By Gretchen Schuldt
Winnebago County deputy sheriffs failed to ask three different people about any injuries suffered by the driver in a one-car accident, then claimed they did not need a warrant when they conducted a search at his home because they were concerned for his well-being.
The argument failed to convince a state appeals judge.
"While the officers indicated concern for (Troy) Kettlewell’s well-being, they did not ask any of these people about Kettlewell’s well-being or to assist in determining if he needed immediate help," District 2 Court of Appeals Judge Lisa Neubauer wrote. "Their questions were largely focused on his drinking and driving."
Neubauer's ruling reversed Winnebago Circuit Judge Daniel J. Bissett, who had ruled against Kettlewell's motion to suppress evidence obtained in the search.
According to Neubauer's opinion:
A witness reported to authorities seeing a man leaving a car in a ditch. The man's speech was slurred and he may have been intoxicated, but did not appear to be injured, the witness said.
Deputy Michael Huth, upon learning that the car was registered to Kettlewell, went first to the nearby home of Kettlewell's cousin to see if he was there. Kettlewell was not, but the cousin called him to let him know police were looking for him.
Then Huth went to the accident scene, Neubauer wrote.
"Upon inspection of the vehicle, he noted the following: no broken glass, no window or windshield damage, no blood visible on or near the vehicle, and no other indications of personal injury within the vehicle," she wrote. "Huth saw a half-full bottle of beer and a prescription medicine container with Kettlewell’s name."
The side air bags had gone off, but the front ones did not.
State Sen. Van H. Wanggaard (R-Racine) is the chief sponsor of Marsy's Law, a proposed, lengthy amendment to the State Constitution that clearly would violate the U.S. Constitution, be extremely difficult to implement, likely would add to jail crowding, and potentially would cost local taxpayers a bundle.
The proposed amendment would grant 16 specific rights to alleged victims of crimes, but the ballot question voters will be asked to answer doesn't explain any of them. (See our "Marsy's Flaws" page for more details.)
We are asking supporters of the amendment for their views on how they see it working in Wisconsin. We wrote to Sen. Wanggaard with the questions below. We'll share his answers when we get them.
Marsy’s Law provides several new rights to victims. Among them is a right, “upon request, to attend all proceedings involving the case.”
The state speedy trial law generally allows misdemeanor defendants to have trials within 60 days and felony defendants to have trials within 90 days. Would the right of victims under Marsy’s Law to attend proceedings override defendants’ right to speedy trials? What if there are several victims of a crime who want to attend proceedings, but they all have different schedules? How long could a defendant be held in pre-trial detention due to such scheduling conflicts? Would defendants held in jail longer because of these types of scheduling conflicts be liable for any jail boarding or other costs incarceration-related costs incurred during the “extra” time they are in jail?
What will happen to relieve jail crowding if Marsy’s Law leads to fewer pre-trial detainees getting released in a timely fashion? Will the state provide more aid to counties to pay the cost of housing inmates and building additional jail capacity? Or will that be left to local taxpayers?
The one-sentence referendum question says virtually nothing about what the verbiage of the proposed amendment. Why not?
An officer falsified a document, lied about it, then got a day in jail and a new job in law enforcement
By Gretchen Schuldt
Shorewood Police Sergeant Cody J. Smith took action after Jonah Marciniak was found hanging in his cell during the early morning hours of Aug. 15, 2016.
First, Smith performed CPR. Then he doctored a Police Department document to show that he checked on Marciniak at 4:10 a.m., when he had not. Smith did not check on Marciniak during the 46 minutes from 3:33 a.m. to 4:19 a.m., when Smith found the 39-year-old inmate hanging.
Then he lied about checking on Marciniak. And lied. And lied. He lied to officers from the Greenfield Police Department, called in to investigate the death, on three separate occasions between Aug. 15 and Aug. 31, 2016, according to a criminal complaint. Smith admitted the truth only after he was confronted with a surveillance video clearly showing that he hadn't checked on Marciniak at 4:10 a.m.
