We've got white people!
Two of the 30 Milwaukee County felony marijuana possession cases posted thus far on The Pot Page involved white defendants!
Of course, 28 -- about 94% -- of the cases involved non-white defendants.
Milwaukee County, incidentally, is about 65% white.
Milwaukee County and its insurer are locked in a battle over who should pay the $6.7 million jury verdict awarded to a former County Jail inmate who was repeatedly sexually assaulted by a former corrections officer.
The fight, if the county loses, could leave county taxpayers on the hook for the verdict. The county wants U.S. District Judge J.P. Stadtmueller to order its insurer to pay.
County Corporation Counsel Margaret Daun is alleging that Wisconsin County Mutual Insurance Corporation (WCMIC) deliberately delayed notification that it would not cover the county in the lawsuit brought by the inmate, and then sent the notification to the wrong county office.
WCMIC, in response, said it followed its usual protocol in sending the March 15 notification to the county Risk Management Director Amy Pechacek.
"I do not know why Ms. Pechacek apparently did not forward or otherwise provide a copy of that letter to the Corporation Counsel’s office, but WCMIC has never been instructed by Milwaukee County to send correspondence relating to insurance matters ... to the Office of the Corporation Counsel," said David Bisek, senior vice president of claims and litigation with Aegis Corp, which administers claims for WCMIC.
The dispute arises out of the lawsuit the inmate filed against the county and former Corrections Officer Xavier Thicklen, who sexually assaulted the inmate several times in the jail while she was pregnant. Thicklen eventually pleaded guilty to a single felony count of misconduct in office and was sentenced to three days in the House of Correction. He did not appear in court for the trial in the civil suit.
The jury found Thicklen was acting within the scope of his duties when he assaulted the inmate, making the county liable for his actions. Post-verdict motions that could reduce the amount awarded are pending.
Daun said she found out about the non-coverage issue the day after the verdict, when Bisek told contacted Pechacek and reminded her that WCMIC would not provide coverage.
Daun called the notificiation "abrupt and financially disastrous." After the corporation counsel's office confirmed it had not received notice of non-coverage, Pechacek found risk management's copy when she checked her files, Daun said.
Bisek, though, submitted a transcript from a voice mail Pechacek left for him the day the verdict came in that indicates she was aware of the non-coverage issue.
"Hey Dave it's Amy Pechacek," she said, according to the transcript. "Just calling on this ... award $6.7 million. We've got a reservation of rights sitting out there and so we're going to have to have a pretty quick - a pretty quick conversation about we're gong to be doing next on this. ..."
A reservation of rights is a notice that certain losses in a case may not be covered under the terms of the relevant insurance policy.
Daun also said the March 15 reservation of rights letter was not sent by certifîed mail and "did not contain any insignia of urgency . ... Indeed, it was not until post-trial review that the letter has now been discovered to have embedded within it a reservation of rights for denial of coverage to the County. ..."
Bisek, in response, attached to his affidavit a March email he sent to Pechacek. The letter was attached.
The email header referred to the name of the case, the attachment line referred to "Reservation of Rights" and the specific case, and the body of the email read "Attached please find a reservation of rights letter relating to the above referenced matter." It also said another copy was sent by U.S. Mail.
Daun alleged that Bisek admitted during a phone call that the county's notice of non-coverage was "purposefully delayed until the time had expired to appeal the summary judgment ruling in WCMIC's favor on coverage issues with respect to Thicklen. Deputy (Corporation Counsel Colleen) Foley and I were astonished that Mr. Bisek would so nonchalantly admit to what can only be called per se bad faith."
Bisek flatly denied that.
"I outlined the timeline of events and simply indicated that the reservation of rights letter was sent after the appeal time had expired for the final judgment WCMIC obtained with respect to Thicklen," he said in the affidavit. "Not once did I suggest that the reservation of rights letter was 'purposefully delayed' as Attorney Daun suggests."
"What is clear from all of the misstatements in Attorney Daun’s affidavit is that she was not privy to and/or did not review all of the relevant documents and communications before she submitted her affidavit," he said.
