By Margo Kirchner
An attorney’s angry gesture with a pen resulted in two more months of delay for a woman’s claim that neglect by Milwaukee County jailers led to the death of her newborn child.
Attorney James J. Gende II, who represents plaintiff Shadé Swayzer, lunged toward a correctional officer during a deposition and slammed the end of a pen into a flow chart just inches from the county’s lawyer’s hand. (See video below.)
The county’s lawyer, Douglas S. Knott, accused Gende of “assault” and ended the deposition.
Swayzer’s suit against the county and its medical contractor, Armor Correctional Health Services Inc., alleges, among other things, they were negligent in providing medical care and violated the constitutional rights of both Swayzer and her deceased infant daughter, Laliah.
Knott and attorneys for Armor later filed motions for protective orders to prohibit Gende from conducting future depositions in the case. If granted, Swayzer’s representation in those depositions would shift to other lawyers on the team.
Gende apologized for losing his patience and said it had nothing to do with the witness, Correctional Officer Terina Cunningham, but did have something to do with Knott.
“I believe counsel has made it as difficult as possible over the last several examinations for me to complete my deposition of his clients,” he said.
Depositions of two Armor employees were scheduled for Oct. 20 and Nov. 2, but their lawyers, citing Gende’s conduct, refused to proceed with those depositions.
Michael Russart, an attorney for Armor, told Gende in a letter he was canceling his clients’ depositions to “protect [them] from harassment, embarrassment and potential injury.”
Russart said he would call the police if Gende appeared at Russart’s office for any depositions.
In a quickly scheduled Oct. 17 hearing, U.S. District Judge Pamela Pepper agreed that full briefing of the motions for protective orders and a further hearing were warranted. She prohibited the taking of any depositions in the meantime, noting her concern over Gende’s loss of composure at the Cunningham deposition.
Now all depositions are stayed until the Nov. 29 hearing.
Other discovery disputes also appear to be delaying progress in the case. Swayzer’s attorneys are seeking orders compelling Armor and former Sheriff David Clarke to provide responses to written questions and to produce requested documents.
Armor says it answered many of the requests and is working to supplement its responses. It said its responses were delayed by Hurricane Irma in Florida and the need for additional time to produce electronic discovery and suggested that the motion to compel its responses was actually meant to divert the court’s attention from Gende’s conduct.
Clarke says he responded to several of the discovery requests on Oct. 27, but refuses to provide additional information regarding his personal calendar and whereabouts from July 6 to 14, 2016. Clarke contends that such information is confidential and irrelevant to the case.
Pepper referred the disputes about Armor’s and Clarke’s responses to U.S. Magistrate Judge William E. Duffin for resolution. But she retained the motions about Gende’s conduct at the deposition.
Pepper recently held that Armor must turn over its internal investigation reports regarding Swayzer’s and Laliah’s medical care at the jail. Armor argued that if such information is disclosed it has no incentive to perform investigations in the future.
Pepper found that Armor’s professional obligations and economic interest in keeping its contract with the county provide incentive enough and that the need for truth about the defendants’ policies and practices at the jail outweighs confidentiality concerns.
Swayzer alleges in her suit that she was eight months pregnant when she was taken into custody in July 2016 for an alleged probation violation and placed into a maximum-security cell at the County Jail run by the Milwaukee County Sheriff’s Department and then-Sheriff Clarke.
Swayzer was more than eight months pregnant at the time, and a hospital exam just prior to her arrival at the jail showed the pregnancy to be healthy and on track. Days later, alone in her cell, Swayzer gave birth to daughter Laliah. Laliah survived just a few hours, dying in the cell in which she was born.
Swayzer and Laliah’s estate sued Clarke, Milwaukee County, several jail employees, Armor, and some of Armor’s doctors and nurses. Swayzer asserts that when she arrived at the jail on July 6, 2016, a doctor and nurse documented her mental and physical health needs and directed that Swayzer be housed in the special needs unit.
Nevertheless, though Swayzer initially resided in the special needs unit for two days, a lieutenant at the jail moved her to maximum security because she had been involved in various incidents while incarcerated on previous occasions, according to the suit. No jail or medical personnel took action to keep Swayzer in the special needs unit, the suit alleges.
Swayzer claims that from July 8 through July 13 she remained in maximum security and received no medical care. A doctor was scheduled to see Swayzer on July 13, but failed to do so.
