Juvenile life sentences in Wisconsin are legal because such sentences are not mandated by statute and because the state provides parole hearings to inmates serving such sentences, the state says in a document filed in Federal Court.

Assistant State Attorneys General Karla Keckhaver and Lisa E. Kumfer ask U.S. District Judge James D. Peterson to dismiss an ACLU lawsuit challenging juvenile life sentences. As an alternative, they say, Peterson should delay the suit until after the U.S. Supreme Court hears Mathena v. Malvo, a case also involving juvenile life sentences. That outcome of that case, the state argues, "may entirely foreclose" the ACLU's allegations.

The ACLU brought its class-action lawsuit in April on behalf of prison inmates sentenced to life in prison for crimes they committed as juveniles. It seeks to reform the state's parole process and provide qualified juvenile lifers a meaningful chance at walking out the prison gates. 

The suit alleges that the state consistently denies "release on parole to juvenile lifers who demonstrate unmistakable maturity, rehabilitation and reform, and a low risk to public safety," violations of the Eighth Amendment's prohibitions against cruel and unusual punishment and of the 14th Amendment's guarantee of due process.

The suit also alleges the state violates the juveniles Sixth Amendment right to a jury trial because juries are not making key findings in juvenile lifer cases.

The state, however, says the suit is barred by a U.S. Supreme Court ruling barring civil rights suits that challenge the validity of a defendant's conviction or the length of sentence. 

The Wisconsin Justice Initiative on Wednesday filed a complaint against Officer Froilan Santiago with the Fire and Police Commission, alleging that comments Santiago made in a deposition "are irresponsible, unprofessional, an insult to the residents of Milwaukee and an embarrassment to the Milwaukee Police Department."

The complaint referred to Santiago's statement during a Federal Court deposition that drivers in traffic stops in the central city or on the North Side were likely to run.

"He might have drugs or guns, based on where I've worked at. District 7 or District 5," Santiago said.

In District 1 Downtown, however, "where it's more of people as far as the -- more able to communicate and more different lifestyle," he said.

He added: "District 1, you have a high percentage of people who's in college, who's in business, work, and stuff like that, and you deal with them differently as far as – and their behavior at that moment in time."

WJI Executive Director Gretchen Schuldt said in the complaint that it is unclear whether Santiago prejudices are based on race or economic status. 

"It is very clear, though, that he carries them into his interactions with citizens every day he is on the job," she wrote.

The populations of Police Districts 5 and 7 include the largest percentages of African Americans among all the districts in the city, according to a U.S. Justice Department report on the Police Department.

"WJI urges the Fire and Police Commission to investigate Mr. Santiago's comments and ensure that he is not allowed to have any contact in any form with the citizens he plainly holds in such very, very low regard," Schuldt wrote.

By Gretchen Schuldt

A Milwaukee police officer testified he would invite traffic stop subjects into his squad car if the stop was in the Downtown police district, but not if it was in a central city or North Side district.

Officer Froilan Santiago made the statements during a 2017 deposition taken during a Federal Court lawsuit alleging that Santiago used excessive force during a traffic stop. The suit is pending.

"So then getting back to my question," attorney Nathaniel Cade, Jr. asked Santiago, "how many times since 2006 have you initiated a stop of someone and suggested that they get out of the vehicle and get into the front seat and look at the computer?"

"Now, like I said, District 7, I wouldn't do," Santiago said. District 7 headquarters is at 3626 W. Fond du Lac Ave. on the city's North Side.

"Depends on the situation and environment," he continued. "District 1 is a different type of environment where it's more of people as far as the -- more able to communicate and more different lifestyle of the individual based on our training in District 1 -- or based on what -- my experience at District 1, it's a lot more common than if I was at District 7. "

District 1, Downtown, is headquartered at 749 W. State St.

He continued: "District 7, if you stop that person, that person is going to run. He might have drugs or guns, based on where I've worked at. District 7 or District 5."

