By Gretchen Schuldt
An Outagamie Circuit Court judge showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison, a State Court of Appeals panel ruled Tuesday.
The ruling does not reflect on the four-year sentence Circuit Judge Mark J. McGinnis ultimately handed to Emerson D. Lamb, Appeals Judge Thomas M. Hruz wrote for the District III panel.
"However justified Lamb’s prison sentence may have been, we cannot ignore the constitutional requirement that Lamb be sentenced by an impartial tribunal," Hruz wrote. "Our adherence to this fundamental precept of due process compels us to reverse Lamb’s conviction."
The court ordered that Lamb be sentenced again by a different judge.
Hruz was joined in his opinion by Appeals Judges Lisa K. Stark and Mark A. Seidl.
Lamb originally was charged with two counts of felony bail jumping, one count of battery by a prisoner, and one count of disorderly conduct. He was charged as a repeater in each instance.
He eventually pleaded guilty to one count of battery by a prisoner as a repeater, and the other counts were read in. The judge ordered a pre-sentence investigation, and Lamb was released on bond.
He failed, however, to keep his appointment with the PSI writer and expressed a desire to withdraw his plea.
During a hearing, Lamb said he was wrongly charged with two counts of bail jumping and called the district attorney a "criminal," then left the courthouse, Hruz wrote. McGinnis issued a bench warrant for Lamb's arrest. He was eventually taken into custody.
At his sentencing hearing, Lamb said he no longer wished to withdraw his plea and to skip the PSI because prosecutors agreed to recommend a sentence of probation.
''I feel like I could potentially benefit from, you know, maybe being on probation," Lamb said. "Also, there’s the possibility of leaving today, so I just --"
"Not really," McGinnis said. "Okay. Just thought I’d tell you that so you don’t have any false hopes. I mean, there’s a possibility, but it’s probably not going to happen. Do you understand that? Yes?"
Lamb said he understood.
McGinnis continued, "I don’t want you waiving your rights thinking something that might happen that maybe isn’t going to happen. So now that you know that it probably isn’t going to happen that you’re going to get out today, do you still want to proceed with sentencing and not argue on your request to vacate the pleas or to withdraw the pleas and to waive your right to have a PSI?"
Lamb said he did.
"You’re going to prison today because we’re sick and tired of you."
McGinnis heard from the district attorney, Lamb's attorney, and Lamb himself. Then the judge himself spoke.
"Well, just so there’s no surprise, I mean, you are going to prison today," he said. "I’m making that decision, and I think it needs to be communicated to you clearly without keeping you on edge as I tell you what’s going to happen, and you’re going to prison today because we’re sick and tired of you."
Lamb had several chances at probation, but kept committing crimes, McGinnis said, adding that he did not "know many people with as low of character as you have."
McGinnis sentenced Lamb to two years in prison and two years on extended supervision.
McGinnis' comments "reveal, by a preponderance of the evidence, a serious risk of actual bias because a reasonable lay observer would interpret them as prejudging Lamb’s sentence," Hruz wrote.
The timing of the judge's comments was important because they occurred before sentencing arguments and before Lamb had a chance to speak on his own behalf, Hruz said.
Wisconsin judges are required to consider several factors when passing sentence harsher than probation. They include the need to protect the public, the gravity of the offense, and the defendant’s rehabilitative needs, Hruz said.
McGinnis’ statements "failed to account for any of these sentencing factors and objectively show a 'serious risk' that he had already made up his mind about what kind of sentence Lamb would receive," Hruz said.
By Gretchen Schuldt
The State Public Defender's Office is proposing to increase from $40 to $70 per hour the rate it pays private bar attorneys to represent defendants who cannot afford to hire attorneys.
It is at least the office's 19th formal attempt to increase the $40 per hour rate since 1999, according to information provided earlier by the State Public Defender's Office (SPD).
The $40 rate, which is the lowest in the nation, "is impeding the SPD’s ability to recruit and retain private bar attorneys who consistently accept appointments and provide effective representation," the agency said in its 2019-21 budget request. "It also has a direct impact on county expenses through increased jail costs and costs for appointment of counsel at county expense."
The pay increase, which would take effect July 1, 2019, would cost $33.2 million over the biennium.
The agency suggested as an alternative that the pay raise be delayed until Jan. 1, 2020. That would reduce the cost to $25.3 million, the SPD said in its budget request.
Hank Schultz, a lawyer who has been heavily involved in working for a private bar pay increase, said the proposal is a stop-gap measure that does not address the basic problem.
"In a few years we'll be in the same place we are now," he said in an interview. "This is not a meaningful, long-term solution."
SPD appoints lawyers when its own caseload is too great, or when it has a conflict. When it cannot find a lawyer willing to take a case at $40 per hour, which is occurring with increasing frequency, judges are supposed to appoint lawyers at county expense. Some judges already are paying $100 per hour or more for those lawyers, Schultz said.
