By Gretchen Schuldt
A Milwaukee County judge must hold a hearing to determine whether a defense lawyer was ineffective because he told a jury he wasn't sure he believed his client, failed to impeach witnesses who provided inconsistent statements, and did not challenge key testimony that was clearly incorrect, a state appeals court said Tuesday.
The hearing was sought by Ronald Lee Gilbert, who was convicted of trafficking of a child, second-degree sexual assault of a child, and intentional child abuse.
Gilbert's lawyer, Robert L. Taylor, during his closing argument to the jury in Gilbert's trial, questioned the truthfulness of his client and witnesses against him.
"I’m not sure I believe any of them, to be quite frank," Taylor said. "A little bit here, a little bit there, but I’m not sure I believe any of them. ... Maybe they get this, but morality is what’s missing here. There’s no good guys."
Taylor also told the jury that in the United States "we would rather...let some scumbags go free because we can't find that person guilty if we don't have enough evidence."
While Taylor did not mention Gilbert by name, Appeals Judge Timothy G. Dugan wrote, "the jury could reasonably understand that trial counsel was referring to Gilbert."
Taylor was appointed by the State Public Defender’s Office to represent Gilbert. Such lawyers are paid $40 an hour, the lowest hourly rate in the nation and one that many say is not enough to convince experienced and quality lawyers to take public defender appointments. The State Supreme Court, however, has declined to increase it.
Gilbert didn't have a choice in accepting Taylor, whose license previously had been revoked for a variety of reasons, including felony convictions. Taylor was Gilbert's second lawyer. When Gilbert sought to replace his first attorney, Circuit Judge Rebecca Dallet allowed him to do so, but warned that he "would get one more attorney appointed and if he doesn't get along with the new attorney, he will represent himself," according to court records.
The state alleged in its criminal case that Gilbert had oral sex with a 14-year-old girl and sold her to his friend, Brandon Pratchet, for prostitution for $100 and a piece of stereo equipment.
The girl and Pratchet testified against Gilbert at trial. Pratchet had a plea deal with the prosecution that reduced from 98 years to 25 years the maximum prison term he would face, Dugan wrote. Prosecutors also agreed to inform Pratchet's sentencing judge about his cooperation.
Gilbert was ultimately convicted and sentenced by Circuit Judge Dennis R. Cimpl sentenced Gilbert to 10 years in prison and five years of extended supervision.
Cooperator Pratchet was far more fortunate. Dallet sentenced him to three years probation one one count of soliciting a child for prostitution. Three other counts – keeping a place of prostitution, panderinging/pimping, and second degree sexual assault of a child, were dismissed but read in. Dallet stayed a sentence of four years in prison and three years extended supervision.
The officer's testimony was "inaccurate," Dugan wrote. "It is undisputed that cell phone mapping does not provide the location of a cell phone within feet."
Key to the case against Gilbert was a police officer's testimony about the location of Gilbert's cell phone at the time that Pratchet and the girl said Gilbert was at an Econo Lodge selling the girl. Gilbert said he was not there.
The officer, who was not an expert in cell phone technology, testified that Gilbert's cell phone data proved he was within 120 feet of the hotel at the time.
"However," Dugan wrote, "that testimony was inaccurate – the data did not indicate that Gilbert's cell phone was within 120 feet of the Econo Lodge....It is undisputed that cell phone mapping does not provide the location of a cell phone within feet."
The map the officer relied upon when testifying showed three 120-degree sectors, not 120-foot
sectors, Dugan wrote.
The prosecutor emphasized the erroneous cell phone location information during her closing argument. Taylor never challenged it – the critical error was not exposed at trial.
At a post-conviction hearing, rejecting testimony from an expert witness for the defense that it is "completely impossible" to use historical cell phone records to put a phone within 100 feet of a specific location, Circuit Judge Stephanie Rothstein ruled that Gilbert had not shown the cellular information was inaccurate. She did not rule on whether Taylor was ineffective, according the appeals decision and a defense brief filed in the case.
