By Margo Kirchner

​Voters who approved an amendment to the state constitution that killed a safeguard for fair trials in criminal cases were not adequately informed by the amendment's wording what voting “yes” on the referendum would actually do, the Wisconsin Justice Initiative and others argue in seeking to have the amendment invalidated.

The “Marsy’s Law” amendment eliminates a defendant’s right to have an alleged victim kept out of the courtroom if that is necessary to ensure a fair trial. Marsy’s Law allows the alleged victim to attend all proceedings, even if that clearly jeopardizes the possibility of a fair trial.

WJI and fellow plaintiffs WJI Board President Craig Johnson, WJI Treasurer Jacqueline Boynton, attorney Jerome Buting, and State Sen. Fred Risser (D-Madison) recently filed their motion and supporting brief to strike the new amendment from the state constitution.  The plaintiffs contend that the ballot question was defective, voiding the referendum's outcome.

The plaintiffs are asking Dane County Circuit Judge Frank Remington to invalidate the measure, approved by voters in April.

“WJI made the point … in our filing that the question voters confronted on the ballot in April didn’t give them a clue as to the far-ranging and potentially devastating effects that Marsy’s Law will have on our criminal justice system,” WJI’s Johnson said.

The amendment is "deceptively sweeping," Attorney Dennis Grzezinski, representing the plaintiffs, said in a brief.

The ballot question asked simply whether a section of the constitution already setting forth victims’ rights should “be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court.”

The plaintiffs argue in their brief that the question violated the constitution and Wisconsin Supreme Court precedent in at least three ways.

First, they say, the question failed to fully and fairly inform voters of every essential element of the amendment.

Pointing to long-standing case law, the plaintiffs argue that the Supreme Court allows the Legislature discretion in formulating a ballot question, but that discretion has limits. The court has said a ballot question must “reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment” so the public “may be fully informed on the subject” on which they are voting.

Grzezinksi argues that not all the essentials of the Marsy’s Law amendment — which runs more than twice the length of the U.S. Bill of Rights — were included in the ballot question. Among other things, say the plaintiffs, the amendment also

• added to the constitution 16 new or expanded victims’ rights in criminal cases not listed or explained in the ballot question
• converted a case between the state and an accused person into a three-way contest between the prosecutor (whose duty is to achieve justice, not conviction), the accused (who seeks to demonstrate innocence or mitigating evidence), and alleged victims (who may be motivated by revenge or desire for compensation)
• struck from the constitution its only reference to a “fair trial for the defendant”
• eliminated protections for those not yet formally charged with crime and any protections in other sections of the Wisconsin Constitution or state statutes
• expanded the definition of “crime victim” to include the relatives or roommates of those who are dead or physically unable to exercise their own rights, and
• gave victims a unique right to immediate Supreme Court review of any adverse decisions during their cases case, meaning that alleged victims can skip the State Court of Appeals.

​Testimony against:
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State Public Defender’s Office - As with most penalty enhancers or mandatory minimum sentences, evidence does not demonstrate that they serve as an effective deterrent.
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The bill is unlike other laws that increase the penalty for witness intimidation because it is based on the underlying crime, not the degree or type of intimidation involved, SPD said.

This could present the hypothetical scenario that intimidation of a witness in a domestic abuse crime is treated more severely that intimidation of a witness in a homicide even if the type of intimidation employed is similar.

End Domestic Abuse Wisconsin – The intent of this legislation is laudable, and we appreciate and share lawmakers' goal of supporting survivors. However, End Abuse opposes the idea that increased sentencing is the solution to ending domestic violence. Criminalization has been the primary response to domestic abuse in the U.S. for 30 years, and the results are disappointing. The failure of the criminal legal system to seriously decrease neither incidence nor the severity of intimate partner violence highlights the limits of a one-dimensional approach to a multi-dimensional problem. Increasing penalties will do very little to protect survivors of violence....

Imagine the impact this legislation would have on a victim, assumed to be an abuser, entering the criminal legal system. Requiring that victim intimidation in domestic violence cases is charged as a felony, rather than looking at incidents on a case by case basis, removes judicial discretion and the exploration of other remedies or appropriate charges. 