The minimum rate for court-appointed lawyers is $70 per hour.
In some counties, defendants remain in jail while they await appointment of counsel by either the SPD or a judge. Some judges proceed with hearings even if no lawyer is available. An 18-year-old inmate in the Wood County Jail hanged himself last month after trying to represent himself at a preliminary hearing – no lawyer was there to help him.
The Wisconsin Association of Criminal Defense Lawyers asked the State Supreme Court earlier this year to increase the $40 rate, but the Court, while acknowledging the rate was too low, declined to act, instead deferring to the Legislature. The court did agree to increase the rate paid to court-appointed lawyers from $70 to $100 per hour, but delayed implementation until Jan. 1, 2020.
"Considering the $40 rate and the cost of operating a law practice, it is unsurprising that there are fewer attorneys willing to accept SPD appointments," the Public Defender’s Office said in its budget request.
The $40 rate is not enough to cover the average attorney's overhead costs, SPD said, and other attorneys used by the state and federal governments are paid more.
"Defense attorneys are paid $140 per hour for noncapital federal cases," SPD said. "The Office of Lawyer Regulation uses outside counsel in some disciplinary matters and pays them $70 per hour."
Finding lawyers to represent clients in the northern part of the state is especially challenging, SPD said.
Bayfield County cases are now assigned to out-of-county lawyers 99 percent of the time, SPD said. In fiscal 2012, Ashland County appointed 28 percent of cases to out-of-county private attorneys; by 2017, that number had risen to 73 percent.
By Margo Kirchner
After multiple hearings and studies, the Wisconsin Supreme Court has denied a long-pending petition seeking appointment of counsel for low-income people in civil cases that affect the litigants’ “basic human needs.”
Unlike defendants in criminal cases, litigants in civil cases generally do not have any right to counsel.
Back in September 2013, John Ebbott and Thomas Cannon, then the executive directors of Legal Action of Wisconsin and the Legal Aid Society of Milwaukee, respectively, asked the Court to fund a pilot project testing the appointment of counsel in civil cases and to adopt a new court rule requiring appointment of counsel in civil cases when “necessary to ensure a fundamentally fair hearing in a court proceeding that will affect the litigant’s basic human needs.” Basic human needs included “sustenance, shelter, heat, medical care, safety, and child custody and placement,” Ebbott and Cannon said.
The Court had denied a similar rule petition previously, saying that “the effect of the proposal on circuit courts and counties is largely unknown but may be substantial.” The Wisconsin Access to Justice Commission (WATJC) later developed a pilot project to test civil appointments, but the State Bar of Wisconsin declined to fund it.
The WATJC, a nonprofit organization created by the Wisconsin Supreme Court at the request of the State Bar of Wisconsin, aids the Court in expanding access to the civil justice system for unrepresented, low-income Wisconsin residents. Providing civil legal aid can assure fairness for those involved in the justice system, reduce court costs, and strengthen communities, according to the organization.
The 2013 petition sought funding of the pilot project by the Supreme Court.
The Court discussed the petition at an open administrative rules conference in December 2013 but held off decision at that time.
The WATJC, in an October 2014 letter from its then-president, retired Milwaukee Municipal Court Judge James Gramling, suggested that if the Court chose not to fund and implement the pilot project it could ask the Wisconsin Legislature to create a legislative study committee to examine “the costs, benefits, scope, and revenue options” of an appointed-counsel plan for low-income litigants in civil cases involving basic human needs.
The Court discussed the petition again in December 2014. Then, over a year later, in January 2016, the Court formally requested creation of a study committee. The Joint Legislative Council agreed, creating the Study Committee on Access to Civil Legal Services.
The Committee met from July 2016 through February 2017 and after consideration of the issue recommended three bills, which the Joint Legislative Council passed on to the Legislature. One bill encouraged several state agencies to allocate federal block grant money for civil legal aid to qualified individuals. Another proposed creation of an interagency council to evaluate how improved access to civil legal services could further the goals of the agencies. And the third allowed district attorneys and their deputy and assistant district attorneys to provide pro bono legal services to low-income persons or to nonprofits as long as the services did not conflict with the interests of the attorney’s county — presumably increasing the number of attorneys providing legal services to the poor.
The bills were introduced in the 2017-18 legislative session, but died.
The Court, in its order this month, said the conclusion of work by the Joint Legislative Council study committee made it appropriate to dismiss the rule petition.
No pilot program, no rule change, no legislation from the study committee’s work.
“The Court’s order brings this petition to a conclusion — but not the effort to give low-income litigants a shot at a fair result in court,” Gramling said in an email. He remains on the commission and – full disclosure – is a WJI Board member. “Our Commission will continue to present ideas to the Supreme Court for ‘expanding access to the civil justice system for unrepresented low-income Wisconsin residents’ — the mission given us by the Court when it created the Commission.”
