By Gretchen Schuldt
Cannabis legalization advisory measures will be on the November ballot in 16 Wisconsin counties and two cities, giving about half the state's voters a voice the State Legislature has denied them.
The election is Nov. 6.
Voters in Milwaukee, Eau Claire, Dane, Rock, Racine, and La Crosse Counties will vote on full legalization measures, as will voters in the City of Racine.
Medicinal cannabis will be voted on in Brown, Kenosha, Marathon, Portage, Sauk, Langlade, Forest, Lincoln, Clark, and Marquette Counties, and the City of Waukesha.
The Wisconsin Justice Initiative and other organizations have worked to get these measures on ballots statewide.
First offense marijuana possession is a misdemeanor in Wisconsin, and second offense marijuana possession is a felony.
A Marquette University poll released earlier this month showed that 61 percent of voters favor legalization and regulation.
Measures that would decriminalize or legalize cannabis in Wisconsin were introduced in the Legislature last session, but they were not given hearings in Republican-led committees.
A judge who imposed a life-without-parole sentence on a man who executed a woman in a fast-food restaurant parking lot when he was 16 did not violate constitutional prohibitions against cruel and unusual punishment, a State Court of Appeals panel ruled Tuesday.
Milwaukee County Circuit Judge David A. Hansher properly considered the youth of Jevon D. Jackson when he sentenced Jackson to life plus 32 years in prison in August 1995. Jackson is eligible for parole at age 101.
Hansher properly rejected Jackson's post-conviction motion to be resentenced, the panel said in an opinion written by Appeals Judge William W. Brash III. He was joined Appeals Judge Kitty K. Brennan and Timothy C. Dugan.
Jackson was convicted of murdering a woman in front of her 10-year-old daughter in the parking lot of a Milwaukee fast food restaurant. He was tried as an adult.
Jackson, who confessed to the crime, said he and a friend planned to rob people. Jackson and his friend went to the fast-food restaurant and watched the woman and her duaghter come out, carrying food.
The two boys ordered the victim and her daughter to give them their food, which they did. Jackson ordered the woman to get down on her knees and give him her money. The victim said she did not have any money, and looked at Jackson out of the corner of her eye. Jackson shot her in the head.
He said later the victim "had an attitude."
Jackson's case illustrates the tensions inherent in life-without-parole sentences for juveniles. Should young people be locked up without ever having a chance at parole, even if that means they will spend much more time in prison than an adult sentenced to life without parole?
Do recent advances in adolescent brain science definitively show enough differences in younger brains to mean that judges should not ever lock up youths for life without a meaningful chance for parole?
The U.S. Supreme Court seemed in recent years to be edging toward "yes."
That court, in Miller v. Alabama, ruled in 2012 that that mandatory life sentences with no chance for parole for juvenile offenders violated the Eighth Amendment's prohibition of cruel or unusual punishment.
In another case, Montgomery v. Louisiana, decided in 2016, the Court said the Miller ruling applied to juveniles who were sentenced before the ruling was made.
Those two cases were rooted in the Court's earlier determination that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.”
Jackson, in his case, argued that the decisions by the U.S. Supreme Court meant that he should be resentenced.
The state appeals panel, though, rejected the argument.
The U.S. Supreme Court decisions "did not categorically prohibit sentences of life imprisonment without parole for juveniles as long as the distinctive characteristics of a juvenile offender are taken into consideration," Brash wrote.
"That is precisely what the trial court did here," he said. "When sentencing Jackson, the court specifically stated that it was taking Jackson’s 'youthfulness' into consideration. It further considered his character, personality, and social traits, as well as his relationship with his family, his education, and his work history, as described in the PSI (pre-sentence investigation). The court also noted Jackson’s psychological evaluation which found no indications of psychopathology. Additionally, the court discussed Jackson’s rehabilitative needs, characterizing them as 'very limited.'”
Jackson's sentence was severe, but not "disproportionately so based on the circumstances of the crime," Brash said.
Brash also said the panel was bound by a State Supreme Court precedent that rejected the new adolescent brain development research was a new factor warranting sentence modification.
The State Supreme Court determined that such research "was merely confirming the fact that there are fundamental differences between the minds of juveniles and adults, a fact that the United States Supreme Court had already recognized," Brash wrote.
By Gretchen Schuldt
Threatened by gang members at gunpoint in El Salvador, W.G.A. fled to the United States, where he was picked up by the Department of Homeland Security, denied asylum by an immigration judge and the Immigration Appeals Board, and wrongly returned by the United States government to El Salvador while his federal court appeal was pending.
The Seventh Circuit Court of Appeals last week gave the man another chance, rejecting the reasoning the Immigration judge and board gave when they turned down W.G.A.'s request and returning the case to the Board for further proceedings.
The government, while finding credible W.G.A.'s story about death threats from an El Salvadoran gang, rejected his pleas to remain in the United States. While he was indeed persecuted, the government argued, his persecution was not due to one of the five grounds that could keep him in this country: “race, religion, nationality, membership in a particular social group, or political opinion.”
The appeals panel disagreed. W.G.A.'s family is a particular social group, and he was threatened because of his membership in it.
W.G.A. was threatened by the Mara 18 gang because his brother tried to leave it, U.S. Circuit Judge David Hamilton wrote for a three-member panel that also included Circuit Judges Diane Sykes and U.S. District Judge John Z. Lee.
W.G.A. and his family members are not identified beyond initials in court filings, most of which are not available to the public.
"The Mara 18...is one of the two main gangs operating in El Salvador," Hamilton wrote. "Together with their rivals, MS‐13, the Mara 18 terrorize the Salvadoran population and government. The gangs use violence to exercise an enormous degree of social control over their territories, dictating where residents can walk, whom they can talk to, what they can wear, and when they must be inside their homes."
The gangs put together labor strikes and plotted to bomb government buildings. They extort millions of dollars from businesses and, Hamilton wrote, "they are largely responsible for El Sal‐ vador’s homicide rate — one of the highest in the world."
One day in 2014, when both brothers were still in El Salvador, W.G.A.'s brother, identified only as S.R.P., did not come home from a trip to the store. W.G.A. and his mother looked for him to no avail. They guessed that S.R.P. had been forcibly recruited by a gang.
They didn't hear from him until they got a phone call a few months later. He was crying and said he could not talk long because the gang might kill him, Hamilton wrote. Then he hung up.
S.R.P. was arrested a few months later and was released from prison in 2015. He called W.G.A. to say he did not want to be in a gang anymore and did not want to tell W.G.A. where he was going. Then he was gone.
Four tattooed gang members showed up at W.G.A's house two days later. They were looking for his brother. When W.G.A. said he did not know, "one man grabbed him by the collar of his shirt, threw him to the ground, drew a gun, and put it to his head. One of the men told petitioner: 'if you don’t [hand] over your brother, you’re going to die here,'" Hamilton wrote.
The men gave W.G.A. four days to comply or they would kill him. They also said they would kill him and his family if anyone talked to police.