Pepper recently held that Armor must turn over its internal investigation reports regarding Swayzer’s and Laliah’s medical care at the jail. Armor argued that if such information is disclosed it has no incentive to perform investigations at the jail in the future.
According to the suit, a guard doing rounds the evening of July 13 saw Swayzer in an unusual position, but failed to investigate. The next morning Swayzer informed that guard that she was in labor, her water had broken, and she was experiencing contractions. The guard did nothing about Swayzer’s reports. Another inmate heard Swayzer crying for help in the early morning hours of July 14, the suit says.
Swayzer delivered Laliah at about 5 a.m. without medical assistance. Swayzer wrapped Laliah in a blanket with her face exposed. The two remained in the cell alone without medical help for over an hour.
Just before 6 a.m., the same guard saw Swayzer lying in an odd manner, blood on the mattress, and bunched-up blankets, according to the suit. Despite those observations, the guard continued her rounds and then conferred with another guard about Swayzer. Neither guard called in a medical emergency until one of them returned to the control room, the suit says.
When medical staff responded to the emergency call, a guard initially denied them access to Swayzer’s cell because he was waiting for backup. When medical staff finally got to Laliah and removed her from the cell she did not appear to be breathing. Resuscitation attempts began around 6:20 a.m., but failed, and Laliah was declared dead at 6:55 a.m.
Meanwhile, guards awaited the arrival of additional jail staff before allowing Swayzer to be transported to the hospital, according to the suit.
Swayzer and Laliah’s estate allege that all defendants were deliberately indifferent to Swayzer’s and Laliah’s serious medical needs in violation of the U.S. Constitution. They claim that Milwaukee County, Clarke, and other supervisory personnel at the jail failed to train and adequately supervise staff and maintained policies that resulted in the injuries to Swayzer and Laliah. And they claim that Clarke and the jail defendants are liable under Wisconsin law for negligence and Laliah’s wrongful death.
In response to Swayzer’s discovery requests, the County admits that Clarke issued no corrective action or discipline regarding the circumstances of Swayzer’s delivery and Laliah’s death.
By Gretchen Schuldt
Updated Nov. 1
Police officers and firefighters accused of gross wrongdoing would stay on the job while they await their hearings before the Fire and Police Commission, under a bill introduced in the State Legislature.
It would also lift the city residency requirement for members of the commission.
The Common Council's Judiciary and Legislation Committee this week recommended the city oppose the measure.
The bill, introduced by State Rep. Janel Brandtjen (R-Menomonee Falls), and State Sen. Van H. Wanggaard (R-Racine) says that "no member of the police force or fire department may be disciplined by the chief of either of the departments except for cause and after trial ...."
Brandtjen is best known for advocating for aid cuts to Milwaukee unless the city took steps to cut crime.
"It's just breathtaking how much influence the MPA (Milwaukee Police Association) has with certain legislators," said Patrick Curley, chief of staff to Mayor Tom Barrett.
The bill, according to a city Intergovernmental Relations Division memo, "would decimate FPC’s independence, create a local financial crisis, and severely erode community trust in the oversight of law enforcement" and "would add millions of dollars to the municipal budget and would create a dramatic financial burden that would reduce other critical city-funded services."
The law now allows the fire and police chiefs to suspend employees for up to 30 days before a hearing.
The new bill would keep the officer or firefighter on the job for at least 10 days after a disciplinary recommendation. If the employee does not appeal before those 10 days are up, the discipline would take full effect.
The bill also would ensure that officers and firefighters stayed on the payroll if, for some reason, they were suspended before their commission hearings.
It would cost about $1 million annually to fund police officer pay and fringe benefits while they are undergoing disciplinary processes, the Intergovernmental Relations Division memo said.
The bill would require that three-member panels that hear complaints against officers include one member with professional firefighter experience if the complaint is against a firefighter, and one with professional law enforcement experience, if the complaint is against a police officer.
A new appeal path would be available for police and firefighters disciplined by the commission. Currently, appeals go to circuit court; under the bill, the appeal could first go to an arbitrator agreed to by both sides, then to circuit court. Arbitration and court costs would be at city expense.
The appeals process could take years, Curley said. "Meantime, the taxpayers are paying these folks," he said.
The bill also would impose a tougher evidence standard for disciplinary cases involving police officers or firefighters. The standard would change from "substantial evidence" that a rule or order was violated to "clear and convincing evidence."
"Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," according to lectlaw.com; "clear and convincing evidence"
means "the trier of fact must be persuaded by the evidence that it is highly probable that the claim or affirmative defense is true."
