Milwaukee Journal Sentinel: Prison gerrymandering give rural areas more electoral clout.
Politico: Another right-wing sheriff gravitates toward the spotlight.
The New Yorker: A shadowy, abusive corrections system for kids.
Each year, some fifty thousand adolescents in the U.S. are sent to a constellation of residential centers—wilderness programs, boot camps, behavior-modification facilities, and religious treatment courses—that promise to combat a broad array of unwanted behaviors. There are no federal laws or agencies regulating these centers. In 2007, the U.S. Government Accountability Office found that, in the previous seventeen years, there had been thousands of allegations of abuse in the troubled-teen industry, and warned that it could not find “a single Web site, federal agency, or other entity that collects comprehensive nationwide data.” The next year, George Miller, a member of Congress from California, championed the Stop Child Abuse in Residential Programs for Teens Act, which tried to create national safety standards and a system for investigating reports of abuse and neglect at the schools. But the law never passed the Senate.
Slate: President's Supreme Court commission walked right into the legitimacy trap.
The Washington Post: A woman was missing for 12 days before police found her inside a police van, dead.
WAOW: New bill would fine, jail the homeless for living temporarily on public property.
Under the proposal, anyone living on public property could face a $500 fine and 30 days in jail. The rule is drawing the concern of area homeless advocates. They are saying they hope people won't go into hiding and instead seek them out for help.
"We have a shelter facility that can serve 32 people including a family room where it can accommodate six. So hopefully the people will come to our door and the door of other agencies in the community that can serve people," said Ann Chrudinsky, Salvation Army Development Director.
Salon: This U.S. Supreme Court was built on dark money.
During Chief Justice John Roberts' tenure, the Court has issued more than 80 partisan decisions, by either a 5-4 or 6-3 vote, involving big interests important to Republican Party major donors. Republican-appointed justices have handed wins to the donor interests in every single case. The decisions greenlit rampant voter suppression and bulk gerrymandering (Shelby County v. Holder and Husted v. Randolph Institute); closed courthouse doors to workers wronged by their employers (Epic Systems Corp. v. Lewis); unleashed floods of dark money to corrupt our politics and foul our democracy (Citizens United v. FEC and Americans for Prosperity Foundation v. Bonta); and more. Eighty to zero is a pattern so strong that it could serve as compelling evidence in a trial alleging bias and discrimination.
This pattern did not just happen. It is the fruit of a half-century-long operation by right-wing donors to win through the Supreme Court what they can't win through elected branches of government. In 1971, a corporate attorney from Virginia named Lewis Powell wrote a memo for the U.S. Chamber of Commerce laying out a game plan for corporations and right-wing ideologues to use "an activist-minded Supreme Court" as an "instrument for social, economic, and political change." (Within months, Powell himself would be appointed by Richard Nixon to the court to advance the plan from within. His memo was never disclosed to the Senate.)
ABA Journal: Judge's blatant anti-Semitism leads to recommendation for new trial for Jewish death row inmate.
NPR: Fired FBI official Andrew McCabe wins back pay, reinstatement of retirement benefits in lawsuit settlement.
The settlement will resolve a civil lawsuit filed by McCabe, who argued that his ouster was the result of a "years-long public vendetta" driven by the former president (Trump).
The Justice Department demoted and then dismissed him on the eve of his 50th birthday in March 2018, when his FBI annuity would have vested.
"I think the message that you get loud and clear from the terms of the settlement is that this never should have happened," McCabe said. "It feels like complete vindication, because that's what it is."
The agreement follows a scathing online campaign by the former president to tarnish McCabe, who spent 21 years in service at the bureau.
BuzzFeed News: 100 defendants in the Jan. 6 riot have pleaded guilty so far.
Most of the 100 rioters to take a deal have pleaded guilty to the least serious crime they were charged with: parading, demonstrating, or picketing in the Capitol, a class B misdemeanor that carries a maximum sentence of six months in jail. Defendants pleading guilty to that crime or disorderly conduct in the Capitol (also a class B misdemeanor) are getting a few benefits: avoiding a trial on multiple charges, some of which carried more potential prison time; a chance to argue to a judge for credit for accepting responsibility early; and, in some cases, an agreement from prosecutors to advocate for a light sentence.