W.G.A. took off for the United States. Gang members threatened family members still in El Salvador. It got so bad that W.G.A.'s mother sent another son into hiding.
W.G.A. was arrested in the United States and denied asylum by both an immigration judge and a Board of Immigration Appeals. He petitioned for the Seventh Circuit to review the decisions, which should have put a hold on deportation proceedings.
It did not. Homeland Security sent him back to El Salvador, but when the appeals panel appeared ready to consider ordering him returned, the government voluntarily did so.
"We cannot accept the immigration judge’s conclusion that threatening phone calls and home invasion by masked gang members are not evidence that other family members have been harmed."
Hamilton was critical of the immigration judge's and appeals board's decisions. The board, for example, found that W.G.A. failed to adequately show that his gang persecution was due to his family connection because his family continued to live unharmed in El Salvador.
"This is factually inaccurate," Hamilton wrote.
Family members testified about the fear the gang caused them.
"W.G.A.’s mother reported that she had received at least four threatening phone calls from “angry,” yelling gang members and that the calls continued until she threw her cell‐phone chip away," Hamilton wrote. "W.G.A.’s mother and sister described how masked gang members have appeared at their home at least twice, threatening them. ... We cannot accept the immigration judge’s conclusion that threatening phone calls and home invasion by masked gang members are not evidence that other family members have been harmed."
By Gretchen Schuldt
The State Department of Justice should re-think its decision to require school districts receiving school safety grants to send teachers to mental health training designed for police officers and to participate in new, vaguely defined threat reporting activities, a group of mental health organizations says.
"I really hope there is an opportunity to correct the places where we're headed toward unintended consequences," Joanne Juhnke, policy director of Wisconsin Family Ties (WFT), said Tuesday. Wisconsin Family Ties is a statewide, parent-run organization working with families that include children with social, emotional or behavioral challenges.
WFT, along with Grassroots Empowerment Project, Kids Forward, Mental Health America of Wisconsin, NAMI Wisconsin, and the Wisconsin Association for Marriage & Family Therapy wrote to Attorney General Brad Schimel raising questions about the grant's requirements. Schimel's office is administering the grants.
"Our concerns involve both the required adolescent mental health training at schools receiving the grant and the proposed incident-reporting to the Department of Justice in the context of School Safety Intervention Teams (SSITs)," the letter said.
The groups recommended that Schimel's shop "consult with relevant stakeholder groups including advocacy organizations with expertise in youth mental health."
Under the state's grant requirements, participating districts would establish SSITs to perform "ongoing violence-related threat assessments, behavior monitoring, and intervention" and would track, monitor, assist, and intervene with at-risk youth, according to DOJ's grant application instructions.
The grant will require participating school districts to send 10 percent of their teachers and counselors to a 12-hour training in adolescent mental health, though the training was not designed for them.
"Although it does not appear in the grant materials, the full title of the training is 'Adolescent Mental Health Training for School Resource Officers,' and is the only approved training for this element of the grant," the groups' letter said. The target audience for the training is "school resource officers, security personnel, administrators, disciplinary staff, and treatment providers."
"Requiring teachers to undergo training in adolescent health, delivered by law enforcement and designed with a juvenile justice perspective reinforces unfounded linkages between mental health challenges and crime and encourages teachers to view themselves as 'disciplinary staff' in their response," the letter said.
Other available training would be more appropriate, the organizations said.
At issue is the second round in a grant process designed to award $100 million in school safety improvement grants. About $48 million will be awarded. Individual awards will range from $10,000 to $2.5 million, according to Department of Justice grant application information. School districts are required to submit their applications by Aug. 30 and project implementation will start Oct. 1.
Juhnke, in an interview, said the grant also requires information about potential threats to be entered "into databases about which we know practically nothing."
The grant application instructions do not say whether school districts would supply general, district wide aggregate data or information about specific students and perceived threats.
It says only that new School Safety Intervention Teams (SSIT) would “report VRA [Violence Risk Assessment] data from specific, plausible, and imminent threats to the DOJ utilizing DOJ reporting form,” but does not provide a copy of the form or describe it.
WJI asked DOJ for a copy of the form Tuesday, but did not receive a response.
The Department of Justice also would require winning districts to “participate in and promote the DOJ confidential reporting application or tip line, when this is developed and deployed.”
Again, DOJ provides no information about the tip line or how it would function.
The State Legislature in March approved a bill requiring teachers, school administrators, school counselors, other school employees, physicians, and other medical and mental health professionals to report school safety threats to law enforcement.
That bill, Juhnke said, was "passed at almost light speed" with very little deliberation or public input.
The grant is asking that "school districts commit themselves to processes that haven't been created," she said.
The new law does not require development of a new reporting system, she said.
The mental health groups, in their letter, said the tip line "risks promoting a culture of suspicion, adding to stigma regarding mental health challenges and further discouraging students and families from seeking help."
Many questions about the system remain, they said.
"What would be the benefit over and above any existing mechanisms for dealing with threats at school?" the letter asked. "Is there an evidence base for the benefits and drawbacks of such a system? What would be the threshold for reporting? Who would have access to the data? How long would the data be maintained? Would there be an appeal procedure for having reports removed?"
Juhnke said it was important to recognize and stop any actual school threat, but "we're spiralling off in ill-defined directions from that."
"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: Karl R. Hanson
Appointed to: Rock County Circuit Court
Appointment date: Feb. 2, 2018 (Up for election in spring 2019)
Law school – University of Wisconsin
Master's Degree – Western Kentucky University
Undergrad – United State Military Academy
High School – Oregon High, Oregon, WI
Sept 2017 – present – Assistant attorney general, Wisconsin Department of Justice
July 2015 – August 2017 – Attorney (arbitrator/hearing examiner/mediator),Wisconsin Employment Relations Commission
July 2014 - July 2015 – Attorney, Office of State Employment Relations
2010 - 2014 – Attorney, Nowlan & Mouat LLP, Janesville
Wisconsin State Bar
U.S. District Court-Western District of Wisconsin
U.S. District Court-Eastern District of Wisconsin
Rock County Bar Association, Treasurer (2013 - 2014)
James Doyle American Inns of Court
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings:
Represented state before state and federal courts and administrative agencies as assistant attorney general; represented state in administrative proceedings as lawyer with the Wisconsin Office of State Employment Relations. Litigated civil cases as attorney at
Nowlan & Mouat.
All of my litigation experience has included investigation of the claims, evaluation of the
claims and defenses, and consultation with the client regarding the merits of the case. At
scheduling conferences, I worked to establish advantageous parameters for management
of the case.
When defending a case, I filed appropriate answers. In some cases, I found it necessary to
move for more definitive pleadings from the plaintiff or appellant (in administrative
proceedings). When appropriate, I prepared and argued motions for summary judgment
or to dismiss the case. ...