By Gretchen Schuldt
A federal appeals court on Friday reversed the $6.7 million verdict against the county awarded in a lawsuit brought by a woman who was raped by a corrections officer in the Milwaukee County Jail.
The Seventh Circuit Court of Appeals panel found that former Corrections Officer Xavier Thicklen was acting outside the scope of his duties for the county when he raped the woman and forced her to perform oral sex on him.
The court threw out the jury verdict only against the county. Thicklen also was named as a defendant. The verdict against him still stands.
The three-judge panel, in an opinion written by U.S. Circuit Judge Daniel A. Manion, said U.S. District Judge J.P. Stadtmueller should have relied on what he believed the Wisconsin Supreme Court would do when he ruled on a county motion to dismiss the case against it because Thicklen acted outside the scope of his job; instead, Stadtmueller relied on one of his own decisions and let the lawsuit move forward.
Manion referred to the the Wisconsin Supreme Court's standard as "time-worn."
"Conduct is not in the scope if it is different in kind from that authorized, far beyond the authorized time or space, or too little actuated by a purpose to serve the employer," he wrote.
Manion was joined in the decision by U.S. Circuit Judge Amy Coney Barrett and U.S. District Judge Robert W. Gettleman.
Thicklen, the corrections officer, resigned from his job when his activities came under investigation. He eventually pleaded guilty to felony misconduct in office for providing the inmate with contraband and calling her grandmother, and served three days in the House of Correction. He did not attend the three-day federal civil trial.
Thicklen raped the woman in the jail when she was 19 and eight months pregnant. Four days after she gave birth, he demanded she perform oral sex, according to testimony. There was additional sexual contact as well.
After running through previous Seventh Circuit interpretations of scope of duties, Manion wrote, "even when viewing the evidence in the light most favorable to (the woman) and the verdict, we hold no reasonable jury could find the sexual assaults were in the scope of his (Thicklen's) employment. ...The evidence negates the verdict."
Milwaukee County trained Thicklen not to have sex with inmates and how to avoid invitations to have sex with inmates, Manion wrote.
"The undisputed facts and reasonable inferences point ineluctably to the conclusions that Thicklen’s abhorrent acts were in no way actuated by a purpose to serve County," Manion wrote. "He raped (the inmate) for purely personal reasons, the rapes did not benefit County but harmed it, he knew the rapes did not serve County, and the rapes were outside the scope."
Manion expressed sympathy for the woman who, with the county's dismissal from the case, "loses perhaps her best chance to collect the judgment. But (the law) does not make public employers absolute insurers against all wrongs."
"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: Laura A. Crivello
Appointed to: Milwaukee County Circuit Court
Appointment date: March 13, 2018 (up for election spring 2019)
Law School – Marquette University
Undergraduate – UW-Milwaukee (earlier attended Belmont University, Nashville, TN)
High School – Mary D. Bradford High School, Kenosha, WI
Recent legal employment:
1995 - present – Assistant district attorney, Milwaukee County District Attorney’s office
Courts of the State of Wisconsin
U.S. District Court-Eastern District
State Bar of Wisconsin
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Assistant district attorney for 23 years. Cases handled include traffic, misdemeanors, children in need of protective custody, firearms, domestic violence, gangs, community prosecution, drugs, and homicide cases.
Number of cases tried to verdict or judgment: Jury, 100+; non-jury, 100+; arbitration, no answer given,; administrative bodies, 5+.
Cases on appeal: 20+
Three most significant cases:
East Side Mafioso Investigation and Prosecution – Back in 2014, the heroin epidemic was coming into full swing. The east side of Milwaukee was experiencing an increase in violence and overdoses. HIDTA decided to target a gang with a history of violence who was accurately believed to be supplying this area with this poison. This gang called themselves the East Side Mafioso. Our goal was to not only eliminate the suppliers, but to also to see if we could do something to help the people addicted to heroin. Our investigation developed into a … State run wiretap which spun into two other successive wiretaps resulting in six lines that were ultimately tapped.
On the day of the take down, HIDTA executed ten search warrants which resulted in the seizure of eleven firearms, $21,000 in U.S. currency, nine assorted vehicles, approximately one half kilogram of heroin, one half kilogram of cocaine, as well as substantial amounts of cocaine base and marijuana. Furthermore, forty-five individuals were arrested … We also were able to place many of the users who were selling to support their habit into drug treatment court. …I know we saved lives by putting the supplier in prison for extensive periods of time and I know we saved the lives of a number of the addicts which I why I know this investigation and prosecution were significant.