Intimate partner violence (IPV) has overlapping economic, community, public health, and human rights facets. Viewing intimate partner violence through each of these frames opens new avenues for addressing the problem. IPV will continue unabated if policymakers continue to focus on punishment and fail to focus on economic inequality and instability. The evidence is clear that IPV is more prevalent and more severe in the context of economic distress. Poor people, particularly poor women, are more vulnerable to IPV and few policy dollars are allocated to programs that would directly reduce that risk.

Victims and advocates talk frequently about lack of access to legal aid, underfunding of county victim witness units, chronically overworked and underpaid DAs and public defenders, restrictions on access to Medicaid and other lifesaving benefits, sparse or nonexistent affordable housing in their area, and an insufficient focus on interpersonal violence in our education system. These are just a handful of resources that can, when made accessible and adequately funded, make a difference. Individuals who receive assistance in securing material resources are significantly less likely to experience psychological and physical abuse after leaving shelter and report greater improvements in their quality of life. Therefore, economic policy may have more potential to seriously decrease IPV than other policy interventions.

Let us not forget that incarceration is expensive. We're talking about spending a considerable amount of taxpayer dollars, over 10 years, to house an individual who has intimidated a victim. Imagine if we provided supportive housing for that victim instead. What would it look like if we used those funds to provide survivors with the support they need to live a life free from violence? What if we listened to their voices? Survivors across the state are not telling us that we need to be tougher in sentencing. They're telling us that they need affordable housing and childcare. They're telling us that their partners need help. They're telling us that incarceration is not justice. 

Registering for the bill: Badger State Sheriff's Association, Wisconsin Chiefs of Police Association Inc., Wisconsin Sheriffs and Deputy Sheriffs Association.

Registering against the bill: City of Milwaukee, End Domestic Violence: the Wisconsin Coalition Against Domestic Violence, Wisconsin District Attorneys Association, Wisconsin Justice Initiative Inc.

By Gretchen Schuldt

​The decline in the state's population slowed markedly in the past two weeks as the state started accepting new inmates from counties, a practice it suspended March 23 in an effort to block the importation of the coronavirus into state prisons, according to state figures.

The state started accepting inmates again on June 1.

Because of the crowded conditions in prisons, they are considered prime sites for COVID-19 spread.

The Wisconsin prison population declined by just 66 inmates during the week ending June 5 and 106 during the week ending Friday, according to the Department of Corrections. The last time the prison population decline was anywhere near that small was during the week ending March 27, when it dropped by 109 people.

​The overall prison population fell from 23,256 on March 6, the week before Gov. Tony Evers declared a coronavirus-related state of emergency, to 21,548 Friday, a decline of 7%.

David Liners, state director of WISDOM, a justice organization, said Evers is not doing enough to reduce the risk to incarcerated people.

"The governor once claimed he wanted to cut the prison population in half," Liners said. "At the moment when it is most urgent to use the powers unique to his office, he has failed by refusing to act."

WISDOM is organizing a "Drive to Decarcerate" caravan to Madison on Thursday.  People interested in participating can learn more and sign up here.

By Gretchen Schuldt

​Lying to a judge about having ovarian cancer is enough to warrant losing a court battle over parental rights, a State Court of Appeals judge ruled this week.

"All the evidence demonstrates that S.S. conducted an intentional, continuous campaign to perpetrate a fraud upon the court, manipulate the parties in this case, lie to her legal counsel, and create fraudulent medical records.," District II Court of Appeals Judge Paul F. Reilly wrote.

The ruling upheld Waukesha County Circuit Judge Lloyd Carter's decision to enter a default judgment against S.S., as she was referred to in court records.

S.S.'s child, A.W. was removed from her mother in 2016, after S.S. overdosed in her daughter's presence. She overdosed again in January 2017, illegally obtained narcotics in the summer of 2017, and was incarcerated for about three months that winter due to a heroin relapse while she was on probation.

Waukesha County filed a termination of parental rights petition in April 2018, alleging that S.S. had failed to assume parental responsibility and that A.W. still was in need of protection. S.S. contested the petition.

In June 2019, S.S.'s lawyer filed a motion to adjourn a scheduled jury trial on the petition.

The petition said that S.S. was "'experiencing some extreme physical distress'” and explained that S.S. was suffering “''increased pain, bleeding to a point that required frequent changes of sanitary products to avoid bleeding through clothing, exhaustion and an inability to function which have led to missing multiple appointments to prepare for trial,'” Reilly wrote. 