At hearings and trials, I presented my client's case. In one matter, this included jury selection and pretrial matters regarding voir dire and jury instructions. My representation at hearing or trial in cases included making an opening statement, examination of witnesses, and the introduction of exhibits. In some instances I called and examined adverse witnesses. I defended against objections to testimony and the admission of exhibits, based on the rules of evidence. When necessary I rehabilitated the testimony of witnesses after cross-examination. During cross-examination, I appropriately defended my witnesses. During the opposing party’s case-in-chief, I made necessary objections based upon the rules of evidence and cross-examined witnesses. ...
Number of cases tried to verdict or judgment: Jury, 1; non-jury, 10; arbitration (no number given); administrative bodies, 4.
Cases on appeal: Two.
If fewer than five cases, describe:
1. Town of Bradford v. David G. Merriam, Wisconsin Court of Appeals, Case No. 2010 AP 1759. Another attorney litigated the matter before the Rock County circuit court. I drafted the appeal documents and briefs. To do so, I conducted additional research and prepared the briefs filed on behalf of the Town of Bradford. The town claimed that a mobile home unit within a mobile home park encroached into a town road's right of way. In 1981, the roadbed moved to the north, away from the mobile home park. The town argued that the former right of way, which was still used by utilities, was never abandoned. ... The court of appeals upheld the circuit court's decision and also held that the town's ordinance regulating the mobile home park was a zoning ordinance and not an exercise of the town's police powers. As a result, the individual units within the mobile home park constituted nonconforming uses and the town could not require the removal of any unit in the park.
2. 3 Rivers Advertising, Inc. v. Anthony J. Augelli, Jr., Wisconsin Court of Appeals, Case No. 2010 AP 2295. Another attorney litigated the matter before the Richland County circuit court. I drafted the appeal documents and briefs. To do so, I conducted additional research and prepared the briefs filed on behalf of 3 Rivers Advertising, Inc. 3 Rivers was the owner of a billboard sign erected on real estate leased from another party. The real estate owner sold his land to Augelli. Augelli subsequently claimed that he owned the billboard. The Richland County circuit court agreed, ruling that the roadside billboard itself, labeled with a visible tag and the owner’s contact information, was not sufficient notice that it was owned by someone other than the seller of the real estate (whose agent, deceased at the time of trial, allegedly misrepresented the sign’s ownership). The court of appeals affirmed the circuit court's ruling and essentially held that if a lessee does not record its interests with the register of deeds, it cannot protect those interests. This holding disregarded a long history of case law and statutes that recognized notice of a party's interest in land through open and notorious physical occupation. A billboard marked with the contact information of its owner was held to be insufficient notice of that interest. As a result, the purchaser of the real estate, Augelli, obtained ownership of 3 Rivers’ billboard.
Three most significant cases in which you were involved:
1. In the Estate of Jacob Egerstaffer, Rock County Case No. 12 PR 338.
... I represented this client as her only attorney on a pro bono basis because I considered the imbalance of power so significant and because the other party attempted
to use the mechanics of the legal process to crush my client's ability to assert her statutory property interests.
After her husband of ten years died, my client attempted to settle his estate with his family and children from a prior marriage. The family retained an attorney and attempted to eliminate her interest in the estate. They further attempted to classify all of the couple's property as the husband's individual property in order to disregard her marital property interests in the assets.
If I had not become involved in this case, the family would have likely succeeded. It was necessary to prevail at two separate bench trials in order to protect my client's property interests. She obtained nothing in this matter beyond what was plainly hers according to her late-husband’s will and statutory authority. Although my client's interests were fully protected after two years of litigation, this case unfortunately exemplified how the legal system can be misused to harm others.
2. Wisconsin Department of Corrections v. Mark Peterson, Wisconsin Employment
Relations Decision No. 35031-A.
I litigated this matter before an administrative agency and wrote the brief upon which the case was ultimately decided in favor of the state. In this matter, a long term Department of Corrections employee made threats to a supervisor and harassed two female coworkers.
In presenting this case, I worked through several challenges. The most significant was the fear that Peterson created in critical witnesses. One of the state's primary witnesses had obtained an injunction against Peterson. As a result, the hearing examiner would not allow that victim to testify at the hearing. The examiner reasoned that if Peterson remained in the room to confront his accuser at hearing, he would be in violation of the injunction. I successfully argued for admission of the witness's testimony from her injunction hearing (as the witness was unavailable to testify due to the examiner's order). Both women victimized by Peterson were scared to testify and felt threatened by him. Not only did I have to prepare for the effective presentation of the case, I had to gain the trust of the victims and create a secure environment for the testimony of one.
The Wisconsin Employment Relations Commission upheld the discharge of the employee. (Atty. William Ramsey’s name appears on the final decision issued in this matter because he wrote a brief to the Commission regarding certain objections to the hearing examiner’s proposed decision. I litigated the case as the sole attorney representing the State’s interests from the initial pleadings through hearing and briefed the Department of Corrections’ argument-in-chief.)
3. Myra B. Sarow vs. Marvin C. Vike et al, Rock County Case No. 12 CV 602, and In the Estate of Lyle Sarow, Rock County Case No. 12 PR 109.
In these cases, I represented a client in a matter involving the transfer of real property using a non-probate transfer on death designation. The case involved a client with diminished capacity, undue influence, and the interpretation of a statute not examined by an appellate court at that time. In this matter, I worked as co-counsel under the direction of a more senior lead attorney. I handled much of this case prior to trial, including discovery, contested motions, and legal research and writing. After a bench trial, the matter subsequently went to the court of appeals in Myra Sarow v. Marvin Vike and Constance Vike, Wisconsin Court of Appeals Case No. 14 AP 1476.
The case was significant primarily for the intersection of Wisconsin's marital property law and a relatively new statute permitting the transfer of real estate by a transfer on death designation filed with the Register of Deeds. Wisconsin is unique for its system of marital property laws that allow for the creation of property rights without the change of an asset’s title. The newer statute, permitting the transfer of real property by a transfer on death designation, does not meaningfully account for potential marital property interests when real estate is transferred. Laws enacted with limited reference and compatibility to the marital property law pose significant dangers for individuals. I believe this case was significant because it should have clarified how marital property rights affect such laws.
The Old Testament commands: “You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor.” – Rock County Circuit Judge Karl R. Hanson
All runs for elective office:
Municipal judge on the Municipal Court for the Towns of Milton, Harmony and Lima:
Primary and general elections in Spring 2017: elected to office with 64.59% of votes (between two candidates).
Judicial or non-partisan candidates that you have publicly endorsed in the last six years:
1. Hon. James Daley, Rock County Circuit Court, Branch 1
2. Hon. Barbara McCrory, Rock County Circuit Court, Branch 7
3. Hon. Patience Roggensack, Wisconsin Supreme Court
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 your application.