Violent Crime Tint Crew (Blessed Team/Big Money Addicts)
In 2015, heroin dealers modified how they sold heroin in Milwaukee County. The market changed from drugs being sold from stash house (a closed market) to drug being sold out of tinted out cars (an open market). These individuals worked off of phones which were shared by groups. … These dealers loved social media and tended to post video clips of themselves driving through the community with vast amounts of drugs, firearms with extended magazines and stacks of money. …
Our investigation was a multi-jurisdictional effort that resulted in approximately twenty higher level suppliers being arrested, prosecuted, and ultimately placed in prison. Confidential informant information, controlled purchases of drugs, under-cover buys, multiple search warrants, and other lawful means were utilized to build cases … One of the most frustrating parts of the whole investigation was that as soon as one member was arrested, we would seize the phone. This group was technically advanced enough to realize that the phone line was what provided the money, so they would port the phone line to a different device immediately after an arrest … We decided to employ a tactic that had never been used in the United States. A warrant was drafted which ordered the phone company to freeze all data going into and out of a particular line that was utilized by the BMA, thereby rendering the line useless for a thirty day period. …We were thereby able to disrupt the drug trafficking continuum and hopefully save some lives. Since this was accomplished, I have heard from prosecutors and law enforcement across the United States seeking copies of our documents to replicate what we did in Milwaukee to affect the heroin trafficking trade on our soil.
Willie Jordan and Mario Wood – In 2014, I was aware of a homicide that occurred where the victim was found with duct tape, pistol whipped, beaten, shot in the head and dumped in an alley. The suspect for this crime was Willie Jordan. He was charged with False Imprisonment by a different prosecutor. On the day of trial, the case was dismissed. I had followed this case and watched this matter transpire … and it didn’t feel like justice was served.
Then in December of 2015. I learned of a young stripper who was the girlfriend of Willie Jordan who had been bound with duct tape, pistol whipped, beaten, branded repeatedly with a red hot fork, injected with heroin – twice and left for dead. The perpetrator before stealing the victim's dog, turned on the gas on the stove causing great risk to the entire neighborhood. ...Ultimately, the victim's relative found her near death and called the paramedics. The case was initially reviewed as an overdose. No evidence was taken from the scene. ...
The reviewing prosecutor ultimately no processed the case because she felt the victim was uncooperative and her medical records reflected that she had marijuana in her system. There was no physical evidence to corroborate her statement due to the case not being properly investigated and the perpetrators wearing gloves. … Again, I felt that justice had not been served. Six weeks after the incident, I decided to meet with the victim. ...
[Despite difficulties the victim ultimately testified..]
The victim’s testimony was the most powerful testimony I have ever heard. … Ultimately, the jury convicted Jordan of Attempted 1st degree Intentional Homicide, False Imprisonment, Armed Robbery, and Delivery of Heroin. Jordan is presently serving an 80 year sentence in the Wisconsin Prison System broken down into 50 years of initial confinement followed by 30 years of extended supervision. …
All previous runs for office: NA
Pro bono legal work in the last five years: Due to my position, I am unable to do pro bono legal work.
Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: NA
All judicial or non-partisan candidates endorsed in the last six years: NA
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: Redacted
WJI note: Nicholas J. Korger, assistant legal counsel in Gov. Scott Walker's office said in a cover letter accompanying applications submitted by Crivello and two other judicial appointees that "certain information for one applicant is redacted due to ongoing security concerns." While Korger did not identify the applicant, it is presumably Crivello.
Why I want to be a judge – I am seeking where I may do the greatest good. For the last twenty three years, I have sought to do what is right and what is just. I have tried to be fair and to the best job that I could do. I have prayed for remedies or made recommendation as to what I believe is just. I am turning fifty this year, and I am at that point in life where I am ready to be the person making the decision, not just the person asking for the right thing to be done.
I also believe that I would be a good judge. I am well studied and experienced. I have a proven track record of trying hard cases and prevailing. I also try the right cases for the right reasons. I have demonstrated that I exercise sound judgment and I am devoted to seeking justice. I believe that the law was created for the common man and the law should apply equally to all. I believe that the law should be carried out in a fair and impartial manner. … I belief in speaking the truth even if your voice shakes and accepting responsibility. ... I believe I possess the qualities that I would want in a judge…compassion, humility, and common sense.
I consider myself to be conservative in my judicial philosophy. I do not believe that someone is placed on the bench to legislate from this platform or to have their personal agenda fulfilled. – Milwaukee County Circuit Judge Laura A. Crivello
Best United States or Wisconsin Supreme Court opinion in the last thirty years – State of Wisconsin v. Charles Matalonis (2016)
I enjoyed the case … authored by Justice Annette Ziegler. Here, the Supreme Court reversed an unpublished court of appeals decision that reversed Matalonis’s conviction in Kenosha County Circuit Court for manufacture/delivery of THC.
