|
By Alexandria Staubach
The Supreme Court of Wisconsin heard oral arguments on the road for the first time since 2019. Its first stop was Richland County, the birthplace of retired Chief Justice Ann Walsh Bradley. The court revived the program, Justice on Wheels, conceived in 1993, which provides locals with the opportunity to be up close and personal with the justices and see the highest court in action. The court heard two cases, Wren v. Columbia St. Mary Hospital Milwaukee, Inc., and State v. K.R.C., the latter which has implications for the way school resource officers conduct investigations in school, in Wisconsin. K.R.C. asked the court to define the circumstances under which questioning by law enforcement generally and school resource officers (SRO) specifically constitutes custodial interrogation. With fifth graders in the audience, the court considered arguments centered around the police questioning of a 12-year-old boy, K.R.C. The parties kept the facts vague but shared what was necessary about the circumstances for everyone to understand the arguments. The question, argued K.R.C.’s attorney, Colleen Marion, was whether a reasonable innocent 12-year-old would have felt “coercive police pressures that overcame K.R.C.’s ability to resist the pressure to subject himself to questioning.” In other words, was his questioning “custodial” in nature and should it have required the presence of a known friendly adult or some other warning about incriminating himself? Everyone agreed that the defining line was a close call. Marion outlined a generally accepted set of facts: K.R.C. was removed from class by an SRO, questioned in an office solely used for law enforcement purposes, made incriminating statements against himself regarding the unwanted sexual touching of another student, and a second armed police officer was present and blocking the door during the interview. A sign, written in magic marker, hung askew on the wall and read, “You are here voluntarily unless told otherwise. You are free to leave at any time. You are being filmed,” but was never referenced by law enforcement during K.R.C.’s interview. Consensus among the justices and attorneys also included that Miranda rights, or the set of legal protections which require law enforcement to inform a person in custody of their right to remain silent and their right to an attorney in a custodial situation, are generally not applicable to the schoolhouse questioning of a juvenile. Both sides admitted that the police had used coercive questioning and that K.R.C. wasn’t given any instruction regarding his ability to end or otherwise control the interaction. Marion argued that the nature of school means that “every aspect of movement throughout the day is controlled.” She argued the school environment inherently creates an imbalance of power and a dynamic where K.R.C. or any other reasonable 12-year-old would be unable to stand up and say “‘excuse me, sir, I am leaving this office,” if being questioned by law enforcement. “School is a uniquely coercive environment,” Marion also told the justices. That nature, according to Marion, imposes “additional restraints above and beyond what is normal,” and that K.R.C.’s questioning should be considered a custodial interrogation. Justice Brian Hagedorn grappled with how the questioning differed from that done by a principal or other school official. “Give me the details of what makes this so unique,” said Justice Annette K. Zeigler. Marion responded that K.R.C. was taken out of class versus being stopped in the hall on the way to the bus; he was called down to see not one, but two, police officers; he was not informed he could leave; and he was given guilt presumptive questions with the door blocked by an armed officer, with no other friendly adult in the room. Attorney Kara Lynn Janson represented the state, arguing that K.R.C.’s questioning was more akin to a police interrogation during a traffic stop than a custodial interrogation. Janson cautioned, saying “it is going to be difficult to decide what the dividing line (is) between formal interrogation and something that looks more like a traffic stop in the school setting.” Janson argued that the degree of compulsion necessary to say that questioning of K.R.C. was custodial occurs on a “sliding scale depending on how young the juvenile is.” Janson asked the justices to focus their attention on the relatively short duration of the interview, at 10 minutes and “a near total absence of menacing police questioning.” In addition to hearing oral arguments, fifth grade students from area schools were recognized by the court for their contributions to its Justice on Wheels Civics Contest. Through writing and other projects, the contestants were encouraged to engage with questions regarding fairness, justice and the Constitution. Bradley was present and honored at the beginning of the event. Chief Justice Jill J. Karofsky gave Bradley an award and commemorative plaque, which recognized Bradley's more than 40 combined years on the circuit and Supreme Court benches.