Besides failing to challenge the cell phone information, Taylor failed to either obtain or review discovery available to him, including the cellular information, Gilbert alleged in his post-trial motion. Rothstein rejected the argument without a hearing, but the appeals panel ordered one.
"The conflicting facts presented involve credibility determinations and were improperly resolved without a hearing," Dugan wrote. He was joined in his opinion by District 1 Court of Appeals Judges Joan F. Kessler and William W. Brash III.
Gilbert also deserves a hearing on whether Taylor was ineffective when he did not impeach the girl or Pratchet with prior inconsistent statements, the appeals panel said. Gilbert said the girl previously had backed up his version of events.
"We emphasize that we are not deciding that trial counsel was ineffective, only that Gilbert’s original and supplemental post-conviction motions were sufficient to require that the post-conviction court conduct an evidentiary hearing," Dugan said.
Taylor has an interesting history, records show. He was licensed in 1979, but his license was revoked in 1987 following his conviction for felony theft from two clients. Later, in 2003, it was retroactively revoked effective Dec. 14, 1992 for other violations, including a 1990 conviction in federal court for conspiracy to defraud by misapplying funds and embezzlement from a federal credit union, according to State Supreme Court records. He also represented three clients in 1985, when his license was suspended for failure to comply with continuing legal education requirements.
The State Supreme Court reinstated his license in 2006 over the objections of the Office of Lawyer Regulation.
By Margo Kirchner
The recent challenge to Wisconsin’s "cocaine mom" statute that allows pregnant women to be locked up failed this week because the plaintiff moved out of state.
The U.S. Court of Appeals for the Seventh Circuit ordered Tamara Loertscher’s challenge dismissed because she no longer is subject to the Wisconsin law and therefore cannot challenge its constitutionality. Loertscher was jailed without a lawyer after she told hospital staff that before learning of her pregnancy she used marijuana and methamphetamines to deal with medically induced depression and fatigue.
Loertscher lived in Wisconsin when she filed her case in late 2014. She later moved out of state.
U.S. District Judge James Peterson found that the move did not impact Loertscher’s claims and held the "cocaine mom" law unconstitutional for failing to give women fair warning about what conduct is prohibited and failing to provide authorities any meaningful standard for enforcement. Peterson blocked the law, but the U.S. Supreme Court stayed that order while Wisconsin Attorney General Brad Schimel appealed to the Seventh Circuit.
The appeals court, in a decision written by Senior Circuit Judge Kenneth F. Ripple, vacated Peterson’s order, but not based on the merits of Loertscher’s challenge. Instead, the Seventh Circuit disagreed with Peterson about the impact of Loertscher’s move. The court pointed to a constitutional provision limiting federal courts to deciding “actual, ongoing controversies.” The existence of a controversy when a case is filed is not enough; the issue must remain live and the parties must retain a personal interest in the outcome throughout the case, even on appeal.
Because Loertscher moved out of state during the case she no longer needs protection from the law, said the court. And in cases seeking to block enforcement of a statute, “once the threat of the act sought to be enjoined dissipates, the suit must be dismissed as moot.”
Ripple was joined in his opinion by Circuit Judges Joel M. Flaum and Daniel A. Manion.
The panel noted the lack of any evidence showing that Loertscher moved due to the statute or fear of its application to her.
According to the court, Loertscher’s case did not fall into a limited exception to the mootness rule for cases that are “capable of repetition, yet evading review.” The exception applies in rare situations when (1) a challenged action is too short to be fully litigated prior to its cessation and (2) a reasonable expectation exists that the same complaining party will be subject to the action again. In Roe v. Wade the Supreme Court said that pregnancy is a classic justification for the exception.
But the Seventh Circuit found that Loertscher cannot satisfy the second part of the exception because her voluntary and permanent departure from Wisconsin “makes the possibility of her once again being subject to the statute a matter of pure speculation.” Loertscher has no reasonable expectation that she will find herself within Wisconsin’s borders when she is both pregnant and using drugs, the panel said.