The US attorney’s office in Washington, DC, is clearing some of the least complicated prosecutions — nonviolent offenders who in many instances documented their trek into the Capitol online — from its ever-growing caseload. The government has required some defendants to give the FBI access to their cellphones and social media accounts as investigators continue to search for more evidence from that day. In the smaller pool of felony plea deals, the government has been lining up cooperators in connection with a conspiracy they’ve alleged involving the far-right extremist group the Oath Keepers.
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Balls and Strikes: Courts are making the climate crisis worse.
The role courts play in making climate change worse is often overlooked, because it is not as dramatic as, for example, Arizona Senator Kyrsten Sinema’s proud opposition to the Green New Deal, or West Virginia Senator Joe Manchin’s mind-bending declaration that the infrastructure bill’s efforts to reduce the use of fossil fuels are “very disturbing.” But when handing out “I Accelerated the Climate Crisis” participation trophies, the Supreme Court and the lower federal courts should not be spared. For decades, the “least dangerous branch” has wielded its considerable power to shield from responsibility the corporate giants that would rather consign the planet to a fiery doom than find a different way to pay for mega-yachts.
Bloomberg Law: U.S. Supreme Court Sonia Sotomayor bemoans lack of professional diversity on the court.
Sports Illustrated: This pro basketball and Nike exec hid this from his past: At 16, he shot another teen to death.
Wisconsin Watch: Wisconsin incarcerates one in 36 Black adults, tops in the nation.
WBUR: Discipline recommended for prosecutors linked to drug lab scandal.
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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized.
The case: State of Wisconsin v. George Steven Burch
Majority/Lead Opinion: Justice Brian Hagedorn (20 pages), joined by Justices Annette K. Ziegler, Patience Roggensack, and Rebecca Grassl Bradley; joined in part by Justices Rebecca F. Dallet and Jill J. Karofsky.
Concurrence: Grassl Bradley (20 pages).
Concurrence in part, dissent in part: Dallet (18 pages), joined by Karofsky and Justice Ann Walsh Bradley (except for a footnote).
Dissent: Justice Ann Walsh Bradley (11 pages).
We conclude that even if some constitutional defect attended either the initial download or subsequent accessing of the cell phone data, there was no law enforcement misconduct that would warrant exclusion of that data. Therefore, we conclude the circuit court correctly denied Burch's motion to suppress that data.
Nicole VanderHeyden went to a bar with her boyfriend, Douglass Detrie, on May 20, 2016. They got separated and got into an argument via phone call and text messages. VanderHeyden's body was found the next day near a field. Her bloody clothing was found near a freeway ramp, and some of her blood and hair were found outside the house of her neighbor. Diedre was initially a suspect, but became less of one when authorities learned his Fitbit logged only 12 steps during the hours around VanderHey's death.
The Brown County Sheriff's Department led the homicide investigation. The Green Bay Police Department, meanwhile, was looking into a stolen vehicle report, a hit-and-run, and a vehicle fire all involving the same auto. George Burch was a suspect and Officer Robert Bourdelais spoke to him on June 8, 2016. Burch denied involvement in the crime, but said he was at a bar that night and texted a woman who lived nearby. Bourdelais asked to see the texts and Burch agreed. Bourdelais said he would rather download information from the phone because it was easier than taking pictures and scanning. Burch agreed to allow Bourdelais to do that and Bourdelais promised to immediately return the phone.
Burch signed a consent form. The form read: "I George Stephen Burch . . . voluntarily give Det. Danielski, Officer Bourdelais or any assisting personnel permission to search my . . . Samsung cellphone."
The Police Department's computer specialist downloaded all the data on the phone, made it into a readable format, and put it into long-term storage.