The bill also would allow political parties to have more influence on the commission and the unions representing police and firefighters would each essentially have an appointment to the commission.
The bill would require Milwaukee to have at least one commission member with professional law enforcement experience and at least one member with professional firefighting experience. Those appointees would be selected from lists submitted by the firefighters and police unions.
Current law prohibits more than three commission members from being in the same political party. The bill would require the mayor to select any members affiliated with a party from lists submitted by the "chief officer" of the Republican and Democratic parties.
The bill also would require the commission to meet in closed session with representatives of the affected union when the commission appoints either a new police or fire chief.
The bill even goes so far as to remove the executive director of the commission from the mayor's cabinet.
Under current law, the mayor nominates the members of the Fire and Police Commission and the Common Council confirms the nominations. In addition, no more than three members of Milwaukee's seven-member Fire and Police Commission may be from the same political party, according to a Legislative Reference Bureau summary of the bill..
An official office of independent monitor also would be created under the bill.
"This person acts as the principal staff of a first class city board, reviews certain situations or investigations involving the police or fire department, evaluates police and fire department policies and practices, and issues periodic reports to the public relating to the status and outcome of complaints that have been filed," according to the Reference Bureau summary of the bill.
The independent monitor would serve at the pleasure of the commission and could not be removed by the mayor or the Common Council.
Under the bill, "a court or arbitrator must review the evidence independently and without deference to the board's findings; must reverse the board's decision if it finds that fairness or correctness of the action has been impaired by material or procedural errors; and must set aside or modify the board's decision if it finds that the board erroneously interpreted a provision of law, or may remand the case to the board for further action that is consistent with current law," according to the Reference Bureau report.
The court or arbitrator also would be required to reverse the commission's decision if the board's actions were outside of its delegated powers or were inconsistent with a board rule, policy, or practice," unless the deviations were adequately explained.
The bill also allows a court or arbitrator to take additional testimony and depositions and to grant requests for additional discovery.
Walker's judges: Brian H. Wright
"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.
There are just not that many judicial applicants who point out in their application cover letters that they donated to the governor from whom they are seeking appointment. Brian Wright is one of the rare ones. Here is the Wisconsin Democracy Campaign's report on the donations. The $1,000 donation to Walker referenced in the report was made exactly one week after Wright wrote his application letter.
Name: Brian H. Wright
Appointed to: Eau Claire County Circuit Court
Appointment date: July 27, 2015 (lost bid for full term in April 2016)
Law School – Marquette Law School
Master's Degree – University of Denver
Undergrad – LaGrange College
High School – None listed on application
2013 - present – Attorney, Herrick & Hart, Eau Claire, WI
2013 - Attorney, Steiner &Wright, Eau Claire, WI
March 2012 – January 2013 – District attorney, Eau Claire County (appointed by Governor Walker; lost in November 2012 election)
2000-2012 – Partner, Steiner & Wright
Wisconsin State Bar
Colorado State Bar
Minnesota State Bar
U.S. District Court, Eastern District of Wisconsin
Eau Claire County Bar Association
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Besides work as Eau Claire district attorney, prosecuted traffic and ordinance cases for the Village of Lake Hallie since 2000, and the Village of Cadott since about 2008; resumed both functions after DA job ended. Prior to DA appointment, represented criminal defendants privately and by county and public defender appointments. After DA job, represented criminal defendants in a handful of county-appointed cases and privately represented two high school students in a juvenile matter. Focus on civil work with Herrick & Hart, S.C., and has represented clients in administrative proceedings in the areas of employment discrimination, wage-and-hour disputes, grievance arbitration, worker’s compensation, and unemployment issues.
Number of cases tried to verdict or judgment: Jury, 30; non-jury, 100; arbitration, 6; administrative bodies, 6.
Cases on appeal: No answer on application.
List and describe the two most significant cases in which you were involved:
The first case involved my representation of a teacher in Racine, WI who the school district terminated alleging a pattern of misconduct in her teaching and communication with students. The teacher had high standards and pushed students to reach their full potential, but, in doing so, was periodically at odds with the administration. The hearing was before an arbitrator and lasted ten days. The arbitrator decided in the teacher’s favor.