1. Employer Support of the Guard and Reserve (ESGR) - volunteer ombudsman / mediator (2010 - present)
2. West Point Society of Wisconsin (alumni association) - vice president (2015 - present)
3. Hope Lutheran Church, Milton, Wisconsin - finance committee chair and member of
Church Council (2013-present); confirmation class small group leader (2010 - present)
4. Team Red White and Blue (Veteran/Community Engagement Charity) - Board of
Directors, Madison Chapter (2015 - present)
5. Rock County Bar Association - executive committee (2011 – 2014) and treasurer (2013 – 2014)
6. Rock County Leadership Development Academy - Board of Directors (2013 – 2014;
elected Vice President in the summer of 2014, but unable to accept office)
7. Wisconsin Veterans Museum Foundation - Board of Directors (2010 – 2012); Emeritus
Director (2013 – present)
Pro bono legal work in the last five years: Applicant cited the case of a widow's property rights included in answer to a previous question.
In a second pro bono matter, I represented the widow of a soldier who had served under my command in Iraq. He tragically took his own life several years after we returned from Iraq. After his death, I assisted my client with the non-probate transfer of assets and termination of the soldier's property interests.
The soldier's mother blamed the widow for her son's suicide and subsequently filed two legal actions against her. One was a small claims action and the other was a family law action for the enforcement of grandparent visitation. I represented my client in the small claims action and negotiated a favorable resolution for her. I attempted to resolve the family law action through mediation, but was not successful. I provided counsel to my client, to the point that I felt a more experienced, local attorney was needed due to the direction of the case.
In a third pro bono matter, I represented the church I attend when it was joined as a party in a foreclosure action by error. I successfully obtained a dismissal of the church as a party.
Why I want to be a judge – When I accepted an appointment to West Point, I committed myself to a lifetime of serving my country and community. Since leaving the military, the most rewarding service I have undertaken has been as a municipal judge, hearing examiner, and arbitrator. Over the past two years I have enjoyed the challenges of these positions and found success in them. I attribute my success in these positions to my demeanor as much as to my legal skill and decision-making ability. I want to be a Rock County circuit court judge because it’s the best way for me to apply my skills in service to my community.
Best United States or Wisconsin Supreme Court opinion in the last 30 years – Texas v. Johnson (1989)
Before I became an attorney, I had the honor to serve our nation as a soldier. I literally
and figuratively saluted the American flag. In one of the hardest moments of my life, I
presented a folded American flag to the nine year old daughter of soldier who served
under my command. He died tragically of a drug overdose several years after we returned from Iraq. I love the American flag. I believe that what it represents is more important than my life. It breaks my heart to hear that someone has burned an American flag in an act of protest. That act is disrespectful to the outstanding Americans who willingly followed my orders and went into harm’s way in Bosnia and Iraq.
Despite my personal feelings, one of the best decisions given by the U.S. Supreme Court in the last thirty years is Texas v. Johnson, 491 U.S. 397 (1989). In Johnson, a bare majority invalidated state laws that prohibited desecration of the American flag. A year later, in U.S. v. Eichman, 496 U.S. 310 (1990), the same majority struck down a similar federal law on identical grounds.
It is not the judiciary’s role to legislate from the bench and some questions brought into
courts are best left to be resolved by the legislative bodies elected by the people. That
said, when laws conflict, and particularly with the individual rights guaranteed by the
Constitution, the courts appropriately act to safeguard such liberties. Johnson is an
example of the court’s proper function to protect individual liberty.
Justice Scalia did not write an opinion in Johnson. He joined the majority opinion. In the
years after, however, he defended the opinion relying on his originalist view of the
Constitution. In several public addresses, Scalia demonstrated his commitment to the
Constitution despite his personal views against flag desecration. This represents the
central value that a judge must demonstrate – a commitment to the Constitution and rule
of law despite any personal opinion or bias.
The Court’s majority opinion correctly found that Johnson’s conduct was expressive. While not necessarily entitled to the same protection as spoken or written word, expressive speech is protected by the First Amendment. The holding in Johnson is correct, but the Court’s decision is lacking because it did not address the passion that the issue of flag desecration presents. I find Justice Kennedy’s concurrence more appropriate to the issue.
In his concurrence, Kennedy appropriately commented that the Court should rarely “pause to express distaste for the result [of a decision], perhaps for fear of undermining a valued principle that dictates the decision.” He continued, “[Johnson] is one of those rare cases.” As a soldier who defended the flag, I agree with Kennedy that, despite my personal views, “the flag protects those who hold it in contempt”. As an attorney and a municipal judge, I respect the judiciary’s role in safeguarding individual liberties and applying the law honestly and dispassionately, even when it is distasteful to do so.
Worst United States or Wisconsin Supreme Court opinion in the last 30 years – Kelo v. City of New London (2005)
The U.S. Supreme Court’s decision ... represents the continuation – by a jump – of a trend toward redefining the requirement of “public use” in the Fifth Amendment Takings Clause. In Kelo, the Supreme Court minimized the protections guaranteed to individuals.
The taking of private land for a school, road, or stadium clearly provides a public use. A
private owner may accrue benefits from its operation of a railroad or stadium, but the
benefits to the general public, able to use a transportation network or large venue, are
more significant. In Kelo, the seizure of residential properties to allow for private
commercial and residential development does not provide such a public use. The
properties at issue were not blighted, posing a threat to the community, or necessary for
development truly open to the public. The public did not obtain access to the condemned
land. No school, stadium, or transportation infrastructure was built.
The majority opinion recites the gradual erosion of what the words “public use” mean.
The Fifth Amendment to the U.S. Constitution plainly states, “private property [shall not] be taken for public use, without just compensation.” A line of decisions since 1896 has redefined “public use” to mean “public purpose.” The difference is more than semantic. In Kelo, private economic development, with only the potential for ancillary job creation and tax base growth, became a sufficient public purpose to allow a governmental body to seize land from one owner and transfer it to another private owner. This definition is a far stretch from the original and plain meaning of the Fifth Amendment’s Takings Clause, providing that condemned land must be put to use by the public.
Justice Kennedy’s concurring opinion represents the danger presented by judges excusing
intrusive governmental action by extolling its apparent virtues. He ultimately proposes
that governmental action can be legitimized through a test subject to minimum scrutiny.
The test is described in such a way that nearly any governmental body could succeed over
a private citizen’s property rights by carefully orchestrating the chronology of a taking
action and merely guessing that it will be a profitable venture.
Justice O’Connor, in dissent, flatly declared that the majority opinion “effectively…
delete[d] the words ‘for public use’ from the Takings Clause.” She correctly starts her
analysis with the presumption that every word in the Takings Clause has an independent
meaning and is not used unnecessarily or needlessly. O’Connor’s conclusion that,
“[g]overnment may compel an individual to forfeit her property for the public’s use, but
not for the benefit of another private person” is based upon a proper application of the
Takings Clause. The properties were taken in Kelo, because the public might, someday, enjoy a speculative and ancillary benefit. I agree with O’Connor that such a taking is not for a public use.
Judicial philosophy: Applicant describes in detail the elements that are included in the statement that "respect is the cornerstone of my judicial philosophy." Those elements include respect for the rule of law; respect for the separation of powers; respect for the parties; respect for the court; respect for the jury; respect for victims and witnesses; and respect for individual rights.
The Old Testament commands: “You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor.” Lev. 19:15. I have that verse printed on the reverse-side of my nameplate on the bench at the Municipal Court for the Towns of Milton, Harmony and Lima to keep this philosophy of respect constantly in my view.
