Wisconsin Supreme Court candidate Daniel Kelly was ranked "not qualified" by 74% attorneys who had an opinion, while 86% said his opponent, Milwaukee County Circuit Judge Janet Protasiewicz, was "qualified," according to a Milwaukee Bar Association poll.
Kelly was rated "qualified" by just 26% of respondents who had an opinion; Protasiewicz was rated "not qualified" by 14%.
The MBA surveys its members about Milwaukee County judicial candidates every year before the spring election. Members are asked whether candidates are qualified or not qualified. Members also may respond that they have no opinion.
The table below shows poll results among all the candidates for judicial seats from participating attorneys who expressed an opinion.
All of the races for the Milwaukee County Circuit Court bench are uncontested. No candidate in those races received a "qualified" rating below 80%.
In the District I Court of Appeals race, which encompasses Milwaukee County, 90% of respondents considered Bill Brash qualified, while 67% said challenger Sara Geenen was qualified.
In the Milwaukee Municipal Court elections, incumbent Branch 3 Judge Phil Chavez does not have an opponent. For Branch 2, Molly Gena, managing attorney for Legal Action of Wisconsin's Milwaukee office, is running against Lena C. Taylor, a state senator, for an open seat. In that race, 95% of respondents with an opinion said Gena was qualified, while just 27% said Taylor was qualified.
In Sheboygan County, Judge Daniel Borowski is not running for reelection. Cassandra Van Gompel and George Limbeck vie for the open seat.
Election day is April 4. Absentee and early voting are underway.
Van Gompel, a local attorney manager with the State Public Defender, received her law degree from Marquette University Law School. Her resume is here.
Limbeck, an attorney with Limbeck Law Office, received his law degree from Washington University School of Law (St. Louis). His resume is here.
WJI asked each of the candidates to answer a series of questions. The questions asked are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments. The answers are printed as submitted, without editing or insertion of “(sic)” for errors.
Van Gompel provided her resume and responded to the full questionnaire. Limbeck provided his resume and responded to part of the questionnaire. WJI has reached out to him again to obtain a complete response and will revise this post if he submits it.
Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized.
The case: State of Wisconsin v. Oscar C. Thomas
Majority/Lead Opinion: Justice Patience D. Roggensack announced the mandate of the court and delivered a partial majority opinion (34 pages) that was joined by Chief Justice Annette K. Ziegler and joined in part by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Rebecca F. Dallet, Brian Hagedorn, and Jill J. Karofsky.
Concurrence: Dallet (10 pages), which reflects the majority opinion of the court on the issue of confrontation; joined by Walsh Bradley, Grassl Bradley, and Karofsky.
Concurrence: Hagedorn (2 pages).
The state switched its argument during litigation, according to Roggensack's and Hagedorn's writings. The state first argued that a DNA report was used by the prosecution to impeach Thomas's defense expert. Later it argued the report was used during cross-examination and closing argument to show the truth of the matter it concerned.
For people most interested in the confrontation issue, WJI recommends reading Dallet's concurrence first, as it is the majority opinion of the court and her writing is clear.
(Joined by Walsh Bradley, Grassl Bradley, Dallet, Karofsky, and Ziegler)
We accepted two issues for review. First, whether Thomas's confession of sexual assault was corroborated by a significant fact, and we conclude it was. This opinion is the majority opinion for the discussion of corroboration. Second, whether the cross-examination of Thomas's expert witness by use of a Wisconsin Crime Lab report ("the Report") that was not in evidence and whose author did not testify violated Thomas's confrontation right. Four justices conclude the Report's contents were used for their truth during cross-examination, thereby violating Thomas's right of confrontation. Justice Dallet's concurrence is the decision of the court for the confrontation issue. Six justices conclude Hemphill (v. New York) precludes admission of evidence to correct an allegedly misleading impression created by the defendant, and seven justices conclude that any error related to the Report was harmless. Accordingly, we affirm the court of appeals.
Thomas was arrested in 2006 for strangling to death his wife, Joyce Oliver-Thomas. He was charged with first-degree intentional homicide, first-degree sexual assault, and false imprisonment. (Roggensack says in a footnote that the couple was divorced, but reconciled without remarrying. The decision refers to them as married, though this was not technically true at the time of Oliver-Thomas's death.) A jury convicted Thomas on all counts.
Thomas's first appeal failed in state courts, but he filed a federal habeas petition and the Seventh Circuit Court of Appeals granted him a new trial. In 2018, a jury again convicted him on all counts, and Kenosha County Circuit Judge Bruce E. Schroeder sentenced him to life in prison. Thomas appealed again and lost in the state court of appeals.
(Joined by Ziegler)
.... Specifically, the court of appeals concluded there was sufficient corroborating evidence of the sexual assault confession, and denial of the postconviction motion was appropriate. The court of appeals also concluded the Report's DNA evidence was "inadmissible hearsay," causing a Confrontation Clause violation when it was used erroneously during trial and during the State's closing argument. However, the court of appeals concluded that the error was harmless.
In its briefing to us, the State did not argue that the Report could be used for the truth of its contents. Rather, it set the issue up as: "[W]hen Thomas's expert gave testimony directly contradicting the lab report on which he relied, it was an implied waiver of Thomas's right to confront the author of the lab report." However, Dr. Williams did not say he "relied" on the Report, but rather, that he "reviewed" the Report along with hundreds of other pages of material relative to this case. Nevertheless, the State veered from the argument it raised consistently below that the prosecutor used the Report to impeach Thomas's defense expert. Instead, at oral argument the State argued that we should analyze the Report based on the contention that its contents were properly used during cross-examination and during closing argument for the truth of the matters asserted therein.