Smith was fired and was charged with one misdemeanor count of obstructing an officer. It took until March 23, 2017, seven months after the hanging, to issue the complaint, but the case got wrapped up very quickly -– within five days – after that.
Smith was sentenced on March 28, 2017 to one day in jail. Because he had gone through the booking process, his jail sentence was considered already served, according to a transcript of the sentencing hearing. Milwaukee County Circuit Judge Jean Kies also fined Smith $500.
He remains in law enforcement today.
"I think the conviction is appropriate, given the tremendous lapse in judgment that this presents," prosecutor Benjamin Lindsay said at Smith's sentencing hearing. "An officer -- We rely on officers for their credibility, and that is something that is -- There's a level of community trust there. There's also trust that the Court places and our office places."
Smith was very busy the night of the hanging, defense lawyer Michael Steinle said at the sentencing hearing.
Smith "has no prior record," Steinle said. "He doesn't have anything in his personnel file. This is -- It is just one of those sad situations that he just made a bad judgment to make that entry, and he didn't have to. That's the sad part about it. As -- But when push came to shove, he did correct it, Judge, and he was too late. He had already told the -- Greenfield that, in fact, he had checked when he didn't."
A federal court lawsuit filed over Marciniak's death says that Smith failed to follow Shorewood Police Department policy, which requires visual checks of jail inmates every 30 minutes and of mentally unstable inmates – which the suit says Shorewood police knew Marciniak was was – every 15 minutes.
By Gretchen Schuldt
Alphonso James was arrested in 1985 for killing Delbert Pascavis just hours after Pascavis' body was found.
James' name was given to police by a mentally unstable man who wore cowboy chaps and was described by area children as "crazy."
James was young, poor, and black. Pascavis was gay, which police noted again and again in their reports.
James, 17, was taken to the police station where he was held for more than eight hours. Police said he was given his Miranda rights and that he refused the food, drink, a phone call, and a lawyer.
He confessed, police said. James, who had a borderline IQ of about 75, said he was coerced into signing the police-written statement and recanted shortly after he signed it. He denied guilt during his trial and during the 31 years he served in prison.
James was waived into adult court, tried, convicted and sentenced to life in prison. He was paroled in 2017.
Here's the thing about that confession: It doesn't match up with other evidence and testimony. But that didn't bother the police. They had their guy.
Some inconsistencies, as compiled by the Wisconsin Innocence Project:
During the trial, defense lawyer Martin Kohler asked Detective Gilbert Wank, who wrote James' "confession," about what the police did not ask James.
"You didn't ask him what the inside of the apartment looked like, isn't that correct?" Kohler said.
"That's correct," Wank said.
"Did you ask him if he had walked up and down Booth Street looking for the car or how he knew which red car to go to?"
"No, I didn't."
"Did you ask him how he knew that the car across the street was the car that fit the keys?"
"No, I didn't."
By Gretchen Schuldt
State Attorney General Josh Kaul supports the proposed Marsy's Law amendment to the State Constitution even though it clearly would violate the U.S. Constitution Kaul swore to uphold.
The attorney general has been pretty quiet about the proposed amendment. His scant comment includes this unenlightening sentence. "We must do all we can to protect victims of crime."
He's not said anything about the ballot question that tells voters virtually nothing about what they actually are approving or disapproving, nor has he spoken about the very unsavory character Henry T. Nicholas III, who is bankrolling the Marsy's Law countrywide steamroller and who used his wealth to buy his way out of some real legal trouble.
So we wrote to Kaul to get some answers to a few questions about Marsy's Law. They are not all the questions we have about the law, but they are some important ones. We will be sending questions to other supporters as well.
Marsy’s Law would grant a victim the right “to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.” How does this proposed right reconcile with the Sixth and Fourteenth Amendments to the U.S. Constitution? Those amendments guarantee defendants a right to exculpatory information and evidence, at a minimum. Do you support allowing victims to withhold this information from defendants?
Marsy’s Law provides several new rights to victims. Among them is a right, “upon request, to attend all proceedings involving the case.”