Two months later, Brown County sheriff's detectives matched a DNA sample from VanderHeyden's sock to Burch. The detectives searched records for police contacts with Burch and discovered the Green Bay Police Department's file stemming from the auto crimes investigation. They also obtained Burch's cell phone data that Green Bay police had stored.
The Sheriff's Office detectives reviewed the data downloaded from Burch's phone. They noted that Burch's internet history included 64 viewings of news stories about VanderHeyden's death. And they also discovered Burch had an email address associated with a Google account. In light of this discovery, the Sheriff's Office detectives procured a search warrant to obtain the "Google Dashboard" information from Google corresponding to Burch's email address. The data Google provided contained location information that placed Burch's phone at a bar VanderHeyden visited the night of her death, a location near VanderHeyden's residence, the place where VanderHeyden's body was found, and the on-ramp where VanderHeyden's discarded clothing was discovered.
Burch was charged with VanderHeyden's death.
Before trial, Burch sought to suppress the data obtained from his cell phone for two reasons: (1) the Police Department's extraction of the data exceeded the scope of Burch's consent by obtaining all the phone's data, rather than just the text messages; and (2) the Sheriff's Office unlawfully accessed the data in August 2016. The circuit court denied Burch's motion. It concluded that the conversation between Burch and Officer Bourdelais did not limit the scope of Burch's consent, and that "the sharing of such information, without first obtaining a warrant, is a common and long-understood practice between related departments."
Burch also moved to exclude evidence related to Detrie's Fitbit device. He argued the State must produce an expert to establish the reliability of the science underlying the Fitbit device's technology and that the State failed to sufficiently authenticate the records. The circuit court disagreed and refused to exclude the Fitbit evidence related to step-counting.
A jury convicted Burch and Brown County Circuit Judge John Zakowski sentenced him to life in prison.
Burch appealed, challenging the denial of his two pre-trial motions.
Before us, Burch argues the cell phone data was obtained in violation of the Fourth Amendment for three reasons: (1) the Police Department obtained the data without his consent; (2) the Police Department unlawfully retained the data after its investigation into the vehicle-related incidents had ended; and (3) the Sheriff's Office unlawfully accessed the data in the Police Department's records without a warrant. However, for the reasons that follow, regardless of whether the data was unlawfully obtained or accessed, we conclude suppression of the data is not warranted under the exclusionary rule....
The exclusionary rule is a judicially-created, prudential doctrine designed to compel respect for the Fourth Amendment's constitutional guaranty. In recent years, the United States Supreme Court has significantly clarified the purpose and proper application of the exclusionary rule. In Davis, the Supreme Court explained that prior cases suggested that the exclusionary rule "was a self-executing mandate implicit in the Fourth Amendment itself." However, more recent cases have acknowledged that the exclusionary rule is not one of "reflexive" application, but is to be applied only after a "rigorous weighing of its costs and deterrence benefits." Thus, in both Herring and Davis, the Court explained that to "trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system...."
Burch argues that the Sheriff's Office should have obtained a warrant before accessing the Police Department's data. But no case from this court or the federal courts has suggested that accessing evidence previously obtained by a sister law enforcement agency is a new search triggering a renewed warrant requirement. Rather, the Sheriff's Office detectives reasonably relied on Burch's signed consent form and Officer Bourdelais' narrative to conclude that Burch consented to the download of the data. They had no reason to think they were engaging in illegal activity by reviewing interdepartmental files and evidence. Far from it. Reliance on well-documented computer records, like the detectives did here, is something the Supreme Court has characterized as objectively reasonable police conduct. Thus, there was no misconduct that would "render the evidence suppressible under the exclusionary rule."
Moreover, even if the Sheriff's Office's actions could be labeled as some kind of misconduct, nothing they did would rise beyond mere negligence....
In addition, the societal cost of excluding the cell phone data would far outweigh any deterrence benefit that exclusion might provide....
Burch also appeals the circuit court's denial of his motion to exclude evidence associated with Detrie's Fitbit device. Burch offers two arguments. First, he argues the Fitbit evidence must be excluded because the State did not produce expert testimony to establish its reliability. Second, he maintains the Fitbit evidence was insufficiently authenticated....
