By Gretchen Schuldt
Witnesses said Alphonso James was the man they saw with Delbert Pascavis or outside Pascavis' house the night he was murdered in July 1985.
James' friends, though, swore he was with them at those times.
Both things cannot be true. The jury believed the prosecution witnesses and James went off to prison for the next 31 years. To this day, James says he is innocent; he says he did not kill Pascavis.
Mistaken eyewitness identifications are a huge problem. The Innocence Project says they were involved in 71% of the more than 360 wrongful convictions in the United States later overturned by post-conviction DNA evidence.
After the Pascavis homicide, witnesses gave varying descriptions of the man they identified as James. One said he was in his late 20s to early 30s, 6' 1"-6'2', and 190-200 pounds. Another said he was about 25 and 5'5" to 6" tall.
James was 17, 5'9", and 154 pounds.
The witness accounts and James' confession, which he gave after more than seven hours in custody without a lawyer and almost immediately repudiated, were the key elements in his conviction.
One witness told police she observed Pascavis and James together starting shortly after 4 p.m. and saw them together "throughout the evening hours."
At one point, they were sitting on the porch and sharing a bottle. "She thought it was beer or something else, because the longer they talked, the louder they got," according to a police report.
The witness, who did not testify in court, told police the last time she saw Pascavis alive was about 11 p.m. July 26 and he still was with James.
The witness identified James from police photos. She could not pick him out of line-up, however.
James' girlfriend, Patricia Lewis – the two had a child together – told police that he came to her home about 8:30 p.m. the evening of the murder and left about 10:25 p.m.
By Gretchen Schuldt
People in Dane and Milwaukee counties were far less likely to be charged with marijuana crimes last year than were people in other counties in the state, but those charged in those two places were more likely to be African-American and male than in other counties, according to a review of 2018 cannabis cases in Wisconsin.
The review, a joint effort of the Wisconsin Justice Initiative and the American Constitution Society Milwaukee Lawyer Chapter, thus far has covered 24 counties, or one-third of the 72 counties in the state.
Milwaukee County had the largest gender gap among cannabis case defendants. A whopping 95% of the 288 people charged with marijuana crimes or misdemeanors were men, far more than in most counties reviewed thus far. Dane County, where 90% of 125 defendants were male, had the second-highest share of male defendants.
Green County, with just 27 criminal cannabis cases last year, came in third. Twenty-four of the defendants, or 89%, were men.
Forest County may have – may have – had more female marijuana defendants than male. If so, it would be the only county reviewed thus far where the number of female defendants exceeded the number of male defendants. There were 19 men and 23 women charged with cannabis crimes last year, but there also were seven charged whose genders are listed as "unknown" in online court records. The actual genders of those seven would determine whether Forest County actually was a female-majority cannabis defendant county.
(And yes, we understand that gender is not necessarily binary, but it is for court purposes.)
Dane County was the least likely among the 24 counties to issue criminal cannabis charges against anyone. Dane County filed one criminal case containing a marijuana charge for every 4,339 county residents. Milwaukee County, which filed a cannabis case for every 3,292 residents, had the second-lowest rate.
Gender of cannabis criminal case defendants in 2018
Milwaukee County was number one when it comes to the share of cannabis defendants charged who were African American – 85%. Dane County was second, with 68% Black defendants.
Dane County's defendants were more disproportionately African-American than were Milwaukee County's because Dane County's 5% Black population share is so much smaller than Milwaukee County's 27%.
The share of cannabis defendants charged in Dane County who were Black was 63 percentage points higher than the Black share of the county population; in Milwaukee County, the difference was 58 percentage points. The third place finisher was Fond du Lac County, where the difference was 31 percentage points.
Race of cannabis criminal case defendants in 2018
As these charts illustrate, there is not much that is consistent in cannabis enforcement in Wisconsin. Two people engaged in similar conduct in different counties may well be treated very differently by the criminal justice system.
Follow along as we document the wildly erratic enforcement of cannabis laws in Wisconsin.
Additional data for each county is posted on The 2019 Pot Page and we'll be updating and expanding our charts on this blog.
y Gretchen Schuldt
Federal prosecutors send staff members to the Milwaukee County District Attorney's office to look through gun cases to determine which ones should go to the tougher federal system, according to federal court filings.
Milwaukee County, home to the largest share of African Americans in the state, is the only county of the 28 counties in the Eastern District of Wisconsin to get that personal touch from the U.S. government, according the filings by Assistant Federal Defender Joshua D. Uller.
The practice results in a disproportionately large share of African Americans getting charged with certain gun crimes, he said.
Some 50 percent (90 of 176) of the people charged with drug-trafficking offenses in the Eastern District were Black during the period from January 2017 through June 2018, though the district is just 10 percent African American, according to Uller's filings. Whites accounted for just 23 percent of people charged with drug trafficking, though the district is 84 percent White.
Thirty-five of the drug trafficking defendants also were charged with possessing a firearm in furtherance of the crime. Twenty-eight, or 80 percent, of those defendants were Black. Three, or 9 percent, were White, he said.
The firearm charge carries a mandatory minimum of five years in prison, which must be served consecutively to any other sentence.