The second case involved my representation of a registered nurse … A couple of months into her employment, nurses discovered what they believed was missing oxycontin. The State charged the registered nurse I represented with obstructing a police officer because when the police officer interviewed her, she initially told the police officer that another nurse watched her destroy the oxycontin … In the same interview, the registered nurse I represented voluntarily told the police officer that she has not been truthful when she said the other nurse was present because she was concerned about losing her job if her employer found out she hadn’t followed procedure by having a second nurse present. … The jury agreed with my argument that the registered nurse had not obstructed the officer because she voluntarily corrected her earlier statement to the police officer during the same interview.
Have you ever held judicial or quasi-judicial office?
Summer 2011 – Acting Family Court Commissioner
Approx. 2007 - present – Reserve Court Commissioner
Number and nature of judicial or quasi-judicial cases: 100.
Two most significant cases: In the first case, I presided as acting court commissioner over a small claims contested case … the plaintiff acknowledged the backdated signature. … In the second case, I was presiding over a different small claims action as reserve court commissioner when one of the witnesses … began to express racial opinions about one of the parties. I took the appropriate action of instructing this individual to discontinue his remarks. … We finished the hearing without further incident. The minority party expressed her appreciation for my unwillingness to allow the racial remarks to continue.
Please list all instances in which you ran for elective office. For each instance, list the date of the election (include both primary and general election), the office that you sought, and the outcome of the election. Include your percentage of the vote. Eau Claire County District Attorney, Nov. 2012 (47%).
Involvement in judicial, non-partisan or partisan political campaigns:
My wife, Haley, and I worked the telephone banks at the Eau Claire County republican headquarters for Governor Walker during the recall election. Since our daughter Corelia’s birth we haven’t been as actively involved devoting most of our time to her. I served as a legal volunteer for the republican party for voting irregularities in the November 2014 election.
As I did when I served as district attorney, I would like to play a greater and more prominent role in setting an example as to the correctness of conservative values and principles. - Former Eau Claire County Circuit Judge Brian H. Wright
Please list all judicial or non-partisan candidates that you have publically endorsed in the last six years:
Scott Walker; Warren Petryk; Kathy Bernier; Terry Moulton; J.B. Van Hollen; Julian Bradley.
Describe any additional involvement in 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: Pro bono representation of local veteran’s chapter; parishioner, Saint Raymond’s Church.
Describe any pro bono legal work in the last five years: Free Legal Clinic.
Why I want to be a judge – I have a deep respect and reverence for our judicial system. I have upheld the highest standards of our profession in my work as a practicing attorney as a district attorney. I would like to play a greater role in upholding the rule of law and impart on those who appear in my courtroom, should Governor Walker appoint me, the conservative beliefs and values that I was taught and are the reason I was able to pay my way through college, become the first person in my family to graduate from college and to then go on and earn my M.B.A. and J.D. degrees. …
I have a genuine interest in the pursuit of justice from a perspective that my own unique experiences afford me. As I did when I served as district attorney, I would like to play a greater and more prominent role in setting an example as to the correctness of conservative values and principles.
Best Wisconsin or U.S. Supreme Court decision in the last 30 years – Citizens United v. Federal Election Commission (2010)
I have always felt the more public discourse on political issues the better. As citizens, we are fully capable of filtering out information that is unhelpful or misrepresents the qualifications of a candidate or issue. Structurally, I have always found it interesting how critics of Citizens United have no problem with the influence of unions and special advocacy groups on elections. There will always be individuals and organizations with a louder bull horn. The importance of Citizens United is that it expanded political discourse and left it to us as in individual citizens to make our own decision which is what our founding fathers envisioned.
Worst Wisconsin or U.S. Supreme Court decision in the last 30 years – Virginia Wolf et al. v. Scott Walker et al.
I am going to take some liberty on this question and name a 7th Circuit Court of Appeals decision that is currently under review by the United States Supreme Court … I have named this case because, in the last 30 years, I don’t believe any issue has been more wrongly decided.
At the outset, let me say that, despite my religious beliefs opposing same-sex relationships, I believe the government does have a role to play in prohibiting state-sponsored discrimination against gays or lesbians. However, I believe the Seventh Circuit went to (sic) far when it invalidated the will of the people in the State of Wisconsin to define marriage as a union between a man and a woman. I believe this is a case of judicial activism in which the court turned to other constitutional provisions in defining marriage as a constitutional right. It is not. Marriage is a privilege not a right.