Thomas gave contradictory statements to the police, which involved him smoking crack before Oliver-Thomas's death. In one, Thomas said he and Oliver-Thomas, after she complained repeatedly of chest pain during the day, fell off the bed while they had sex. Thomas left the building for a time afterwards and found his wife on the floor when he returned. In another, Thomas said Oliver-Thomas at first asked him to stop with his sexual advances, but then consented to sex. In this version, too, they fell to the floor. Thomas said he had his left arm up around his wife's neck while they had sex. The two got back into bed, but fell out again. Thomas said he again had his arm around her neck. He left the apartment and returned to find Oliver-Thomas lying face down on the floor. Thomas said he tried to lift her, but lost his grip twice and Oliver-Thomas's face hit the bed or floor each time.
(Joined by Ziegler, Walsh Bradley, Grassl Bradley, Dallet, Hagedorn, and Karofsky)
While the State does not, and need not, offer corroborating evidence of every element of the crime of sexual assault, the State has offered corroborating evidence for a "significant fact" of Thomas's statements given to police. Thomas's downstairs neighbor testified she heard an argument between a man and woman, and the woman screamed, "Stop, stop, I love you, I love you." The neighbor also testified she heard something big hit the floor, the sound of furniture moving, and silence. She then heard the apartment door open, and a person she identified as Thomas walked out.
(Joined by Ziegler only)
The Confrontation Clause of the Sixth Amendment of the United States Constitution prevents the admission of testimonial hearsay when the declarant is absent from trial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. ...
Thomas called just one witness at trial – Dr. Williams, a medical examiner. On direct examination, Dr. Williams testified that "in allegations of violence resulting in death," he looks for "an exchange of trauma, an exchange of evidence" between the victim and accused. When asked specifically, Dr. Williams replied that he did not see signs of a struggle or of defensive wounds. In his opinion, abrasions on Ms. Oliver-Thomas's face could have resulted from emergency CPR or from engaging in face-down sex on the floor, consistent with Thomas's statements.
On cross-examination, the state challenged Dr. Williams's characterization that there were no signs of an exchange of trauma.... Documents submitted prior to trial indicate Dr. Williams reviewed the Report, among other things, in preparing his testimony. Thomas urges us to conclude that the details elicited on cross-examination of Dr. Williams violated his confrontation right.
[T]he State's use of the Report to impeach Dr. Williams on cross-examination did not violate Thomas's confrontation right. The State challenged Dr. Williams's conclusion that there was "no exchange of evidence" by referencing the report that Dr. Williams had reviewed, which showed DNA exchanges under the fingernails of Thomas and Ms. Oliver-Thomas. Stated otherwise, by drawing attention to the "exchange" of DNA between Thomas and Ms. Oliver-Thomas, the State attempted to undermine Dr. Williams's opinion that Ms. Oliver-Thomas's cause of death could have been accidental. The degree to which the State succeeded in limiting the usefulness of Dr. Williams's testimony was then considered by the jury together with all of the evidence in deciding Thomas's guilt. Although we recognize Thomas could have asked for limiting instructions that the jury not consider the Report's contents for their truth because testimony about the contents of the Report was not admitted for substantive purposes, he made no such request. We conclude the State's questioning on cross-examination relevant to the Report did not violate Thomas's right to confront the Report's author when used to impeach Dr. Williams's opinion.
.... [T]he State views the Report at issue in Thomas's conviction as belonging to a "narrow category of evidence that a defense expert relied on and gave factually inaccurate testimony about." ... [I]n the State's view, Thomas elicited testimony that "flatly contradicted" the Report. Because "he made 'a tactical choice' to put the [R]eport in play," he "waived his confrontation right as to that [R]eport."
.... However, if the State wanted to use the Report for its truth, the State was required to introduce and authenticate the Report and then subject its author to cross-examination by Thomas in accordance with the Sixth Amendment. ... The information the State elicited from Dr. Williams on cross-examination for impeachment purposes did not transform the Report into admissible hearsay. ...
We conclude the State's reliance on hearsay evidence that was used to impeach Thomas's expert's opinion was improper during closing arguments because the Report then was used for the truth of the statements therein. As stated earlier, the facts or data upon which an expert bases her opinion may be introduced ... but only for the limited purpose of assisting the factfinder in determining an expert's credibility. Evidence brought in for that purpose does not transform into admissible hearsay for subsequent use at trial.
Furthermore, after defense counsel objected, the prosecutor incorrectly assured the judge that, "[T]he evidence supports this theory, Your Honor. We have testimony of the scratches on her face. ... Her DNA is found under his fingernails." It was therefore erroneous to permit the prosecutor's statement in closing argument because the DNA evidence in the Report was not properly admitted as evidence for its substantive content.
The harmless error query does not reduce to a mere quantum of evidence, but instead, whether absent the hearsay/Report it is clear beyond a reasonable doubt that a rational jury would have found Thomas guilty. Here, we conclude that the State offered sufficient evidence for a rational jury to determine Thomas sexually assaulted and intentionally took the life of his wife. All of the observations of physical injury to Ms. Oliver-Thomas are consistent with the jury's conclusion that Thomas's interactions with her were not consensual and were intentional. Accordingly, we conclude that the state has met its burden to show that the error was harmless.
I conclude that the State violated Thomas's Sixth Amendment rights. The State sought the DNA evidence described in the Crime Lab report for its truth at trial. That much is clear from the prosecutor's closing argument to the jury. And the State confirmed that the DNA evidence was offered for its truth throughout briefing and during oral argument in this court. For that reason, the DNA evidence in the Crime Lab report was testimonial hearsay; it was an out of court statement, prepared "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," and offered by someone other than the declarant for the truth of the matters asserted. Because the author of that report was not available for cross-examination, admitting testimony about it therefore violated the Confrontation Clause. Nevertheless, because that Confrontation Clause violation was harmless, I conclude that Thomas's convictions should stand.