0 Comments
By Alexandria Staubach Criminal division judges in Milwaukee County Circuit Court received a letter late last week questioning the independent legitimacy of local group Enough is Enough and its relationship with the Milwaukee County District Attorney’s office. The letter, signed by the State Public Defender’s regional manager Angel Johnson and deputy regional manager Paige Styler, alleges that the group received special treatment from the District Attorney’s office. “While Enough is Enough is primarily composed of community members,” wrote Johnson and Styler, “its activities and formation have been closely coordinated with the Milwaukee County District Attorney’s office since its inception.” The letter requested that the judiciary “consider this context when evaluating any impact statements or the presence of Enough is Enough,” adding “that this court watch group should not be regarded as an independent, grassroots organization.” Enough is Enough President Jeanne Lupo took issue with the characterization of the group’s relationship with the DA’s office in a phone call with WJI. “Bob Donovan actually floated us the idea,” Lupo told WJI. Donovan is the Republican representative for the Wisconsin State Assembly in District 61. Lupo also said that while the group does receive information from the district attorney’s office on occasion, she believes it does not extend beyond what the public and media might get if they ask. “We aren’t collaborating with the district attorney’s office,” said Lupo. “We are an independent 501(c)(3).” Lupo also told WJI that before the group began their Court Watch program, they met with Chief Judge Carl Ashley, “because we wanted to be transparent in what we intended to do.” According to its website, Enough is Enough seeks to raise awareness “about the perils of fleeing an officer and reckless driving resulting in bodily harm or death.” It does not advertise any formal affiliation with the Milwaukee District Attorney’s office. A principal action for the group includes its Court Watch program according to Lupo. The program tracks cases in which pursuits and reckless driving are implicated as they move through Milwaukee courts. On its website, the group highlights monitoring prosecutorial patterns and judicial sentences and says that it offers community impact statements at some sentencings. The group received media attention over the summer as reckless driving cases and police pursuits surged. The group’s website also says that it advocates in court proceedings for increased penalties for unlicensed vehicles and in revoked driver's license cases. It describes itself as providing “oversight of probation and court-mandated requirements often overlooked by monitoring agencies particularly the Wisconsin Department of Corrections.” Nonetheless, according to the letter, through an open records request, the public defender's office received more than 258 emails, the contents of which “outline extensive meetings with members of the DA’s office and Enough is Enough, including ‘learning sessions’ and ‘Q&As’ conducted by members of the DA’s office for the group.” The letter specifically cites Assistant District Attorney Joy Hammond and retired Assistant District Attorney Thomas Potter as being particularly involved in the group’s efforts and says that Hammond and Potter “reviewed, drafted, and edited letters for Enough is Enough addressed to the judiciary.” “In those communications, Enough is Enough was told to remove language that indicated the group’s collaboration with the DA’s office and to frame their issue as a community, rather than law enforcement initiative,” wrote Johnson and Styler. Lupo denied the characterization, saying the group is interested in working with "everyone." “We independently file our impact statements and attend court cases and publish reports about what rulings are,” Lupo told WJI. “We went in with a hypothesis that Judges are too lenient,” said Lupo. “Sixty-nine percent of the time judges rule more leniently than what the DA is asking.” “No one (from the public defender's office) has reached out to me to discuss what we do,” Lupo told WJI. Nevertheless, it is the public defenders' “belief that the Milwaukee County DA’s office, by supplying information to Enough is Enough and then acting as if it is an independent organization, purposely omitted crucial context that should have been disclosed to the defense and judiciary,” wrote Johnson and Styler. They urged the judiciary "to consider this context when evaluating any impact statements or presence of Enough is Enough, recognizing them as part of the District Attorney’s efforts to influence sentencing decisions.” WJI reached out to an author of the letter as well as the district attorney’s office and received no response at the time of this post. You can read the full letter below. *Correction: An earlier version of this post stated that Enough is Enough had reached out to the State Public Defender's office. Enough is Enough has never reached out to the State Public Defender's office and the comment was included in error. By Alexandria Staubach
A recent decision from the Wisconsin Court of Appeals rejected the State’s application of judicial estoppel to a case evaluating a motion to withdraw a plea, where the plea included an admission of guilt on the record. Judicial estoppel is a legal doctrine that can be argued as a defense by one party or applied by the court. It prevents the party from taking a position directly contrary to a position they previously argued in a separate court proceeding. It prevents parties from making inconsistent statements to gain an unfair advantage. The decision declines to impose a rule that would require circuit courts to bar a defendant’s argument to withdraw a plea based on newly discovered evidence, when that evidence contradicts a fact that the defendant necessarily admitted because of pleading guilty. The District 1 decision was authored by Judge Sara J. Geenen and joined by Presiding Judge Pedro A. Colón and Chief Judge Maxine White. According to the opinion, Scott R. Shallcross pleaded guilty to two counts of homicide by intoxicated use of a vehicle after his truck slammed into another truck, killing its two occupants. Shallcross and his passenger, Daniel Gorectke, survived. The complaint, referenced by the court, stated that Shallcross told police he was the driver, but he wasn't in the driver's seat when police arrived because he had crawled to the back of the truck immediately following the crash as the