Some crimes have multiple victims. Let’s say a crime involves 10 victims. What happens if just a few of those people ask to attend all the proceedings? What happens if they have different work or school or child-care schedules and they can’t all make proceedings at the same time?
Another proposed right is to be provided “with timely notice about all rights under this section and all other rights, privileges, or protections of the victim provided by law, including how such rights, privileges, or protections are enforced.” Who makes sure that victims get this notice? The police? The district attorney? When would it happen? Again, many crimes have multiple victims. In addition, the crime may be relatively minor and the scene chaotic (an example may be indecent exposure on a crowded city bus). How could anyone ensure that all victims are provided notice? What would happen if all victims are NOT notified?
Stay tuned. When we get Kaul's answers, so will you.
Juvenile life sentences in Wisconsin are legal because such sentences are not mandated by statute and because the state provides parole hearings to inmates serving such sentences, the state says in a document filed in Federal Court.
Assistant State Attorneys General Karla Keckhaver and Lisa E. Kumfer ask U.S. District Judge James D. Peterson to dismiss an ACLU lawsuit challenging juvenile life sentences. As an alternative, they say, Peterson should delay the suit until after the U.S. Supreme Court hears Mathena v. Malvo, a case also involving juvenile life sentences. That outcome of that case, the state argues, "may entirely foreclose" the ACLU's allegations.
The ACLU brought its class-action lawsuit in April on behalf of prison inmates sentenced to life in prison for crimes they committed as juveniles. It seeks to reform the state's parole process and provide qualified juvenile lifers a meaningful chance at walking out the prison gates.
The suit alleges that the state consistently denies "release on parole to juvenile lifers who demonstrate unmistakable maturity, rehabilitation and reform, and a low risk to public safety," violations of the Eighth Amendment's prohibitions against cruel and unusual punishment and of the 14th Amendment's guarantee of due process.
The suit also alleges the state violates the juveniles Sixth Amendment right to a jury trial because juries are not making key findings in juvenile lifer cases.
The state, however, says the suit is barred by a U.S. Supreme Court ruling barring civil rights suits that challenge the validity of a defendant's conviction or the length of sentence.
The Wisconsin Justice Initiative on Wednesday filed a complaint against Officer Froilan Santiago with the Fire and Police Commission, alleging that comments Santiago made in a deposition "are irresponsible, unprofessional, an insult to the residents of Milwaukee and an embarrassment to the Milwaukee Police Department."
The complaint referred to Santiago's statement during a Federal Court deposition that drivers in traffic stops in the central city or on the North Side were likely to run.
"He might have drugs or guns, based on where I've worked at. District 7 or District 5," Santiago said.
In District 1 Downtown, however, "where it's more of people as far as the -- more able to communicate and more different lifestyle," he said.
He added: "District 1, you have a high percentage of people who's in college, who's in business, work, and stuff like that, and you deal with them differently as far as – and their behavior at that moment in time."
WJI Executive Director Gretchen Schuldt said in the complaint that it is unclear whether Santiago prejudices are based on race or economic status.
"It is very clear, though, that he carries them into his interactions with citizens every day he is on the job," she wrote.
The populations of Police Districts 5 and 7 include the largest percentages of African Americans among all the districts in the city, according to a U.S. Justice Department report on the Police Department.
"WJI urges the Fire and Police Commission to investigate Mr. Santiago's comments and ensure that he is not allowed to have any contact in any form with the citizens he plainly holds in such very, very low regard," Schuldt wrote.
By Gretchen Schuldt
A Milwaukee police officer testified he would invite traffic stop subjects into his squad car if the stop was in the Downtown police district, but not if it was in a central city or North Side district.
Officer Froilan Santiago made the statements during a 2017 deposition taken during a Federal Court lawsuit alleging that Santiago used excessive force during a traffic stop. The suit is pending.
"So then getting back to my question," attorney Nathaniel Cade, Jr. asked Santiago, "how many times since 2006 have you initiated a stop of someone and suggested that they get out of the vehicle and get into the front seat and look at the computer?"