Thomas's forensic expert, the sole defense witness at trial, testified on direct examination that he did not see any defensive wounds or "signs of a struggle" on the victim. This was important because Thomas argued that he killed the victim accidentally. During cross-examination, the State asked Thomas's expert if he reviewed reports from the Wisconsin Crime Lab in reaching his conclusions. This was the first time the Crime Lab report and the DNA evidence contained in it came up at trial, and defense counsel objected to any questioning about the contents of the report. The circuit court overruled the objection, however, and allowed the State to ask Thomas's expert about the report because he reviewed it before reaching his opinion. The prosecutor then asked the expert about the report's finding that Thomas's DNA was under the victim's fingernails at the time of the autopsy. After looking at the report, Thomas's expert said "[y]es, this appears to be an analysis that shows that the DNA found under the fingerprints [sic] was obviously a mixture. You are going to have [the victim's] DNA, but also evidence of DNA from Oscar Thomas." He also confirmed that the victim's DNA was found under Thomas's fingernails. Thomas's expert dismissed those conclusions, however, explaining that Thomas and the victim were married, and "[a] finding of the DNA, they could be scratching each other's back. I mean, there is no evidence of trauma on him to support the fact that she was struggling." The report was never admitted into evidence.
The State's actions would have been permissible if, as the majority/lead opinion hypothesizes, it was done only to impeach Thomas's expert during cross-examination. But the record, and the State's briefing and presentation at oral argument, all establish that the evidence was offered for the truth of matters contained in the report – that the victim's DNA was under Thomas's fingernails and Thomas's DNA was under her fingernails. That was why, when the circuit court told the prosecutor to confine his closing arguments to the evidence, he responded – in front of the jury – that "[w]e have testimony of the scratches on [the victim's] face. We have testimony that it could have been caused by DNA. Her DNA is found under his fingernails." The only "testimony" about DNA was Thomas's expert's answers about the Crime Lab report's findings during cross-examination. And if there was any remaining question about the purpose of eliciting that testimony, it was answered in briefing and at oral argument in this court, where the State consistently asserted that Thomas impliedly waived his right to confront the author of the Crime Lab report when his expert's testimony contradicted the report's contents.
Nevertheless, the majority/lead opinion insists that the State used the evidence during cross-examination not for its truth, but only to impeach Thomas's expert's credibility. That is correct, in the majority/lead opinion's view, since the State's briefing "did not argue that the report could be used for the truth of its contents." But the majority/lead opinion misunderstands the State's position. Its argument that Thomas impliedly waived his confrontation right only matters if the report was used for its truth. After all, the Confrontation Clause only prohibits the introduction of testimonial hearsay, and hearsay is, by definition, an out of court statement that is "offered in evidence to prove the truth of the matter asserted." Thus, the State's consistent position before us is that it did not violate the Confrontation Clause when it sought to establish the truth of the Crime Lab report's findings through Thomas's expert's testimony on cross-examination.
The problem with that position is that the Confrontation Clause "prohibits the introduction of testimonial statements by a non-testifying witness, unless the witness is 'unavailable to testify, and the defendant had had a prior opportunity for cross-examination.'" Crime lab reports are testimonial statements because they are "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." And for that reason, the conclusions reached by such reports may be admitted for their truth at trial only if the person who prepared the report is subject to cross-examination.
That wasn't the case at Thomas's trial. Instead, through its questioning of Thomas's expert, the State was able to elicit DNA evidence from the Crime Lab report without affording Thomas the opportunity to confront the analyst who prepared that report – a straightforward Confrontation Clause violation.
The State tries to sidestep that violation by arguing that Thomas impliedly waived his right to confront the analyst who prepared the Crime Lab report when his expert witness "relied on" the DNA evidence in that report and then "gave factually inaccurate testimony about" it. This argument is based on the direct testimony of Thomas's expert that he did not see any defensive wounds or "signs of a struggle" on the victim. The State claims that was inaccurate because the DNA evidence showed that Thomas's DNA was under the victim's fingernails (and her DNA under his). And for that reason, the State did not violate the Sixth Amendment by establishing the facts contained in the report through cross-examining Thomas's expert.
This argument, however, mirrors an evidentiary rule the United States Supreme Court recently held was unconstitutional in Hemphill v. New York. That rule allowed evidence that would otherwise violate the Confrontation Clause to be admitted when the defendant "opened the door;" that is, when the defendant created "a misleading impression that requires correction with additional materials from the other side." The Court rejected that rule because the Sixth Amendment's text "'does not suggest any open-ended exceptions from the confrontation requirement to be developed by courts.'" ...
.... Yet that is what the State asks us to conclude: that the DNA evidence contained in the Crime Lab report "was reasonably necessary to correct [the] misleading impression" created by Thomas's expert's testimony that he did not see any defensive wounds or "signs of a struggle" on the victim. But adopting the State's position would defy Hemphill – something we cannot do. Accordingly, Thomas did not impliedly waive his Confrontation Clause right, and admitting testimony about the contents of the Crime Lab report without affording him the opportunity to confront its author violated the Sixth Amendment.
Nevertheless, the error was harmless, Dallet said.
Here, it is clear beyond a reasonable doubt that the admission of the DNA evidence did not contribute to the guilty verdict. To be sure, the DNA evidence was used as support for the State's theory that Thomas intended to kill the victim and, conversely, to rebut Thomas's theory that the death was accidental. And admittedly, the DNA evidence was somewhat useful in that regard as it bolstered the State's narrative that Thomas scratched the victim's face with his free hand while choking her to death. But the evidence wasn't necessary to support that theory since the State's case was already strong without it. The jury heard testimony from the medical examiner about injuries to the victim's face, neck, tongue, and lips, all of which were consistent with Thomas violently and intentionally strangling the victim. Additionally, the jury also heard from Thomas's neighbor, who awoke to a loud argument in the middle of the night and a woman screaming "[s]top, stop, I love you, I love you." She then heard a loud noise, furniture moving, and silence.
.... I agree with my colleagues that any alleged Confrontation Clause violation was harmless. But I do not join their analysis of the Confrontation Clause issues for two reasons.