By Margo Kirchner
Let’s call U.S. Sen. Ron Johnson’s approval of attorney Michael Brennan’s nomination to the Seventh Circuit Court of Appeals what it is: hypocrisy. Action that Johnson two years ago condemned as repugnant to the best interest of the people of Wisconsin he now considers acceptable because it helps his own party.
Johnson, using his own words, broke his contract with Baldwin, blew up bipartisanship, and chose his party over us.
Together, Johnson, a Republican, and Democratic U.S. Sen. Tammy Baldwin established the Wisconsin Federal Nominating Commission to advise the senators about (among other positions) a judicial appointment for our state’s open seat on the federal appeals court. The Commission seeks out qualified candidates, interviews them, and recommends four to six finalists. The Commission consists of six members; each senator appoints three. The rules of the Commission prohibit recommending any judicial candidate who does not receive five affirmative votes.
In a May 22, 2015 press release still on his website, Johnson said the makeup of the Commission and the five-vote requirement help “ensure that the senators would nominate qualified judges rather than candidates who were on either extreme.” In another statement, Johnson described the requirements as creating a “fair process.”
This spring, the Commission accepted applications for the Seventh Circuit position, but didn’t recommend anyone because no candidate garnered five votes. Nevertheless, President Trump, presumably in consultation with Johnson, nominated Brennan for the seat, ignoring the results of the Commission. Brennan received four, not five, votes.
Johnson said soon after Brennan’s nomination that the White House “made a great decision” as Brennan “is eminently qualified and was the only candidate who received bipartisan support from the judicial nominating commission.
Two years ago two candidates, attorney Donald Schott and Milwaukee County Circuit Judge Richard Sankovitz, received the required five Commission votes for the same seat, but the Commission could not recommend them because it could not recommend the required minimum of four candidates. Baldwin notified the White House of all eight individuals the Commission interviewed. (President Obama eventually nominated Schott, though Schott was not confirmed.)
Here’s the hypocrisy. Johnson publicly decried Baldwin’s move, tweeting on May 22, 2015, that the “[p]rocess to find judges worked until @SenatorBaldwin blew up our bipartisanship” and stating in his press release that it was “unfortunate that Senator Baldwin chose partisanship and politics over what is in the best interest of the people of Wisconsin.”
Johnson told a reporter that Baldwin broke her contract with other senators when she forwarded all eight names to Obama.
Is a tit-for-tat justified---because Baldwin bypassed the Commission’s results two years ago Johnson can do the same? The Senate is not elementary school and consideration of lifetime judicial appointments should not involve retaliation against a fellow senator. Moreover, Johnson and Trump went significantly beyond what Baldwin and Obama did two years ago. Then, two candidates earned the required five votes, and Obama nominated one of those two. Brennan did not get the required five votes.
Johnson’s reneging on the rules of the Commission came just six months after he signed its amended charter, which maintained the five-vote requirement.
Amid talk of the Republican Senate eliminating the “blue slip” practice that allows a senator from a federal court nominee’s home state to block confirmation, Johnson appears the hypocrite again. Johnson used his blue-slip power back in 2011 to stop consideration of Obama’s first nominee for the Seventh Circuit seat.
Johnson’s endorsement of Brennan’s nomination suggests that Johnson will do whatever is politically expedient, notwithstanding his prior agreement to a “fair process.” Whether Brennan should be confirmed by the Senate is a separate matter. Wisconsinites of all political stances should be concerned with the process by which Brennan’s nomination came about---when those in the party in power without hesitation change the rules to get what they want.
There are now 20 cases posted on The Pot Page detailing arrest circumstances of those charged in Milwaukee County last year with felony possession of marijuana second offense or greater. And guess what! Not a single person charged was white! And not a single person charged was female! Eighty-five percent of the arrests occurred in the city of Milwaukee, with 75% occurring north of I-94. Sense any patterns here?
"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.
Our philosophy and experience is that "typos happen" we generally don't call them out. In this case, however, the typos and compositional curiosities were too numerous and too large to ignore.
Name: Wynne P. Laufenberg
Appointed to: Racine County Circuit Court
Appointment date: Dec. 5, 2016 (up for election in spring 2018)
Law School – Marquette University
Undergrad – University of Wisconsin-LaCrosse
High School – McDonell Central Catholic High School, Chippewa Falls, Wis.