This case involved officers making contact with Matalonis’s brother, Antony, who was battered and bloody. When officers spoke to Antony, his accounts were inconsistent. A trial [sic] of blood was followed to Matalonis’s residence, where officers observed blood on the door and heard banging sounds coming from the inside. Upon knocking, Matalonis answered the door, at which time officers observed blood on the floor. Subsequently, the officers advised that they wanted to ensure that no one else was injured. Matalonis let the officers into the house.
Upon walking through the house, officers observed blood on the wall leading upstairs and on a locked door. Marijuana and drug paraphernalia were also observed. After obtaining a key, police entered the locked room and found a marijuana plant and a grow operation.
The Supreme Court found that the community caretaker doctrine made admissible the evidence recovered from the room. …
This decision abounds with common sense. When law enforcement was confronted with inconsistent stories, a blood trial, odd noises, and smears of blood through a house, it would be reasonable for law enforcement to believe an injured person may be present based on these objective factors. There was no indication that law enforcement conducted an investigation or sought evidence. Law enforcement acted reasonably in seeking to care for the community which is what they are charged to do.
The dissent was authored by Justice David Prosser and joined in by Justices Shirley Abrahamson and Anne (sic) Walsh Bradley. The dissent argued that the community caretake exception was expanded in this case beyond what was intended, without any compelling justification. This argument fails in that the objective facts presented to law enforcement provided the reasonable basis for the bona fide community caretaker function. Justice Abrahamson then wrote a separate dissent complaining that because this case was argued before Justice Bradley joined the court, the court should have not have decided the case without first determining whether it should have been reargued. This argument seems trivial and more about personalities than about the matter at hand.
Worst Wisconsin or US Supreme Court decision – State v. Mitchell (1992)
One of my least favorite cases issued by the Wisconsin Supreme Court is State v. Mitchell … This was a case that arose out of Kenosha County from an incident that occurred on October 7, 1989. Here, the Supreme Court declared unconstitutional a state statute which enhanced the penalty for a defendant if the victim was chosen on the basis of race, religion, color, disability, sexual orientation, national origin or ancestry. Ultimately, on June 11, 1993, the United States Supreme Court reversed the Wisconsin Supreme Court finding that the Wisconsin statute providing for enhancement of the defendant’s sentence whenever he intentionally selects his victim based on race did not violate the defendant’s free speech rights by purporting to punish his biased belief, and the statue was not overbroad.
The facts underlying this case involved Mitchell, a 19 year old black man, that instigated an attack against a fourteen year old white child after discussing a scene from the movie “Mississippi Burning” where a white man beat a young black boy who was praying. Mitchell and approximately ten others observed the fourteen year old approach an apartment complex, at which time Mitchell said “you all want to fuck somebody up? There goes a white boy; go, get him.” Mitchell pointed at the victim. The victim was beaten to the point that he remained in a coma for four days and suffered extensive injuries including possible permanent brain damage. The question before the court was whether an increase in Mitchell’s sentence based on his bigoted motives violated his First Amendment rights? The First Amendment states: “Congress shall make no law…abridging the freedom of speech.” This Amendment protects not only speech but thought as well.
In a unanimous opinion drafted by Justice Rehnquist, the Court found that the Wisconsin statute paralleled the antidiscrimination laws which had been found to comply with the First Amendment. The Court reasoned that the consequences for the victim and the community tend to be harsher, when a crime victim is chosen based on race. Thereby, when the Wisconsin statutes increased the sentence for such crimes, it wasn’t punishing the defendant for his beliefs, but rather for the predicted ramifications of the crime. Ultimately, the Court reasoned that the Wisconsin statue did not violate the First Amendment because an average person’s bigoted comments would be used against him in a legal proceeding so infrequently that he or she would not feel forced to suppress them. Thus, there is no chilling effect and the statute is not overbroad.
Judicial philosophy – I consider myself to be conservative in my judicial philosophy. I do not believe that someone is placed on the bench to legislate from this platform or to have their personal agenda fulfilled. A judge should not enforce views as to what is desirable public policy over following historical precedents. A judge’s roll [sic] is to construe as objectively as possible the Constitution of the United States and the law’s that pertain to the matter. The Constitution is an amazing document that forms the basis for our legal system. Every day, I argue relative to different amendments and how different people interpret the amendments. I believe that the Constitution should be construed in the light of the drafters’ intent.
I also believe in historical precedents. The law should apply equally to all. In order for this to transpire, all people need to believe that the courts will follow the laws that are in place. By following precentral (sic) authority there is a guide in place as to what each member of society may do or not do. If a judge chooses to place his or her own views above precedential authority, then that judge would be creating chaos for the members of that community and the laws would no longer apply equally to all.