And 100 percent of the 10 cases alleging possessing a firearm in furtherance of a marijuana trafficking crime were brought against minorities. Nine were filed against Black defendants originally arrested by Milwaukee police. The 10th minority was an Arab, Uller said. (Arabs are legally considered White.)
Uller says the charging disparity demonstrates selective prosecution and enforcement. He is asking a federal judge to allow the Federal Defenders Office to examine materials from the U.S. Attorney's Office that provide more evidence about how cases are selected for federal prosecution.
Prosecutors deny any selective prosecution or enforcement and U.S. Magistrate Judge Nancy Joseph has recommended Uller be denied access to the materials he wants.
"And unlike the district attorney’s office in Milwaukee, many of the prosecutor’s offices elsewhere in the district have the resources, time, and willingness to handle gun cases on their own. " -- Assistant U.S. Attorneys Jonathan H. Koening and Lisa A. Wesley
Gov. Tony Evers has vetoed an effort to establish a $5 million down payment on a new state prison to replace the aging Green Bay Correctional Institution.
"I object to building a new maximum security correctional facility as we continue to explore needed criminal justice reform in Wisconsin," Evers said in his veto message.
"The current population pressures facing the Department of Corrections are being experienced primarily in minimum and medium security facilities, and while I am supportive of finding a solution to these pressures, I am not supportive of the insertion of a project for the construction of a new maximum security correctional facility late in the budget process and without the opportunity for more robust public input," he wrote.
The Legislature's Joint Finance Committee approved the $5 million amendment last month to buy the land to build a new prison, and take other steps toward construction.
Evers said the Department of Corrections could use the money to meet other needs.
The governor also rejected the Legislature's attempt to delete $25 million from the budget he proposed to fund replacements for scandal-plagued Lincoln Hills and Copper Lake juvenile prisons.
"In order for the Department of Corrections to close these facilities as soon as possible, funding must be provided to build replacement facilities," he said. "This section, if adopted, would leave the department without a facility in which to place juveniles."
Evers also directed that $22 million of $25 million the Legislature wanted to go to unspecified building projects be used for the Lincoln Hills / Copper Lake replacement.
"This will ensure that, as soon as possible, the state is able to provide housing for youth closer to their homes and in the least restrictive appropriate setting," he said.
The governor let stand the Legislature's addition of 35 prosecutors, raising the total added through the budget to 65. He vetoed, however, a legislative provision that assigned the 65 to specific counties "instead of assigning them to where they are most needed."
"I am directing the Department of Administration to work with the State Prosecutors Office to allocate the positions to counties in a manner that considers need holistically, including staffing needs based on creation or expansion of treatment alternatives and diversion programs, meeting with victims prior to charging, addressing backlogs, and utilizing available workload analyses," Evers said.
The new budget does not add any assistant state public defenders to address the increased caseload that will result from the increase in prosecutor ranks. The Legislature and governor did approve a $30-per-hour pay increase, from $40 to $70, to private lawyers who accept State Public Defender appointments to represent clients who cannot afford to hire lawyers.
The $40 rate was the lowest in the nation. Skeptics question whether the $70 rate will be enough to solve the crisis-level shortage of defense lawyers willing to take SPD assignments. The shortage is especially acute in rural and northern counties.
By Gretchen Schuldt
Polk County is not liable for the actions of a county jail corrections officer who repeatedly sexually assaulted two female inmates while they were incarcerated, a federal appeals court ruled last week in a split decision.
The assaults occurred over three years.
In tossing out two $2 million jury verdicts against Polk County for compensatory damages, the three-judge Seventh Circuit Court of Appeals panel did uphold $5.75 million in verdicts for each of the women against the guard, Darryl Christensen, who is now serving a 30-year stretch in prison.
Christensen is liable for the full $2 million compensatory damages verdicts and $3.75 million in punitive damages for each woman.
"Although we do not overturn a jury verdict lightly, we must assure the jury had a legally sufficient evidentiary basis for its verdict," U.S. Circuit Judge Michael B. Brennan wrote for the majority. "It is clear to us that the trial evidence fails to satisfy the necessary elements" to show county responsibility.
The decision is similar to one the Seventh Circuit made in a case involving the Milwaukee County Jail. In that case, too, the court found the county was not responsible for the acts of its employees when a guard repeatedly raped an inmate.
Brennan was joined in his opinion by U.S. Circuit Judge William J. Bauer. U.S. Circuit Judge Michael Y. Scudder Jr. dissented.
"What worries me about today's decision is that, as a very practical matter, municipalities may conclude that there is not much to be done to stop a rogue guard from engaging in secretive and heinous conduct in violation of a bright-line policy prohibiting sexual contact with inmates," Scudder wrote. "That view would be as mistaken as it is dangerous, for cities and counties have a meaningful responsibility and role to play in preventing the sexual abuse of inmates in their custody by the guards they employ."
"That view would be as mistaken as it is dangerous, for cities and counties have a meaningful responsibility and role to play in preventing the sexual abuse of inmates in their custody by the guards they employ." – U.S. Circuit Judge Michael Y. Scudder
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