1997 - present – Self-employed attorney, Racine.
1990 - 1997 – attorney, State Public Defender's office
State Bar of Wisconsin
Wisconsin Bar Association
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Represented clients in criminal, traffic, probate and family cases in multiple counties surrounding Eau Claire as an associate in a local law firm.
Worked seven years for the State Public Defender's Office representing clients in juvenile court, misdemeanor court, traffic court and felony court and in Chapter 51 (commitment) proceedings in probate court. Also participated in probation/ parole revocation hearings before administrative law judges.
In private practice, developed family law area. Also was appointed guardian ad litem and has served as same for 19 years.
Number of cases tried to verdict or judgment: Jury, 30-35 ; non-jury, 75 plus; arbitration, n/a; administrative bodies, 30 plus.
Cases on appeal: I have not been involved in any briefing. I have filed docketing statements and consulted with appellate attorneys that I have referred the case (sic). These include criminal cases as a public defender, guardian ad litem cases and one family law case.
List and describe the three most significant cases in which you were involved:
1. Cases involving Deborah Zimmerman – This case was highly publicized, locally and nationally. The mother's attorney appeared on the Bill O'Reilly show and the mother was featured in People magazine.
I represented the infant as a guardian ad litem. The State filed a CHIPS petition because the mother was an alcoholic and told a bartender that she was going to drink enough to kill her eight month old fetus. The mother was highly intoxicated and taken to a hospital where an emergency cesarean procedure was performed. The baby and the mother had extremely high blood alcohol content levels.
The baby was born with fetal alcohol sydrome (sic).
The State sought attempted homicide charges against the mother. The trial judge upheld the probable cause finding at the preliminary hearing. The mother's attorney appealed that finding. Ultimately, the appellate court found that a fetus was not a person as defined in the criminal code.
Following the notoriety of that case, I secured a personal injury attorney to represent my ward's interests. This action was sought to secure any monies for the child that the mother may have received by selling her story. A judgment was ultimately entered against the mother.
Lastly, I was involved in the termination of parental rights jury trial wherein the prosecutor and I obtained a successful verdict. This child was adopted by her fosterparent (sic).
2. Paternity of Codey MR (1994) – I tried a paternity case before the established use of DNA testing. Blood typing could still provide room to argue a possibility of another potential father.
During jury selction, the Child Support attorney struck three men which left a jury of six women. I raised a Batson challenge and I also raised an objection on what I viewed as a gender exclusion. The trial judge looked at me and said that was not a recognized challenge but noted my objection for appeal purposes.
My client was found to be the father and appealed the case. The appellate court put Codey on hold as the J.E.B. v. Alabama … was being decided with this gender challenge issue.
My case was ultimately remanded for an evidentiary hearing and a new trial was granted. I was the trial counsel at all times for that case.
3. In the Interest of K.M.O. – In this case I represented foster parents of a three year old. This child had been in their care since an infant and was going to be adopted by them. The State removed this child based on an allegation that my clients had harmed an infant in their foster care by shaking her.
I first dealt with law enforcement and the District Attorney's office and was able to avoid a wrongful prosecution.
I then had to litigate against the Racine County Human Services Department (RCHSD) to maintain my clients' foster license. This litigation involved an initial success with an Administrative Law Judge. RCHSD then filed different violations against my clients and we had to litigate again with a different ALJ. I secured a pediatric nuerologist (sic) from Louisiana to assist in the defense. We again prevailed and my clients' foster license was reinstated.
My last litigation phase involved a circuit court bench trial regarding the return of the three year old who was now four years old. I convinced the judge to allow a therapuetic visit with my clients and the child to assess the child's bond with my clients. After eleven months away, the child wanted to go home with my clients.
I litigated that part of the case against the State Attorney General's Office as they represented the State Division of Health and Family Services. The judge agreed with us and returned the child to my clients.
It was an excruciating case but my most gratifying to date. My clients adopted that child and I hear about his progress every Christmas.
Have you ever held a judicial or quasi-judicial office? Court Commissioner, substitute for initial appearances in juvenile court and criminal court, 2006 to present.