When looking at statutes, I am a strict constructionist. The clear reading of a statue should act as a road map. If there is a vague or confusing portion, then legislative intent should be reviewed. I believe in judicial restraint. Judges should hesitate to strike down laws, unless they are clearly unconstitutional.
Describe any other information you feel would be helpful to your application – Redacted
18-year-old who hanged himself in Wood County Jail didn't have a lawyer when he should have. Why not?
Updated Sept. 12, 2018 to include responses from the State Public Defender's Office and Wood County Circuit Judge Todd P. Wolf.
By Gretchen Schuldt
Trequelle T. Vann-Marcouex, who turned 18 in April, was facing serious charges when he appeared before Wood County Circuit Judge Todd P. Wolf on Aug. 14 for a preliminary hearing.
Vann-Marcouex was facing a maximum of 65 years in prison for allegedly participating in an armed home invasion and robbery. Vann-Marcouex denied involvement in the crime. He had been in jail for at least 11 days, and he still did not have a lawyer.
He qualified for representation by the State Public Defender's Office (SPD), which provides lawyers for very low-income defendants. A lawyer from that office represented him during his initial appearance, where bail was set at $25,000, but no one had been appointed to handle his case after that.
“I have been calling the Public Defender’s Office every single day, and they make it – I get on the phone with them, and they’d laugh,” Vann-Marcouex said at the end of the preliminary hearing, according to a transcript of the proceeding. “When I called them yesterday and I asked them how is it I don’t have a public defender and I got my court in less than 24 hours, and she is, like, right. How is that an answer, right? How is that an answer?”
“Well, you have to deal with them on that,” Wolf responded. “I can only do the hearings that are before me.”
Wolf also did not appoint a lawyer for Vann-Marcouex, either, even though he should have done so.
"I don't understand how this is enough evidence," Vann-Marcouex said after Wolf bound him over for trial.
"Okay," the judge responded. "That will be something you can discuss with your attorney."
Vann-Marcouex hanged himself in the jail that night. It was the fifth suicide in two years in the Wood County Jail.
SPD spokesman Randy Kraft said the office did not take Vann-Marcouex's case because of a direct conflict of interest and so had to appoint a private bar attorney to take the case.
"Agency staff made approximately 300 calls and emails to private attorneys certified to take SPD cases before an appointment was ultimately made on Aug. 14," Kraft said in an email. "The Order Appointing Counsel was filed with the court on the same day.
"In cases in our more rural counties, the difficulty in locating a private bar attorney is fairly typical," Kraft said. "What is less typical, however, is the court proceeding with a preliminary hearing without the benefit of an attorney. Defendants benefit from having an attorney with them in court. Attorneys not only have the skills necessary to protect the rights of their clients, but they are also able to guide them through the criminal justice system."
The Sixth Amendment to the U.S. Constitution guarantees defendants in criminal cases the right to effective counsel. The Wisconsin Supreme Court has specifically ruled that defendants are entitled to counsel at preliminary hearings.
But Vann-Marcouex, who had never been in serious trouble before, was unrepresented as a prosecutor described the state’s case against him. When he did try to talk, the judge cut him off.
It is impossible to draw a line directly from the young man's lack of representation to his suicide, but a lawyer could have helped Vann-Marcouex deal with the overwhelmingly stressful situation he faced, said Chad Lanning, president of the Wisconsin Association of Criminal Defense Lawyers.
A lawyer can put things in context and "give them that hope that all is not lost," he said. Law enforcement may presume defendants are guilty and treat them that way, or frighten them with worst-case predictions in attempts to scare them straight.
While court and law enforcement officials often emphasize the maximum penalties a defendant faces, a lawyer can give them a more realistic, less dire picture and explain legal defenses and a basic strategy of how they will unfold as the case moves forward.
Vann-Marcouex wanted a lawyer. He just didn't get one, a fact acknowledged by the prosecution.
"I did have a brief off-the-record conversation with Mr. Vann-Marcouex," Assistant District Attorney Leigh Neville-Neil said at the beginning of the preliminary hearing, according to the transcript. "He indicated he applied and qualified for a Public Defender. He has been calling them repeatedly and has not been assigned counsel yet, just so the Court's aware."
"Okay," Wolf responded. "That's my understanding, Mr. Vann-Marcouex, though, in fact, what the Court is required to do by law is to have this preliminary hearing done within 10 days when someone's in custody on a cash bond, such as yourself."
Wolf did not raise the possibility of a court-appointed attorney, nor did Neville-Neil, who is now on leave.
Wolf declined to answer written questions from WJI. Wood County District Attorney Craig Lambert did not respond to written questions.
