By Gretchen Schuldt
State Sen. Kathleen Bernier (R-Chippewa Falls) is a sponsor of the ill-conceived Marsy's Law amendment to the State Constitution that would give victims the right to attend every court proceeding in their case.
Allowing anyone interested to attend court proceedings is a good thing. Elevating such access to the level of a constitutional right can create logistical nightmares for court officials and create long delays in cases. (Visit our Marsy's Flaws page to learn more.)
WJI's questions for Bernier are about former Eau Claire County Treasurer Larry Lokken and his assistant, Kay Onarheim, who embezzled more than $600,000 from the county. The theft enraged county residents. Bernier represents part of the county.
Marsy's Law defines "victim" generally as "a person against whom an act is committed that would constitute a crime if committed by a competent adult."
Stealing public funds is clearly stealing from the folks who pay into the treasury.
WJI wrote to Bernier to ask a few questions about how, under Marsy's Law, Eau Claire County Circuit Court officials would manage likely demand from people to attend Lokken/Onarheimcourt proceedings.
A few details about Eau Claire County: its population is 104,534, according to the U.S. Census Bureau, and most of those people pay some sort of tax or fee to the county, which also gets state and federal money.
Our questions for Bernier:
If Marsy’s Law was in effect at the time the two were arrested, would each and every victim have a right to attend all court proceedings? How do you propose requests be coordinated?
Let’s say only 100 county residents requested to attend the court proceedings. Who would be responsible for finding dates when 100 people could be in court at the same time? Would the cost of that coordination fall to the District Attorney’s Office and the state? Or would the county be asked to pick up the tab?
Would the right of victims under Marsy’s Law to attend proceedings override the defendants’ right to speedy trials?
WJI will report on any response Bernier provides. We're still waiting on State Attorney General Josh Kaul and State Sen. Van H. Wanggaard (R-Racine).
The Sterling Brown case: There may have been dead people in that Walgreens, cop says a year-plus later
Parts of depositions of police officers involved in the detention, takedown, tasing, and arrest of Milwaukee Buck s player Sterling Brown last January have been filed in Federal Court.
Brown was confronted by several officers after he parked illegally in a handicapped parking space at a Walgreens parking lot last January.
Brown has filed a lawsuit alleging the officers violated his constitutional rights. His attorney, Mark Thomsen, filed several deposition excerpts.
The City of Milwaukee and other defendants have denied violating Brown's rights.
WJI is publishing portions of the depositions. This first selection is from the deposition of Officer Joseph J. Grams, who first stopped Brown as Brown returned to his car from the store. Brown's date was in the car at the time.
Grams, in his May 2019 deposition, said his contact with Brown was effective because Brown did not get past him.
Grams: That was the intent; not to get -- not to let him get past me because he could have been a fleeing felon.
Thomsen: What do you mean he could have been "a fleeing felon"?
Thomsen: Tell me.
Grams: Well, my thought was that when he was coming out, was that, hey, we have a situation; could be an armed robbery. The car is, as we described before, positioned for a quick exit. It's the only car in the whole lot; positioned for a quick exit out of the parking lot; so a perfect armed robbery car. The car was running. There was a lookout in the car, and it's positioned to flee directly out the parking lot. So at that time until we investigated further, I couldn't let him pass into his car because there could have been dead people in the Walgreens until we verified that; so it worked. Stalled him until other squads could get there.
Context: Gram's lawsuit alleges that "Approximately ten seconds after first approaching Mr. Brown, and before Mr. Brown had any reasonable opportunity to respond to Defendant Grams’ demands, Defendant Grams unlawfully shoved Mr. Brown" and "less than thirty seconds after Defendant Grams first approached Mr. Brown, Defendant Grams phoned dispatch and requested backup. While Defendant Grams called in his request for backup, Mr. Brown waited quietly. After contacting dispatch, Defendant Grams returned to Mr. Brown again, telling him to 'back up!' in a loud voice. Mr. Brown asked Defendant Grams, 'for what?' Defendant Grams deceptively accused Mr. Brown of obstructing, and then told Mr. Brown 'I’ll do what I want, alright? I own this right here.' Mr. Brown replied, 'You don’t own me, though.' "
Later, while Brown was on the ground, "Grams used his right foot to stomp on Mr. Brown’s leg. Then after the Taser was shot into Mr. Brown’s back, Defendant Grams proceeded to stomp on Mr. Brown’s leg with both feet."
After Brown was tackled, tased, and cuffed, the complaint says, "Grams commented to Defendant Krueger, '[i]f the guy hadn’t been such a dick it would have been ‘hey, have a nice day!’ you know? But then I thought, okay he’s being an ass, he’s trying to hide something.'”
Thomsen: When did you first tell any human being that you said it could have been dead people in the Walgreens?
Grams: What's that?
Thomsen: When is the first time you told anybody that there could have been dead people in the Walgreens?
Grams: I think just now.· I don't remember – at the scene, you mean?· I don't think there was anybody I told that to.· I don't recall that anyway.
(After the incident, officers involved in it were directed to take remedial training, where they reviewed body camera footage and discussed flaws in the way they handled the situation.)