vehicle was on fire. Gorectke also gave a statement to the police and identified Shallcross as the driver. However, Gorectke also told police that Shallcross told him to tell police an unknown third person was driving the truck. In 2009, Shallcross accepted a plea agreement in the case, admitting on record that he was the driver of the truck. Before sentencing, he told the court that he was driving the truck. In 2022, Shallcross filed this appeal, arguing that evidence unknown at the time of his plea required the circuit court to allow him to withdraw his plea. Among the newly discovered evidence was DNA obtained from the steering column airbag of the truck that showed Shallcross's DNA and that of an unknown third party. The additional third-party DNA supported the argument that a third party was driving the truck, Shallcross said. According to the opinion, in circuit court the state argued that Shallcross was judicially stopped from claiming that he was not the driver of the truck, and that “no case allow(s) a defendant to unequivocally admit at a plea hearing that he committed an act and turn around at a later court hearing and unequivocally deny under oath that he committed that same act.” The problem with the state’s argument, according to the appellate court, is the regular use of a test applied to newly discovered evidence in motions to withdraw guilty pleas, as found in cases like State v. Ferguson. The defendant in Ferguson sought to withdraw his guilty plea based on newly discovered evidence, namely that the principal witnesses subsequently recanted their identification of Ferguson. The Ferguson court applied the newly discovered evidence test, not judicial estoppel. “Under the State’s rule, it would be an erroneous exercise of discretion for a circuit court to refuse to apply judicial estoppel,” a circumstance that is inconsistent with the application of the newly discovered evidence test found in Ferguson, wrote Geenen. “The State’s argument that the circuit court erroneously exercised its discretion by refusing to apply judicial estoppel in this case leads to the conclusion that defendants may never seek to contradict a fact admitted to as consequence of pleading guilty,” Geenen concluded. Further, “after determining that the evidence is newly discovered evidence, the test is whether a jury would have a reasonable doubt as to the defendant’s guilt in a trial that included the newly discovered evidence,” said that court. Ultimately, the weight of the evidence in Shallcross’ case doomed his motion to withdraw his plea. “There is no reasonable probability that a jury would have a reasonable doubt as to Shallcross’s guilt if it was presented with the DNA report,” wrote Geenen. She said “the overwhelming evidence” of Shallcross’s guilt compelled the court's conclusion.  Adam Procell shares the stage with Derek Mosley at Marquette University Law School. Photograph by Alexandria Staubach. By Alexandria Staubach
“Until the community itself says enough is enough… we’re applying Band-Aids to cure cancer,” said Adam Procell at Marquette Law School’s Lubar Center for Public Policy Research and Civic Education “Get to Know” series today. Procell, who was appointed by Mayor Cavalier Johnson to direct the reimagined Office of Violence Prevention, spoke to a full house about his own past and his vision for a safer Milwaukee. Procell brings a unique perspective to the role, having served 23 years incarcerated for violent crime as a youth. “When most people know the worst thing you’ve ever done as a human being, there’s an immediate power imbalance,” said Procell, discussing the aspects of his new role that have surprised him. In his role as director, Procell seeks to prioritize youth in his violence disruption efforts. “I think our city is in trouble,” he said. “I don’t know that we fully grasp how deep it goes,” said Procell about his observation that many have "lost their ability to resolve conflict without violence.” Procell highlighted a recent exchange he had with youth from all over the city participating in a 2025 Emergency Gun Violence Summit, which he said demonstrated the issue. He recounted asking an auditorium full of students at the summit to show their hands if they had heard gun shots from their home in the last month. Procell shared that 95% of students raised their hands. “That is not normal” and “if we don’t understand how that is impacting our young people…we are in trouble,” Procell told the audience. Procell’s office reported five other key areas in addition to early childhood intervention that his office will work to disrupt. He cited real time violence interventions, diversion, enhanced victim services because “hurt people hurt people,” reentry services, and community/police relations as the other key areas. We need to “find a way to leverage what each one of us has to work together,” said Procell, who is no stranger to creative collaboration in the name of creating unlikely bedfellows. At Marquette, Procell helped create an undergraduate course where enrolled students sat side by side with 10 incarcerated students for an entire semester. “It was shocking the amount of community that is created,” said Procell. As a founder and CEO of Paradigm Shyft, a company offering “multidimensional justice solutions,” Procell has also arranged sometimes strange opportunities for law enforcement and the formerly incarcerated community to connect. From orchestrating role reversal traffic stop exercises with law enforcement, to parachuting with police, Procell stressed how quickly police and community interactions can “escalate if you don’t see each other has humans.” “If you can prove (mutual humanity) to yourself 100 feet in the air, you can prove to yourself that it doesn’t matter on the ground,” said Procell about organizing the formerly incarcerated to parachute with police. Procell founded Paradigm Shyft with Shannon Ross, who serves as the company’s operations assistant and is also the founder/executive director of The Community. Procell and Ross, who are frequent collaborators, are often praised for their efforts to reshape the narrative around the formerly incarcerated in Milwaukee. The pair met speaking to youth on a panel at Oak Hill Correctional Institution while they were both incarcerated. Procell also shared his experience visiting other countries to learn about their criminal justice systems. “The difference is culture,” said Procell. He thinks meaningful change will only come to our justice system when “culturally we find a way to see people as human.” 