I am paraphrasing, but in an early supreme court decision, the court said the following: The constitutional rights of another end where my nose begins. In the case of redefining marriage to include same sex unions, I believe the Seventh Circuit should have made it clear that the decision of two men or two women to enter into a civil union is for those individuals to make with no interference from the government. However, the court’s decision has now taken the lifestyle choices of a minority of citizens and gone beyond the point where my nose begins and the noses of a majority of citizens in the State of Wisconsin begins. In other words, the court has forced upon the majority of Wisconsin citizens who voted in favor of the referendum … a change in one of the most important societal structures and institutions that we and our ancestors grew up with.
This is not a function of courts. Nor is this remotely comparable to the court’s decision in Brown v. Board of Education which I fully believe was correctly decided. The reason this is such a bad decision is that it weakens the structure and limitations of the constitution. This was a decision for the will of the people not a federal court.
Judicial philosophy – It is to apply the law fairly and impartially. In any decision, I would begin by looking at stare decisis (sic) to determine if there is precedence for deciding the case. However, in every jury trial I have ever had, there are numerous points in the trial when a judge must exercise discretion in making a decision. When it comes to the exercise of discretion, my philosophy is that a judge can’t lose his or her common sense. This is where my breadth of experience will be valuable.
I now realize after watching some of the decisions in the district attorney’s office that Governor Walker did select the right person when he appointed me. …
I believe we have over-systemized the criminal cases in Eau Claire County by relying on COMPASS evaluations and other components of evidenced based decision making to make charging decisions and sentencing recommendations. (Applicant describes a case involving a defendant who fatally shot his wife, with an early recommendation for no confinement and then a recommendation for three years initial confinement.) This is simply inexcusable. ... Fortunately, this case was assigned to Judge (Kristina) Bourget to ten years initial confinement stating that any lesser sentence would unduly depreciate the seriousness of the offense. In my appearances before Judge Bourget, I believe my judicial philosophy is closely akin to hers.
Any other information you feel would be helpful to your application: My wife, Haley and I, strongly support Governor Walker. I have voted for him in each of the elections he has run because of the good he is going for the State of Wisconsin. In the election for district attorney, I learned just how partisan things have gotten. … when I lost the election, it was a kick in the gut to realize that the quality of my work in the district attorney’s office took a back seat to politics. …
These experiences have hardened me, not in a mean or vindictive way, but in a way that I realize the important of fighting for the values I believe in. … My work at Herrick & Hart over the past one and one-half years has allowed me to regain my confidence. I now realize after watching some of the decisions in the district attorney’s office that Governor Walker did select the right person when he appointed me. …
Milwaukee County is seeking to have a $6.7 million jury verdict tossed out based on the word of a man who sought $40,000 in exchange for his testimony that the ex-Milwaukee County Jail inmate who won the verdict never was sexually assaulted by a corrections officer at the jail, as she alleged and the jury believed.
Ivan Boyd later withdrew his request for money, but wrote to a lawyer who represented the county that "it is very unfortunate that you were not able to meet my previous terms per (ethical rules) in addition to you not being interested. With all due respect ... one would think that you would be a little more appriciative of your newfound godsend (me) after your decision not to settle this matter with the plaintiff and crapping-out."
The lawyer, Andrew Jones, of the Husch Blackwell law firm, said in a court filing that Boyd's allegations provided "new evidence" that "raises a substantial question regarding the truth of plaintiff’s testimony, is material, is not merely cumulative or impeaching, and would likely lead to a different result at trial."
(The county has alleged that Husch Blackwell had a conflict in the case because it was hired by the Wisconsin County Mutual Insurance Corporation, which has declined pay the verdict on behalf of the county, leaving county taxpayers on the hook.)
The jury's verdict, Jones wrote, "should not be allowed to stand without a jury having the opportunity both to hear this important evidence regarding plaintiff's claims of sexual assault and to decide which version of events to believe."
The woman was pregnant at the time of the assaults. The man now saying the assaults did not occur says he is the father of the child. He also was the woman's co-defendant in a 2013 armed robbery case. He was found guilty and sentenced to 15 years in prison and 10 years of extended supervision. He is appealing.
The woman also was found guilty and was sentenced to three years and six months in prison and four years of extended supervision.
Boyd, in a July letter to Jones, said he and the woman "both 'planned' together that we would find the perfect 'Target' in the jail to 'Set-up' for rape in order to file and win a lawsuit against the County Jail."
In a sworn statement given later, Boyd said the woman told him after they were both jailed that "she was going to 'make them pay.' By 'them,' I understood that Martin meant Milwaukee County. Martin went on to state that she intended to 'make them pay' by falsely accusing one of the guards at the Milwaukee County Jail of rape and then bringing a lawsuit against the County."