"Now, like I said, District 7, I wouldn't do," Santiago said. District 7 headquarters is at 3626 W. Fond du Lac Ave. on the city's North Side.
"Depends on the situation and environment," he continued. "District 1 is a different type of environment where it's more of people as far as the -- more able to communicate and more different lifestyle of the individual based on our training in District 1 -- or based on what -- my experience at District 1, it's a lot more common than if I was at District 7. "
District 1, Downtown, is headquartered at 749 W. State St.
He continued: "District 7, if you stop that person, that person is going to run. He might have drugs or guns, based on where I've worked at. District 7 or District 5."
District 5 is based at 2920 Vel R. Phillips Ave.
"District 1, you have a high percentage of people who's in college, who's in business, work, and stuff like that, and you deal with them differently as far as – and their behavior at that moment in time. I don't know," Santiago said. "Like I said, it's just discretion of the individual of what's going on."
"So you're profiling the driver of the vehicle based on the district that you're in because it's more likely that if they're in a poor neighborhood, that it's drugs and guns?" Cade asked.
"You asked me how I'm going to perform my traffic stop," Santiago responded.
The plaintiff in the lawsuit, Jimmy Harris, alleges that Santiago in November 2010 stopped the car Harris was driving and asked him to get out of the vehicle. Santiago said he stopped the car because it was black and the color listed on DMV records as gray. It was about 4:45 p.m. and dark at the time of the stop.
The same mistake about the car's color had been made previously, according to the suit, and Harris offered to show Santiago on the squad computer how the error was made. Santiago accepted, but then "suddenly grabbed Mr. Harris' left arm that had recently been operated on and used it to maneuver Mr. Harris..."
This 29-minute video shows parts of Harris' encounter with police.
"Walker's judges" is our effort to present information about former Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. While Walker has left office, WJI will continue to profile his appointees who are still in office. We also are profiling Gov. Tony Evers' judicial appointees.
Walker appointee Paul C. Dedinsky, profiled below, has been in the news because of questions about his residency.
Name: Paul C. Dedinsky
Appointed to: Milwaukee County Circuit Court
Appointment date: Dec. 26, 2018 (Up for election in April 2020)
Graduate School (Ph.D.) – Cardinal Stritch University, Milwaukee
Law School – University of Wisconsin Law School
Undergraduate – Creighton University, Omaha, Nebraska
High School – Marquette University High School, Milwaukee
Recent legal employment:
2017 - present – Chief legal counsel, Wisconsin Department of Agriculture, Trade and Consumer Protection
1997-2017 – Assistant district attorney, Milwaukee County
State Bar Association
American Bar Association
St. Thomas More Society
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: As chief legal counsel for DATCP, experience in ethics, human resources, contracts, board governance, agency regulations, administrative rule-making; as assistant district attorney, experience in restorative justice, violence prevention, Children's Court, domestic violence prosecutions, drug treatment court, sensitive crimes, and misdemeanors; in private practice, experience in criminal defense, appellate, civil, and family matters.
Number of cases tried to verdict or judgment: Jury, 50; non-jury, 100; arbitration, no answer; administrative bodies, 10.
Cases on appeal: 50 in private practice.
Three most significant cases: (Dedinsky listed four)
State v. Joseph Hoeller - The case…originally surfaced as a disorderly conduct charge. We transformed the investigation of the matter which led to felony stalking charges, representing one of the first uses of the revised felony stalking statute by our office. The evidence encompassed a range of stalking of the victim at home and work. The stalker threatened violence towards the victim and her family members, utilizing a variety of means to stalk her: Property damage, the internet, text messaging, e-mail, phone calls, voicemail messages, and manipulation of their child. This case entailed leadership during the investigative stages, patience with the victim and her family, an understanding of stalker typology research and power/control dynamics, and an ability to effectively assess the lethality of the stalker in order to plan the victim’s future safety. After preparing a powerpoint (sic) for courtroom presentation during discovery / pre-trial strategy, the defendant pled guilty and was sentenced to prison. For many years, the powerpoint presentation has been used to train law enforcement in stalking and domestic abuse relationship dynamics.