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 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 are also italicized. Case: State v. Luis A. Ramirez  Grassl Bradley Majority: Justice Rebecca Grassl Bradley (17 pages), joined by Justices Annette Ziegler and Brian Hagedorn in full and by Justices Rebecca Dallet and Jill Karofsky except as to one paragraph and one footnote Concurrence: Chief Justice Ann Walsh Bradley (9 pages), joined by Justice Janet Protasiewicz Concurrence: Dallet (1 page), joined by Karofsky Concurrence: Karofsky (4 pages) Upshot The State sought this court’s review of a single issue: Whether Ramirez’s constitutional right to a speedy trial was violated. We conclude it was not and reverse the court of appeals. Background Ramirez, an inmate at Columbia County Correctional Institution, stabbed a corrections officer in the head and neck with a sharpened pencil on May 5, 2015. At the time of the attack, Ramirez had already served 17 years of a 40-year sentence for armed robbery and battery to law enforcement officers. On February 1, 2016, the State filed a complaint charging Ramirez with battery by a prisoner and disorderly conduct. Delays in appointing counsel, then the replacement of counsel and requests by newly appointed defense counsel for adjournments meant the preliminary hearing was not complete until August 2016. Arraignment occurred in October 2016, and trial was set for April 2017. However, the state requested a continuance, and the trial was reset for September 2017. Because of a conflict with another trial (the Columbia County courthouse can support only one jury trial at a time), trial was rescheduled for April 2018. Further delay occurred. Defense counsel needed a continuance because of the need for health records from the Department of Corrections, so scheduling conferences were set for May 2018 and then August 2018. On September 26, 2018, almost 32 months after charges had been filed against him, Ramirez made a pro se speedy trial demand. The circuit court held an off-the-record telephone conference on October 3, 2018. Less than a week later, Ramirez’s counsel notified the court that October 11 was the earliest date on which he could meet with Ramirez, and that counsel would “report on the status of the case after that conference.” Nothing in the record indicates when counsel met with Ramirez or if counsel updated the court on the case’s status. On November 1, the court set a scheduling conference for December 5. On that date, the court scheduled a two-day jury trial to begin on April 3, 2019. On March 26, 2019, the State requested adjournment of the April 3 jury trial because the prosecutor was retiring and the newly assigned prosecutor needed additional time to prepare. Neither the defendant nor the victim objected to that request. The circuit court rescheduled the trial for December 3, 2019. On April 15, 2019, Ramirez filed a pro se motion to dismiss, alleging, among other things, that his speedy trial right had been infringed. The circuit court held a hearing to address Ramirez’s motion to dismiss on June 17 and denied it. On December 3, 2019, the jury trial began and Ramirez was convicted. Ramirez filed a postconviction motion to vacate the judgment of conviction and dismiss the case, alleging the 46-month delay in bringing him to trial after charges were filed violated his constitutional speedy trial right. The court denied Ramirez’s motion, and Ramirez appealed. On balance, the court of appeals decided Ramirez’s speedy trial right was violated. The court acknowledged the State did not deliberately seek to delay the trial, defense counsel did not object to the State’s requests for continuances, and Ramirez was “somewhat delayed” in asserting his right to a speedy trial. On the other hand, the court claimed that 46 months was “the longest total delay in any published constitutional speedy trial case in Wisconsin,” more than 31 months of the total delay was attributable to the State, and the State failed to explain sizable portions of the delay attributed to it. Additionally, the court noted that Ramirez asserted his speedy trial right twice, did not deliberately seek delay, and it took the State 14 months after Ramirez’s initial assertion to finally bring him to trial. Guts The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution. The United States Supreme Court has pronounced a four-factor balancing test (the Barker test) to determine whether a speedy trial right has been violated. Those factors include (1) the overall length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the speedy trial right, and (4) prejudice to the defendant. Like any balancing test, it requires the court to consider the totality of circumstances particular to the case. *** Based on the overwhelming weight of both binding and persuasive authority, the delay in this case—46 months—was considerably less than what courts generally require before finding prejudice as a matter of law. Even if the length of Ramirez’s delay was, as the court of appeals put it, “extreme”, it should not have been weighed “heavily” against the State until the other Barker factors—the reasons for the delay, whether the defendant asserted his speedy trial right, and whether the defendant experienced any prejudice from the delay—were considered. *** Delays attributable to the State are not limited to delays caused by the prosecution, and can include delays attributable to the court system itself. Delays attributable to the State are categorized as valid, neutral, or deliberate. A delay caused by the State for a “valid” reason is not weighed against it. Valid reasons for delay are those considered “intrinsic to the case itself,” such as adjournments required for competency evaluations or the absence of an essential witness. Periods of delay explained by neutral reasons are weighed against the State, but not heavily. Neutral reasons include the State’s negligence, overcrowded courts, inadequate judicial resources, and mounting caseloads. Periods of delay caused by deliberate or bad-faith conduct are weighed heavily against the State. *** … (W)e need not scrutinize every period of delay attributed to the State by the court of appeals. It is clear from the facts that, at worst, the periods of delay caused by the State were for neutral reasons. Consequently, we weigh the second Barker factor against the State, but not heavily. A defendant’s assertion of the speedy trial right is “entitled to strong evidentiary weight,” because it “is