First, it is unclear how to analyze and categorize the State's use of the report. In response to Thomas's postconviction motion and his appeal, the State argued the DNA evidence was used for impeachment purposes. However, in briefing and at argument before us, the State asserts, and Thomas agrees, that the DNA evidence was admitted for its truth during cross-examination. Justice Roggensack's opinion concludes that the DNA evidence was properly used to impeach the defense expert – relying on the parties' prior arguments. By contrast, Justice Dallet's opinion relies on the State's current representation, despite the fact that is not how this issue was litigated or represented below. This is unusual, to say the least, and forms a questionable foundation upon which to opine on these matters.
Second, the confrontation issues in this case are novel and factually complicated. They center on how to treat a report not admitted into evidence that is nonetheless reviewed by a testifying defense expert. May the contents of such a report be explored on cross-examination by the State? To what end? The United States Supreme Court, whose decisions we are principally applying in this area of law, has not addressed this question. With little guidance from the Supreme Court in this still emerging area of law, and because this case is sufficiently resolved on harmless error, I would not wade into these uncharted waters at this time.
Rather than forge our own path on the State's use of the evidence, or analyze a novel area of federal constitutional law where the United States Supreme Court has left much unaddressed, I would simply conclude the Confrontation Clause errors Thomas alleges, if they are errors at all, were harmless. Thomas is not entitled to a new trial and his convictions should be affirmed. I respectfully concur.
School strip searches, felon in possession, and traffic cameras: A legislative update
By Gretchen Schuldt
Legislators are proposing to change the school strip search law to make much of girls' breasts available for inspection while restricting school officials' ability to touch or look at certain body parts covered by underwear. Also pending: One bill to toughen the penalties for felon in possession of a firearm and another allowing traffic enforcement via cameras in Milwaukee.
A table showing the sponsors of each of the bills is at the bottom of this post.
Senate Bill 111/Assembly Bill 108 – Girls' breasts up for grabs in school strip-search proposal
The underwear-clad "private areas" of students' bodies would be off limits to searches by school officials, under a Republican-backed bill, but most of girls' breasts would be fair game.
It is now a misdemeanor for school officials or their agents to conduct strip searches of students. A strip search is "a search in which a person's genitals, pubic area, buttock, or anus, or a female person's breast, is uncovered and either is exposed to view or is touched by a person conducting the search."
The bill would change the prohibited conduct to searches in which a student's "private area" is uncovered and either is exposed to view or is touched by the searcher. "Private area" is defined as the "naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple." The areola is the pigmented skin around the nipple.
The bill, according to its language, would leave the rest of the breast available for a strip search.
Senate Bill 106/Assembly Bill 58 – Minimum mandatory sentence for felon in possession
Some people convicted of felon in possession of a gun would face harsher penalties, including a mandatory minimum of five years in prison and a longer maximum prison sentence, under a bill pending in the state Legislature.
The Assembly's Criminal Justice and Public Safety Committee last week recommended approval of the bill by a 10-5 vote (see the table below).
The measure would impose the mandatory minimum of five years of incarceration and five years of supervised release on those previously convicted of a violent felony who are found guilty of felon in possession. It also would raise the maximum prison term for those people to 7½ years in prison and five years of supervised release.
The bill originally applied the five-year minimum to all people convicted of felon in possession, whether or not the previous felony was violent. The original bill also did not increase the maximum penalty.
Registering against the bill were the ACLU of Wisconsin and Wisconsin Gun Owners Inc. Registering in favor were the Badger State Sheriffs' Association, the Milwaukee Police Association, the National Rifle Association of America, and the Wisconsin Chiefs of Police Association.
Senate Bill 107/Assembly Bill 85 – Speeding and stop light camera enforcement in Milwaukee
Milwaukee could use cameras to ticket egregious speeders and stop signal violators, under a bill pending in the Legislature.
The bill also would allow the city to use cameras to identify those who "fail to stop properly" at red traffic signals.
Law enforcement is now not allowed to use radar plus photos to catch speeders. The bill would allow just Milwaukee to use those methods to ticket the owners of vehicles driven at least 20 mph over the speed limit.
It would not be a defense for owners ticketed through cameras to claim they were not driving the car at the time of the violation. Allowable defenses would include, according to the Legislative Reference Bureau summary of the bill,
The Milwaukee Police Department would receive any forfeitures collected through the use of the cameras.
Many of the same provisions, including allowable defenses, apply to the proposed use of red-light cameras. There is no provision for a 90-day period of issuing warnings rather than tickets, however.
The use of red-light cameras would be limited to high-crash areas and to no more than five intersections in any aldermanic district.
By Gretchen Schuldt
The definition of "serious harm" in a bill designed to impose cash bail on more people is so broad it encompasses "nearly all possible situations," a representative of the State Public Defender's Office told an Assembly committee recently.
"Serious harm" as defined in Assembly Bill 54 includes "personal physical pain or injury, illness, any impairment of physical condition, or death, including mental anguish or emotional harm."
The definition includes terms not found elsewhere in state law, said Adam Plotkin, SPD's legislative liaison.
"Personal pain" or "injury" "could be broadly and differently interpreted to mean that even minor pain could be considered grounds to set cash bail," he said.
Plotkin testified at a public hearing on the bill held before the Assembly's Judiciary Committee. The committee last week recommended recommended, 6-1, adoption of the bill.
The measure is a companion to a proposed amendment to the state constitution that voters will consider in the spring election. That proposed amendment, marketed as a "reform," would allow judges more discretion in determining who must post cash bail to be released from pre-trial custody.
The proposed amendment would require judges to consider four new factors when determining whether cash bail should be imposed. They are the seriousness of the alleged offense, whether there is a past conviction for a violent crime, the need to protect members of the public from serious harm, and the need to prevent the intimidation of witnesses.
The bill would define as "violent crimes" offenses such as criminal damage to property, criminal trespassing, disorderly conduct, or violation of an injunction, Plotkin said.
"These...seem to go well beyond the stated intent of the amendment of focusing on violent crimes," he said.