Thomsen: Let's be very clear.· At the remedial training, what did they tell you about your pushing Mr. Brown? ...
Grams: Okay. Yeah, it should have been more forceful because in that training – I mean, I tried to keep it from escalating; so I just pushed him with my fingers. That training shows that you strike the person straight up in the chest very forcefully to actually move them back. I didn't do that. I wanted to do try and keep it as low-key as possible; so that's what I should have done, and I didn't do it. I didn't strike him like that, which I should have by the book.
Thomsen: Who told you that at the remedial training, that you should have shoved him?
Grams: Well, I don't know if anybody -- I don't know if anybody told me that, but that's what the DAT book says.
Thomsen: My question, sir, was, what did they tell you at the remedial training about your contact with Mr. Brown?
Grams: I'm not sure if they addressed that or how they addressed it.
Thomsen: Lieutenant Stein writes, in quotes, Police Officer Grams displayed resistive and dismissive behavior throughout the remedial regarding the ProComm concepts Police Officer Anderson laid out. What were you dismissing about what Officer Anderson pointed out?
Grams: I don't think I was dismissive about it. I just didn't agree with him.
Thomsen: What didn't you agree with?
Grams: That – he was saying I should have stepped back and let him get in the car, and I didn't agree with that; so that's his opinion.
The results of 55 of 72 (76%) of Wisconsin counties' 2018 marijuana cases are in!
Some results of the analysis thus far:
And see earlier posts here and here.
The Wisconsin Justice Initiative and the American Constitution Society Milwaukee Lawyer Chapter launched this project to examine 2018 criminal cannabis cases filed in all 72 Wisconsin counties in an effort to better understand where, how, and against whom cannabis crimes are prosecuted.
2018 cannabis cases
While Milwaukee city politicians last week asked Gov. Evers for help in addressing reckless driving, the city's own Police Department is writing far fewer traffic tickets than it did last year, Municipal Court figures indicate.
The number of traffic cases filed in the court fell by 46%, or 26,462 cases, this year through September, a reflection of decreased enforcement.
While not every traffic ticket becomes a Municipal Court case – some may be dismissed before they get to court, for example – court filings are a good proxy for police activity.
There were 30,940 traffic cases during the first nine months of the year compared to 57,402 through September of last year, according to Municipal Court statistics. This year’s numbers also trail the 31,515 filed total through September 2017.
Ticket-writing jumped in 2018 amid public outrage about reckless driving. The anger has not abated, but the ticket writing has.
For a larger version of the graphic, click on the picture. For a PDF version, click here. The Senate sponsors are here.
These Wisconsin state representatives – 37 Republicans and four Democrats – teamed up to sponsor an amendment to the State Constitution that would seriously damage the concept of "presumed innocent."
The amendment will be before voters on April 7 and, if approved, will become part of the State Constitution. The referendum question the State Legislature OK'd and voters will get on their ballots actually says nothing about the contents of the proposed amendment or what its impacts would be.
You can learn about those things, though, by checking out WJI's "Marsy's Flaws" page. There are also links to stories about the problems arising in states that approved their own Marsy's Laws and must reckon with the consequences.
Marsy's Law is the brain child of billionaire felon Henry Nicholas III, who earlier this month bought his way out of any real consequences for allegedly trafficking heroin, cocaine, meth and ecstasy.
Jacob Maclin lost his effort to show there is racial bias in federal prosecutors' decisions about who gets charged with certain drug and gun cases in federal court, where penalties are heavier than in state court.
The numbers are clear – African Americans in Milwaukee face the harsher federal criminal penalty at a greater rate than do Whites in Milwaukee and elsewhere in the Eastern District of Wisconsin.
Federal prosecutors work with gun prosecutors in the Milwaukee County District Attorney's Office to decide which cases should go federal, according to the U.S. Attorney's Office. The feds may never even find out about cases in other counties that could be prosecuted federally.
Maclin's lawyer, Joshua D. Uller argued the feds' practices resulted in racial bias and demonstrated selective prosecution; the U.S. Attorney's Office said it was concentrating resources in Milwaukee because of higher crime there.
U.S. District Judge Pamela Pepper sided with the feds. Uller simply did not present evidence that federal authorities were racially motivated by their charging decisions, she said.
Ultimately, then, armed drug dealers in Milwaukee may face harsher penalties because of where they live or were arrested. It's not about race; it's about location.
But criminal complaints filed in state court and cited by Uller show there are great discrepancies in how cannabis/gun cases get treated, even in Milwaukee County.
The Milwaukee Fire and Police Commission will not investigate the Wisconsin Justice Initiative's complaint about derogatory comments a police officer made because the complaint came from a third party and not someone directly affected.
The officer's comments, made during a Federal Court deposition, targeted North Side and central city drivers. A transcript of the officer's deposition is on file in Federal Court and is a public record.
The commission's decision "is ridiculous and surprising," WJI Executive Director Gretchen Schuldt said.