During a hearing on the matter, S.S. provided written documentation stating that she had ovarian cancer. The letter, purportedly from an emergency room nurse, said that S.S. was to be excused for four to six weeks due to the disease and related surgery. Carter granted the delay.

In July, the social worker assigned to the case filed a memo stating that S.S. refused to sign a release allowing her condition to be verified. S.S. said during a court hearing that she had privacy concerns and was protected by federal law.

Carter found the court had an interest in confirming the truthfulness of her representations and ordered her to sign the release.

Staff at Waukesha Memorial Hospital "denied writing the medical excuse that S.S. presented to the court, denied diagnosing S.S. with ovarian cancer, and indicated that they had no record of S.S. being diagnosed or treated for ovarian cancer at their clinic," Reilly wrote.  

S.S.'s lawyer later expressed concern that her client was "making use of me to defraud the court," Reilly said.

S.S. never denied the allegations that she faked the medical records and lied about it.

The county Department of Health and Human Services sought a default judgment and a finding that there were grounds to terminate S.S.'s parental rights. 

Carter granted the request. S.S.'s "conduct is the epitome of bad faith and egregious conduct…." he said.  "What (S.S.) did here was a calculated, planned effort on her part to make a false representation to her attorney knowing that her attorney would communicate that information to the Court, then follow it through with further fabrication and falsification." 

The court later found, at a separate hearing, that it was in A.W.'s best interests to terminate S.S.'s parental rights. 

S.S. appealed, arguing that the law does not give the court the right to terminate her parental rights because Carter did not specifically find that she violated a court order.

"As the circuit court acknowledged, S.S. presented no evidence in the record to suggest that perhaps a misunderstanding occurred....." Reilly wrote.  "The purpose of S.S.’s actions appears to be to manipulate the court’s calendar and avoid the jury trial on the grounds phase of the TPR proceeding."

The actions of S.S. were "egregious and constitute bad faith....Under the circumstances and given the court’s inherent authority to sanction parties for litigation misconduct, we see no error, he said.

WJI is taking a look at justice-related bills adopted during the 2019-20 session. ​

2019 Act 111 makes possession of any unauthorized item - even if it is otherwise legal - by a person incarcerated in a jail or prison a felony punishable by up to 3 ½ years in prison and a $10,000 fine.

The law was introduced as Senate Bill 70. Its companion bill was Assembly Bill 63. 

The lead authors of SB 70 were State Senators Andre Jacque (R-DePere) and Howard L. Marklein (R-Spring Green). The lead sponsors of AB 63 were State Representatives Ron Tusler (R-Harrison) and James Edming (R-Glen Flora).

Gov. Tony Evers signed it into law on Feb. 28,2020.

Fiscal estimates:

No fiscal estimates were filed.

sBy Gretchen Schuldt

​The Milwaukee Police Department's use-of-force policy does not prohibit the chokeholds or the kind of restraint that Minneapolis police used when they killed George Floyd, records show.

​Milwaukee has adopted just three of eight restriction on use of force recommended by Campaign Zero, an effort to reduce killings by police, according to the campaign.

Fire and Police Commission Executive Director Griselda Aldrete, responding to recent protests in Milwaukee, told the Common Council's Public Safety and Health Committee last week that the commission will review the policy.

Milwaukee's use-of-force policy also keeps secret the some of the weapons that the Police Department can use against protesters and others. The policy does not disclose why the public should not know what can of weapons can be turned against it.

The policy says the secret weapons are not lethal, but that cannot be verified without knowing what they are. Tear gas and rubber bullets also have been described as nonlethal, but they can kill or maim.

Campaign Zero has identified eight restrictions associated with fewer killings by police. Of those, eight, Milwaukee has adopted three – establishing a continuum of force, requiring a warning before shooting, and imposing on officers a duty to intervene if they see an excessive use of force by a colleague.

The campaign also says the city does not require that all other alternatives be exhausted before officers are authorized to shoot, but the Fire and Police Commission last year approved language that says that use of force that may result in serious injury or death "may only be used as a last resort." 

By Margo Kirchner

​Trial courts must issue specific factual findings on why a person is a danger to self or others before extending an involuntary commitment, the Wisconsin Supreme Court recently held.

Moreover, said the court, general concerns regarding a person’s mental state, inability to maintain employment, and inability to care for oneself are not sufficient for a finding of dangerousness. Justice Ann Walsh Bradley authored the court’s opinion in Langlade County v. D.J.W.