The definitions "undermine the presumption of innocence and present issues related to excessive bail under the 8th amendment," he said. " ‘Excessive’ isn’t just a high cash bail amount, it’s a sum total of the impact. A low-level charge combined with even a low level of cash bail amount that is prohibitive of release can be excessive."
Plotkin also warned of the impacts to the court system if the bill is adopted.
"This will increase the pretrial jail population and the number of people who have non-monetary conditions imposed," he said. "It will increase the number of speedy trial demands. Both of these changes will place a significant burden on an already overtaxed criminal justice system."
The Wisconsin Chiefs of Police Association testified in favor of the bill.
"As members of law enforcement, we have witnessed violent offenders who were released from custody before the reports of their crimes were even completed. We have also heard from victims of crimes, who ask us in fear of how they can remain safe when their attackers are already back out on the streets," the organization said in prepared testimony.
Registering in favor of the bill were Americans for Prosperity, the Milwaukee Police Association, the Wisconsin Chiefs of Police Association Inc., and the Wisconsin State Lodge Fraternal Order of Police.
Registering against the bill was the ACLU of Wisconsin.
By Gretchen Schuldt
Republican legislators are proposing to block from voting more people with felony records. The bill is heavily weighted against people struggling with poverty. Also introduced recently were more bills calling for new or harsher penalties.
The sponsors of the individual bills are shown in the table at the bottom of this post.
Senate Bill 69 /Assembly Bill 76 – Disenfranchising more people
A bill that would likely disenfranchise thousands of additional people convicted of felonies is garnering opposition from a variety of civil rights and voting organizations.
State law now restores voting rights to people with felony records after they complete their terms of incarceration and probation, parole, or extended supervision. The Republican-sponsored bill would require that a person with a felony conviction also "must have paid all fines, costs, fees, surcharges, and restitution, and have completed any court-ordered community service, imposed in connection with the crime," according to the Legislative Reference Bureau summary.
The bill also would require the state Elections Commission to notify those affected when their voting rights are restored. Currently, the Department of Corrections provides the notification.
All Voting Is Local Action, ACLU of Wisconsin, Common Cause in Wisconsin, Wisconsin Conservation Voters, and the Wisconsin Democracy Campaign have registered against the measure. The Democracy Campaign called it a "modern-day poll tax."
Senate Bill 72/Assembly Bill 78 – Increasing penalties for crimes against adults at risk
An "adult at risk" is defined in Wisconsin statute as "any adult who has a physical or mental condition that substantially impairs his or her ability to care for his or her needs and who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation."
This bill would increase the penalty for any second-degree sexual assault against an adult at risk from a maximum of 40 years in prison and/or a $100,000 fine to 60 years in prison.
The bill also would allow increased penalties for other crimes against adults at risk. If the penalty is a year or less in prison, it could be increased to two years. A maximum penalty of up to 10 years could be increased by four years, and a maximum of more than 10 years could be increased by up to six years. Penalties that now apply to physical abuse of an elder person would apply to abuse of an adult at risk.
All of the increased penalties would apply whether or not the perpetrator knew the victim was an adult at risk.
The bill also would allow freezing the assets of a person accused of a financial crime against a person at risk. Assets worth the full amount of the amount at issue could be subject to the freeze "for purposes of preserving the property for future payment of restitution to the crime victim."
The bill also would allow an adult at risk seeking certain types of restraining orders to appear in court by phone or by audiovisual means rather than in person.
Senate Bill 73/Assembly Bill 79 – Prostitution surcharge
Judges would impose a $5,000 surcharge on people convicted of patronizing or soliciting prostitutes, pandering, or keeping a place of prostitution, under this bill. The money would be used for treatment and services for sex-trafficking victims and for law enforcement related to internet crimes against children. The bill does not indicate how the money would be divided between those categories.
Senate Bill 101/Assembly Bill 68 – Higher penalty for drug-induced homicide
The Assembly's Criminal Justice and Public Safety Committee has recommended approval of this bill, which would raise from 40 years to 60 years the maximum prison time for making or supplying certain drugs that lead to the death of another person (known as the "Len Bias" law). The vote was 13-2, as follows:
Unsung Hero: Ada Deer's impact for the Menominee people and other American Indian tribes
By Amy Rabideau Silvers
I am a Menominee Indian. That is who I was born and how I have lived. I am tall like the trees that blanket my reservation in northern Wisconsin, and my skin is brown like their bark. Although I have not lived there in years, my roots grow deep in that rocky soil. That soil has anchored me during tumultuous times. I have roots elsewhere—geographically, ancestrally, and intellectually—and they too produced and nurtured the person I have become. But my taproot is Menominee.
Ada Deer began her memoir — Making a Difference/My Fight for Native Rights — with those words. Now 87 and living in the Madison area, she is most proud of helping to restore tribal status and rights for her people, and helping other tribes.
As a girl and young woman, Deer saw her mother, Constance “Connie” Wood Deer, fight congressional efforts to terminate the Menominee tribe and end its historic relationship with the federal government. The Menominee, poor but with rich timber resources, were considered a prime candidate for the new policy called termination.
“Termination sought to end federal supervision, dissolve reservations, and assimilate individual Indians into the American mainstream,” Ada Deer wrote. “Termination involved abolishing tribal governments, allotting tribal land to individuals, removing the protections of trust status, closing the tribal rolls, and divesting of tribal resources.”
Despite a flawed vote and later challenges, the Menominee Termination Act was passed by Congress and signed by President Dwight Eisenhower in 1954. Termination was set for 1958, with the date later delayed until 1961, when it became a reality.
Deer remembers the shock of realizing that, legally, she and her people were no longer members of a federally recognized tribe.
“One day we were Indian, and one day we were not,” Deer said, speaking in an interview with the Wisconsin Justice Initiative. “People did not understand what termination was. It was a cultural, economic and political disaster.”
“We thought of ourselves as an Indian tribe and as Menominee people, but Congress had taken away our status as Indians without informed consent,” she wrote in her memoir. “Termination left Menominees wondering who they were. It was a period of confusion, despair, and frustration.”