"You do have the right to ask questions of the officer, although if you had an attorney here, they would tell you not to do so . ..." – Circuit Judge Todd P. Wolf
The lack of legal representation for defendants in criminal cases who cannot afford to hire a lawyer is creating a constitutional crisis in the state. The SPD appoints private bar attorneys to handle cases when it cannot do so because of excessive caseloads or potential conflicts of interest. The low pay the office can offer – $40 an hour, the lowest rate in the nation and not enough to cover the average lawyer's overhead costs – means more and more lawyers are turning down cases. The State Supreme Court earlier this year refused a request to increase the rate.
Judges are supposed to appoint lawyers at county expense at $70 per hour if no other lawyer is available. “If lawyers are unavailable or unwilling to represent indigent clients at the SPD rate of $40/hour, as is increasingly the case, then judges must appoint a lawyer under SCR 81.02, at county expense,” the State Supreme Court said in its order declining to increase the $40 rate.
Wolf instead explained that the state would outline its evidence to show probable cause that Vann-Marcouex committed the three crimes with which he was charged: armed robbery, burglary, and child abuse (a 17-year-old was struck with a gun during the home robbery).
Prosecutors "have to introduce that type of evidence so I feel comfortable enough that the case can proceed with that probable cause finding, so I am going to go through and hear the evidence here today just to see if it meets that standard," he said, according to the transcript. "If it doesn't, the case would get dismissed. If it does, you are in no different position than you were in when you walked in here. ..."
Wolf continued: "You do have the right to ask questions of the officer, although if you had an attorney here, they would tell you not to do so because anything you say is being recorded here today on the record and could be used against you, and you clearly wouldn't want to give up your right for self-incrimination by making some statements that could be used against you. Do you understand that then, sir? Do you understand that."
"Yeah," Vann-Marcouex replied.
After Neville-Neil finished questioning an investigating officer, Wolf told Vann-Marcouex he could ask questions, "but again, realize anything you are saying is being taken down and could be used against you."
Later, the judge told Vann-Marcouex that he had a right to present evidence, but "I have to make a decision in the light most favorable to the state, and obviously you'd be giving up any right to self-incrimination if you did so. Do you wish to present any evidence?”
"I mean, I was watching my nephew that night," Vann-Marcouex said. "My sister isn't here right now, I don't see her, but, um –"
The judge cut him off. "You have to present evidence through testimony here, not make an argument, but no attorney would tell you to do that with each of the charges you are facing here because, again, I have to do it in the light most favorable to the State, all right? Do you wish to present anything now or not?" Wolf said.
Vann-Marcouex shook his head.
That was his last court appearance.
It was the same day he got his lawyer.
That same night, jail staff found him in his cell, where he apparently tried to hang himself. He died a few days later.
Margo Kirchner contributed to this story.
By Margo Kirchner
The lawsuit brought by the estate of the man who died in the back seat of a squad car after repeatedly complaining that he could not breathe may face months of delay as the case bounces between the federal trial and appellate courts, thanks to an opinion last week by the Seventh Circuit Court of Appeals.
Derek Williams Jr. died in the back seat of a Milwaukee Police Department squad car on July 6, 2011. Officers failed to call for medical help for Williams until after he collapsed and stopped breathing. By then he could not be revived.
In July 2016, Williams’ estate and three children sued 10 officers for failing to attend to Williams’ medical needs while in custody and for wrongful death. The plaintiffs also sued the City of Milwaukee, claiming that its unwritten policies and practices caused Williams’ death.
U.S. District Judge J.P. Stadtmueller held in August 2017 that the case should go to trial. He rejected the officers’ summary judgment motion, which argued that the qualified immunity doctrine bars suit against them.
Under long-time U.S. Supreme Court case law, qualified immunity protects public officials from civil liability unless their conduct violated a clearly established constitutional right that a reasonable person would have known. The doctrine balances the need to hold public officials accountable when they act irresponsibly with the need to shield them from liability when they perform their duties reasonably.
The officers appealed to the U.S. Court of Appeals for the Seventh Circuit. That court ruled last week that it could not decide the officers’ appeal because Stadtmueller failed to analyze qualified immunity for each officer individually; his decision addressed their actions as a group. The appeals court remanded for further review by Stadtmueller, setting up another opportunity for the officers to appeal if Stadtmueller again rules against them.
Friday’s appellate opinion was issued about 13 months after Stadtmueller’s initial ruling. Statistics available on the U.S. Courts’ website peg the median length of an appeal in the Seventh Circuit at eight months.
Senior U.S. District Judge Robert W. Gettleman of the Northern District of Illinois, sitting as a guest on the Seventh Circuit panel, authored the appellate opinion, joined by Seventh Circuit Judge Joel M. Flaum. Seventh Circuit Senior Judge Kenneth F. Ripple agreed that Stadtmueller did not properly consider each officer individually but dissented on other grounds.