Chief Justice Patience Drake Roggensack dissented, saying she would have recommitted D.J.W. on grounds that Langlade County never even raised in Circuit Court or on appeal. Justice Rebecca Grassl Bradley also dissented, on different grounds.

In January 2017, a circuit court in Langlade County found D.J.W. mentally ill, dangerous, and in need of treatment. The court committed D.J.W. to custody for six months and ordered involuntary treatment and medication. In June 2017, Langlade County petitioned to recommit D.J.W. for a year.

The Circuit Court appointed Dr. John Coates to examine D.J.W. in connection with possible recommitment. Though Coates wrote a report following the examination, at the July 2017 recommitment hearing the County presented only Coates’ oral testimony. The report was not admitted as evidence.

Coates testified at the hearing that D.J.W. had schizophrenia, a history of hallucinations over three years, and an illogical thought process with “grandiose illusions.” Coates said D.J.W. reported seeing the devil and hearing voices in the months prior to the hearing and that D.J.W.’s illness was treatable with psychotropic medication.

When asked whether D.J.W. was a danger to himself or others, Coates opined that if D.J.W. were to end treatment he would likely exacerbate his illness and experience hallucinations. But, said Coates, “the greater risk is just his inability to properly care for himself and to properly socialize if he goes untreated.”

Coates noted that D.J.W. had been living with his parents, quit his job because he thought he was the Messiah, and obtained disability benefits. To the doctor, these facts suggested that D.J.W. could not independently care for himself and would be homeless if his parents did not provide shelter. Coates thought D.J.W.’s judgment was still impaired.

Coates testified that he did not know if D.J.W. was suicidal or homicidal. But, he said, acutely psychotic individuals’ actions are unpredictable and for D.J.W. suicidal and homicidal ideations were possible.

Coates reiterated that the “major danger” to D.J.W. was that if he stopped medications he would be delusional and hallucinating and unable to interact appropriately with others. Coates continued: “So the major danger is to himself. I don’t think he’s necessarily a violent man that’s going to go out and harm others.”
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On cross-examination, when pressed about how D.J.W. quitting his job showed dangerousness, Coates responded that D.J.W. lost his employment and could not provide for his basic needs, had been found disabled, and would be homeless without his parents’ help.

Meanwhile, the number of coronavirus cases reported in state prisons continues to increase, as DOC introduces, belatedly, wider testing. There were 213 people incarcerated at Waupun Correctional Institution who tested positive, a 92 percent positive rate, according to DOC figures. Other positive tests were were recorded at Columbia Correctional Institution (2), Felmers O. Chaney Correctional Center (18), Marshall E. Sherrer Correctional Center (5), Milwaukee Secure Detention Facility (1), and Oshkosh Correctional Institution (8). Thus far, DOC has conducted 4,770 tests at its adult institutions, for a testing rate of about 22%. The results of 1,981 tests are pending. 

Incarcerated people continue to express apprehension and anger about the virus and their treatment in prison. Inmate testimonials are below. They have been edited for length and clarity and to protect the writers' identities

I put in a hsu (Health Services Unit) form saying I wasn't feeling good and I was woke up the next morning at 1 a.m. and they gave me a mask and brought me and my celly to hsu where I was given a flu test which was negative then they gave me the coronavirus test and told me we were being put on quarantine until the results came back....They said we were being the first people going to segregation on quarantine because the hsu unit was full so they said they cleared a wing out in set for us.

So me and my celly were forced to walk ourselves to the hole at 3 a.m. then when I got there they made me strip search and wear restraints just like a seg inmate. I tried to refuse telling them if they are not subject to do this over on the hsu unit then we shouldn't have to do it either and I told them that putting on them restraints against my will when I did nothing wrong gives me flashbacks ...I told them I wasn't trying to go through that again. 

I told them...I need to talk to a psychologist and a white shirt I was told I would see both but the whole time I was in seg I saw neither. I was told if I didn't put the restraints on I would receive a major ticket so I had no choice....I was treated worse than a seg inmate. A few hours after I was there the Sgt came to my door and told me...I had to wear seg oranges and I had to give him my keep-on-person meds which was the only property I had. So I tried to refuse until I was again threatened with a major ticket. I gave up my meds and my greens....I was told we would eventually get our property like the guys on the hsu unit get it they even get there electronics but they did the opposite and took what little property I had. I couldn't even get a book! 

(The man said he developed a migraine.)