The Milwaukee County District Attorney's office saw a felon in possession of a firearm case slip away in 2014 when Joshua Java Berry's lawyer discovered that Berry was not a convicted felon.
And so,unable to use a 10-year-old felony conviction in its pursuit of Berry, as it originally planned to do, the DA's office turned to a case almost 20 years old -- Berry's adjudication as a delinquent when he was 13 or 14 -- and charged him with being an adjudicated delinquent in possession of a firearm.
Berry is now 35.
Both "in possession" charges are part of the same state statute and carry penalties of fines up to $50,000 or imprisonment of up to 15 years.
Berry in 2014 was a passenger in a car involved in a traffic stop by police. He was arrested after telling officers that he had a gun and a Florida concealed carry permit on him.
The DA's office first was going to use Berry's 2004 conviction for felony obstructing an officer to nail him for the felon-in-possession. It looked like an easy win. After the 2014 arrest, Berry conceded that he had been convicted of the 2004 felony charge; Wisconsin Circuit Court Access records showed the felony conviction, as did certified court records and the judgment of conviction.
Berry's defense in his felon-in-possession trial was simply that he believed his Florida concealed carry permit allowed him to carry a gun in Wisconsin, despite his conviction.
Milwaukee County Circuit Judge Carolina Stark found Berry guilty of the felon-in-possession charge.
But wait. It turns out Berry wasn't a convicted felon. All those records and Berry's memory were wrong. Berry in 2004 actually was convicted of a misdemeanor.
Whoops. On Oct. 10, 2014, McAdams vacated the felon-in-possession conviction and dismissed the case with prejudice.
All done? Of course not.
Three days later, the DA's office came back with a new charge based on Berry's 1995 felony-level adjudication as a juvenile delinquent.
The district attorney's office reached back well over half of Berry's lifetime (his birth date is April 27, 1981) to bring the charge.
Berry appealed while the case was still pending, arguing that trying him again would amount to double jeopardy, but a District 1 Court of Appeals panel on Tuesday disagreed.
"This new charge is different in law from the previously dismissed charge," Appeals Judge William W. Brash III wrote in an opinion joined by Appeals Judges Kitty K. Brennan and Patricia S. Curley. "Accordingly, we conclude that the current charge ... does not violate Berry’s constitutional right to be free from double jeopardy."
The case is not over. Berry's now 21-year-old crime, committed as a child, may yet play a big part in sending him to prison.
Meanwhile, everyone involved in the case knows that the court records saying that Berry was found guilty of a felony in 2004 are wrong. They have known that since August 2014, when Berry's lawyer, Scott F. Anderson, told them.
So why, more than 1-1/2 years later, does CCAP still show this?
The first-degree sexual assault of a child trial was nearing its end. Jurors had been questioned and selected. All four witnesses -- three for the prosecution and defendant Keith Beauchamp -- had testified, according to court records.
And then Juror 508 said she had just a few questions.
She wrote them down and handed them to the bailiff. They were these:
“Why are we having this trial?"
"Who is charging?"
"Is someone suing for money?”
The case wrapped up and the jury, including Juror 508, found Beauchamp guilty. Eau Claire County Circuit Judge Lisa Stark -- now a District 3 Appeals Court judge -- sentenced him to life in prison without the possibility of parole.
Years later, in a postconviction motion, Beauchamp argued that Juror 508's questions showed her "inability to hear, inattentiveness, confusion, or lack of comprehension" was so significant that a mistrial was warranted. His lawyer was ineffective because he did not seek one, Beauchamp said.
Circuit Judge Kristina M. Bourget, who handled the issue, dismissed the motion without a hearing. No mistrial was warranted, Bourget said, because the contention that Juror 508 did not understand the case was "speculation" and there was insufficient evidence the juror was inattentive or did not hear what was going on.
Beauchamp appealed, but a panel for District 3 of the Court of Appeals -- where Starks is deputy chief judge -- agreed with Bourget.
There was evidence of confusion about the "nature of the proceedings and the procedural status of the case" but the questions posed by Juror 508 at the end of the trial -- including "“Why are we having this trial?" -- "do not suggest an inability to comprehend material testimony," the panel said in a ruling released earlier this month. The panel included Appeals Judges Mark A. Seidl, Thomas Hruz, and Patricia Curley, a District 1 Court of Appeals judge assigned to the case.
(Bourget, a Scott Walker appointee in 2013, was elected to her seat in 2014 and unsuccessfully challenged Seidl for the Appeals Court seat last year.)
Besides, the panel said, the judge gave jury instructions to clear up any questions.
From left: Curley, Hruz, Seidl: Not knowing at the end of the trial why it was held or who was bringing charges did not show non-understanding of "material" testimony.