Describe the approximate number and nature of cases you have heard during your judicial or quasi-judicial tenure: More than 150 initial appearances for juvenile court and criminal court.
In recent headlines across the country, the integrity of the judicial system is clearly, part and parcel of ensuring justice for all. If you have a jury that is reflective of the community, it is hard to challenge a verdict on appeal or in the media. -- Racine County Circuit Judge Wynne P. Laufenberg
Describe the two most significant cases you have heard as a judicial officer. Identify the parties, describe the cases, and explain why you believe them to be significant.
I have not heard significant cases as these are short hearings to determine bond and conditions or in the case of juvenile court, accepting pleas and/or ordering secure detention or electronic monitoring.
Involvement in judicial, non-partisan or partisan political campaigns in the last six years: Co-hosted small fundraiser for Justice Annette Ziegler in Lake Geneva, WI.
Helped father in unsuccessful campaign for the 68th Assembly seat in the early 1990's. I learned a lot about grass-roots campaigning and door to door calls. Justice Prosser was serving in the Assembly at that time and came to campaign as did Governor Tommy Thompson.
Candidates endorsed in the last six years:
Judge Paul Rifelj, Milwaukee, WI
Judge Timothy Boyle, Racine, WI
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:
Racine County Ethics Board
Women's Resource Center - Board member since 2010.
St. Thomas Aquinas Parish and School - Chair of the St. Thomas Aquinas Endowment from 2011 to present. Co-chair annual golf outing fundraiser; assistant track coach.
Describe any pro bono legal work in the last five years: I have provided counsel to low income clients and written off thousands of dollars in fees over the years. I have also provided pro bono advice to virtually every board that I have sat on.
Why I want to be a judge –
I am interested in serving my county in a judicial capacity. I know that I can bring a perspective to the bench that is unique and beneficial to the citizens of Racine County.
My perspective is shaped by my participation in the community through my volunteer work and more importantly, my legal work.
I have walked into many institutions and living environments that most judges are aware of only by second hand information. I have visited wards in every nursing home in our county and many in our adjoining counties. I have visited clients in the Union Grove Veteran's Home. I've spent many hours in various group homes and foster homes in my county. I know what the inside looks like of the Racine County jail, the Racine Correctional Institution, Racine County Detention Center, Ellsworth Correctional Facility as well as other prison facilities in the state.
This experience gives me first-hand knowledge of what goes on in these various institutions. It also gives me an invaluable insight into the impact these facilities can have on an individual.
Therefore, when I sentence or place a citizen as I sit on the juvenile, criminal or probate bench, I will be able to fashion orders that are fair and just for the community and for the individual.
I have two daughters and I have taught them, by example, that a strong work ethic is essential to succeed in life. That one should always lead, when possible. That the gift of intellect requires you to use it to its fullest and be able to support yourself.
The mother in this case chose to feed her alcohol addiction and break the law. -- Judge Laufenberg
I want to show my daughters that the rule of law is crucial in our society. That the rule of law should be administered by those who have the fortitude and compassion to do so. One of my daughters asked me why I wanted to apply for this position. I told her it was always one of my career goals and a way to serve by leading.
It gives me great pleasure to walk down the street, be in a store or be attending a function and run into an old client. I enjoy hearing how they are doing, especially when they are grateful for the help I have given them. These are the clients who send me Christmas cards and refer their friends and relatives to them (sic). I have been referred clients by fellow colleagues, sitting judges, individuals who work in the court system and am always humbled and grateful for their trust and confidence in my representation. I also enjoy hearing from the college students that I have taught as they update me on their career paths.
I mention that as I know I would miss it if I was appointed to the bench. I have worked very hard to build a practice and presence in Racine county. As a judge though, I would have a much different ability to impact those who come before me and every day, that would be foremost in my mind.
I would be honored to be appointed to the bench. I would work hard to prove my qualifications to all who entered my courtroom. I would make my family and friends proud of my decision making.
I will fight like a tiger in the 2018 election for the Branch I circuit court seat.
Best Wisconsin or US Supreme Court decision in the last 30 years --
Batson v. Kentucky
The trial by jury guaranteed by our U.S. Constitution is a fundamental right. It is also a grave undertaking by the litigants, the attorneys and the judge.