"Moreover, even if the Sheriff's Office's actions could be labeled as some kind of misconduct, nothing they did would rise beyond mere negligence...." – Wisconsin Supreme Court Justice Brian Hagedorn
WDJT: Wisconsin brewery helps parents sue school districts that don't follow CDC COVID guidelines.
The Minocqua Brewing Company Super PAC announced they will sue "every school board in Wisconsin that doesn't follow CDC guidelines" on Sunday, Oct. 11.
The effort comes as many schools are battling a surge of COVID-19 infection that has led some districts to temporarily close, shift to online learning and quarantine students.
Kirk Bandstad, owner of Minocqua Brewing Company Super PAC, is funding the lawsuits to help parents sue school districts after their child became infected with COVID-19.
"I got flooded with parents across Wisconsin who are super upset, scared and felt powerless to protect their children," said Bandstad. "If they had masks in these schools, these kids could actually get an education."
The Washington Post: Biden administration orders end to ICE raids at workplaces.
Homeland Security Secretary Alejandro Mayorkas’s memo ordered a review of enforcement policies and gave immigration officials 60 days to devise proposals to better protect workers who report on their bosses from facing deportation.
Mass arrest operations by U.S. Immigration and Customs Enforcement, commonly referred to as ICE raids, have been used primarily against industries that employ large numbers of immigrants, such as meatpacking. Immigrant advocates and many Democrats who oppose the raids say they punish vulnerable workers, sow fear in immigrant communities and rarely result in consequences for employers.
Reuters: U.S. Supreme Court considers reinstating death sentence for Boston marathon bomber.
Governing: Chicago police give out lots more tickets for bicycling violations in Black, Latino neighborhoods.
In the neighborhoods most affected, high cycling ticket rates could put a damper on jobs, residents’ health and efforts to reduce violence, said Olatunji Oboi Reed, president and CEO of racial equity-focused nonprofit Equiticity, which partnered on the study.
“There’s a role for cycling to play in improving our neighborhoods,” he said. “And when these types of inequities are in existence, from lack of infrastructure in our neighborhoods to enforcement inequities by (the Chicago Police Department), they serve as a dampening effect on more Black and brown people turning to bikes as a form of travel, as a form of recreation, as a form of physical fitness.”
The study raises questions about where and why police stop and cite cyclists. Its publication comes as the Chicago Department of Transportation is expanding bike lanes and resources amid a surge of interest in biking during the COVID-19 pandemic.
The study, published in September by the journal Transportation Research Part D, found that between 2017 and 2019, Chicago police issued tickets for cycling on the sidewalk in majority Black neighborhoods at eight times the rate in majority white areas. In Latino areas, they issued tickets three times as often.
WILL: WILL, Scott Walker urge U.S. Supreme Court to accept press conference case.
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By Gretchen Schuldt
The Milwaukee County Sheriff's Department must turn over an old internal investigation file involving former Deputy Joel Streicher, who killed Milwaukee activist Ceasar Stinson after running a red light, the State Court of Appeals ruled Tuesday.
Stinson's "estate asserts that the public has a strong interest in 'knowing when law enforcement officers have a history of violating an individual’s constitutional rights, and how the department handled the investigation of this constitutional violation,' " District I Court of Appeals Judge M. Joseph Donald wrote. "We agree."
Donald was joined in his opinion by Appellate Judges Maxine A. White and William W. Brash III.
The ruling reversed a decision by Milwaukee County Circuit Judge David C. Swanson, who said the records should not be released. Swanson, in balancing the public interest in disclosure against the public's interest in keeping the records confidential, said he “doesn’t see a strong public interest in disclosure,” Donald wrote.
The appeals panel said the records need further redactions before they are released.
Streicher, in a Sheriff's Department SUV, ran a red light on Jan. 25, 2020, and hit the vehicle Stinson, 47, was driving.
