Just five of 31 three-judge decisions issued by the State Court of Appeals in January were signed, and 26 were unsigned "per curiam" decisions.
There were no dissents or concurrences in the five signed decisions, strengthening the appeals court's reputation as a most agreeable lot.
Judges who put their names to opinions were District 1 Reserve Appeals Judge Daniel L. LaRoque and District 1 Appeals Judges Kitty K. Brennan and Patricia S. Curley; and District 4 Appeals Judges Brian W. Blanchard and Paul B. Higginbotham. District 1 also issued four unsigned opinions, while District 4 issued 8. Judges on panels in Districts 2 and 3 did not put their name to any decisions, issuing unsigned opinions in six and eight cases, respectively.
Circuit court judges reversed include Outagamie Circuit Judge Gregory B. Gill Jr. (reversed in part), La Crosse County Circuit Judge Dale T. Passell (reversed in part), Trempealeau County Circuit Judge John A. Damon (reversed in part), Dane County Circuit Judge John C. Albert, Sawyer County Circuit Judge Gerald L. Wright, and Dane County Circuit Judge Frank D. Remington.
If you are keeping track, about 16% of three-person decisions were signed, and about 19% were partly or totally reversed.
There also were 20 one-judge decisions issued in January. Those decisions, issued in misdemeanor and a variety of other smaller types of cases (though small alimony disputes are decided by three-judge panels, and decisions on terminating parental rights are one-judge cases -- really, which is less important?), are always signed. The appeals court judges and the number of one-judges each issued are listed below.
District 1 -- Willliam W. Brash III (3), Brennan (2), Curley (2), Joan F. Kessler (2)
District 2 -- Brian K. Hagedorn (2)
District 3 -- Thomas M. Hruz (2), Mark A. Seidl Lisa K. Stark (4)
District 4 -- Paul Lundsten, Gary E. Sherman
Circuit court judges reversed and the appeals court judges reversing them were Milwaukee County Circuit Judge John Siefert (Brennan), Kenosha County Circuit Judge David P. Wilk (Hagedorn), Milwaukee County Circuit Judge Laura Gramling Perez (Kessler), and Brown County Circuit Judge Marc A. Hammer (Stark). The reversal rate for one-judge decisions was 20%.
These four appeals court judges, along with Reserve Judge Daniel L. LaRoque, issued signed decisions in January.
The State Legislature is considering proposals to fix the state's broken civil asset forfeiture system that allows law enforcement agencies to seize for their own use property suspected of being used or derived from criminal activity.
A public hearing was held on the reform bill, SB521, on Tuesday and a public hearing is scheduled Thursday on a companion bill, AB 537. The bills, before the Senate Government and Labor Reform and Assembly Criminal Justice and Public Safety committees, would restrict seizures to cases in which a conviction was obtained, ensure funds realized through seizures go to support schools, and require public reporting about seizures, among other things. WJI's testimony to the Senate committee.
Pothole defense wins the day
A West Allis police officer did not have enough reason to stop a driver after she abruptly swerved her car three times in her own lane, the Court of Appeals said Tuesday.
The driver, Teresa Michals, said she was just trying to avoid potholes, according to the opinion by William W. Brash III. Brash upheld a ruling by Milwaukee County Reserve Judge Michael D. Guolee.
According to the opinion:
Officer Jason Komorowski was at a stoplight shortly after 9 p.m. March 16 when he saw Michals' car about three blocks away. She also was at a stop sign. Komorowski saw her car accelerate quickly when her light turned green. She also swerved three times within her lane.
Komorowski believed she was either intoxicated or driving in a disorderly manner. The officer made a traffic stop, and Michals was charged with refusing to take an intoxication test and first offense driving while intoxicated.
She argued in circuit court that Komorowski did not have enough reasonable suspicion to justify the stop. "Komorowski testified that he could not determine the speed at which Michals was driving," Brash wrote. "Komorowski testified that Michals did not squeal her tires, she did not weave any of her wheels off the ground, an her vehicle was not unusually loud in any way."
Komorowski also said he did not know if Michals had any business in the area.
Michals testified that the Mini Cooper she was driving had a small wheel base that can easily be damaged by potholes.
"Michals testified that she swerved to avoid potholes and construction on the road to prevent damage to her vehicle," Brash said.
Komorowski said he did not remember if there was any potholes or construction.
"Komorowski’s observation at 9:11 p.m. on a Sunday of Michals quickly accelerating, swerving three times within a single lane of traffic to avoid potholes and construction, properly signaling her turns, and traveling a different direction than the address to which her vehicle was registered is not enough to create reasonable suspicion that Michals was either intoxicated or operating her vehicle in a disorderly manner," Brash wrote. "Based on our review of the record, we find there are no reasonable inferences that suggest criminal activity was afoot."
Avery prosecutor writing a book
Ken Kratz, the prosecutor who prosecuted Steven Avery, will write a book, according to the Associated Press.
"Ken Kratz tells WBAY-TV that he’s writing about the case because the voice of slaying victim Teresa Halbach has been forgotten. Kratz said he’s grateful to tell the 'whole story,' AP reported.
Kratz won a conviction in the highly publicized murder trial of Steven Avery, but was forced to resign in 2010 after he sent a series of sexting messages to a domestic abuse victim.
One of Avery's attorneys, Dean Strang, is a WJI board member.
Citing falling crime rates and the ineffectiveness of mandatory minimum sentencing, five current and former Wisconsin law enforcement officials joined with colleagues from around the nation to support sentencing reform efforts pending in Congress.