in itself probative of prejudice.” Although a defendant cannot waive his right to a speedy trial by failing to assert it, the “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” A defendant’s “delay in demanding a speedy trial will be weighed against him.” In this case, Ramirez’s delay in requesting a speedy trial was significant. Ramirez made his first pro se speedy trial request on September 26, 2018, nearly 32 months after charges were filed against him. On April 15, 2019, Ramirez filed a pro se motion to dismiss, in which he again asserted his right to a speedy trial. Ultimately, it took the State just over 14 months to bring Ramirez to trial after his first speedy trial request. Ramirez requested a speedy trial, which should weigh against the State. Because of the significant delay in asserting his speedy trial right, however, we weigh Ramirez’s assertion of the right only slightly in his favor. We consider three interests in assessing whether a defendant suffered prejudice due to a prolonged delay before trial: oppressive pretrial incarceration; anxiety and concern; and the possibility the defense will be impaired. In Barker, the third interest was described as “the most serious.” However, the Court has also described the impairment of liberty as a “core concern” of the Sixth Amendment’s speedy trial protections. Ramirez was unable to establish any one of those three interests. While a defendant already incarcerated for a separate crime may be able to show he suffered prejudice in fact from a prolonged delay, Ramirez does not even argue this point on appeal, and the trial court rejected Ramirez’s generalized claims of anxiety and stress. Ramirez mainly contends he suffered prejudice as a matter of law simply from the length of the delay itself. While “the presumption that pretrial delay has prejudiced the accused intensifies over time,” even the most generous reading of the facts favoring Ramirez— 958 days of neutral reasons for delay—alone does not warrant dismissal. We conclude the prejudice factor does not weigh in Ramirez’s favor. The paragraph and footnote that Dallet and Karofsky did not join discussed Walsh Bradley's concurrence.  Walsh Bradley Walsh Bradley Concurrence In view of the specific facts of this case, I agree with the majority that Ramirez’s speedy trial claim is ultimately unsuccessful due to his 32-month delay in asserting his speedy trial right and his failure to persuade that the remaining 14-month delay on its own constitutes a constitutional violation. However, I write separately because the majority creates a precedent that is too exacting on defendants seeking to demonstrate a speedy trial violation. Indeed, under the majority opinion’s analytical shortcut, it is difficult to imagine any determination of a speedy trial violation absent a delay of over six years or intentional dilatory tactics by the State. Especially in the current moment and considering the systemic challenges we face, such a result is untenable. *** Even though the majority correctly states the dual role of the first factor, this appears to be mere lip service. As the court of appeals observed, this case represents “the longest total delay reflected in any published constitutional speedy trial case from Wisconsin” in the last 50 years. Nevertheless, the majority casts aside the 46-month delay as “generally not long enough to declare a defendant prejudiced as a matter of law.” *** Is the majority creating a bright-line rule that anything under five to six years is not prejudicial? If so, that would appear to run counter to the United States Supreme Court’s instruction that speedy trial analyses must be conducted on a case-by-case basis. Indeed, “any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case.” And if so, why draw the line there? In addition to being excessively long, a period of five to six years is wholly arbitrary. Why not four years? Why not three? This makes a mockery of the word “speedy.” Despite the significant length of the delay, the majority still says, “no matter,” because the reasons for the delays were “neutral.” It says that delays fall into one of three categories, “valid, neutral, or deliberate,” and then are “weighed accordingly.” Consequently, in contrast to the court of appeals’s thorough approach, which splits up and examines each time period of delay to determine the cause and attribution, the majority opinion states in a conclusory manner that “we need not scrutinize every period of delay attributed to the State by the court of appeals.” *** I fear that the rule arising from the majority’s analysis appears to be that as long as the delays are at least for “neutral” reasons, then there cannot be a speedy trial violation. Yet, delays caused by “neutral” reasons can drag on and on and on and on and on. *** In 2022, the state public defender opined that it would “take several years to clear a backlog of roughly 35,000 cases because of a shortage of public defenders.” In Wisconsin’s vast rural areas, especially in the northern part of the state, the problem has reached crisis levels. Although the data is admittedly at least seven years old, an article published in 2018 describes how “[o]ver 60% of the state’s attorneys practice law in major urban areas, leaving some counties in rural Wisconsin with attorney-to-resident ratios as high as 1:4,452.” In comparison, the statewide ratio is about 1:389. Additionally, the population that is practicing law in the rural north is rapidly aging. As of 2018, “[a]cross the northern half of the state, only six of the forty attorneys in Vilas County are under the age of fifty, and Florence and Pepin counties have no lawyers under fifty. Oconto County has two, and no new attorneys have moved into the county in the last decade.” In total, as of that time, “[n]ine counties in northern Wisconsin ha[d] ten or fewer active attorneys.” Although this data is now seven years old, the problem has certainly not abated. In fact, it has only worsened. As of 2024, the number of active attorneys in Wisconsin had dropped four percent over the last four years, while the number of attorneys in rural Wisconsin had plummeted by seven percent. Eight counties have no certified private bar attorneys to take cases when the state public defender cannot represent a defendant. Such a shortage “not only impacts the constitutional rights of defendants—it also affects victims and our communities.” Despite intervening attempts to address the root causes of the shortage, the problem persists. The shortage of lawyers in rural areas is a systemic problem, not an intentional one, putting it at risk of being termed “neutral” in the parlance of the majority’s speedy trial analysis. It is possible that a defendant could spend months or even years awaiting the appointment of an attorney, a necessity for any trial, much less a speedy one. And as the majority opinion demonstrates, when a delay is termed neutral, good luck to a defendant in succeeding on a speedy trial claim.  