Streicher was charged that May with homicide by negligent operation of a vehicle, pleaded guilty and, in a sentencing widely derided in the community, ordered by Circuit Judge Michelle Havas to serve six months in jail with work-release privileges and two years' probation.
Havas later ordered Streicher to serve actual jail time after Stinson's widow, Chipo Samvura, complained that Streicher was serving his time at home with ankle bracelet.
A few days after Streicher killed Stinson, who worked as a lobbyist for Milwaukee Public Schools, WISN-TV reporter Nick Bohr sought Streicher’s disciplinary records from the Sheriff's Department. Sheriff's Captain Jason Hodel reviewed the records and decided they should be released. Hodel notified Streicher of the decision, and told Streicher that personal information, such as his home address and email, had been redacted.
Streicher and the Milwaukee Deputy Sheriffs' Association filed a lawsuit to block the release of the records. Afterwards, Samvura and Stinson's estate filed their own open records request and intervened in the TV station's case.
In his ruling, Swanson found that internal affairs files were not exempt from release under the Open Records Law. The court, however blocked the release of the file related to an internal investigation of an improper home search in which Streicher was involved.
"The circuit court began by observing that the internal affairs investigation was 13 years old, 'quite dated at this point,' and focused on 'an improper search of a residence,' which took place after police had seized 44 pounds of marijuana from a car," Donald said. "The court indicated that it was concerned about the references in the file related to the prosecutor’s case planning and that disclosing the file might 'endanger individuals who were involved in [the drug] investigation either as targets or as informers or both.' Thus, the court found that 'the balancing test weighs in favor of an injunction.' ”
When the Stinson estate representative noted that names could be redacted from the report, Swanson said the names had been redacted from the file he reviewed, but it still was clear who was discussed.
"The court stated that 'very significant' redactions would need to be made and 'they haven’t been made at this point,' ” Donald said. "The court also reiterated that its other concern was the references to the prosecutor’s case planning, which would also need to be redacted."
In reversing Swanson, the appeals panel said the public had a strong interest in incidents where public officials were derelict in their duty.
"Thus, here, where the police improperly entered a person’s home in the course of their investigation, the public has a compelling interest in accessing the documents relevant to the misconduct and the extent to which it was investigated," Donald wrote.
Further redactions are needed before the report is released, he wrote, but "this does not justify the denial of the release of the entire file."
"Streicher and MDSA point to the circuit court’s finding that Streicher’s role in the improper search was 'minor,' ” Donald wrote. "However, this should not be a shield by which the government can prevent disclosure....The public has a strong interest in being informed about its public officials and whether those officials have engaged in misconduct....These interests cannot be outweighed simply by the fact that an official played a minor role in an improper search."
AP: Gun violence claiming more lives of children.
The U.S. saw 991 gun violence deaths among people 17 or younger in 2019, according to the website Gun Violence Archive, which tracks shootings from more than 7,500 law enforcement, media, government and commercial sources. That number spiked to 1,375 in 2020 and this year is on pace to be worse. Through Monday, shootings had claimed 1,179 young lives and left 3,292 youths injured.
FBI data backs that up. The agency released a report on Sept. 28 showing homicides in the U.S. increased nearly 30% in 2020, and homicides among people ages 19 and younger rose more than 21%.
Vox: A better way to legalize marijuana.
There are genuine concerns that the current commercial model of legalization will lead to “Big Marijuana”: a large industry that, similar to the tobacco, alcohol, and opioid industries, has a powerful financial incentive to market and sell its product to as many people as possible, no matter the consequences for consumers or the public more broadly.
But marijuana legalization — and alcohol regulation, for that matter — doesn’t have to look like this. As other states move to legalize cannabis, it’s possible to follow an alternative model that might be able to achieve the same goal with fewer downsides.
The Washington Post: Another incident of forensic fraud exposed and an innocent man goes free after 28 years in prison.
Governing: North Carolina's driver's license suspensions compound hardships. (Wisconsin's, too!)
Public Source: There's a labor shortage, but people with criminal records face hurdles in finding a job.