The court likened Loertscher’s case to that of two doctors who challenged Michigan’s physician-assisted suicide ban. The Sixth Circuit Court of Appeals dismissed the doctors’ case as moot when one doctor retired and the other moved from Michigan to California.
Her voluntary departure from the state “makes the possibility of her once again being subject to the statute a matter of pure speculation.”
WJI reported details of Loertscher’s case and the "cocaine mom" law previously. After Loertscher acknowledged her past drug use to hospital staff, the hospital reported Loertscher to the Taylor County Department of Human Services, claiming that her behavior with drugs put her fetus in serious danger. Taylor County appointed a lawyer to represent Loertscher’s fetus (but not Loertscher) and began proceedings under the "cocaine mom" law to determine whether Loertscher’s fetus needed protection or services.
Loertscher refused to participate in a quickly scheduled temporary physical custody hearing unless she had legal representation. The court conducted the hearing without her and ordered that she submit to an assessment and possible treatment for drug abuse. When Loertscher refused to comply with the order, the court held her in contempt and in jail for 18 days, during which time Loertscher received no prenatal care even after asking to see a doctor.
Loertscher on her own contacted an attorney and secured appointment of a public defender. She obtained release only after agreeing to an alcohol and drug-abuse assessment and weekly drug testing at her own expense. All tests were negative and Loertscher delivered a healthy baby in January 2015.
While pregnant, Loertscher sued the state, alleging that the "cocaine mom" law is unconstitutional and cannot be enforced. Judge Peterson agreed on the merits, but his decision no longer has any effect after the Seventh Circuit’s decision on appeal.
Loertscher’s suit is the second unsuccessful attempt to overturn the law through litigation. A prior plaintiff also lost her case on procedural grounds.
"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications.
Name: J. Michael Bitney
Appointed to: Barron County Circuit Court
Appointment date: July 11, 2013 (elected to a 6-year term in 2014)
Law School – Hamline University
Undergraduate – Hamline University
High School – None listed on application
1993 - present – Washburn County district attorney
1985 - 1992 – Associate, Bitney Law Firm, Spooner, WI
Washburn, Sawyer & Rusk Tri-County Bar Association
Wisconsin District Attorneys Association
State of Wisconsin Bar
Federal Courts, Western District of Wisconsin
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Worked with father and brother at Bitney Law Firm in Spooner. Represented northwestern Wisconsin clients in family, criminal, traffic, probate, businees, property, personal injury, contract, and bankruptcy matters.
Thereafter in 1992, I ran for the office of District Attorney for Washburn County on the Republican ticket. I was elected and took office in Jan. 1993. For the past twenty (20) years, I have proudly represented & served the People and victims of crime in both juvenile court and adult court in literally thousands of cases ranging from county ordinance violations to first degree intentional homicide cases and everything in between.
Number of cases tried to verdict or judgment: Jury, 100+; non-jury, 1000's; arbitration, 0; administrative bodies, 0.
Cases on appeal: 20+
Two most significant cases:
State of Wisconsin vs. Ernest E. Halford – The defendant and three co-defendants ... came to Washburn county looking to burglarize rural homes and steal cash, jewelry & firearms that they could then pawn to support their drug habits. A neighbor to one of the victims (Mr. Peter Barton) stumbled onto their burglary in progress and Halford and one other co-defendant, Edward Rollins, took Barton at gun point into a pine plantation behind the burglarized home where they tied him to a tree and shot him to death.
This was my first homicide jury trial. ... I successfully prosecuted all of the defendants who received lengthy prison sentences and the shooter, Haldord, (sic) received a sentence of life without parole plus 65 years.
State of Wisconsin vs. Michael Stoner – In a case that made headlines in 2007, the defendant and his girlfriend survived the collapse of the I-35 bridge in Minneapolis, Minnesota, while en route to the hospital where her daughter was taken for emergency treatment.