District 5 is based at 2920 Vel R. Phillips Ave. 

"District 1, you have a high percentage of people who's in college, who's in business, work, and stuff like that, and you deal with them differently as far as – and their behavior at that moment in time. I don't know," Santiago said. "Like I said, it's just discretion of the individual of what's going on."

"So you're profiling the driver of the vehicle based on the district that you're in because it's more likely that if they're in a poor neighborhood, that it's drugs and guns?" Cade asked.

"You asked me how I'm going to perform my traffic stop," Santiago responded.

The plaintiff in the lawsuit, Jimmy Harris, alleges that Santiago in November 2010 stopped the car Harris was driving and asked him to get out of the vehicle. Santiago said he stopped the car because it was black and the color listed on DMV records as gray. It was about 4:45 p.m. and dark at the time of the stop.

The same mistake about the car's color had been made previously, according to the suit, and Harris offered to show Santiago on the squad computer how the error was made. Santiago accepted, but then "suddenly grabbed Mr. Harris' left arm that had recently been operated on and used it to maneuver Mr. Harris..."

This 29-minute video shows parts of Harris' encounter with police.

"Walker's judges" is our effort to present information about former Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. While Walker has left office, WJI will continue to profile his appointees who are still in office. We also are profiling Gov. Tony Evers' judicial appointees.

Walker appointee Paul C. Dedinsky, profiled below, has been in the news because of questions about his residency.

Name: Paul C. Dedinsky
Appointed to: Milwaukee County Circuit Court

Appointment date: Dec. 26, 2018 (Up for election in April 2020)
 
Education:
           Graduate School (Ph.D.) – Cardinal Stritch University, Milwaukee
            Law School – University of Wisconsin Law School
            Undergraduate – Creighton University, Omaha, Nebraska
            High School – Marquette University High School, Milwaukee
 
Recent legal employment:
            2017 - present – Chief legal counsel, Wisconsin Department of Agriculture, Trade and                                                                  Consumer Protection
            1997-2017 – Assistant district attorney, Milwaukee County
           
Memberships:
State Bar Association
American Bar Association
St. Thomas More Society
Federalist Society

Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: As chief legal counsel for DATCP, experience in ethics, human resources, contracts, board governance, agency regulations, administrative rule-making; as assistant district attorney, experience in restorative justice, violence prevention, Children's Court, domestic violence prosecutions, drug treatment court, sensitive crimes, and misdemeanors; in private practice, experience in criminal defense, appellate, civil, and family matters.

Number of cases tried to verdict or judgment: Jury, 50; non-jury, 100; arbitration, no answer; administrative bodies, 10. 
 
Cases on appeal: 50 in private practice.
 
Three most significant cases: (Dedinsky listed four)

State v. Joseph Hoeller - The case…originally surfaced as a disorderly conduct charge. We transformed the investigation of the matter which led to felony stalking charges, representing one of the first uses of the revised felony stalking statute by our office. The evidence encompassed a range of stalking of the victim at home and work. The stalker threatened violence towards the victim and her family members, utilizing a variety of means to stalk her: Property damage, the internet, text messaging, e-mail, phone calls, voicemail messages, and manipulation of their child. This case entailed leadership during the investigative stages, patience with the victim and her family, an understanding of stalker typology research and power/control dynamics, and an ability to effectively assess the lethality of the stalker in order to plan the victim’s future safety. After preparing a powerpoint (sic) for courtroom presentation during discovery / pre-trial strategy, the defendant pled guilty and was sentenced to prison. For many years, the powerpoint presentation has been used to train law enforcement in stalking and domestic abuse relationship dynamics.

State v. Jon A. York - In 2002, I charged two parents with approximately 29 counts of child sexual abuse to their 8-year old daughter, drug manufacturing, possession of electric weapons, causing mental harm to a child, and possession of child pornography. The case involved lots of additional investigation and many complex legal challenges from lawyers relating to issues such as the legality of the search warrant and the defendant’s statement/confession law.