WJI filed the complaint in August, after reading the transcript of a deposition of Milwaukee Police Officer – now Detective – Froilan Santiago. The transcript is part of the public Federal Court record.
Santiago testified he would invite traffic stop subjects into his squad car if the stop was in a Downtown police district, but not if it was in a central city or North Side district.
"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," he said.
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 draft report on the Police Department.
In District 1 Downtown, "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."
Fire and Police Commission guidelines generally require a complainant to have a "reasonably direct relationship" to an incident for a complaint to be considered.
"Complainants are considered to have a direct relationship if they were directly affected by the alleged misconduct, witnessed the alleged misconduct, or have special, professional, or organizational knowledge about the alleged misconduct, e.g., a lawyer, a judge, or an FPC employee," according to the guidelines.
The guidelines also state that "The purpose for requiring a reasonably direct relationship is to help the FPC respond effectively to complaints from persons who have the greatest interest in the outcome and who have the most reliable information about an incident. It is not intended to screen out otherwise reliable complaints that deserve investigation."
A commission employee informed WJI last week that its complaint did not meet the guidelines' criteria.
"This gives a huge get-out-of-jail-free card for officer misconduct," Schuldt said. "It kills the idea of the third-party whistleblower complaints when it comes to the Milwaukee Fire and Police Commission. It's a bad day for Milwaukee."
Many, many thanks to everyone who turned out for Oct. 3 event with Pulitzer Prize-winning journalist Tony Messenger.
And a special thanks to our sponsors.
A few good-time memories. Photos by Eleanor Burns.
By Gretchen Schuldt
A Milwaukee County circuit judge who repeatedly cited erroneous information about the cause of an infant's death when she sentenced the girl's father for his role in that death erred when she denied him a new sentencing hearing after the error was discovered, a State Court of Appeals panel ruled this week.
The District 1 Court of Appeals panel ordered a new sentencing hearing for Vaylan Morris, whom Circuit Judge Janet Protasiewicz had sentenced to four years in prison and five years extended supervision after he pleaded guilty to second-degree recklessly endangering safety.
During the sentencing hearing, Assistant District Attorney Matthew James Torbenson told Protasiewicz that synthetic marijuana might be to blame for the girl's death, but Dr. Brian Linert of the Medical Examiner’s Office actually concluded that it was not the cause.
While there was synthetic marijuana in the girl's stomach contents, the drug had not circulated through her blood or nervous system and did not kill her, he said.
When the state admitted the error during a postconviction hearing, Protasiewicz found that Torbenson merely "misquoted" Linert's findings.
The error did not necessarily mean the prosecutor's statement was wrong, she said, because "different medical examiners can disagree about the cause of death."
No alternative medical examiner findings were actually offered.
By Gretchen Schuldt
Police who searched the home of a man they had just arrested had no legitimate reason to do so without a warrant, a State Court of Appeals panel ruled this week.
The panel granted Jesse J. Jennerjohn's request to suppress the evidence police found in the search.
The ruling is the second time this month an appeals court rejected the state's claims that law enforcement was acting in its "community caretaker" role when conducting a warrantless search.
That exception to the U.S. Constitution's Fourth Amendment search warrant requirement allows officers to conduct searches without warrants when necessary to protect persons and property.
The Appleton police officers who searched the home of Jennerjohn, however, "were not exercising a bona fide community caretaker function," Appeals Judge Lisa K. Stark wrote for the District III Court of Appeals panel.
"Even if they were, the public interest in searching the residence did not outweigh the intrusion upon Jennerjohn’s privacy," she wrote. Stark was joined in her opinion by Appeals Judges Thomas M. Hruz and Mark A. Seidl.
According to Stark's opinion, Officer Dominic Hall responded to a report from Grumpy's Pub that a man was using profanity, throwing things, and was trying to start a fight at the bar.
Two bartenders told Hall they had expelled the patron, who warned them that they had "better run." One of the bartenders had written down the person's license plate number, and the car was registered to Jesse Jennerjohn.
When Hall and other officers went to Jennerjohn's house, they saw him and a woman standing outside the house next door. Jennerjohn ran inside his own house when he spotted the police.
One of the officers near Jennerjohn's car testified he could see a rifle case in the car but could not tell whether there was a weapon in it.
Hall testified during a suppression hearing that he knocked on Jennerjohn's door for several minutes and repeatedly announced the officers were with the Police Department and they wanted Jennerjohn to open up. Another officer said he could see Jennerjohn moving inside his house and did not see anyone else.
Jennerjohn's neighbor and a friend police contacted by phone told them Jennerjohn lived alone. So did his brother, who came to the scene.
Jennerjohn came out of his house voluntarily 30 to 60 minutes after police arrived. He was holding something – it turned out to be venison – in his hand. He made grunting, guttural sounds as he walked toward officers.
"He ignored the officers' commands to stop and yelled something akin to 'Just shoot me,'" Stark wrote.
Officers tased him and put him in handcuffs.
Jennerjohn eventually told police there were no people or animals in the house. One of the officers verified his statement by opening the door and calling out, “Appleton Police Department. If there’s anybody inside, announce yourself now.”
There was no response.
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