Putting one's life, liberty and pecuniary interests in the hands of twelve of one's peers is a risk. In order to ensure that your peers are reflective of your community, the Batson rule is a key tool for attorneys.
Batson reiterated that the Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race are not qualified to serve as jurors. …
In recent headlines across the country, the integrity of the judicial system is clearly, part and parcel of ensuring justice for all. If you have a jury that is reflective of the community, it is hard to challenge a verdict on appeal or in the media. Batson mentions this impact by stating that "the harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community." …
The jury selection process is difficult and involves a lot of guess work by an attorney. More often than not, an attorney has to trust their own instincts. So often, the jury will respond more to the attorney's personality than necessarily the rule of law.
The striking of potential jurors can be, quite honestly, arbitrary. However, when counsel seeks to exclude a gender or race, there has to be a challenge and explanation as required by law.
Gender, of course, was addressed in J.E.B. v. Alabama … (1994). Our court of appeals applied the J.E.B. ruling in In Re the Paternity of Codey M.R. … The Codey case was litigated at trial level, by me. The child support attorney used peremptory strikes to remove three men. My jury consisted of six women. As J.E.B. had not been decided yet, I raised a gender challenge for appeal purposes.
I have the utmost respect for our juty (sic) system and am grateful to live in a country where it it (sic) upheld, down to the selection process.
Worst Wisconsin or US Supreme Court decision in the last 30 years – Termination of Parental Right to Max G.W.: Kenosha County Department of Human Services (2006)
This case was very frustrating to read and was an example of bad facts can make bad law.
I will say that I know the Kenosha circuit court judge who heard the case at the trial level. She is an extremely experienced and no nonsense type of judge. The counsel for the mother (Jodie W.) is actually a recently appointed judge in Kenosha County. Counsel for the mother was and is, a very competent lawyer.
The colloquoy (sic) between the trial judge and mother made it clear that the mother, albeit somewhat reluctant, acknowledged that there were grounds to terminate her parental rights. The mother took issue with some of the language in the plea form. The mother's issues were addressed on the record by her, the judge and counsel for mother. Yet, the Wisconsin Supreme Court took the matter up on appeal, via a letter which was written by the mother from prison. This acceptance of the case occurred after appointed appellate counsel had filed a no merit brief. The reviewing court is not privy to the demeanor and tone of the parties during a colloquoy (sic) and/or acceptance of a plea.
The reviewing court is not aware of the prior hearings and dealings that a juvenile judge may have with a party for months and even years. It is the nature of CHIPS cases to be scheduled for frequent hearings to review the permanency planning for the child. These review hearings are mandated by federal law and our statutes.
Thus, the analysis of whether the mother's plea was freely, knowingly and voluntarily given, was not given appropriate deference to the trial judge's acceptance of same.
The most disturbing analysis the Wisconsin Supreme Court made is their interpretation of sec. 48.415(2) Wis. Stats. That statute defines how the agency is to take good faith steps in providing services as ordered by the court. The agency is charged with taking into consideration the characteristics of the parent or child, the level of cooperation by the parent and other relevant circumstances of the case. The opinion goes out of its way to throw common sense out of the window. There is discussion about the the mother's inability to secure housing due to her incarceration, almost giving her a pass on that because she is unable to meet that condition. That is the point. That's a basic necessity of life that a parent has to provide.
The mother in this case chose to feed her alcohol addiction and break the law. Her subsequent prison incarceration resulted in he (sic) two year old son being placed in foster care. The trial court noted physical neglect and emotional neglect. The judge indicated that the child had a "mouthful of cavities" and he was prone to angry outbursts that needed intervention. In reading this case, one is led to believe that the child should stay in foster care for three, four or five years and wait for this parent to be paroled. The child should wait because the county social worker did not tailor better conditions for return of the child to the incarcerated mother.
That is an absurd result. It completely undermines what the Children's Code is all about, the best interests of the child, not the parent.