State v. Jon A. York - In 2002, I charged two parents with approximately 29 counts of child sexual abuse to their 8-year old daughter, drug manufacturing, possession of electric weapons, causing mental harm to a child, and possession of child pornography. The case involved lots of additional investigation and many complex legal challenges from lawyers relating to issues such as the legality of the search warrant and the defendant’s statement/confession law.
State v. Matthew Tyler – A child predator had worked or volunteered as a youth counselor at a boys’ residential treatment center, a church minister and Boy Scout troop leader, a college professor, and an underprivileged minority youth counselor at the Medical College of Wisconsin and University of Wisconsin-Milwaukee. Piecing together decades of un-prosecuted sexual abuse allegations from aforementioned states across the country proved challenging. After over 100 phone calls and many hours of investigation, I secured the cooperation of several male sexual assault victims from the 1970s, 1980s, and 1990s, whose patterns of victimization by the defendant were remarkably similar. Following the trial court’s approval of this compelling “other acts” evidence, the defendant pled guilty to his first felony sexual assault.
A SUCCESS STORY IN A CIVIL CONTEXT. In private practice in 1996, I successfully defended a father through a 3-day Termination of Parental Rights jury trial with many complicated factual and legal issues, as well as a complicated trial strategy. The prosecutor and guardian ad litem zealously sought the termination to no avail. I persuaded the jury to correctly decide the case in favor of the father, who had markedly turned around his life and closely bonded with his children. After the jury trial, an experienced prosecutor who observed the jury trial approached me and asked me if I would be willing to apply to the Milwaukee District Attorney’s office. Shortly thereafter, I decided to apply and was offered a position.
All previous runs for office: None
Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization:
My wife and I are current volunteers at the Waukesha headquarters on Pearl Street from August 2018 to present.
All judicial or non-partisan candidates endorsed in the last six years:
Mark Gundrum, Brian Hagedorn, T. Christopher Dee, Thomas McAdams, and Robert Dehring.
Dedinsky listed five.
The two most significant writing pieces, in terms of sheer volume, include my published 500-page dissertation, entitled: "Experiencing Restorative Justice Practices in the Context of an Academic Course – A Phenomenological Mixed Methods Study (2012)" and the 575-page "Wisconsin Domestic Violence Prosecution Manual, 2004" for which I served as the editor and main author....
Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application:
St. Thomas More Society, Milwaukee, WI, Board of Directors, 2013-present. Organizer of the annual Youth Law Day at MU law school, 2009-present.
SOFA, Inc. (Saving Others For Archie), Board member, 2016-present.
St. Charles Parish (Hartland), parish members, 2000-present.
St. Joan of Arc Parish (Nashotah), parish members, 2002-present.
Lake Country Youth Baseball League, head coach for…7th / 8th grade boys baseball team, summer 2015. Served in an assistant capacity in prior years.
St. Clare Center for Catholic Life, Cardinal Stritch University 2015-present
Schoenstatt International Province & Retreat Center, Waukesha, WI, 2009-present.
Healing Ministry in the Roman Catholic Tradition, Inc., Board of Directors, 2011-2016.
St. Catherine’s Residence for Women, Milwaukee, committee member, 1994-1998
St. Aemilian’s Pre-School, Milwaukee, WI, non-profit board member, 1996-1999.
Big Brothers/ Big Sisters of Greater Milwaukee, big brother, 1995-1997.
Describe any significant pro bono legal work in the last five years:
Helped develop restorative justice program for Oconomowoc High School.
Helped organization achieve non-profit status.
Helped unnamed southeastern Wisconsin school district deal with internal conflict.
Why I want to be a judge – I wish to serve as a circuit court judge because of the immense opportunity to influence and help litigants. I wish to act with firmness, intelligence, and fairness -- exercising caution and restraint, ever mindful and respectful of our legislative and executive branches of government.