Dallet Dallet Concurrence Although I agree with and join nearly all of the majority/lead opinion, I do not join paragraph 37 and footnote 6. These portions of the opinion, which levy criticism against Chief Justice Ann Walsh Bradley and her concurrence, are unnecessarily dismissive and adversarial in tone, and they detract from what is otherwise a well-written and well-reasoned opinion. In our opinions, as in life, we must strive to disagree without being disagreeable. Because the majority/lead opinion fails to do so, I respectfully concur.  Karofsky Karofsky Concurrence
I agree with the majority opinion and join it. I write separately, however, to emphasize that our constitution and statutes require a court to balance the rights of victims alongside those of the State and defendants in speedy trial cases. . . . . In Barker v. Wingo, the United States Supreme Court set forth a four-part test to assess whether a defendant’s constitutional speedy trial right has been violated. Under Barker, a court balances (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the speedy trial right, and (4) prejudice to the defendant. "[N]one of the four factors identified above a[re] either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." (Emphasis is Karofsky's.) *** Concurrent to the rights of a defendant, our constitution and statutes guarantee each victim a range of rights, which are to be protected “by law in a manner no less vigorous than the protections afforded to the accused.” The importance of protecting a victim’s rights is echoed again in a statute: “[T]he rights extended in this chapter to victims and witnesses of crime are honored and protected by law enforcement agencies, prosecutors and judges in a manner no less vigorous than the protections afforded criminal defendants.” (Emphasis is Karofsky's.) The Wisconsin Constitution provides that a victim is to “be treated with dignity, respect, courtesy, sensitivity, and fairness.” These rights are consistent with the federal Crime Victims’ Rights Act, and are mirrored in most states. Under the constitution, a victim also has a right to a timely disposition that is protected from “unreasonable delay.” These rights, echoed in our statutes, protect a victim from the stress of unresolved matters. This makes sense: a “lengthy pretrial delay might force a victim of violent crime to continually relive the trauma of the crime in trial preparation . . . .” When a court is deciding whether to grant a motion for a continuance or a motion for a dismissal, it needs to consider the victim. In the context of a motion for continuance, a court should consider that a victim’s right to “[f]airness requires, for example, that the victim be given the opportunity to be heard on the matter of a delay requested by the defendant, especially in light of the victim’s right to proceedings free from unreasonable delay.” A court must also ensure a victim has been consulted and heard prior to granting a motion for dismissal. The rights afforded to a victim are not at odds with the Barker test. Instead, these rights reflect additional considerations to be weighed by a court, so that a victim’s rights are protected alongside the State’s and a defendant’s rights. A court tasked with analyzing speedy trial cases needs to balance the constitutional and statutory rights of all involved. As it relates to Barker’s “difficult and sensitive balancing process” a court must consider the crime victim. The four factors of Barker cannot be treated as talismanic; a victim’s rights must always be part of any judicial balancing. By Alexandria Staubach
The Milwaukee Police Department’s executive staff fielded more than 60 questions over nearly three hours from members of the Milwaukee Common Council and its Finance and Personnel Committee last week regarding the MPD's $310 million proposed budget allocation. Department salaries alone cost $195 million. But the bulk of conversation wasn’t specific line items or costs. Rather, the conversation focused on what MPD is doing and the places council members saw room for improvement. The use of emerging technologies loomed large as did the department’s controversial use of facial recognition technology (FRT). Artificial intelligence "is a force multiplier,” Chief Jeffrey Norman said on more than one occasion as the conversation roamed around new and proposed tools. Not all council members were in lockstep around increased use of technology, especially when it came to additional surveillance. Alderman Peter Burgelis questioned whether placing more cameras at intersections would do any good without enforcement of the laws already on the books to identify the cars that cameras are designed to capture. Burgelis was referencing SB375/AB371, fast-moving legislation that would permit 75 red-light cameras to be placed across Milwaukee. Burgelis compared MPD’s low citation rate for failure to display plates—fewer than 200 citations in 2024—to the more than 12,000 tickets written by the Department of Public Works for the same offense. “We as a department can hold ourselves responsible for what we can enforce more,” said Norman in response to Burgelis. Facial recognition technology loomed large in the conversation. Several alderpersons shared concerns about the deployment of federal officers as close as Chicago. “It’s not just in California,” said Alderwoman Marina Dimitrijevic, who called out a letter she helped author to Norman earlier this year in which a supermajority of the council opposed the use of facial recognition technology by the department. (That opposition was shared by the Mayor’s Equal Rights Commission.) Norman compared use of FRT to his department’s use of police pursuits. You’re “damned if you do, damned if you don’t,” he said. Norman said his department is still interested in the technology and alluded to current use in only the direst and time-sensitive cases. But he also said the department was using the public-facing conversations with the Fire and Police Commission and Equal Rights Commission to “understand how do we use the proper bumper