In anticipation of termination, the state created Menominee County from the former Menominee Reservation land.
After termination, complicated legal arrangements meant families that had long lived on reservation land — land held in common by the tribe — had to buy their homes and pay taxes. Many lost their homes. Many jobs at the tribe’s lumber mill were cut, with new supervision geared toward profit-making, not sustaining the forest and its people. That forced families to leave what had been Menominee land. Against the wishes of many tribal members, a legal trust began working with a development company, building homes and selling land to nontribal members.
In some ways, legal termination and its ramifications were not unlike other troubling chapters of Menominee history. In the 19th century, the federal government tried to force the tribe to move farther west. Chief Oshkosh refused, finally signing a treaty in 1854 that guaranteed the tribe’s right to Wisconsin reservation land. Decades later, Menominee leaders rejected the idea of allotment, which called for individual plots of land, instead insisting on the right to hold their land in common.
Other policies born of prejudice brought their own social consequences and suffering. Joe Deer, Ada’s father, was a student at a Catholic boarding school, where children were punished for speaking their native language or using their Indian names.
Ada Deer grew up mostly on the reservation, the oldest of five children born to Joe and Connie Deer. The family lived in a log cabin on the bank of the beautiful Wolf River. They did not have indoor plumbing, electricity or a telephone. Joe worked at the tribal lumber mill, also hunting and fishing for his family.
Her mother, a white woman, was a nurse who came from a well-to-do Philadelphia family with Quaker roots. While never a member of the Menominee tribe, she was an outspoken rabble-rouser who lived most of her life on the reservation. She took her young children to the meetings where the daily life of the tribe and later its fate were debated.
“She was a leader and she was a fighter,” said Deer.
“You were put on this earth for a purpose,” Deer’s mother would tell her. “You are here to help people. You are here to help your people.”
Finding her purpose
To do that, Deer decided she needed all the education she could get. In 1957, she earned a bachelor’s degree in social work, the first Menominee to graduate from the University of Wisconsin-Madison. She next went to Columbia University, becoming the first American Indian to earn a master’s in social work.
Deer loved social work but later felt drawn to make a difference on a more macro policy scale, especially for her people and other Indian tribes. She began law school at UW-Madison but soon decided that the problem of termination was more important. She listened and learned at gatherings of Menominee people.
“It struck my heart that we could lose our land, and it all came together what it meant,” she told WJI. “People were suffering. People were dying. There was no medical care.”
In interviews and her memoir, Deer said that around 1970 she reached out to Joseph Preloznik, director of Wisconsin Judicare, previously involved in tribal legal issues. In meetings with Preloznik, she realized that if the situation was created by an act of Congress, a law was needed to “uncreate” the problem.
“We have to change this,” she declared. “What can we do?”
“You have to get a law through Congress,” replied Preloznik.
For Deer, her people’s difficulties suddenly had a path to a different kind of future. Preloznik also joined meetings with Menominee people. Listening sessions included tribal people living in Milwaukee and Chicago, and they led to the creation of a grassroots group called DRUMS, short for Determination of Rights and Unity for Menominee Shareholders, the name proposed by Deer’s sister.
Deer suggested the word restoration for the new concept of reversing termination.
DRUMS received assistance from the Native American Rights Fund, which assigned attorneys Charles Wilkinson and Yvonne Knight to the case. And when the tribe needed someone to live and lobby in Washington, Deer agreed to represent her people.
Supporters came to include Sens. Gaylord Nelson and William Proxmire from Wisconsin, and Sen. Ted Kennedy.
As a lobbyist, Deer took advantage of any opportunity to talk restoration legislation. Once while on an airplane flight, she spotted John Conyers Jr., a Michigan congressman and a founder of the Congressional Black Caucus. She strode up to his first-class seat, introducing herself and the subject of tribal restoration.
“I’m working on the repeal of termination,” Deer told him. “This is the Menominee Restoration Act, and it is as important to Menominees and to Indians nationwide as Brown v. Board of Education was to you.”
“Come to my office,” he replied. The Black Caucus joined the bill, which gained near unanimous support in both houses.
A legal victory — and historic first
Almost 20 years after Congress voted for termination, the Menominee tribe was officially reborn. The Menominee Restoration Act was signed into law by President Richard Nixon on December 22, 1973.
“The Menominee Restoration Act was the first time that a tribe’s legal status was restored after being terminated,” said NARF attorney Wilkinson, speaking to the Wisconsin Justice Initiative.
While many were involved, Deer is considered the driving force behind the success.
“Ada was the leader,” Wilkinson wrote in the foreword to Deer’s memoir. “The adoption of the Menominee Restoration Act announced the end of termination and the beginning of the tribal self-determination era. Without question, the single most important person in this transition was Ada Deer.”
Deer was elected the first woman to chair the tribe, serving from 1974 to 1976, helping her people chart a new course and reestablish relations with federal, state and neighboring governments.
Deer served in other roles during her working life, including as a lecturer with the American Indian Studies program and the School of Social Work at UW-Madison, returning to serve as American Indian Studies director.
Called to service in Washington
In 1993, appointed by President Bill Clinton, she became the first American Indian woman to direct the Bureau of Indian Affairs. On her watch, the federal government established government-to-government relationships with 226 Alaska Native villages and tribes, expanded self-governance to many other tribes, and approved the recognition of four tribes.
She recalled in her memoir how, during a Senate Appropriations Committee hearing, Sen. Slade Gorton, a Republican from Washington state, asked her how long these welfare payments to Indians were going to continue.
“Excuse me, Senator,” Deer replied. “These are not welfare payments. As you know, this country was built on Indian land with Indian resources, and treaties lay out the nation’s obligations to Indians, and treaties are the supreme law of the land. These are permanent obligations and will continue.”
“I could hear the air being sucked out of the room,” she wrote. Connie Deer’s daughter was not going to let the welfare myth go unchallenged.