A federal judge is allowing a former Milwaukee County jail inmate who is alleging in a lawsuit she was shackled during childbirth to make class action allegations on behalf of pregnant women or new mothers who also were shackled by county jailers.
The county acknowledged in a court filing that the woman was restrained by handcuffs and a leg restraint while she was in labor and by a handcuff while she was delivering.
There could be as many as 300 women in the class -- which the suit defines as women hospitalized for labor, delivery, or post-partum medical care since February 2010 -- if the lawsuit is allowed to proceed as a class action, the woman's lawyers said in a court filing. Thirty-six jail inmates gave birth between Jan. 1, 2010, and Feb. 19, 2016, according to federal court documents.
The jail is under the jurisdiction of Sheriff David Clarke.
Shackling women in the weeks surrounding giving birth is opposed by the American Correctional Association, the American Bar Association, the American Public Health Association, the American College of Obstetricians and Gynecologists, the American College of Nurse Midwives, and the World Health Organization, the suit said. The US Marshals Services and the Federal Bureau of Prisons has sharply restricted the use of restraints on pregnant women, the suit said.
The county's inconsistencies and delays in providing information requested by the plaintiff played a part in prompting U.S. District Judge Rudolph T. Randa to allow the class action allegations, the first step toward a class action lawsuit. Milwaukee County and Clarke are both defendants in the suit.
Randa also found that "County Defendants have not established that the proposed class allegations are futile."
The shackling allegations grew out a lawsuit filed in 2014 by a woman who said she was sexually assaulted five times by Xavier Thicklen, then a county correctional officer. Thicklen, who denied assaulting the woman, eventually pleaded guilty to one count of felony misconduct in office and was sentenced by Milwaukee County Circuit Judge Daniel Konkol to three days in the House of Correction. Konkol also ordered him to pay a $200 fine. Thicklen is also a defendant in the suit.
Besides alleging the assaults, the woman said she was shackled while she delivered her baby "in accordance with the Jail’s policy, custom, and/or widespread practice of shackling all pregnant women who had a high bond, relative to other detainees."
"Plaintiff was shackled by one wrist restraint and one leg restraint during labor, and the leg restraint was removed only briefly during deliver....," the complaint said. "When Plaintiff left her hospital bed to go to the bathroom, she was secured with a 'belly-chain' around her waist with her wrists attached to the waist and her legs attached to one another by leg-irons."
The county acknowledged in its response to the allegations that the woman was "was restrained by one handcuff and one leg restraint during labor, but only by one handcuff during delivery, that she was restrained by a 'belly chain' when she left her bed to use the restroom."
The county denied any misconduct and said the suit should not become a class action.
The shackling was excessive and "not rationally related to a legitimate, nonpunitive purpose," the suit said. The suit said shackling pregnant women can impede doctors from taking quick action in some emergency situations,
In addition, the suit said, "Belly chains and leg irons can impact the mother's balance and increase the risk of falls thereby endangering the life and health of the child. Cuffing a woman's hands may prevent the breaking of a fall and impede a woman's ability to protect her stomach. Preventing walking during the first stage of labor may deny the woman the benefits of labor acceleration and discomfort alleviation. Preventing walking during the postpartum phase may enhance the risk of deep vein thrombosis and its life-threatening embolic complications."
The county in May 2015 first submitted to the court a Sheriff's Department policy requiring jail inmates to be restrained when they are in a hospital room. In August, a Sheriff's Department official said in a deposition that a hospitalized inmate must be restrained “[u]nless there is a medical reason identified by the hospital staff that would determine otherwise,” Randa wrote.
That key exception was not in the written Sheriff's Department official policy.
Clarke testified in a December deposition that “'[p]olicies are guidelines. . . . The policy does not preclude the use of good judgment and common sense,'” the judge said. Clarke said that “'there are exceptions to every policy, but you better call somebody in most cases and let them know this is outside the policy, boss, here’s what I’m going to do and here’s why. Sounds good to me, and then they would do it.'”
Judge Randa's order is below.
Investigators who participated in probes into possible wrongdoing in Gov. Scott Walker's campaign ripped State Attorney General Brad Schimel for accepting help from lawyers suing them as he prepared a friend of the court brief in the lawyers' case.
The investigators allege that Schimel is "unfit to be amicus curiae," or friend of the court. An amicus curiae offers information to the court in a case, but is not a plaintiff or defendant.
The Milwaukee Journal Sentinel reported this week that attorneys suing Milwaukee County District Attorney John Chisholm and investigators outlined in writing for Schimel and his team how to approach their effort to make it difficult for Chisholm to have access to material seized during the Walker investigation.