Judicial philosophy —
My philosophy with respect to judging is to apply the law in a manner that demonstrates common sense and efficacy. I would not torture or distort the plain meaning of statutory language to reach a decision. I would not be in the branch of government that creates new law but rather the branch that interprets existing law. …
I am humble enough to accept the fact that I do not know all the nuances of all the different areas of law. I have a strong work ethic coupled with a Type A personality. I would not be a lazy judge. I am competitive and would not take lightly having a ruling of mine overturned on appeal. Should that occur, it will light my fire to work on avoiding those appellate decisions.
Acccountability (sic) to my constituents will be forefront in my philosophy should I be appointed to the bench. The socioeconomic status of an individual should not warrant a pass on accountability in my community. Racine county being the community that I have chosen to raise my family. I will expect individuals to own their mistakes and take responsibility. If they do not, they will learn I have very little patience. …
The judges that I respect the most are those whose mere presence in the courtroom creates an atmosphere where preparedness and cogent argumentation by counsel is expected and raised to a high level. That is a judicial aspiration of mine.
Rejecting a request by the Police Department and the city's lobbying office, the Milwaukee Common Council unanimously voted to support state legislation that would require criminal convictions in most cases before law enforcement can snatch up defendants' property in asset forfeiture proceedings.
Existing asset forfeiture law allows police agencies to seize property they believe was used directly or indirectly in a crime, even if the person who owns the property is not convicted of any crime.
In voting to support the reform bill, four aldermen reversed the position they took earlier at a committee meeting.
The pending reform bill also would would require all funding derived through forfeitures be turned over to a state school fund, though it would allow law enforcement to use seized cars for a limited time. The bill also would allow law enforcement to be reimbursed through forfeited funds for the costs of the seizure.
The law now allows law enforcement to share in the bounty they seize, a practice that Ald. Nik Kovac called a "moral hazard."
If you know you get to spend money that you seize, he said, "you're more likely to seize that property."
The bill, sponsored by State. Sen. Robert Craig, has bipartisan support.
Earlier, Danielle Decker, a city lobbyist, and representatives of the Police Department urged the council's Judiciary and Legislation Committee not to support asset forfeiture reform.
“It is unnecessary in this very restrictive budgetary climate to be limiting our options," Decker told the committee. "It would limit local control, as well, by prohibiting some options we have to partake in the federal program. We believe the program serves as a crime deterrent. It makes neighborhoods safer and communities safer and that it supports undercover vehicles that are a key tool in narcotics investigations.”
Decker did not provide any supporting evidence that asset forfeiture deters crime or makes neighborhoods safer.
Police Capt. Alex Ramirez also asserted, without providing evidence, that the asset forfeiture program helps deter crime. "It also gives us additional investigative tools we do use the money for. It's additional resource that we have that wouldn't be in the budget," he said.
Ramirez said that the existing asset forfeiture program is "not a win-win every time. There is a process that happens in the court where the defendant, the arrestee, has an opportunity to challenge the seizure and that does happen on a regular basis. .... and there are times when it's awarded and there are many times when it's not awarded."
A review of 43 Milwaukee Police Department asset forfeiture cases reviewed by Circuit Court judges last year show that at least 30 resulted in default judgments against the defendants, according to online state court records and information provided by the county's corporation counsel's office, which handles the forfeiture cases for law enforcement. Defaults occur when the defendants don't show up.
Only four cases could immediately be determined to be contested, with at least some seized property returned in three of them.
Since asset forfeiture cases are civil, defendants generally have to hire their own lawyers if they want to contest seizures. It is likely that many defendants can't afford to hire lawyers or that it would cost more to hire a lawyer than the seized property is worth.
At the committee level, alderment voted, 4-1, to support the Police Department and oppose civil asset forfeiture reform. Voting to oppose the bill were Ald. Michael Murphy, committee chair; and Aldermen Mark Borkowski, Cavalier Johnson, and Jose Perez. Ald. Robert Bauman voted against the Police Department's recommendation.
At the full council meeting, though, Kovac pushed for supporting reform, citing the story of Green Bay Packer Letroy Guion, whose $70,000 truck and $190,000 in cash were seized in Florida after police found marijuana and a gun in his vehicle. Guion, who pleaded guilty to possession of marijuana and paid a $5,000 fine, had to fight to get his property back.
Kovack said he believed at least some of the aldermen who voted against reform actually supported it, but were confused.
The full council voted unanimously to support the reform bill.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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