Boyd said in a letter to Jones that he met and befriended Corrections Officer Xavier Thicklen at the jail. The two agreed that Thicklen would bring the woman food and snacks while she was in jail and that Boyd would pay him when Boyd was released.
"But in reality this was only a ploy to get Martin and Thicklen together alone on several different occasions so that later, when (the woman) and I decided that it was time for her to make the assault allegations there would possibly be some documented proof of Thicklen engaging in misconduct by calling her out of her cell for 'fake' attorney visits," Boyd wrote.
The jury found that Thicklen assaulted the woman several times. Thicklen, who denied the allegations, did not attend the civil trial
Shortly after the woman accused him of the assaults, Thicklen resigned from his job. He later pleaded guilty to one count of felony misconduct in office. He was sentenced by Milwaukee County Circuit Judge Daniel Konkol to three days in the House of Correction. Konkol also ordered him to pay a $200 fine.
After attorney Jones expressed interest in Boyd's story, Boyd wrote to him:
"I trust that in recognizing the equities here, in addition to yourself, your respectable colleagues, as well as your employer; do acknowledge and agree that some form of monetary compensation is rightfull in order and naturally expected in light of what all I potentially stand to loose as a direct result of my decision to cooperate with you - keep in mind I do share a child with ... and she did provide us good statements for my appeal."
He continued: "When considering the substantial windfall that is currently injeopardy of being wrongfully lost to a 'CAREER SCAM ARTIST' (the the woman); I do believe $40,0000 paid me as compensation in exchange for my complete and effective cooperation in this matter is in fact a reasonable figure."
Boyd sought $20,000 immediately and $20,000 upon a favorable conclusion to the county's case.
He changed his mind when Jones said neither Husch Blackwell nor the county would give him any money.
"I am not motivated by greed only my desire to do what is right for a change," Boyd wrote.
The Pot Page: Wrapping up 2016
The trend is pretty clear -- African-Americans are far, far more likely than whites or Hispanics to get charged with second offense possession of marijuana felonies in Milwaukee County.
Of the 50 cases filed in 2016 that we could find, 42 of the defendants were African-American, and 38 of the arrests occurred in the city of Milwaukee north of I-94. (These all were cases where the only charge filed was the marijuana charge).
The arrests occurred frequently after a traffic-related stop, such as when an officer noticed a car parked at a gas station, or approached a car that was parked too far from the curb, or stopped a car that had windows that were too dark or because the driver wasn't wearing a seat belt. Many of the original offenses were petty and similar stops resulting in arrest were not made on the city's south side or in the suburbs.
Black folks and white folks partake of pot at basically the same rate. Yet, it is unmistakably clear that African-Americans on the north side are bearing a grossly disproportionate share of the burden of this second offense felony law.
Below are the final stats for 2016 and a map depicting the locations of the arrest locations. The red line is I-94. Details related to the arrests are on The Pot Page.
By Gretchen Schuldt
The State Building Commission chaired by Gov. Scott Walker rejected Department of Corrections' recommendations that would help two prisons comply with Prison Rape Elimination Act guidelines, records show.
And the Republican Legislature went along.
DOC requested $9.4 million to replace Adams and Harris Halls at Taycheedah Correctional Institution. Both have numerous problems stemming in part from their age – they were opened in the early 1900s – and are at their population capacity or over.
In addition, according to DOC's budget request, "Adams Hall also has a lack of cameras making it non-compliant with Prison Rape Elimination Act (PREA) guidelines."
The State Building Commission recommended no money be spent to replace or renovate the building, but called for Walker's Department of Administration to "conduct a comprehensive long range master plan of DOC facilities."
The commission also recommended the state entirely reject a $20 million request for the first phase of a housing unit replacement project at Fox Lake Correction Institution.
Citing a litany of problems with the existing units, DOC said in its budget request, "The layout of the older buildings has been problematic and each building requires two sergeants, where the newer buildings in the DOC system with this security level contain more beds and can be staffed with a single sergeant. Building layouts are not fully compliant with federal Prison Rape Elimination Act (PREA) guidelines."
That request, too, was rejected. Again, the commission recommended a long-range facilities study.
The Legislature earmarked $600,000 for the study.