Samuel J. Leib, an attorney for the investigators, cited the story in his court filing sharply critical of Schimel and attorney Andrew Grossman, who works at the firm representing former Walker aide Cindy Archer in her lawsuit against Chisholm and the investigators. Archer is alleging Chisholm ran a campaign of harassment and intimidation against Walker supporters.
"The conduct of both Attorney Grossman and the Wisconsin Attorney General’s Office is exceptionally inappropriate," Leib wrote. "The Seventh Circuit has condemned actions such as these in the past, admonishing practitioners that '[t]he term ‘amicus curiae’ means friend of the court, not friend of a party.'"
When Schimel first sought permission to file an amicus brief, the investigators did not object, said Leib, who represents David Budde, Robert Stelter, and Aaron Weiss.
His clients, however, "advised the Court that the Attorney General was not being forthright about his office’s long-documented conflicts of interest relating to the John Doe proceedings," Leib said. "They also advised the Court that the arguments advanced by the Attorney General were largely duplicative of the ones already raised by the plaintiff. Obviously, amici curiae are expected to be transparent about their interests and are discouraged from simply parroting a party’s position."
The investigators' concerns "understated the extent to which the Attorney General is unfit to be amicus curiae...Plaintiff’s counsel was actively feeding the arguments to the Attorney General so that he could regurgitate them under the imprimatur of the State of Wisconsin. This misconduct should not be tolerated."
The investigators reserve their right to ask U.S. District Judge Lynn Adelman to reconsider admission of Schimel's friend of the court brief, Leib wrote. "Simply put, the Attorney General should not have the privilege to be heard in this case," he said.
April 13th, 2016
FOR IMMEDIATE RELEASE
Contact Gretchen Schuldt
April 13, 2016 - Wisconsin Justice Initiative praised the 7th Circuit Court of Appeals decision that Wisconsin voters who have a hard time getting a valid voter ID may be entitled to some relief so they can cast their ballots.
"Voting is a right and the court took a step to protect that right," WJI Executive Director Gretchen Schuldt said. "We encourage all the parties in the case to move quickly so that this issue is finally resolved before the Aug. 9 primary election."
WJI mission: To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operation.
There are 14 words in Wisconsin's standard jury instructions for criminal cases that leads to conviction rates nearly double what they are without the language, according to a new study.
The study's authors contend the 14 words -- "you are not to search for doubt. You are to search for the truth" -- significantly reduces the burden of proof the government must meet to win a conviction, the authors of the study argue.
"Appellate courts concede that instructing jurors to search for the truth is not proper and may lower the government’s burden," the study's authors, Michael Cicchini and Lawrence T. White, wrote in an article scheduled for publication next month in the University of Richmond Law Review. "However, these same courts refuse to reverse defendants’ convictions because, the courts claim, in the context of the instruction as a whole, jurors are probably not influenced by the truth-related language."
Cicchini, a Kenosha lawyer who has written two books and several law review articles, and White, chair of psychology at Beloit College and director of the school's law and justice program, recruited 300 volunteers to serve as mock jurors. All the volunteers read the same case summary of a criminal trial, but some were given jury instructions that included only the reasonable doubt language and others got instructions that added the state's truth language. (A third group got only the truth language, but the authors do not believe that actually would occur in a real case.)
Sixteen percent of jurors who received only the reasonable doubt instructions convicted, but 29% of those who heard both the reasonable doubt and search for truth language did so.
"Not only did truth-related language diminish the burden of proof, it actually eviscerated it....Because the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt, our findings provide strong evidence of a serious constitutional problem," the authors wrote.
An immediate solution to the problem is for judges to simply stop giving the "truth" instruction, Cicchini and White wrote.
"A larger, more comprehensive solution to the problem is equally simple," they said. "In states where truth-related language is part of a state-wide model jury instruction, the state’s jury-instruction committee should modify its instruction accordingly. Alternatively, if the committee fails to do so, the state’s supreme court can use its supervisory powers to eliminate the “search for the truth” and similar language from its burden of proof instruction."
Such changes should not be controversial, because appeals courts have held that the "truth" language is probably not harmful, not that it is necessary or that the government is entitled to it.
"Now that empirical evidence demonstrates the "risk” is actually a reality—i.e., truth-related language diminishes and even eviscerates the government’s burden of proof—such language has no place whatsoever in criminal jury instructions."
Court of Appeals had a busy March
The Court of Appeals knocked out 65 appeals decided by three-judge panels in March, up from 42 in February and 31 in January.
Nineteen, or 29%, of those decisions were signed, while 71% were per curiam, anonymous opinions. Lower courts were affirmed in 54, or 83%, of the cases and reversed in 8, or 12%. Circuit judges were affirmed in part in the remain three cases, or 5%.