In the case of the Menominee, tribal homeland once encompassed 10 million acres. Twentieth century descendants had fought to restore the tribe’s claim to some 235,000 mostly forested acres.
“Few individuals have had as profound an impact on U.S. Indian policy as Ada has had,” wrote Theda Perdue, the historian and friend who, says Deer, co-authored the memoir.
Running like a Deer
Deer also ran for public office, twice for Wisconsin secretary of state, as well as for Congress against then-State Rep. David Clarenbach (the subject of another WJI Unsung Hero feature and someone she described as “a good guy”) in the 1992 Democratic primary. She beat Clarenbach but lost in the general election.
Her campaign slogan was “Nothing Runs Like a Deer.” When the John Deere company threatened to sue, the campaign said go ahead. Company officials apparently reconsidered how it would all look because no lawsuit materialized.
More recently, she served as a consultant on the American Indian exhibit at Chicago’s Field Museum. While no longer as active, Deer remains interested in social issues, including mass incarceration, adequate substance abuse treatment, and protecting the environment. Education and involvement, she said, remain the true paths to social justice and change.
“There are many opportunities to serve,” said Deer. “I want everyone to get a decent education and get involved, depending on their interests. And vote. I think every citizen should vote, and it should be an informed vote. We should appreciate our country and all that it offers.”
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By Gretchen Schuldt
Milwaukee Mayor Cavalier Johnson and other elected officials indicated support at a public hearing for two measures designed to crack down on reckless driving.
"Reckless driving is a scourge on Milwaukee," Johnson told the Assembly's Criminal Justice and Public Safety Committee during a public hearing on the bills.
The city has thus far budgeted $30 million in an effort to make its road safer, he said.
Reckless driving "is a serious quality-of-life issue," he told the committee.
Johnson said the state had to do more to make safer its own highways in the city, which he called "some of the deadliest roads in the state of Wisconsin."
The first bill, Assembly Bill 55, would increase the forfeiture for first-offense reckless driving from the current range of $25 to $200 to $50 to $400.
The penalty for the second or subsequent offense would jump from the current fine of $40 to $500 to a fine of $100 to $1,000 if the second or subsequent offense is committed within four years. Currently, the increased fine applies only to offenses that occur within one year of the first offense. The additional potential penalty of a year in jail remains unchanged.
There would be additional penalty increases as well.
The second bill, Assembly Bill 56, would allow communities to adopt ordinances allowing police to immediately impound a vehicle used in a reckless driving offense if the driver owns the vehicle and has not fully paid an earlier forfeiture for a reckless driving conviction.
"Habitual offenders previously had no reason to think twice about reckless driving," said State Rep. Bob Donovan (R-Greenfield), the author of the measures. "This legislation will assist in the removal of the instrumental tool in reckless driving – the vehicle."
Even two-year-olds understand the concepts behind red lights and green lights, State Sen. LaTonya Johnson (D-Milwaukee) said.
"Unfortunately, in recent years we've suffered a breakdown in these norms with more and more individuals reckless driving without regard for their own lives or anyone else in their path," she said. "Running red lights, stop signs, drag racing on residential streets, driving on sidewalks as well as fleeing police at high rates of speed have become all-too(-)common occurrences and my constituents, my community, and our city are paying for these poorly made decisions with our lives."
In 2020, Johnson said, Milwaukee police issued 3,798 reckless driving citations. In 2021, they issued 4,873 reckless driving citations. In 2020, there were 6,081 hit-and-run incidents, she said. In 2021, there were 17,520 hit-and-runs.
Adopting the bills won't solve the reckless driving problem, she said, "but it will increase the price of putting our communities in danger. I refuse to let lawlessness take away another innocent life and our cities(') quality of life without me doing my part as an elected official representing to help prevent it from happening."
"Milwaukee is not alone," the Wisconsin Chiefs of Police Association said in testimony. "The WCPA represents over 800 police executives throughout Wisconsin, and we experience this issue throughout the state. Regardless of size of municipality or location – north, south, east, or west – law enforcement, and the communities we protect, are forced to deal with this issue on a regular basis."
Registering in support of AB55 were the City of Milwaukee, AAA Wisconsin, the League of Wisconsin Municipalities, the Professional Insurance Agents of Wisconsin, the Wisconsin Chiefs of Police Association, and the Wisconsin State Lodge Fraternal Order of Police.
Those same groups registered in favor of AB56, as did the Wisconsin Professional Police Association.
No group registered opposition to either bill.
By Gretchen Schuldt
A bill that would increase penalties for carjacking and make it a crime unto itself won support last week from police and insurance organizations.
"We can all agree that a suspect stealing an unoccupied vehicle parked on the side of the road, while wrong, is far less concerning than a suspect pointing a gun at someone commuting to their job and forcing them out of their vehicle to steal it," said Mark Sette, vice president of the Wisconsin State Lodge of the Fraternal Order of Police.
Sette gave testimony during a public hearing on the bill held before the Assembly Judiciary Committee.
The Republican-backed bill would increase the penalty for carjacking by 20 years, from 40 years to 60 years. The bill also would create a separate carjacking offense, something Sette said would "assist the public and the criminal justice system in identifying the true scope of the problem, properly classify these offenses as the violent crimes that they are."
Howard Handler, senior director for strategy, policy and government affairs for the National Insurance Crime Bureau, said 930,000 vehicles were stolen nationwide in 2021, up 17% from the 2019 figure.
"In 2021, Wisconsin experienced a 75 percent increase in stolen vehicles compared to 2019," he said in prepared testimony.
"Beyond the loss to an owner and the resulting financial impacts — including in the form of higher insurance premiums for Wisconsin consumers — vehicle thefts often have serious second-order effects on society," he said. Criminal rings are stealing more cars "as an alternative revenue stream as well as to commit other violent crimes."
The Milwaukee Police Association also testified in favor of the bill.