Walker Administration officials, in at least a public relations nod to the prison rape problem, said they disbanded the DOC internal investigative team that uncovered abuses at the state's juvenile prisons so DOC could put more effort into preventing and investigating sexual assaults behind bars. Leaders of the internal team said their jobs were changed because they had done their jobs too well, according to the Milwaukee Journal Sentinel.
Updated Oct. 27 - Department of Corrections spokesman Tristan Cook contends the posted below is misleading because, he said, it misinterprets a statement in the department’s 2017-19 capital budget request.
WJI stands by the post.
The statement was a direct quote from the budget request: "Adams Hall also has a lack of cameras making it non-compliant with Prison Rape Elimination Act (PREA) guidelines."
Cook said an audit based on a November 2015 site visit found the prison PREA-compliant.
No mention of the audit was included in the Taycheedah budget request.
The department’s budget request was not meant to bring the prison into compliance, "but rather to build on our current compliance by examining ways that we can exceed standards and create an even safer environment for staff and inmates," he wrote.
DOC takes a conservative approach when doing self-assessments of PREA compliance, he said. The disputed quote “reflects DOC’s opinion of its compliance, not the results of the audit, which is the only opinion which affects our statutory compliance,” Cook said in another email. (Emphasis added)
By Margo Kirchner
The new Foxconn law changes the rules for how Wisconsin courts work in cases involving government decisions about the firm and its site, giving Foxconn quicker access and more access to appellate courts than other firms and individuals in the state have.
And Foxconn’s ability to push to the head of the line means that other Wisconsin citizens seeking justice in the courts face potentially lengthy delays.
Under the new law, Foxconn gets multiple appeals of unfavorable trial court rulings in a single case. It doesn’t work that way for others. With a few exceptions, litigants in trial courts must await final judgment before appealing the case.
Not so for those litigating governmental decisions concerning Foxconn or its site, called an “electronics and information technology manufacturing” (EITM) zone. Those litigants can immediately appeal any trial court order relating to the governmental decision, so one case may generate multiple appeals (and delays) if the trial court issues multiple orders. The Wisconsin Court of Appeals must accept a mid-case appeal from EITM-zone litigation; in other cases, the appeals court can reject such an appeal.
If Foxconn doesn’t like how a circuit court rules, it gets to jump right to the highest court in the state for its appeals. The vast majority of non-Foxconn appellants head first to the Wisconsin Court of Appeals. Only after that court issues its decision does the losing party petition the Supreme Court of Wisconsin to review the case.
Not so for litigants in an EITM-zone case. Instead, the Court of Appeals must certify an EITM-zone appeal to the Supreme Court, meaning that the case may bypass the Court of Appeals. Contrary to its exercise of discretion in other cases, the Court of Appeals has no choice regarding certification, regardless of whether that court believes certification is justified.
Moreover, the briefing and certification process in Foxconn cases occur on an expedited schedule. Previously, the legislature directed expedited schedules for cases involving termination of parental rights and consent to a minor’s abortion. The Foxconn legislation puts EITM-zone appeals on a similar fast track.
Certification does not mean the Supreme Court must take the case. The Supreme Court generally reviews cases that involve a significant question of constitutional law, new doctrine, a novel issue with statewide impact, a legal question likely to recur, a conflict between a lower-court decision and decisions of other courts, or the need for policy. Four of the seven justices must agree to the bypass.
The Foxconn legislation bumps any appeal concerning governmental decisions about an EITM zone to the Supreme Court for consideration of certification regardless of whether that case involves matters of statewide concern, unsettled law or policy, or lower-court conflicts. A Foxconn appeal of, say, a building inspector’s requirement, a municipal zoning decision, or an environmental agency determination may not have statewide significance.
Nevertheless, the Supreme Court now must spend time considering each certification, impacting the Court’s other work.
Certification is generally not a quick process. Each one requires a commissioner to draft a memorandum analyzing the facts and law involved in the appeal and recommending whether certification should be granted. The justices are expected to read each certification and memorandum, listen to an oral report by the commissioner, then decide whether to grant certification. During the 2016-2017 term, the Supreme Court received only six certifications from the courts of appeals and accepted only one. Presumably, EITM-zone litigation will significantly increase the number of certifications the Supreme Court will have to consider.
It’s too early to know whether the Court will actually grant more certifications. Will EITM-zone litigation cause the Supreme Court to accept fewer cases not related to Foxconn?
Moreover, the Foxconn legislation mandates that the Supreme Court “give preference” to a certification regarding an EITM-zone appeal. In other words, the Supreme Court must place any Foxconn EITM-zone case ahead of other appeals, including those concerning important civil and criminal matters.