guards and rails.” Dimitrijevic reiterated her hope in the current climate “to at least pause,” while Alderman Scott Spiker said there has not been a “sober conversation” about this technology as a city. Other generative AI tools discussed included software called “Draft One,” developed by Axon, which produces initial drafts of police reports from the audio of body-worn camera footage. Spiker highlighted its use in Minnesota cities and proposed that its implementation could reduce some of the additional paperwork burden often cited by MPD as resulting from a legal settlement. Spiker suggested they might be able to have fewer “cops behind desks” with Draft One but acknowledged that staffing mandates imposed by Act 12 wouldn’t permit the reallocation of salary funds to pay for the technology. Assistant Chief of Police Craig Sarnow said the department had considered using Draft One, but rolling it out would likely involve a test period on felonies and would require buy-in of the district attorney. Sarnow also highlighted its hefty price tag. Another topic of conversation was that only 63% of sworn officers live in the city of Milwaukee. A recent Fire and Police Commission survey cited crime as a primary reason male officers live outside the city and education as the primary reason female officers live outside the city. Milwaukee police officers are required to live either within city limits or within 15 miles of the city’s boundary. Alderman José Pérez noted that while on paper crime is down, “people in my neighborhood don’t feel that.” “I think there’s a lot of criminal nuisance behavior that we’re not measuring,” he said. In its presentation, MPD highlighted its priority areas for 2026: sustained efforts to ensure compliance with Act 12 hiring mandates; community relations; youth engagement; enhancing public safety; AI integration “digital trust”; employment of drones as first responders; virtual academy training; vehicle pursuit mitigation; and identifying roles that can be transitioned from sworn to civilian. As for the amount of the proposed MPD budget, while that number is $4 million short of the department’s 2025 allocation, it still far exceeds allocations to every other department. The next largest sum goes to water works ($167 million). "Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is.  Name: Benjamin R. Jones
Appointed to: Dane County Circuit Court Appointment date: May 23, 2025, to a term ending July 31, 2026 Education: Law School – University of Wisconsin-Madison Undergraduate – University of Wisconsin-Madison High School – John F. Kennedy High School, Bloomington, Minnesota Recent legal employment: April 2017-present – Chief legal counsel, Wisconsin Department of Public Instruction, Madison, Wisconsin June 2012-April 2017 – Associate attorney, Weld Riley, S.C., Eau Claire, Wisconsin Bar and administrative memberships: State Bar of Wisconsin General character of practice: I currently serve as chief legal counsel for the Wisconsin Superintendent of Public Instruction (SPI) and Department of Public Instruction (DPI). In that role, I supervise a staff of attorneys, investigators, and support staff within the DPI Office of Legal Services. I provide legal advice to the State Superintendent, appointed officers, directors and staff in all areas of the law applicable to a large state agency. I appear for and represent the DPI in administrative hearings and, when necessary, circuit and appellate court. I draft, review, and interpret proposed legislation and administrative rules. I also review and adjudicate appeals submitted to the SPI, including expulsion decisions, pupil discrimination appeals, School District Boundary Appeal Board decisions, statutory waiver requests, and all other administrative appeals. Describe typical clients: My client is the Wisconsin Department of Public Instruction, led by the Wisconsin Superintendent of Public Instruction. In private practice, I specialized in school law and labor and employment law. My typical clients were local government agencies, including school districts, counties and municipalities, as well as large private employers. Number of cases tried to verdict: Numerous administrative hearings in private practice and on behalf of DPI. List up to three significant trials, appeals, or other legal matters in which you participated as a judge or lawyer in the past seven years: Koschkee v. Evers, 2018 WI 82; Koschkee v. Taylor, 2019 WI 76 Petitioners, represented by the Wisconsin Institute for Law and Liberty, filed an original action petition with the Wisconsin Supreme Court seeking a declaratory judgment that the Department of Public Instruction (DPI) and the Superintendent of Public Instruction Tony Evers (SPI) were required to comply with 2017 Wisconsin Act 57, known as the "REINS Act." The Act requires the governor to approve all administrative rules proposed by the SPI before promulgation. The SPI argued that Article X of the Wisconsin Constitution prohibits any other officer from being in a superior position of authority in the supervision of public instruction, so that the governor cannot have veto authority over the SPI's proposed rules. I was primary counsel for the SPI and DPI from the time the original action petition was filed in November 2017 until the court's decision in 2019. After the petition was filed, Governor Scott Walker ordered the Department of Justice (DOJ) to represent the SPI and DPI. The SPI and DPI intended to argue the REINS Act was unconstitutional as applied to the SPI. But the DOJ disagreed and informed the SPI and DPI that the DOJ would advance the opinion of the Attorney General, arguing that the REINS Act was constitutional as applied. The DPI and SPI filed a motion to deny substitution of counsel and to disqualify the attorney general from appearing on behalf of the DPI and SPI. The DOJ filed a cross-motion to strike myself and then Chief Legal Counsel Ryan Nilsestuen from the case. I drafted the brief in support of the motion and represented the SPI and DPI at oral argument before the Wisconsin Supreme Court. The court held that the SPI and DPI must be allowed counsel that would represent their position, recognizing there were ethical implications for attorneys that fail to represent the position of their client, and that the Attorney General did not have power to act as a gatekeeper as to whether a constitutional officer could defend their authority in court. Following the court's decision, I continued as primary counsel as the case proceeded to a decision on the