The Wisconsin Police Chiefs Association and the Fraternal Order of Police registered in favor of the bill. No organization registered in opposition.
By Gretchen Schuldt
Legislators, especially Republicans, keep embracing harsher criminal penalties by introducing bills to create new crimes or make harsher sentences for existing offenses. Here are some recent efforts. Authors and sponsors of the measures are shown in the table at the bottom of the post.
Senate Bill 79/Assembly Bill 84 – Prohibiting some people convicted of felonies from possessing vicious dogs
Certain felons would be banned from possessing, controlling, or living with vicious dogs, under this bill. The prohibitions would apply to people convicted of violent felonies, including battery, sexual assault, and drug offenses. Violations would carry different penalties: a simple violation would be punishable by up to a $10,000 fine or and nine months behind bars; a violation that results in a person or animal suffering great bodily harm or death would be punishable by a $10,000 fine and imprisonment for up to 3½ years; and a maximum penalty of six years in prison and a $10,000 fine could be posed if a person suffers great bodily harm or death because the offender knowingly allowed the dog to run loose or failed to take steps to control the dog.
The prohibition would be in effect for as long as the person is on supervision or for 10 years after being released from incarceration, or after conviction if the sentence did not include incarceration, or after a verdict of not guilty of a serious felony by reason of mental disease or defect.
A humane or law enforcement officer would determine if an animal is vicious based on certain criteria: whether the dog, unprovoked, has attacked a person or pet and caused serious injury or death; without justification has at least twice bitten a person or pet without causing serious injury or death; or has behaved in a manner that a reasonable person would believe posed a significant, imminent threat to a person or pet.
Exceptions to the prohibitions could be granted to people for employment purposes and who file a motion in court.
Senate Bill 86/Assembly Bill 57 – Requiring a judge's permission to dismiss a case or offer deferred prosecution agreement
Prosecutors would have to seek permission from judges to dismiss certain charges against defendants, even if a prosecutor learns the defendant is innocent of the charge or believes the evidence does not support the charge, under a Republican-backed bill.
The bill would also prohibit prosecutors from offering deferred prosecution agreements to individuals charged or who could possibly be charged with certain crimes.
The Assembly bill won support from two police organizations – the Wisconsin Chiefs of Police Association and the Wisconsin State Lodge Fraternal Order of Police – and an insurance group at a public hearing before the Assembly Judiciary Committee. The ACLU of Wisconsin registered in opposition.
"We support this bill because of the revolving door that Milwaukee has become for criminals, and this has had a detrimental impact not only for Milwaukee but the communities that surround Milwaukee," Milwaukee Police Association Vice President Alexander Ayala told the committee. "Time after time we see someone arrested for a crime or several crimes only to later discover that some if not most charges were dismissed or amended to a lower crimes (sic) by a district attorney."
"Now we understand that the workload for a DA is only growing, especially for Milwaukee county DA's, due to their staffing shortages and now it becomes the perfect storm of catch and dismiss," Ayala said. "We believe that the list of crimes set forth here are some of the crimes that have a high impact on quality-of-life issues and they (sic) should be an approval process in place if DA's are going to dismiss or amend charges."
The bill would require a prosecutor to seek a judge's OK to dismiss or amend a charge if the existing charge is:
The bill does not indicate where innocence would fit within those two categories.
Courts would be required to submit annual reports to the legislature detailing every dismissal or amended charge allowed.
The bill also would prohibit prosecutors from offering deferred prosecution agreements to anyone charged with those same crimes or who could be charged with those crimes.
"Each time deferred prosecution allows a dangerous person back into our communities it puts our communities and our officers at risk," said Howard Handler, senior director for strategy, policy and government affairs for the National Insurance Crime Bureau, an industry group. "Too often we have seen deferred prosecution agreements that result in serious injury or death. This bill creates accountability in our judicial system by prohibiting deferred prosecution for serious crimes."
Senate Bill 87/Assembly Bill 87 – Restitution for OWI deaths
A judge could order a drunk driver who kills the parent of minor children to pay the costs of caring for the children until they are 18, under this bill.
"When setting restitution payed to a parent or guardian of a victim's child, the court may also consider the financial needs and resources of the child and the surviving parent or guardian, the standard of living that the child is accustomed to, the child's emotional needs and physical and legal custody arrangements, and the reasonable work-related child care expenses of the surviving parent or guardian," the Legislative Reference Bureau said in a summary of the bill.
Any restitution award granted under the bill would offset a subsequent award in a civil suit, according to the bill.
Senate Bill 96/Assembly Bill 70 – Encouraging riots
It would be illegal to urge, promote, organize, encourage, or instigate a riot, under the bill. The "riot" could involve as few as three people and no damage to property or harm to any individual is required. "Riot" is defined as "a public disturbance that involves an act of violence...that constitutes a clear and present danger of property damage or personal injury or a threat of an act of violence, as part of an assembly of at least three persons having the ability of immediate execution of the threat, if the threatened action constitutes a clear and present danger of property damage or personal injury."
Violations would be punishable by up to 3½ years in prison and a $10,000 fine. Committing an act of violence during a riot would be punishable by up to six years in prison and a $10,000 fine.
The ACLU of Wisconsin and Wisconsin Conservation Voters registered against the proposal. The Wisconsin Chiefs of Police Association registered in favor.
"This bill should hold accountable those who want to make a peaceful protest a violent one. Acts of violence while in a protest can incite a riot and those people need to be charged," the Milwaukee Police Association's Ayala said in testimony before the Judiciary Committee. "Riots destroy neighborhoods, hurt innocent people, business and first responders that are trying to do their jobs.
"I have now been involved in two separate incidents of protest that turned into riots," he said. "One in 2016 when a gas station was burned down in District 7 along with other business and squad cars. My second one in 2020 when as a detective and (sic) had to put on my riot gear and stand in line to protect our Police Administration Building located downtown. That day the group of several hundred people remained peaceful, but you could feel the tension in the air and at any moment the protest could turn into a riot."
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