Because of the summary-judgment stage of the case, all disputed facts were taken in the plaintiffs’ favor. Plaintiffs’ evidence showed that shortly after midnight on July 6, 2011, Williams was walking north on Holton Street in Milwaukee. He wore a mask and held a cell phone under his clothing, making him appear armed. Four officers in two squad cars noticed Williams as he approached a couple from behind and believed they were witnessing an attempted armed robbery. When one squad car stopped, Williams ran. An officer chased Williams on foot while both cars followed, and additional officers responded to the scene.
Williams was a 22-year-old African-American male in good physical shape. He ran 200 to 300 yards and jumped over a fence. After about eight minutes officers found him in a back yard; both Williams and the chasing officer were breathing heavily. After a brief struggle, two officers pulled Williams down onto his back and flipped him over to apply handcuffs, with one officer kneeling on Williams’ back. Williams said he could not breathe, at which point the officer lifted some of his weight off of Williams. A recorded radio call of an officer telling dispatch that Williams was in custody captured Williams complaining that he could not breathe.
Williams went limp as officers lifted him up. Williams was unresponsive, breathing heavily, and sweating, but the officers thought he was faking any distress. After they used a painful procedure to determine consciousness, Williams opened his eyes and told the officers that the two alleged victims were his friends and he was “just playing around” with them. Williams again complained about not being able to breathe. Neighbors heard his complaints and heard an officer tell Williams to “shut up.”
After five minutes the officers moved Williams to the front yard, where he went limp again and had to be dragged. Officers told him to stop “playing games” but Williams again said he could not breathe. A neighbor heard Williams say he could not breathe while officers cursed at him. Another neighbor called 911 but was told that paramedics would not be sent unless officers called for them.
Friday’s appellate opinion was issued about 13 months after Stadtmueller’s initial ruling. Statistics available on the U.S. Courts’ website peg the median length of an appeal in the Seventh Circuit at eight months
The arresting officers placed Williams in the rear seat of a squad car but did not discuss Williams’ condition. Although the officer sitting in the driver’s seat turned on a back-seat video recorder, he failed to activate a feed to observe Williams on his computer screen. Nor did he turn to look at Williams.
Williams again said he could not breathe, that he was dying, and that he needed an ambulance, but the squad officer told Williams he was “breathing just fine” and “playing games.”
Nevertheless, the officer rolled down the window and turned on the air conditioner. A witness saw Williams rocking around in the back seat and heard him say he could not breathe. According to the Seventh Circuit, the recording of Williams in the back seat “shows him in obvious distress, eventually collapsing onto the door of the car.”
The squad officer was replaced with another, but the two did not discuss Williams’ breathing complaints and the video feed remained off. When the second squad officer turned to look at the back seat, Williams was slumped over. The officer checked Williams and found no pulse or breath, but he did not call for medical assistance. Instead, he unsuccessfully looked for help at another squad car and then radioed other officers. Finally, a responding officer called for medical help approximately 12 minutes after Williams was placed in the car and three minutes after he was found motionless.
An officer began CPR and paramedics took over, but Williams was declared dead at 1:41 a.m. The Milwaukee County Medical Examiner determined the cause of death as sickle-cell crisis triggered by Williams’ flight from and altercation with police, though another medical expert said the cause of death is indeterminable.
As noted by the Seventh Circuit in its opinion, qualified immunity does not protect a public official from suit when (1) the official violated a constitutional right and (2) that right was clearly established at the time of the challenged conduct.
Plaintiffs claim that the defendant officers violated Williams’ Fourth Amendment right to receive reasonable medical care while in custody.
The officers conceded that calling an ambulance would not have compromised any police interest or been burdensome. Therefore, the Seventh Circuit stated in its opinion, to establish the constitutional violation the plaintiffs had to show only that the officers had notice of Williams’ medical need and that the medical need was serious.
Stadtmueller found that plaintiffs presented such evidence. Further, Stadtmueller found that an arrestee’s right to objectively reasonable medical attention was clearly established by at least 2007.
The Seventh Circuit, however, said that Stadtmueller improperly grouped the actions of the officers together when he assessed the case. According to the court, “each defendant-officer had a different degree of contact with Williams and had different assigned responsibilities with respect to the apprehension of Williams and investigation of the alleged armed robbery. Although the district court’s recitation of facts acknowledges the officers’ varying encounters with Williams, its qualified-immunity analysis lacks any individualized assessment.”
The court remanded, directing Stadtmueller to articulate his qualified immunity analysis officer by officer. Only then, said the Seventh Circuit, can it review the officers’ appeal.
Trial was previously scheduled for late August 2017 but postponed due to the appeal. The claims against the city were not part of the appeal and remain pending for trial.
It is unclear how much delay this do-over will cause. District courts generally cannot act on a remand until receipt of a document called a “mandate,” which often issues a few weeks after an opinion. Stadtmueller could act quickly, without additional briefing, but if he rules that any individual defendant is not protected by qualified immunity, that defendant could appeal again.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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