Appeals judges who signed their names to their work were:
District 1 -- William W. Brash III (2), Kitty K. Brennan (2), Patricia S. Curley (2), Joan F. Kessler (2),
District 2 -- Lisa S. Neubauer (2), Brian K. Hagedorn (3), Paul F. Reilly (3)
District 3 -- Michael W. Hoover, Lisa K. Stark,
District 4 -- Paul Lundsten
Circuit judges overturned were: Eugene D. Harrington (Burnett County); William E. Hanrahan (Dane County); Brian Pfitzinger (Dodge County); Jacqueline R. Erwin and David Wambach (Jefferson County); Lindsey C. Grady and Michael Guolee (Milwaukee County); Joseph W. Voiland (Ozaukee County); Patrick C. Haughney (Waukesha County); Daniel J. Bissett, Thomas Gritton (Winnebago County).
Bradley, Rogensack and Ziegler, now deciding Milwaukee cops' residency case, got $$ from Milwaukee cops
Three conservative State Supreme Court justice received campaign donations from the Milwaukee Police Association, which now is asking the court to overturn the city's residency requirements.
None of the three justices -- Annette Ziegler, Patience Roggensack, and Rebecca Bradley -- recused themselves from participating in the case.
Ziegler, elected in 2007, received a total of $500 from the MPA in 2006 and 2007; Roggensack, who is chief justice, received a total of $1,000 in 2012 and 2013; and Bradley, just elected to the court after being appointed by Gov. Scott Walker last year, received $1,250 from the MPA in 2013. (Ziegler also received $500 from the Milwaukee firefighters' union, which joined in the suit and would like to see the residency rule abolished.)
The court, by 4-3 vote, in 2010 changed its ethics rules so that campaign donations themselves were not enough to force judges to recuse themselves from cases. Voting with the majority were Gableman, Roggensack, Ziegler, and Justice David Prosser. Dissenting were Justices Shirley Abrahamson, Ann Walsh Bradley, and the late N. Patrick Crooks.
Wisconsin just made possession of masking agents illegal, punishable with fines of up to $500 and jail stays of up to 30 days. Delivering or manufacturing a masking agent carries a harsher penalty -- up to $1,000 in fines and 90 days in jail. And advertising masking agents can bring an offender up to $500 in fines and 30 days in jail.
Here's the rub. The Republican-sponsored law's definition of "masking agents" is so incredibly broad that it can be invoked to harass anyone holding a bottle of water. A masking agent is, according to the State of Wisconsin, "any substance or device that is intended for use to defraud, circumvent, interfere with, or provide a substitute for a bodily fluid in conjunction with a lawfully administered drug test."
Well, let's see. Drinking a lot of water to dilute urine is a fairly common way people try to beat drug tests. And diuretics are very common masking agents. Pity the poor woman carrying an over-the-counter PMS med in her purse or the guy taking a diuretic to help control his blood pressure. As for people carrying water or drinking water...will they have to justify themselves to police?
It will be interesting to see just who it is who will decide the intent of the people in possession of these dangerous items. Will people be considered guilty if they possess a diuretic on drug-testing days? Or will police decide what the intent is? And how will they decide?
Wisconsin Justice Initiative is asking the Common Council to repeal a resolution asking the state for authorization to add a municipal court surcharge to pay for police body cameras.
The surcharge would not directly benefit the offender or Municipal Court and would increase pressure on police and municipal judges to ensure that the courts create enough revenue to meet the city's fiscal obligation to am outside vendor, according to WJI.
"Such a surcharge would not be related to any particular municipal ordinance violation, would create a precedent for using surcharges to pay for standard police costs (why not a surcharge to pay for police officers' shoes?), and would fall disproportionately on some of the poorest residents of the city," WJI wrote in a letter to Common Council President Michael J. Murphy.
"The surcharge also would violate the spirit, if not the letter, of a new 'Dear Colleague' letter from the US Department of Justice," WJI wrote. "That letter expresses deep concern about the treatment of indigent defendants in courts across the country and reads in part, 'to the extent that these (forfeiture imposition and collection) practices are geared not toward addressing public safety, but rather toward raising revenue, they can cast doubt on the impartiality of the tribunal and erode trust between local governments and their constituents.'"
Ald. Terry Witkowski, who sponsored the resolution and was provided with a copy of the letter to Murphy, said in an email that the DOJ's letter was "irrelevant to this discussion as it speaks to safe guards (sic) already in place to guard against the concerns you write about. It does not say that fees should not be a part of court costs"
"If the state takes any action to help Milwaukee with funding body cameras, please let me know," he wrote. "I would be shocked that they would help."
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