,” he said. “If felony courts can move faster to other cases, it can free up other court time,” said Lovern. Reed highlighted that a single docket for competency cases may result in a single team of people—court providers, district attorneys and public defenders—who are better positioned to think upstream, “to understand the familiar faces, see who is cycling through and trapped in unproductive cycles.” “We have to get in there, then see what we can do,” said Ashley. By Alexandria Staubach Late last month District 1 of the Court of Appeals released a decision that will change the way district attorneys and those representing youth defendants in reverse-waiver proceedings receive discovery. The court held that “juvenile defendants are entitled to all evidence that the State intends to introduce at a [reverse-waiver] preliminary examination to establish probable cause of the alleged jurisdiction offense” and that “the state is required to produce this evidence at a reasonable time before the preliminary examination.” Moreover, said the court, “additional materials exclusively in the possession of the State may be discoverable provided that the juvenile defendant establishes a particularized need for the materials requested by showing that they are likely to be relevant to negate one element of the alleged jurisdictional offense.” Prior to the opinion, State v. Adams, youth defendants and their representatives had no right to discovery at the reverse-waiver stage of a case.  Geenen Judge Sara J Geenen wrote for the three-judge panel, joined by Chief Judge M. Joseph Donald and Judge Pedro A. Colón.
“Reverse waiver” refers to the court procedure by which an adult court that would otherwise have exclusive jurisdiction over an offense may transfer a case brought against a child 16 years old or younger to juvenile court. Adult criminal courts have exclusive jurisdiction over, among other cases, first-degree intentional homicide, second-degree intentional homicide, and first-degree reckless homicide. This means that cases involving these charges start as adult cases regardless of the defendant’s age. It is a two-step process that begins with a preliminary hearing or examination at which the state must prove it has probable cause to charge the youth defendant of the crime and an adult criminal court must find probable cause to believe that the youth defendant has committed the charged offense. Then, at a reverse-waiver hearing, the youth must prove that transfer to juvenile court will not depreciate the seriousness of the offense, they could not receive adequate treatment in the criminal justice system if convicted as an adult, and retaining jurisdiction in adult court is not necessary to deter the youth or others from committing the charged offense. The juvenile who is the subject of the court of appeals decision, Jayden Adams, 13, was charged with first-degree reckless homicide, giving the adult criminal court exclusive jurisdiction over his case. Historically, juvenile defendants have not been entitled to discovery prior to their preliminary hearings. Adams argued that he had a an “unqualified right to discovery prior to the preliminary examination” because “it is impossible for defendants to know all potential challenges to probable cause without access to discovery,” Geenen wrote. The state argued that no law granted Adams a right to discovery before the preliminary examination. The issue, as identified by the court, was how much latitude a juvenile defendant has to attack the crime charged and what evidence the state may have that is relevant to such an attack. The court, though, hesitated to permit the preliminary hearing to become a “mini trial” should discovery in fact be entitled. Geenen discussed at length a 2010 Supreme Court of Wisconsin decision that found “the place to offer evidence for the purpose of contradicting the offense is the preliminary examination.” Geenen also recognized the Supreme Court’s interpretation of the nature of the reverse-waiver hearing: in contrast to other preliminary hearings where the state must merely prove “some felony” has been committed, in the reverse-waiver case the state must prove probable cause exists for the specific offense charged. According to Geenen, the 2010 Supreme Court case did not identify what, if any, evidence in the state’s possession, should be given to juvenile defendants for them to contradict the offense charged at the preliminary hearing. However, because the state is required to prove the specific offense charged, “the defendant must be given some latitude in attacking the specific offense charged, if a successful attack would alter the crime charged or negate the exclusive original jurisdiction of the criminal court,” Geenen wrote. While the Adams decision gives youth defendants some access to discovery prior to the reverse-waiver process, that evidence is limited to the evidence the prosecutor plans to use and only additional materials for which the youth defendant establishes a particular need. A representative of the State Public Defender’s Office told WJI by email that more could be done by broadening the amount of discoverable evidence. The ruling “is a step in the right direction, but does not go far enough to ensure fundamental fairness,” SPD Youth Defense Practice Coordinator Eileen Fredericks said. “An obligation to turn over discovery prior to a preliminary hearing for reverse waiver does not prejudice the prosecution,” she said. “Preliminary hearings in these matters have huge implications for a child. In order for the court to make the best decision regarding reverse waiver, a youth defendant should have the opportunity to review and discuss all discovery with their attorney who is obligated to conduct an investigation and highlight mitigating information from that discovery,” Fredericks said. “Allowing the defense to have discovery bolsters due process protections of the youth defendant by ensuring that the judge has complete information regarding the case,” she said. |
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