"Our experience has shown us that the country can reduce crime while also reducing unnecessary arrests, prosecutions, and incarceration," said the letter to four congressional leaders, including House Speaker Paul Ryan (R-WI).
Wisconsin signers include Milwaukee County District Attorney John Chisholm, Dane County Sheriff Dave Mahoney, former Dane County Sheriff Richard Raemisch, former Menomonee Falls Police Chief David Steingraber, and Appleton Police Chief Todd L. Thomas.
While the average prison stay has increased 36% since 1990, the letter said, "Research studies now show that increasing incarceration has diminishing returns on crime, and played only a modest role in the crime decline the country experienced since 1990. Policing and economic factors played a greater role."
Excessive sentences can actually increase crime, as those sentenced for less serious crimes learn new criminal tricks while in prison, the letter said.
"We believe that reforming mandatory minimums will help reduce crime and reduce our prison population and costs," the law enforcement professionals wrote. "We know from our experience as leaders in law enforcement that we can reduce crime and punish offenders appropriately without relying on these excessive and arbitrary laws."
The most interesting case involved a guy named Leroy Rushing, who was convicted of helping to beat a friend to death (some friend!) with a baseball bat. Rushing said he just didn't have time to help the guy, either.
The District 1 Court of Appeals, in upholding Rushing's sentence, said the circuit court did not improperly inject religion into the case.
"It is clear that the circuit court’s statements were not directed at Rushing’s religious beliefs," the appeals panel opined in a decision released today. "Rather, they were directed at his incredible story of being in such a rush to get to church that he did not help an old friend who had been badly beaten."
Rushing didn't have a prayer with that one.
Grabbing $4,070 because...
The case is called "United States of America v. $4,070 in Currency," and in it the US Postal Service asks to seize $4,070 because a postal inspector concluded the money was derived from drug dealing because a woman he questioned said her boyfriend used marijuana.
Maybe his conclusion is a correct one -- the woman's story is pretty weak -- but is there enough evidence in the complaint to justify the money grab?
"On July 21, I intercepted a package at the Main Post Office in Madison Wisconsin," Postal Inspector Ross Hinckley said in a sworn affidavit filed last week in federal court in Madison. "The package was from Kasey Fischer in Beaver Dam and was addressed to Daren Quebada in San Jose, California."
Hinckley continues: "I interviewed Fisher by phone. She said the package was mailed by her boyfriend at the Madison Main Office to 'Darren Cali.' She said the package contained money her boyfriend was mailing to his family. She did not know the amount. Fisher said her boyfriend used her name and address because he did not have an address. She claimed she did not know if her boyfriend used drugs because they had only been dating for two years. She would not provide a phone number for her boyfriend and said she did not want anything to do with the package. A short time later, Fisher called back and said her boyfriend told her he used marijuana and that there was $4,070 in the package."
That's basically the entire case the USPS is presenting in asking to to seize the money. (The entire affidavit is below).
Federal and state civil asset forfeiture laws, which allow law enforcement to grab up private property without having to prove it was involved in a crime, are under fire across the country. The agencies that scoop up the money get to keep a goodly share of it, thus providing a perverse incentive for cops to err on the side of profit when deciding whether seizure is warranted. Reformers are seeking to change the laws and there is a bill pending in the state legislature that would minimize the incentives for cops to use state civil asset forfeiture laws to pad their own budgets. There also is a push to change the federal forfeiture laws to make them far less tilted in favor of law enforcement.
Ya think Court of Appeals Judge Paul F. Reilly is just a bit relieved the buzz and outrage swirling around the Steven Avery case broke just a little too late to make for a difficult re-election this spring?
Reilly is one of two still-serving judges who rejected Avery's appeal in the Theresa Halbach murder case. The other, Lisa S. Neubauer, does not face re-election until 2020.
Reilly, a former Waukesha County circuit judge, was elected to the District 2 Court of Appeals in 2010. The next year, he, along with Neubauer and former Judge Richard Brown, turned down Avery's appeal. You can read the decision here.
The December 2015 airing on Netflix of "Making a Murderer," about the Avery case, brought new scrutiny to the case and sparked debate about the fairness of the justice system. It was too late, though, for anyone who wanted to use the controversy to challenge Reilly to gather the minimum of 1,000 signatures needed by the Jan. 5 filing deadline. Reilly is unopposed in the April 5 election, as are the other three appeals court judges on the ballot.
Milwaukee County Circuit Court judges were affirmed in the Court of Appeals 84% of the time in 2015, more than judges in the other three appeals districts in the state, according to the Wisconsin Law Journal.
The appeals court's District 1 includes only Milwaukee County Circuit Courts. Judges serving there were affirmed 84% of the time. Judges in District 2, fared the worst. Their decisions were upheld 77% of the time.
Judges in District 3 were affirmed 81% of the time and those in District 4 were upheld 80% of the time, according to the Law Journal.
An Court of Appeals district map, lifted directly from the State Court of Appeals, is below. And below that is today's Court of Appeals summary.
It was totally unnecessary in the decision, but it was very nice of District 1 Appeals Court Judge Kitty Brennan to include in an opinion released today an instantly classic quote from Milwaukee County Circuit Court Judge John Siefert.
Siefert was, in a fairly routine drunk driving case, ordering a woman to install a breath interlock device on her car and her husband's car. (Brennan, in this one-judge appeals decision, said Siefert erred in the husband's car part of the order.)
In discussing the interlock device, Siefert said, "Now, if you cut somebody’s hand off that they can’t grab the steering wheel, then they can’t drive."
Yes. Well. Ouch.
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