Describe any other information you feel would be helpful to your application:
One of Judge James Daley’s most significant contributions to the Rock County Circuit Court has been the creation of Wisconsin’s first Veteran’s Treatment Court. Judge Daley and several community partners established this treatment court in 2009. This unique court offers a second chance, under intensive supervision, to struggling veterans. The Veteran’s Treatment Court uses more traditional drug and mental health court models to serve veterans struggling with addiction, mental illness, and/or co-occurring disorders. The court promotes sobriety, recovery, and stability.
As a veteran, I would like to serve as the judge presiding over the Veteran’s Treatment
Court. Status as a veteran is certainly not a requirement for the judge on this treatment
court. Nonetheless, I believe there is a unique bond among veterans that this court
capitalizes upon to reduce the incidences of incarceration for those who previously served so faithfully. A judge who can relate to another veteran’s experiences, or just to the hardships and rewards of military service, is in a unique position to influence success in the population served by this treatment court.
As discussed above in this application, my primary reason for seeking a judicial appointment in Rock County is my desire to serve my community. Service as a judge on the Veteran’s Treatment Court would additionally fulfill my continued commitment to the men and women that served our nation just as I did.
Appeals panel sides with Innocence Project client in case linked to North Side Strangler serial killer
By Gretchen Schuldt
A man sentenced to five years in prison two decades ago should be allowed to withdraw his guilty plea after showing convincing evidence that a serial killer was actually responsible for a murder police accused him of participating in, an appeals court panel ruled Tuesday.
The real killer very likely was Walter Ellis, known as the Milwaukee North Side Strangler, who was responsible for a string of rapes and killings in the city.
The panel overturned a decision by Milwaukee County Circuit Judge M. Joseph Donald, threw out the conviction of Sammy Joseph Hadaway, and sent the case back to Circuit Court.
Donald was the judge who heard and rejected Hadaway's post-conviction motion to withdraw his plea. The appeals court, in a decision written by Appeals Judge Timothy G. Dugan, ruled that had trial judge Diane Sykes known all the facts of the case revealed after the case was over, she would not have accepted the plea.
Hadaway was convicted of attempted robbery after reaching a plea agreement.
Hadaway, now 34, has severe cognitive and intellectual disabilities, cerebral palsy and seizure disorders. He was arrested in October 1995 in connection with the death of Jessica Payne.
Payne, a runaway prostitute, was found beneath a mattress in the back yard of a north side Milwaukee house, according to Dugan's decision, joined by Appeals Judges Joan F. Kessler and William W. Brash III.
"Her throat had been slashed, her bra had been torn, and her pants had been pulled down to her ankles. The evidence suggested that she had been sexually assaulted," Dugan wrote.
Police collected physical evidence from the scene, including vaginal swabs that revealed semen. Tests of the swabs proved inconclusive.
A month later, a jailhouse snitch told police that Richard Gwin had implicated himself in the murder of a white woman.
Gwin, Dugan wrote, told police that he drove the victim, Hadaway, and a man named Chaunte Ott, to an abandoned building. The three got out of the car and Hadaway and Ott came back a short time later, without Payne.
Gwin said he asked where the girl was, and Hadaway responded, “she didn’t have no money so [Ott] cut her throat.”
Gwin later recanted his confession. His sister said Gwin tld her that police put "severe pressure" on him during the investigation, the decision said.
Hadaway's interrogation by police continued over several days. At first Hadaway denied knowing any white girls at all and said he never met Payne.
Hadaway was formally arrested in October 1995. He later said that when police interviewed him, they "regularly threatened" that he would be raped in prison, Dugan wrote.
Hadaway later said "the police played 'nice cop/bad cop' and yelled at him and scared him, and told him that 'he would do eighty years' if he did not implicate Ott," Dugan wrote. "The police promised Hadaway that if he implicated Ott, he would serve five years in prison instead of eighty years. The police also shared the details of the murder with Hadaway, and showed him Gwin’s statements."
Police also told Hadaway what to say, Dugan wrote.
"After two days of interrogation, Hadaway gave a confession regarding Ott and his involvement with Payne," he wrote. He said he and Ott attempted to rob Payne, then Ott sexually assaulted Payne and killed her."
The detectives who interviewed Hadaway did not record notes in their memo books, Dugan wrote.
"Instead, they took notes during witness interviews—including their interviews of Gwin and Hadaway—on steno pads, and then destroyed the notes," Dugan wrote. "Further, no record was ever made of the first one and one-half hours of the detectives’ October 27, 1995 interrogation of Hadaway."
Ott was arrested, tried and convicted of first-degree murder, despite a complete lack of physical evidence linking him or any individual to the crime.
In a plea deal, Hadaway pleaded guilty to attempted robbery and served five years in prison.
The Wisconsin Innocence Project took on the case in 2002 and requested retesting of the swabs taken from Payne. The new tests excluded all three men – Gwin, Hadaway, and Ott – as the source of the semen found at the murder scene. The semen, in fact, did not match any profile known at the time.
Later, in 2007, the state matched the sample to semen collected during two other murder investigations, also on the city's north side. Ott could not have committed those murders – he was locked up at the time.
That same year, Ott filed a motion for a new trial based on the DNA evidence in the Payne case. He was denied and appealed. He cited several new pieces of evidence including recantations by Hadaway and Gwin of their earlier statements. Both attributed the recanted statements to police pressure.
Ott's conviction was eventually reversed by the Court of Appeals and the state dismissed all charges against him. A state board found “clear and convincing evidence” that Ott was innocent of the crime.
Ott eventually sued the City of Milwaukee and several officers for violating his rights. He received $6.5 million under a settlement.
The state, meanwhile, matched the DNA from all the three north side murders to Ellis, a serial killer who raped and murdered at least eight other women besides Payne. Those women were found in the same neighborhood as Payne, and their murders had several similarities to Payne's slaying.
Ellis was arrested in September 2009 and eventually pleaded no contest to seven murders. He was sentenced to seven consecutive life terms. He died in prison in 2013.
The state, in opposing Hadaway's request to withdraw his plea, argued that the DNA linked to Ellis and the clearing of Ott's name was irrelevant to whether Hadaway was guilty of attempted robbery.
The appeals panel disagreed.
"We conclude that, based on the new facts regarding the presence of Ellis’s DNA on Payne’s body and the presence of Ellis’s DNA and his involvement in the murders of seven women committed in the same vicinity that also have several other characteristics of Payne’s murder, Hadaway has presented clear and convincing evidence that if known by the trial court, would have prevented it from accepting his guilty plea," Dugan wrote.
By Gretchen Schuldt
Information about Milwaukee Police Department stops, frisks, and searches will be publicly reported each year, while the civilian complaint process will be overhauled to ensure complaints are seriously considered, under a settlement reached in a federal court case challenging the constitutionality of MPD's stop-and frisk-practices.