Originally hailed as a hero, the public soon found out that Stoner was the only adult with the toddler when she was injured. ... Medical experts, however, concluded that her injuries were not accidental but were consistent with Shaken Baby Syndrome. … Mr. Stoner ultimately entered a plea of no contest … and was given the maximum possible sentence of twelve (12) years six (6) months in prison.
State of Wisconsin vs. Eugene Huntington – Another case that I successfully prosecuted and which on appeal expanded the “excited utterance” and “residual hearsay exceptions” to the hearsay rule … The defendant, Eugene Huntington, was convicted of multiple counts of 1st Degree Sexual Assault of a Child. … The Wisconsin Court of Appeals affirmed and the Wisconsin Supreme Court … held that the trial court had properly admitted statements that the victim made to her mother and to her health care providers.
All previous runs for office: Washburn County District Attorney, first elected in 1992 and re-elected since.
(Information about an unsuccessful run for Washburn County Circuit Court judge provided in the next answer.)
Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: Yes, in addition to my own campaign(s) for Washburn Co. District Attorney, I ran for Washburn County Circuit Court Judge back in 1997. I lost in a close race to Eugene D. Harrington by just over three hundred votes.
I also campaigned for & supported Attorneys Thomas J. Duffy and Steven H. Gibbs in their previous campaigns for Circuit Court Judge in Sawyer and Chippewa counties respectively.
Finally, I endorsed and supported Steven Gibbs in his successful campaign for Chippewa County District Attorney.
All judicial or non-partisan candidates endorsed in the last six years:
Hon. Michael Gableman, Burnett County Circuit Court Judge and WI Supreme Court Justice.
Hon. James D. Babbitt, Barron County Circuit Court Judge, Branch III.
Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application:
Volunteer firefighter, Spooner Fire District
Boy Scout leader and Scoutmaster, Spooner Troop 104
Head coach and assistant coach in youth soccer, baseball, football & basketball
Kiwanis Men’s Club member
Lion’s Club member
Lector and volunteer, St. Francis de Sales Catholic Church
Volunteer Faith in Action
Spooner Little League Board member
Spooner Hoops Club Board member
Spooner Baseball Foundation Board member
Describe any significant pro bono legal work in the last five years: No answer given.
Why I want to be a judge – My passion and my calling has been to serve others. As you can see from my application, I have done this throughout my adult life both professionally and personally in many different capacities, both in the private section and as an elected official. ...
A good judge treats others (lawyers, litigants and staff) with dignity and respect. S/he is patient and kind. An effective judge is a good listener. S/he has a sense of humor and doesn’t take him or herself too seriously. A good judge comes to court well prepared …
A good judge is driven by the search for the truth.
Most importantly, a good judge is fair.
I possess these qualities. I have the legal and life experience, knowledge, work ethic and the demeanor to be a good Judge.
It’s time for me to take the next step in my professional career to expanded that service to others, as a Circuit Court Judge.
Best United States or Wisconsin Supreme Court opinion in the last thirty years – Davis v. United States (2011)
The police searched Davis’ vehicle after placing him under arrest for obstructing an officer. During the vehicle search police found a handgun. Davis was ultimately convicted of possession of a firearm by a convicted felon. While Davis’ appeal was pending the U.S. Supreme Court announced it’s decision in Arizona v. Grant …overruling nearly (30) years of prior precedence. … In denying Davis’ appeal, the Supreme Court held that when police conduct a search in reasonable “good faith” reliance on previous precedence, the exclusionary rule does not apply.
The decision is significant for several reasons.
First, it reminds us that the “exclusionary rule” is not a personal constitutional right. …
Second, this decision clearly admonishes judges that not all fourth amendment violations require the harsh sanction of excluding otherwise reliable and trustworthy evidence. …
Third, it instructs the courts to engage in a cost-benefit analysis, examining the aforementioned “societal cost” of suppressing valuable evidence versus the flagrancy of police misconduct involved …
I believe that this is one of the best U.S. Supreme Court decisions within the last thirty (30) years because it serves as a powerful reminder that our entire system of jurisprudence is premised upon the search for the truth and that society should swallow the bitter pill of excluding otherwise reliable, trustworthy and valuable evidence when necessary but only as a last resort to curb egregious police misconduct.