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Wisconsin Examiner: Disability rights activist Dorothy Dean says state building code violates federal law.
Section SPS 362.2902 of the Wisconsin building code states that businesses don’t need public restrooms if there won’t be more than 25 occupants in the building, other restrooms are available nearby and the omission is approved by the local government...
But disability rights experts say there isn’t a provision in the ADA that allows states to grant exemptions and doing so causes real harm.
“I know of nothing in the Americans with Disabilities Act that allows states to waive the requirements it imposes,” Monica Murphy, the managing attorney for Disability Rights Wisconsin, says. “Obviously anything that limits accessibility limits access for people with disabilities. The ADA was signed into law in 1990. There is no excuse for building inaccessible buildings 31 years later.”
The Washington Post: Why is a prominent federal judge hiring a clerk who said she hates Black people?
Austin-American Statesman: Texas' bounty hunter abortion law is temporarily reinstated by federal appeals court.
The three-judge appeals court panel gave no reasons for its action in a one-page order. Two panel members were Republican appointees — Judges Catharina Haynes, nominated by President George W. Bush, and James Ho, named by President Donald Trump. The third, Judge Carl Stewart, was nominated by President Bill Clinton.
Tomahawk Leader: Bills would allow unlicensed concealed carry, sandhill crane hunting.
CBS News: U.S. Department of Justice won't charge officer who shot Jacob Blake.
Slate: Decision blocking Texas abortion law is a meticulous rebuke to the U.S. Supreme Court.
Perhaps most importantly, (U.S. District Judge Robert) Pitman chose not to center the sufferings of the Supreme Court justices who feel beleaguered by the demands of the shadow docket, or of Texas, which seeks to overturn Roe v Wade without being hassled by precedent or legal arguments. Instead, in footnote after footnote, Pitman centers the pregnant people who have relied on the courts to vindicate their rights, and excoriates the state for hurting them, for lying about it, and for its cynical attempts to circumvent the rule of law. “From the moment S.B. 8 went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution,” he wrote. “That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.”
The Washington Post: White House restoring key elements of major environmental law, reversing Trump.
Channel 3000: Wisconsin Attorney General Josh Kaul asks people to stop with the vigilante stuff already.
Texas Public Radio via KERA News: Eleven Republican governors call for national immigration plan based on those of Trump, Abbott.
The plan includes defunct policies from the Trump administration and executive orders enacted by Texas Governor (Greg) Abbott. Many of these measures have been ruled unconstitutional by federal judges.
“We believe the states are authorized by the United States Constitution to do exactly what Texas is doing under the ten point plan that we are already acting on right now,” said Governor Abbott.
Channel 3000: WILL threatens to sue UW-Madison on discrimination grounds.
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Reuters: U.S. Justice Department reopens probe into FBI's botched investigation into sex abuser Larry Nassar.
Wisconsin State Farmer: CAFO fined $86,000 for wastewater violations.
Attorney General Josh Kaul says Jon-De Capital, Inc. of Baldwin, Wis., was fined for allegedly allowing one of its manure storage facilities to overflow in September 2017 causing it to flow into a tributary of the Rush River. Kaul also notes that Jan-De Capital failed to install permanent markers in its waste storage facilities in 2017; constructed a facility without approval from the Department of Natural Resources (DNR) in 2017; and stored manure in unapproved locations and facilities in 2017 and 2020.
NPR: Federal appeals court blocks California's ban on private detention centers.
Gov. Gavin Newsom signed the ban into law in 2019. It sought to curtail California's cooperation with the federal government on immigration detention by slowly closing private detention facilities in the state by 2028.
A lawsuit challenging the rule was brought by the Trump administration and GEO Group Inc., a company that operates two private immigration detention centers. The Biden administration pursued this lawsuit after Donald Trump left office, despite campaign promises by Biden that he would close privately run detention centers.
Milwaukee Journal Sentinel: Judge gives a "do-over" to potential juror who walked out of courthouse due to lack of COVID protections.
Ms.: A record 106 abortion restrictions have become law so far this year.
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