I once worked for a leader of immense integrity and purpose, a man who inspired a deeper sense of purpose, vision, and mission within me. He advocated eloquently for justice. Years later, this same powerful message resonates within me. To me, an attorney is of limited value without adherence to a high moral purpose and mission.…
Best United States or Wisconsin Supreme Court opinion in the last thirty years – Burwell v. Hobby Lobby and Conestoga Wood Specialties Corporation v. Burwell (2014)
The case addresses the tension between reproductive rights (pro-abortion) and proponents of religious liberty. However, most significantly, the decision also stands out as an example of the judicial branch of government restraining the executive branch's powers in favor of granting people owning for-profit entities the right to object to provisions of the Affordable Care Act (ACA) based upon sincerely held religious beliefs.
In these cases, both business owners believed that life begins at conception and that any birth control method that could lead to the destruction of embryos would be morally wrong. The Department of Health and Human Services (HHS) mandated that employers provide insurance coverage with its set of pre-determined provisions. It also required employers to pay for the services. Failure to pay would result in exorbitant penalties, according to the opinion (a major factor in the "substantial burden" standard analysis).
From the perspective of the business owners, the course of events presented a troubling set of circumstances. First, the government mandated that employers must provide insurance (which both companies already offered). Next, the government set the parameters for what the insurance policies must cover, including a full breadth of contraceptives. This position presents a major dilemma for many citizens across the country, morally offensive to some and violative of their religious beliefs. The government opted out religious groups and non-profits, ceding the moral and religious ground. However, HHS did not provide accomodations (sic) in the case of for-profit businesses. Failure to comply with its provisions would result in multi-million dollar penalties to the companies. So, the court's action effectively curtailed and restrained an ambitious piece of legislation and the executive branch's exercise over personally held moral and religious beliefs.
There is an additional reason why I find this decision to be significant. HHS went so far as to argue that the business owners' position was flawed. Even though HHS already had acknowledged the moral position for religious groups and non-profits, HHS argued that the business owners actually bore no moral culpability in paying for coverage. Instead, HHS maintained that the moral culpability fell upon the shoulders of those who actually decide to destroy their embryos. Justice Alito noted the inappropriateness of courts presuming to determine the plausibility of a given religious claim.
In determining that HHS' regulations imposing an obligation upon for-profit business owners violated the Religious Freedom Restoration Act of 1993, the high court determined that the federal government must be considerate of the sincerely held religious beliefs of our citizenry. The case represents a major victory for proponents of religious freedom.
The Milwaukee Fire and Police Commission should prohibit the Police Department from seizing money and property from citizens who are not arrested for any crime, the Wisconsin Justice Initiative said.
"That is not a legitimate law enforcement activity," WJI Executive Director Gretchen Schuldt wrote in a letter to the commission. "That is theft."
Both state and federal law allow police to seize money and property police say is involved in criminal activity. Police participate in both kinds of seizures.
The Police Department is proposing to allow officers to grab up property or money in federal seizures without making an arrest if they have "reasonable suspicion" that the seized goods are proceeds from drug trafficking and are worth more than $1,000. Under current policy, the value must be at least $5,000, according to Fire and Police Commission documents.
The commission at its July 25 meeting delayed action on the proposed policy change to allow the public a chance to weigh in.
Schuldt, in her letter, said the commission should review the department's current asset seizure practices and share that information with the public before voting on the proposed policy.
"How many times did MPD seize assets under federal law and how many under state law?" she asked. "How do officers determine whether money is related to drug dealing or any other illegal activity? How many times has HIDTA (or other federal agency) rejected the department’s requested seizures? How many times have those requests been approved? What is the total value of assets seized per year? What becomes of them?"
The commission should also investigate the race and economic status of those who lose their property in police seizures and what those people must do to reclaim wrongfully seized property.
"Must they go to court or are there administrative appeals processes?" she asked. Must citizens hire their own lawyers while the city provides attorneys for the police?"
State law prohibits permanent seizures unless there is a criminal conviction; federal law does not have that restriction.
Contact the Fire and Police Commission:
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