State v. Matthew Tyler – A child predator had worked or volunteered as a youth counselor at a boys’ residential treatment center, a church minister and Boy Scout troop leader, a college professor, and an underprivileged minority youth counselor at the Medical College of Wisconsin and University of Wisconsin-Milwaukee. Piecing together decades of un-prosecuted sexual abuse allegations from aforementioned states across the country proved challenging. After over 100 phone calls and many hours of investigation, I secured the cooperation of several male sexual assault victims from the 1970s, 1980s, and 1990s, whose patterns of victimization by the defendant were remarkably similar. Following the trial court’s approval of this compelling “other acts” evidence, the defendant pled guilty to his first felony sexual assault.

A SUCCESS STORY IN A CIVIL CONTEXT. In private practice in 1996, I successfully defended a father through a 3-day Termination of Parental Rights jury trial with many complicated factual and legal issues, as well as a complicated trial strategy. The prosecutor and guardian ad litem zealously sought the termination to no avail. I persuaded the jury to correctly decide the case in favor of the father, who had markedly turned around his life and closely bonded with his children. After the jury trial, an experienced prosecutor who observed the jury trial approached me and asked me if I would be willing to apply to the Milwaukee District Attorney’s office. Shortly thereafter, I decided to apply and was offered a position. 

All previous runs for office: None

Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: 

My wife and I are current volunteers at the Waukesha headquarters on Pearl Street from August 2018 to present.

All judicial or non-partisan candidates endorsed in the last six years:

Mark Gundrum, Brian Hagedorn, T. Christopher Dee, Thomas McAdams, and Robert Dehring.

Publications:

Dedinsky listed five.

The two most significant writing pieces, in terms of sheer volume, include my published 500-page dissertation, entitled: "Experiencing Restorative Justice Practices in the Context of an Academic Course – A Phenomenological Mixed Methods Study (2012)" and the 575-page "Wisconsin Domestic Violence Prosecution Manual, 2004" for which I served as the editor and main author....

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:

St. Thomas More Society, Milwaukee, WI, Board of Directors, 2013-present. Organizer of the annual Youth Law Day at MU law school, 2009-present. 
SOFA, Inc. (Saving Others For Archie), Board member, 2016-present.
St. Charles Parish (Hartland), parish members, 2000-present. 
St. Joan of Arc Parish (Nashotah), parish members, 2002-present.
Lake Country Youth Baseball League, head coach for…7th / 8th grade boys baseball team, summer 2015. Served in an assistant capacity in prior years.
St. Clare Center for Catholic Life, Cardinal Stritch University 2015-present
Schoenstatt International Province & Retreat Center, Waukesha, WI, 2009-present.
Healing Ministry in the Roman Catholic Tradition, Inc., Board of Directors, 2011-2016.
St. Catherine’s Residence for Women, Milwaukee, committee member, 1994-1998
St. Aemilian’s Pre-School, Milwaukee, WI, non-profit board member, 1996-1999.
Big Brothers/ Big Sisters of Greater Milwaukee, big brother, 1995-1997.

​Describe any significant pro bono legal work in the last five years: 

Helped develop restorative justice program for Oconomowoc High School.
Helped organization achieve non-profit status.
Helped unnamed southeastern Wisconsin school district deal with internal conflict.

Quotes:
Why I want to be a judge – I wish to serve as a circuit court judge because of the immense opportunity to influence and help litigants. I wish to act with firmness, intelligence, and fairness -- exercising caution and restraint, ever mindful and respectful of our legislative and executive branches of government. 

I once worked for a leader of immense integrity and purpose, a man who inspired a deeper sense of purpose, vision, and mission within me. He advocated eloquently for justice. Years later, this same powerful message resonates within me. To me, an attorney is of limited value without adherence to a high moral purpose and mission.…

Best United States or Wisconsin Supreme Court opinion in the last thirty years – Burwell v. Hobby Lobby and Conestoga Wood Specialties Corporation v. Burwell (2014)

The case addresses the tension between reproductive rights (pro-abortion) and proponents of religious liberty. However, most significantly, the decision also stands out as an example of the judicial branch of government restraining the executive branch's powers in favor of granting people owning for-profit entities the right to object to provisions of the Affordable Care Act (ACA) based upon sincerely held religious beliefs.