I believe that this is one of the best U.S. Supreme Court decisions within the last thirty (30) years because it serves as a powerful reminder that our entire system of jurisprudence is premised upon the search for the truth and that society should swallow the bitter pill of excluding otherwise reliable, trustworthy and valuable evidence when necessary but only as a last resort to curb egregious police misconduct. – Barron County Circuit Judge J. Michael Bitney
Worst United States or Wisconsin Supreme Court opinion in the last thirty years – Arizona v. Gant (2009)
Arizona v. Gant … which effectively overruled a single familiar standard that had guided law enfocement officers in federal and state courts for nearly three decades … providing law enforcement officers with the authority to search an automobile incident to the arrest of one or more of it’s occupants; was one of the worst decisions in recent US Supreme Court history.
In place of the aforementioned bright line rule, the Court adopted a new two-part rule under which an officer who arrests a vehicle operator or occupant may search the passenger compartment of the vehicle only 1) if the arrestee is within reaching or lunge distance of the car at the time of the search or 2) the officer has “reason to believe” that the vehicle contains “evidence of the offense of arrest.” (Whatever those phrases mean.)
The folly of this decision is readily evident. The first prong of this rule a) encourages officers to leave a potentially dangerous suspect(s) within arms reach of his vehicle to avoid the necessity of a search warrant or b) is irrelevant because intelligent law enforcement officers always secure suspects away from their vehicles before searching them to ensure the officer safety.
The second prong of this rule creates a yet-to-be-defined or understood legal standard allowing officer to search the suspect’s vehicle only if s/he has reason to believe that the vehicle contains evidence of the offense of the arrest. What does this rule mean? Is probable cause required? Will reasonable suspicion that the vehicle contains evidence of a crime suffice? And what does “evidence of the offense of the arrest” mean? As Justice Alito said in his dissent, it is certain to confuse law enfocement officers, prosecutors and judges for years to come. …
Judicial philosophy – Judges should interpret and uphold the law, not create it.
Our founding fathers enacted a constitution that created a democracy made up of three different branches of government; executive, legislative and judicial to ensure that our nation would survive through a system of checks and balances. …
When judicial activists forget this and attempt to legislate from the bench, this system is turned on it’s head and the voice or will of the people is drowned out.
Judges aren’t elected or appointed to create law, legislators are.
I also believe in the legal principle of Stare Decisis. Judges ought to respect precedencts established by prior decisions.
Any other information you feel would be helpful to your application:
List of personal references given, including contact information for JB Van Hollen, Hon. Michael J. Gableman, Hon. James D. Babbitt, and Hon. Kenneth L. Kutz.
By Gretchen Schuldt
Milwaukee police acted improperly when they questioned a driver they stopped for a broken headlight about whether he had a concealed carry permit and if he had any weapons in his car, an appeals court has ruled.
While the traffic stop was justifiable, there was nothing in driver John Patrick Wright's demeanor that supported any suspicion of criminal wrongdoing, Appeals Judge Joan F. Kessler wrote in her decision.
Kessler affirmed a ruling by Milwaukee County Circuit Judge Hannah Dugan.
Wright, who is African-American, was stopped by two officers while driving on the city's north side in July 2016.
"Wright was asked whether he had a concealed carry permit and whether he had any weapons in the car," Kessler wrote. "Wright answered that he recently took a CCW permit course and admitted that he had a firearm in the car."
One of the officers, Jesus Gloria, found a handgun in the glove compartment. Wright was arrested and charged with misdemeanor carrying a concealed weapon.
Wright filed a motion to suppress the evidence, arguing that questioning him about the CCW permit and whether he had a gun violated his Fourth Amendment rights.
"The State misses the point." – Appeals Judge Joan F. Kessler
"Wright argued that police lacked reasonable suspicion to question him about a CCW permit and weapons in the car, the questions were unrelated to the purpose of the traffic stop, and the police conduct transformed an initially lawful stop into an unreasonable seizure," Kessler wrote.