The city also will be required to hire an independent consultant to determine if the city, the Police Department, and the Fire and Police Commission are complying with the settlement and making appropriate progress in correcting unlawful stops.
Combined, the provisions of the settlement are intended to "begin to change...the culture, the behavior" of officers, said Karyn Rotker, senior staff attorney for the ACLU of Wisconsin.
The ACLU of Wisconsin, along with the American Civil Liberties Union and the Covington & Burling law firm, brought the class action lawsuit on behalf of African-American and Latinx residents who challenged the constitutionality of MPD's traffic and pedestrian stops and alleged they were racially biased.
The city denied wrongdoing.
The ACLU said traffic and pedestrian stop rates in Milwaukee were more than six times higher for Black people than for white people. The disparity was found after controlling for crime rates and other factors that can influence stop rates. Searches of Black and Latinx drivers were more than 20 percent less likely to lead to the discovery of drugs than searches of white drivers, the ACLU said in a statement.
Between 2010 and 2017, according to the civil rights organization, MPD conducted more than 350,000 pedestrian and traffic stops for which they have no record of reasonable suspicion of criminal activity or a traffic or vehicle equipment violation, as required by the Fourth Amendment, according to the ACLU.
The settlement, already approved by the Common Council, will make public far more information about MPD stop and frisks than is currently available or even is consistently collected.
"There was an extremely high rate for non-completion" of reports related to traffic and pedestrian stops, Rotker said in an interview. In addition, information was entered into two different databases, depending on whether the stop was a pedestrian or vehicular.
The settlement, already approved by the Common Council, will make public far more information about MPD stop and frisks than is currently available or even is consistently collected.
Under the settlement, the department will be required to collect detailed information about each stop, including demographic information about the subject; location of the stop; the legal basis for the stop; whether a frisk was conducted; whether any contraband was found; whether the officer(s) used force; and whether officers took any action, such as making an arrest or issuing a ticket.
The Fire and Police Commission will publish a report on the information annually.
The requirements should "show the public they're (police) eliminating unconstitutional stop and frisks," Rotker said.
Officers who fail to fully document their stops or who do not properly make stops will be subject to counseling, training, retraining or discipline, she said.
The reformation of the civilian complaint process will apply to all civilian complaints, not just those about stop and frisk incidents, she said.
The changes will require training of complaint investigators "to not attack or blow off the complainant," she said.
Some individual plaintiffs in the case did try to file complaints after they were stopped by police, but the complaint process was too difficult or complex or they were "blown off" so they did not complete it, she said.
The settlement requires the city to make complaint forms available in a variety of languages. It also requires the city to accept complaints whether they are filed by phone, snail mail, email, or other methods and to ensure that staff who accept complaints "are trained not to, and in practice do not, discourage the filing of any complaint."
The settlement prohibits the city from requiring that complaints be notarized, and requires investigators to interview complainants away from police stations unless the person consents to a station interview.
The settlement also forbids the city from investigating complaints in a way that shows bias against complainants. Prohibited practices include asking hostile questions of complainants; “applying moral judgments related to the dress, grooming, income, life-style, or known or perceived criminal history of complainants; giving testimony by officers greater weight than testimony by complainants; providing summary reports that disadvantage complainants and are unrelated to facts developed in the investigation; issuing complaint dispositions that are not justified by the facts developed in the investigation; (and) recommending inconsistent discipline for officer misconduct."
The 53-page settlement agreement also calls for the police / city to:
“We hope this sends a message to other cities about the need to advance fairness and equal treatment in policing,” he said in a prepared statement.
By Gretchen Schuldt
WJI just charted its 100th Milwaukee County case of felony second offense possession of marijuana.
And yes, the defendant in the 100th case was African-American. Not much of a surprise there, since 87 percent of the defendants in these cases were African-American.
Another non-surprise: the defendant in the 100th case was arrested in the City of Milwaukee, north of I-94, where 80 of the arrests occurred. (We've found just eight cases so far stemming from Milwaukee arrests south of I-94 and a total of 11 originating with arrests in the suburbs. One arrest took place on I-94.)
And, finally, yes, as in many, many other cases, the 100th arrest started as a traffic stop, this time for excessively tinted windows. Police said they smelled marijuana, and the rest is history recorded in court documents.
So is the racial / geographic concentration just a coincidence?
Absolutely not, judging from data dug up by the ACLU during litigation over the city's stop-and-frisk policy. The city and civil rights organization settled the federal class action lawsuit last month.
The ACLU found that between 2010 and 2017, Milwaukee police conducted more than 350,000 pedestrian and traffic stops for which they have no record of reasonable suspicion of criminal activity or a traffic or vehicle equipment violation, as required by the U.S. Constitution.
Former Police Chief Edward Flynn contributed to that number through his policy of encouraging traffic stops in certain neighborhoods as a crime-fighting measure.
The city has agreed to rescind the policy.
Flynn said in a 2009 memo said that "the intelligent, assertive use of police authority to stop people and vehicles can be an invaluable tool that reduces crime and enhances safety in these same neighborhoods. ..."
"Traffic enforcement will continue to be a key part of our policing strategy going forward," he said.
"It must be recognized that many of the people we stop will be released without further action. In this context, how our authority is employed is as important as a results of its use," he said.
"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: Audrey K Skwierawski
Appointed to: Milwaukee County Circuit Court
Appointment date: March 13, 2018 (up for election in spring 2019)
Law school – Georgetown University Law Center
Undergrad – Northwestern University
High School – Pius XI Catholic High School
2011-present – Attorney General-Violence Against Women Prosecutor, Wisconsin Department of Justice
2008-2010 – Coordinator, Commission on Domestic Violence and Sex Assault, City of Milwaukee
1994-2008 – Assistant District Attorney, Milwaukee County
State Bar of Wisconsin
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Served as Milwaukee County and state prosecutor for a combined total of more than 20 years. Has conducted more than 100 jury trials and 50 court trials. Prosecuted a double homicide and sexual assault, along with traffic, general misdemeanor and juvenile court cases. Has special expertise in domestic violence, stalking and sexual assault cases. Job duties also include providing ongoing training and technical support statewide to prosecutors handling domestic violence and sexual assault cases.
Civil law experience includes assisting with a client who ran a health insurance plan and handling motions in various states; handling civil commitments of sexually violent persons cases as assistant district attorney.
No significant experience advocating in administrative proceedings.
Number of cases tried to verdict or judgment: Jury, more than 100; non-jury, more than 50; arbitration, 0; administrative bodies, 0.
Cases on appeal: None.
Three most significant cases in which you were involved:
1. State v. Billy Lee Morford – (Milwaukee County) 1996; State v. Morford, 2004
This is a Chapter 980 sexually violent person commitment case in which the respondent had already been committed for some time. Due to several factors such as advancing age and poor health Mr. Morford petitioned for what is called “supervised release” from his commitment so that he could live in the community while being supervised. I was part of the litigation team that fought against this release but ultimately lost. What ensued was a many months-long search for a private residence in the city of Milwaukee where Mr. Morford could live while being supervised. The Morford case lead (sic) to an enormous public outcry, creation of a bi-partisan state legislative committee to seek placement alternatives (on which I served), ordinances passed by municipalities to stop offenders from being placed in their communities and a series of legislative changes to Chapter 980 relating to the supervised release process. It also led to a motion for reconsideration of the initial release determination, which eventually became the subject of the above Wisconsin Supreme Court decision.