In these cases, both business owners believed that life begins at conception and that any birth control method that could lead to the destruction of embryos would be morally wrong. The Department of Health and Human Services (HHS) mandated that employers provide insurance coverage with its set of pre-determined provisions. It also required employers to pay for the services. Failure to pay would result in exorbitant penalties, according to the opinion (a major factor in the "substantial burden" standard analysis). 

From the perspective of the business owners, the course of events presented a troubling set of circumstances. First, the government mandated that employers must provide insurance (which both companies already offered). Next, the government set the parameters for what the insurance policies must cover, including a full breadth of contraceptives. This position presents a major dilemma for many citizens across the country, morally offensive to some and violative of their religious beliefs. The government opted out religious groups and non-profits, ceding the moral and religious ground. However, HHS did not provide accomodations (sic) in the case of for-profit businesses. Failure to comply with its provisions would result in multi-million dollar penalties to the companies. So, the court's action effectively curtailed and restrained an ambitious piece of legislation and the executive branch's exercise over personally held moral and religious beliefs.  

There is an additional reason why I find this decision to be significant. HHS went so far as to argue that the business owners' position was flawed. Even though HHS already had acknowledged the moral position for religious groups and non-profits, HHS argued that the business owners actually bore no moral culpability in paying for coverage. Instead, HHS maintained that the moral culpability fell upon the shoulders of those who actually decide to destroy their embryos. Justice Alito noted the inappropriateness of courts presuming to determine the plausibility of a given religious claim.

 In determining that HHS' regulations imposing an obligation upon for-profit business owners violated the Religious Freedom Restoration Act of 1993, the high court determined that the federal government must be considerate of the sincerely held religious beliefs of our citizenry. The case represents a major victory for proponents of religious freedom. 

The Milwaukee Fire and Police Commission should prohibit the Police Department from seizing money and property from citizens who are not arrested for any crime, the Wisconsin Justice Initiative said.

"That is not a legitimate law enforcement activity," WJI Executive Director Gretchen Schuldt wrote in a letter to the commission. "That is theft."

Both state and federal law allow police to seize money and property police say is involved in criminal activity. Police participate in both kinds of seizures.

The Police Department is proposing to allow officers to grab up property or money in federal seizures without making an arrest if they have "reasonable suspicion" that the seized goods are proceeds from drug trafficking and are worth more than $1,000. Under current policy, the value must be at least $5,000, according to Fire and Police Commission documents.

The commission at its July 25 meeting delayed action on the proposed policy change to allow the public a chance to weigh in. 

Schuldt, in her letter, said the commission should review the department's current asset seizure practices and share that information with the public before voting on the proposed policy.

"How many times did MPD seize assets under federal law and how many under state law?" she asked. "How do officers determine whether money is related to drug dealing or any other illegal activity? How many times has HIDTA (or other federal agency) rejected the department’s requested seizures? How many times have those requests been approved? What is the total value of assets seized per year? What becomes of them?"

The commission should also investigate the race and economic status of those who lose their property in police seizures and what those people must do to reclaim wrongfully seized property.

"Must they go to court or are there administrative appeals processes?" she asked. Must citizens hire their own lawyers while the city provides attorneys for the police?"

​State law prohibits permanent seizures unless there is a criminal conviction; federal law does not have that restriction.

By Gretchen Schuldt

​A 39-year-old man hung himself in the Shorewood jail after police detained him without reason, searched him improperly, locked him in a cell alone despite knowing he suffered from mental illness,  and failed to check on him in a timely manner, according to a Federal Court lawsuit filed Friday.