The second officer involved in the stop, Kristopher Sardina, testified during a motion on the hearing that Wright pulled over immediately when police indicated he should do so and that Wright did not make any furtive gestures. Sardina also testified that officers are trained to ask about weapons during traffic stops.
Kessler rejected the state's argument that the officers had a legitimate safety interest and so did not unlawfully extend the traffic stop. Previous courts have ruled that questioning during traffic stops can be expanded beyond the reason for the stop only if their are additional legitimate "suspicious factors." Those factors were lacking in Wright's case, she said.
"Nonetheless, the State contends that Sardina’s questions were lawful because they were negligibly burdensome and did not add much time to the traffic stop," Kessler wrote. "The State misses the point. Authority for Sardina’s seizure ended when he reasonably could have issued a citation for Wright’s traffic violation. ...Wright was questioned and subsequently arrested with absolutely no articulated reason for Sardina to be concerned for officer safety."
"Sardina’s testimony confirms nothing about the circumstances of the traffic stop or about Wright which justified inquiry about a firearm," she concluded.
By Gretchen Schuldt
The Dane County Board will consider whether to hold a Nov. 6 advisory referendum on legalizing marijuana.
The resolution already has support from a majority of the County Board. Twenty of the county's 37 supervisors are sponsors.
The resolution that would authorize the referendum is very similar to the one approved by the Milwaukee County Board last month.
The referendum question would differ somewhat from the Milwaukee County question, which also will be on the Nov. 6 ballot. The Dane County question would ask: "Should marijuana be legalized, taxed and regulated in the same manner as alcohol for adults 21 years of age or older?"
The Milwaukee County question will ask, "Do you favor allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana?"
Sponsors of the measure are Yogesh Chawla, Jeff Pertl, Tanya Buckingham, Kelly Danner, Patrick Danner, Analiese Eicher, Chuck Erickson, Richard Kilmer, Jason Knoll, Dorothy Krause, Patrick Miles, Paul Nelson, Steven Peters, Michele Ritt, Bob Salov, Andrew Schauer, Sheilia Stubbs, Matt Veldran, Heidi Wegleitner, and Hayley Young.
The resolution was referred to the Executive Committee.
By Margo Kirchner
President Trump's next U.S. Supreme Court appointment likely would make Chief Justice John Roberts the ideological middle of the court, according to the dean of the University of California, Berkeley, Law School.
Dean Erwin Chemerinsky noted that Justices Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer are all older than the average age at which past Supreme Court justices have retired.
Roberts becoming the "center" would show the Court's continued movement toward the conservative viewpoint, he said.
Chemerinsky, a well-known scholar on constitutional law, spoke as part of a panel hosted by the American Constitution Society. He discussed the progression of the median or swing justice from Justice Lewis Powell to Justice Sandra Day O’Connor to Justice Anthony Kennedy.
He said another Trump appointment would most likely have an effect on affirmative action laws, criminal penalties, and the exclusionary rule (which generally prohibits the admission of illegally obtained evidence).
In addition, he sees five votes to overrule Roe v. Wade should another Trump appointee make it to the Court.
He also expects, however, that if Democrats take the Senate in November 2018 they would sit on any Trump Supreme Court nominee until after the 2020 elections, as pushback after President Barack Obama’s failed Merrick Garland nomination. Senate Republicans refused to vote on Garland's nomination for 10 months, until Obama's term expired.
Law professors Melissa Murray and Pamela Karlan joined Chemerinsky on the panel, moderated by Caroline Frederickson, president of the American Constitution Society. Murray, a professor and faculty director of the Center on Reproductive Rights and Justice at Berkeley Law School, discussed a second Trump appointee’s potential effect on reproductive rights and the frequent chipping-away of Roe. Karlan, a professor at Stanford Law School, speculated on the status of LGBTQ rights if another Trump nominee joins the Court.
Karlan noted the importance of getting the public to understand how court decisions affect their lives.
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