2. State v. Kenneth Spaulding – (Milwaukee County) 1997, 1998 and 1998
I prosecuted the Reverend Spaulding for sexual assault of multiple children in West Milwaukee, all of whose families had allowed him access to their children as part of church related youth group activities. As I worked with West Milwaukee and West Allis police we uncovered a pattern of sexual abuse of children in many other states. The defendant had moved around the country abusing special needs and troubled children. The vulnerability of these children made them poor witnesses, and when authorities got close the defendant would immediately move out of the jurisdiction. The fact that the defendant used his ministry to violate children offended me on a deeply personal level. I believe the case to be significant not from a legal perspective but from a human one. So many victims of the defendant heard about the prosecution that they made pilgrimage to Milwaukee for the closing arguments and the sentencing. Many victims from other states submitted letters and finally found closure after the defendant was sentenced to a lengthy prison term.
3. State v. Nicholas Tuinstra – (Green Lake County) 2014
I worked with a litigation team of the elected District Attorney and another Assistant Attorney General to convict the defendant on two counts of first degree homicide and one count of stalking. The case involved domestic violence and I worked to bring in and qualify an expert on domestic abuse. The case is now in post-conviction motion stages. There are several issues of significance that will likely be decided on appeal during the next year.
Prior judicial experience: Supplemental court commissioner for Milwaukee County Circuit Judge Stephanie G. Rothstein. In that capacity I have officiated for many weddings but have not conducted any other judicial/quasi-judicial activities.
All previous runs for office: Ran unsuccessfully for Milwaukee County circuit judge in 2003.
Judicial or non-partisan candidates that you have publicly endorsed in the last six years:
Dane County Circuit Judge Jill Karofsky and Milwaukee County Circuit Judges Mark Sanders, Thomas McAdams, and Janet Protasiewicz
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:
Attorney General’s Statewide Sexual Assault Response Team Co-chair, 2012 - present
Wisconsin Professional Society on the Abuse of Children, Executive Board Member, 1998 - 2001 • Wisconsin Association of State Prosecutors Executive Board member and vice president, 1996 - 2008
State of Wisconsin Violence Against Women Act Advisory Committee, 1999 - 2002, 2008 - present
Milwaukee Commission on Domestic Violence and Sexual Assault Commissioner, 1998 - 2001
Wisconsin Legislative Council Special Committee Sex Offender Placement, 2007
Milwaukee County Judicial Oversight Initiative Advisory Committee, 1998 - 2000
Mt. Mary University Criminal Justice Advisory Board, 2014 - 2016
Polish Heritage Alliance, member
Polanki Women’s Organization, member
Washington Heights Neighborhood Association, member
St. Sebastian Catholic Church, member
Annunciation Greek Orthodox Church, member
Philoptocos Greek Women’s Organization, member
Pius XI High School Parent Producers (support performing arts at Pius XI High School), member
Describe any courses on law you have taught or lectures you have given: Applicant cites a long list of courses and lectures.
In my current role as violence against women resource prosecutor I am responsible for presenting numerous trainings throughout the state for diverse audiences including judges, prosecutors, law enforcement agencies, probation agents, victim witness professionals and community advocates.
Pro bono legal work in the last five years: None. Wisconsin law dictates that prosecutors not engage in any other practice of law outside of their employment.
Why I want to be a judge – Our judicial system often represents the closest connection point for many Americans to interface with their Constitution and their government. With the exception of marriage and adoption, the hundreds who appear in circuit court in Milwaukee County every day come because of an unhappy, stressful circumstance. They come bearing the weight of criminal victimization, unresolved business disputes, divorce or some other potentially life-changing problem. In short, they come to the court when things may be at the worst in their lives. That is precisely when they deserve the best that our justice system can provide. They deserve a circuit court judge who delivers on the promise of the rule of law, honors the Constitution and has a deep understanding of the separation of powers.
Those appearing in Milwaukee courts also need a circuit court judge who can dispense justice without unnecessary delay. The courts in Milwaukee carry heavy dockets, so a circuit court judge must not only be able to follow the rule of law thoughtfully and accurately, but also expediently.
I want to be a judge because I have the skills to deliver the high level of juridical excellence combined with the efficiency that the people of Milwaukee County should expect when they walk into the courthouse. My educational experiences at both Northwestern University and Georgetown University create the foundation for the intellectual rigor required to make well-reasoned decisions. My more than twenty years of real world experience as a litigator (first in Milwaukee courtrooms and then in courtrooms all over the state) has honed my ability to deftly handle large calendars and complex cases without sacrificing quality.
They come bearing the weight of criminal victimization, unresolved business disputes, divorce or some other potentially life-changing problem. In short, they come to the court when things may be at the worst in their lives.
Best Wisconsin or US Supreme Court decision in the last 30 years – Paroline v. United States (2014)
As a prosecutor I have worked with hundreds of crime victims throughout the state. I believe Paroline v. United States ... is one of the best decisions of the past 30 years because in it the U.S. Supreme Court modeled treating victims with sensitivity, dignity, and respect. The court showed empathy towards the victim, protecting her privacy, and instructing on the importance of restitution.
The victim in Paroline, identified as "Amy," was sexually assaulted by her uncle as a young girl. Compounding his crimes, her uncle also recorded and distributed pornographic images of her abuse on the Internet. Paroline was convicted for possessing two of the 150 to 300 total images of child pornography in his custody. Amy sought $3.4 million in restitution, under the federal statute that mandates full restitution to child pornography victims, arguing that everyone who possesses images of her is continuing to contribute to her injury and, consequently, each of them should be required to pay the full amount for her losses.
The Supreme Court ruled that Paroline was not responsible for the entire $3.4 million but he should have to pay his share of restitution and that amount must be enough to send the message that his part in the crime was not victimless. Although the court did not rule that Amy should receive the full $3.4 million from Paroline, the court's decision is exemplary in its treatment of Amy as a crime victim.
In the decision, the justices show compassion and sensitivity towards Amy. In demonstrating empathy for Amy, the court signals to all who read this case that Amy is a real person worthy of our attention and respect. ...
The court protected the victim's right to privacy by allowing Amy to use a pseudonym rather than her real name. This allows Amy to avoid further humiliation as she puts her life back together. Not all courts allow victims to remain anonymous. When victims’ identities are revealed along with graphic details of the crimes committed against them, it exacerbates the trauma they experience. In modeling the use of a pseudonym, the U.S. Supreme Court indicates to lower courts that this practice is not only acceptable, but preferred. Lastly, the court fully embraced the importance of restitution noting that restitution is effective in rehabilitating offenders because it forces them to concretely confront the harm they caused.