The suit was filed by the son and estate of Jonah Marciniak, who died on Aug. 21, 2016. Izariah Jump, Marciniak's son, was 16 years old at the time.

The suit alleges false arrest and unlawful detention, unreasonable search, deprivation of due process, failure to provide medical care, failure to protect from self-harm, and wrongful death. 

According to the suit:

Shorewood police responded to a Marciniak drug overdose on Aug. 12, 2016. Marciniak told them then that he suffered from depression. The next day, his roommate, Eric Harper, told police that Marciniak had overdosed and attempted suicide previously and suffered from several kinds of mental illness, including depression, anxiety and bi-polar disorders.

Two days later, Harper fell out of a fourth-floor window. When police responded, they tried to gain access to the apartment that Harper fell from so they could check on the welfare of anyone inside. They rang the buzzer and pounded on the door but received no response. The North Shore Fire Department eventually gained access.

Two defendants in the suit, Police Officers Cody J. Smith and Nicolas Taraboi found Marciniak naked, face down on a bed after a "loud search" of the rest of the apartment. Smith also had responded to the drug overdose days earlier.

"Jonah had very shallow breaths and did not respond to the SPD police officers’ multiple attempts to wake him," the suit says. "The SPD police officers screamed commands at Jonah, but there were no movements from him."

Smith recognized Marciniak when they rolled him onto his back, according to the suit. 

"It was obvious to all present that Jonah was impaired," the suit says.

 "Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. WJI also will continue to profile former Gov. Scott Walker's appointees who are still in office. 

Name: Rachel A. Graham

Appointed to: District 4 Court of Appeals
Appointment date: June 13, 2019. (Election scheduled for April 2020)
Education:
            Law School – University of Wisconsin Law School
            Undergraduate – Northwestern University
             High School  –  Stevens Point Area High School
                               
Recent legal employment:
           August 2012 - present – Attorney, Quarles & Brady, Madison
           August 2005 - July 2008 – Law clerk, Wisconsin Supreme Court
            
Bar and Administrative Memberships:
Wisconsin State Courts
U.S. District Court for the Eastern District of Wisconsin
U.S. District Court for the Eastern District of Wisconsin
Seventh Circuit Court of Appeals

General character of practice: General commercial litigation with a wide variety of clients.
I have, for example, handled lease disputes on behalf of landlords and tenants, contract disputes on behalf of buyers and sellers, employment disputes on behalf of employers and employees, construction litigation on behalf of contractors and owners, trade secret litigation on behalf of companies and alleged infringers, and business torts and business governance disputes on behalf of boards of directors and shareholders alike.

Some specialization in administrative law and procedure and in appellate advocacy.

Describe typical clients: Individuals, companies, shareholders and directors of state companies, and employees of same.

Number of cases tried to verdict or judgment: 1

By Gretchen Schuldt

​A federal judge has given the ACLU and its partners the go-ahead to argue that juveniles sentenced to life without a meaningful chance at parole are denied their constitutional right to a jury trial.

It is a new argument in the national battle over juvenile life sentences and one that, if successful, would lead to "significant extensions of current law," according to U.S. District Judge James D. Peterson, who is presiding over the case.

The ACLU of Wisconsin brought the class-action lawsuit in April on behalf of juvenile lifers. It seeks to reform the state's parole process and provide qualified juvenile lifers a meaningful chance at walking out the prison gates. 

The suit alleges that the state consistently denies "release on parole to juvenile lifers who demonstrate unmistakable maturity, rehabilitation and reform, and a low risk to public safety," violations of the Eighth Amendment's prohibitions against cruel and unusual punishment and of the 14th Amendment's guarantee of due process.

The suit also alleges the state violates the juveniles Sixth Amendment right to a jury trial because juries are not making key findings in juvenile lifer cases.

Peterson previously granted the ACLU's request to pursue the Eighth and Fourteenth Amendment arguments,  but initially delayed his ruling on the jury trial claim.