Once Foxconn starts filing appeals, no matter how inconsequential, the court’s work on issues of statewide importance will get pushed to the side.
Based on this term’s calendar, here are the types of cases that could sit when Foxconn skips ahead in line:
By Gretchen Schuldt
Municipal Court traffic cases were down 13 percent during the first nine months of the year compared to the same time period last year, court records show.
Overall, there were 31,515 traffic cases in Milwaukee Municipal Court through September, down 4,912 from the number in the same time period last year, an average drop of 546 cases per month.
The court does not originate the cases - the statistics reflect the activity of the Milwaukee Police Department.
The number of traffic cases jumped sharply in August and September as public pressure about the issue got through to police.
The Police Department is using a data-driven system, Data Driven Approaches to Crime and Traffic Safety (DDACT), to identify traffic enforcement target areas, Asst. Police Chief James Harpole said. DDACT effort was made a priority enforcement tool in April, he told the Common Council's Public Safety and Health Committee.
Steve O'Connell of the Sherman Park Neighborhood Association listed for committee members some high-accident areas around Sherman Park.
Sherman Park residents gathered signatures on petitions seeking a written plan from the Police Department on how it will step up traffic enforcement in the city. The petitions also ask that police be required to report to the committee monthly on how many traffic tickets they issue. The circulators collected 76 pages of signatures without too much effort, O'Connell said.
The number of tickets issued by police has gone down dramatically over several years, he said.
"What's going on? Why less tickets? There's no reason for less tickets," he said.
Committee Chair Ald. Robert Donovan said bad driving was "epidemic" throughout the city.
"I am telling you, and you know damned well...that traffic safety in this city is for crap," Donovan told Harpole.
"Every single time I drive, I'm actually afraid," Ald Mark Borkowski said. He expressed some frustration with a police PowerPoint presentation on crime and traffic enforcement. "All I'm hearing is statistics," he said. "We all get these damned calls, and it's not right. These roads are out of control and it's not OK."
Harpole said traffic enforcement was a priority for the police.
"Our officers are putting forth a concerted effort every single day to make this city a safer place," he said.
A federal judge has rejected Milwaukee County's bid to force its insurer to pay a $6.7 million jury verdict in a case stemming from a corrections officer's repeated sexual assaults of a pregnant Milwaukee County Jail inmate.
The county's insurer, Wisconsin County Mutual Insurance Corp, told the county that it would not pay the award, meaning the county would be stuck with the bill. The county turned to U.S. District Judge J.P. Stadtmueller in an effort to get that decision overturned.
Stadtmueller, though, said payment dispute should not be tacked on to existing case. The trial, he said, was not about insurance, but was about what happened to the woman assaulted by former Corrections Officer Xavier Thicklen.
"Now, more than a month after that trial, the county wishes to hijack this litigation to resolve its insurance coverage dispute," Stadtmueller said in his decision.
Justice, he said, "would in fact be offended" if the county was allowed to pursue its insurance dispute through the original case.
"The prejudice to plaintiff - having her case taken over (and put on hold indefinitely) to resolve a fight as to who must pay her - is undeniable," he wrote.
He denied the county's motion without prejudice so the county could pursue it in state court.
"To say that Thicklen’s conduct was merely reprehensible is almost sickeningly generous." - U.S. District Judge J. P. Stadtmueller
Stadtmueller also denied the county's request to have the verdict overturned because Thicklen was not acting within the scope of his job when he assaulted the inmate, an argument the judge already had considered and rejected.
"The Court has already provided to the parties all of the wisdom it can offer on this point," he wrote in his new decision. "If the County desires a different outcome, it must seek it in the Court of Appeals."
He also shot down the county's argument that the jury's verdict, which included $1.7 million in compensatory damages and $5 million in punitive damages, was excessive.
The county's arguments, Stadtmueller said, "are half-hearted and merit little discussion. ... Contrary to the county’s arguments, plaintiff suffered both physical and emotional injuries as a result of Thicklen’s repeated sexual assaults."
Specifically addressing the punitive damages award, Stadtmueller said,
"To say that Thicklen’s conduct was merely reprehensible is almost sickeningly generous. He repeatedly raped a young woman at varying stages of pregnancy, abusing the power he had over her in the most heinous manner possible, causing her physical and (lasting) mental injuries at a time when she was exceedingly vulnerable."
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