Worst Wisconsin or US Supreme Court decision in the last 30 years – State v. Johnson (2013 WI 59.)
Crime victims often rely on mental health providers to help them heal emotionally and psychologically after they have been harmed. The psychologist-patient privilege is especially important because it encourages these crime victims to fully disclose information, without fear of embarrassment or humiliation, in order to receive much-needed counseling and support. It is not uncommon for defendants (especially in sexual assault cases) to attempt to pierce this privilege, arguing that the mental health records contain exculpatory evidence. Current Wisconsin law creates a dilemma for victims because once a judge makes the requisite findings, victims must choose to disclose their mental health records and testify against their abuser or choose not to disclose and be barred from testifying. This dilemma is at the heart of the what I believe to be the worst decision issued by the Wisconsin Supreme Court in the past 30 years, State v. Johnson (2013 WI 59.)
Curtis Johnson was charged with one count of repeated acts of sexual assault to his stepdaughter when she was between 12 and 15 years old. During discovery Johnson moved the court for an in camera inspection of his niece's therapy records, asserting the records contained information about their relationship and were exculpatory. The circuit court ruled that Johnson met the requisite burden and ordered the victim to disclose her records. The victim asserted the psychologist-patient privilege and declined to allow the judge to see her records. In response, and departing from precedent, the judge issued an order allowing the victim to testify, without disclosing her records, provided the jury was instructed that it could infer that the undisclosed records would be helpful to the defense. The Court of Appeals reversed the trial court's decision and ruled that the victim could not testify as long as she was "exerting" her privilege. State v. Johnson (No. 2011 AP 2864-CRAC).
In State v. Johnson (2013 WI 59) the Supreme Court issued a per curiam decision in which two justices did not participate. The court offered no legal analysis in its decision. Rather the opinion presents various issues and indicates which justices decided one way or the other on each issue. Ultimately the court reversed the appellate court's decision and found "under varying rationales" that the victim could testify without disclosing her mental health records. The decision was silent as to the curative instruction. The parties and the trial court did not know how to proceed because the decision offered no analysis, departed from precedent, and did not discuss the curative instruction. Both the state and defense asked the court to reconsider this decision.
The Supreme Court issued a second per curiam decision in which it admitted its first decision was confusing and left the parties and the trial court "without sufficient guidance or ability to proceed consistent with precedent." State v. Johnson (2014 WI 16). In the end, the court affirmed the Court of Appeals decision. The dilemma for Johnson's niece remained.
Judicial philosophy: I recently taught an undergraduate university course on the way our criminal justice system handles various forms of abuse – sexual abuse, domestic abuse, and elder abuse. I inherited a set of lesson plans from a previous professor who graciously shared them with me. But instead of starting with the first plan and chapter of the book, I started where I thought all students of criminal justice should start – with an intensive review of our system of separation of powers and checks and balances. Working from the municipal level to the county then the state and federal levels we developed a working “map” on the board depicting the three branches of government as well as their responsibilities.
Just as I chose this lesson to be the foundation for the students, I recognize it as the foundation of my judicial philosophy. As judges in our courts work toward the ideal of “equal justice under law” each must have a firm grounding and understanding of their role in our democratic system.
With this foundation in place, the circuit court judge works to conduct motions, facilitate truthful testimony, conduct fair trials and apply the laws as enacted by the legislature. And the good circuit court judge carries out these duties while striving to adhere to the highest level of personal and professional excellence in every case no matter how large or small.
Conducting a great many day to day duties at a high level of excellence while keeping in mind one’s role in the larger system of democracy can seem an impossible task, but I am guided by the many exemplary judges in our state whom I have had the good fortune to observe in action. I do not pretend to be able to work to their levels because taken together they have set the bar high. Knowing it can be done, however, helps me to aspire.
My own undergraduate alma mater, Northwestern University, was founded on the motto, “Whatsoever things are true” taken from Philippians, 4.8:
Finally, brethren, whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely,
whatsoever things are of good report; if there be any virtue, and if there be any praise, think on these things.
If a firm understanding of the separation of powers forms the foundational “floor” for my judicial philosophy, then these words capture the aspirational “ceiling.” For whatever else a judge may seek to do, he or she should take the bench thinking always upon the search for what is true, what is honest and what is just.
Previous application for judicial appointment: Application for appointment as a Milwaukee County Circuit Court Judge submitted to the Governor’s Judicial Nominating Commission in 2003.
By Gretchen Schuldt
A defense lawyer who did not interview potentially helpful witnesses and cannot give a reason for failing to do so was ineffective in the representation of his client, a state appeals judge ruled this week.
District III Court of Appeals Judge Mark A. Seidl, in rejecting rulings by St. Croix County Circuit Judge R. Michael Waterman, threw out the third-offense drunk driving conviction of Tanya Lynn Schmit and sent the case back to circuit court for further proceedings.
During a post-conviction hearing, defense lawyer Aaron A. Nelson testified that “there was no strategy involved at all” in his non-investigation of one of the potential witnesses and that he simply “didn’t do it,” according to Seidl's one-judge opinion.
The main question at Schmit's trial was whether she was driving when the car she was in crossed the center line of a road and crashed into a bridge wall. Another woman, Britney Aumer, was with Schmit in the car when the accident occurred.
Neither Schmit nor Aumer testified at Schmit's jury trial. It is not clear whether Aumer could be found in time to testify, Seidl wrote.
A police officer testified at trial that Schmit said both that she was the driver and that she was not the driver. Aumer declined to give a statement to police.
About three years after the accident and two weeks before trial, a witness, Holly Korn, told Schmit that she saw Aumer leave the car by the driver’s door. Korn had not spoken up earlier because she assumed Aumer was the one charged with drunk driving, Seidl said.
Schmit’s estranged husband, Chad, told Schmit before the trial that a distraught Aumer talked to him on the phone after the accident and acknowledge being the driver. Chad and Schmit owned the business that owned the vehicle.
Schmit told her lawyer that there were two potential witnesses and that he should talk to them.
During the post-conviction hearing, attorney Nelson testified that he knew about Chad even before Schmit told him, and also said he learned of the two witnesses about the same time.
"There is a reasonable probability that, had (the witnesses) testified, the result of the proceeding would have been different."
Waterman, the circuit court judge, ruled that the lawyer was not ineffective because a reasonable attorney would not have had time to investigate the new information obtained a week or two before trial.
Seidl rejected that reasoning, saying “Nothing in the record on appeal supports" the contention that Nelson did not have enough time.
"Rather, and contrary to the circuit court’s statement, Schmit did present evidence clearly showing that the efforts could have been completed in time for trial….” he wrote.
Waterman also ruled that even if Nelson had been ineffective, the outcome of the trial would not change and Chad’s testimony about Aumer’s phone call would have been inadmissable heresay.
Wrote Seidl: “The court failed to provide any basis for its conclusions. ... There is a reasonable probability that, had Chad and Korn testified, the result of the proceeding would have been different. As an initial matter, the record sufficiently establishes that both witnesses could have significantly undermined the State’s case if they had testified at trial.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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