merits. In first accepting the original action petition, the court implied it was likely to overturn its prior case decided on identical facts in Coyne v. Walker, 2016 WI 38 . . . . However, while the court ultimately determined rulemaking authority was a legislative power that the legislature could constrain as it saw fit, the court upheld the superiority of the SPI's vested constitutional executive authority. As determined in Thompson v. Craney, 199 Wis. 2d 674 . . . the SPI remains in a superior position to all other officers in the supervision of public instruction. Experience in adversary proceedings before administrative bodies: I have represented clients in front of the Equal Rights and Unemployment Insurance Divisions of the Department of Workforce Development, the Wisconsin Employment Relations Commission, and in front of administrative law judges for appeals filed under Wis. Stat. s. 227.42. I have also represented clients under investigation by the Equal Employment Opportunity Commission and the Occupational Safety and Health Administration Describe your non-litigation experience (e.g., arbitration, mediation). In private practice, I represented local governmental units in collective bargaining and all areas of employment, municipal, and administrative law. I have represented clients in multiple mediations involving discrimination complaints, wage and insurance disputes, and contractual disputes. I currently advise the Wisconsin Superintendent of Public Instruction and the Department of Public Instruction on all areas of law applicable to a state educational agency. Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: None listed Previous runs for public office: None listed All judicial or non-partisan candidates endorsed in the last ten years: None listed Professional or civic and charitable organizations: Wisconsin School Attorneys Association, 2012-present National Association of State Directors of Teacher Education and Certification, 2017-present National Council of State Education Attorneys, 2017-present Chippewa Valley Society for Human Resource Management, director of Legal and Legislative Affairs, 2014-2017 American Red Cross Northwest Wisconsin, board member, 2014-2017 Significant pro bono legal work or volunteer service: In law school, I volunteered with the IRS Volunteer Tax Assistance program to offer free basic tax return preparation for low income tax filers. I also tutored middle school students in the Goodman Community Center while in law school. In private practice, I volunteered as the Director of Legal and Legislative Affairs for the Chippewa Valley Society for Human Resource Management and as a board member of the American Red Cross Northwest Wisconsin Chapter. Why I want to be a judge: I have committed my professional life to public service. As a judge, with the skills I have demonstrated and refined during my legal career, I will advance equity and justice for the people of Dane County and Wisconsin. I first realized how highly I value public service while representing school districts in private practice. Almost universally, every individual I interacted with in my representation of schools wanted to do their best to improve the lives of children and the broader community. By extension, I knew that my work to counsel schools served a greater public good. That focus on the public good drew me to leave private practice to represent the State Superintendent of Public Instruction (SPI) and the Department of Public Instruction (DPI). When I began working for then Superintendent Tony Evers in 2017, Wisconsin public education had been under assault for years. Superintendent Evers stood firm in his defense of Wisconsin public schools, the importance of advancing equity in education, and his belief that government played a necessary role in improving peoples’ lives. The legal issues that arose in that environment were novel, complex, and often high stakes. At one point, I successfully argued in front of the Wisconsin Supreme Court that Superintendent Evers must be able to pick his own attorney to defend his office’s constitutional authority. Under these difficult circumstances, my work was and continues to be meaningful and rewarding knowing that the focus is on what is best for children and Wisconsin. As my commitment to public service has grown, so has my understanding of my strengths and competencies as an attorney. In my work as chief legal counsel, I advise the SPI and DPI on all areas of the law and within a broad range of contexts. On any given day, I may meet with our licensing team to discuss a teacher accused of sexual misconduct with a student, discuss with the deputy superintendent whether a school district provided a student with due process, strategize with the school voucher team to defend against accusations of improper rulemaking, or any number of unique legal issues. Each task requires diligent preparation, an ability to quickly identify relevant facts, a nuanced understanding of how the relevant law applies, an understanding of the SPI’s vision, and the anticipation of political ramifications. Above all other considerations, my work requires a deep understanding that my legal advice will have real-life impact on students, families, and their communities. To make sure that impact is equitable and positive, I am constantly vigilant for any prejudice or bias in my own work or the work of the DPI. For example, I have reformed the DPI’s teacher licensing and pupil nondiscrimination appeal processes to incorporate data, reduce subjectivity, and ensure these processes serve all children. My ability to quickly and completely distill relevant information and apply the law while actively working to eliminate bias and incorporate all relevant context into my decision making will make me an effective and impactful judge. Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin. The case that had the most significant impact on the people of Wisconsin is Dobbs v. Jackson Women's Health Org., 213 L. Ed. 2d 545, 142 S. Ct. 2228 (2022). This case illustrates the negative outcomes that result when justices adjudicate in a self-imposed vacuum, stripping out the nuance necessary to render reasoned and just decisions. A majority of the Court in Dobbs decided to eliminate the constitutional protections recognized in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The Court in Roe recognized that a state can regulate abortion in many ways, but a women’s right to choose prior to viability is where the Constitution limits state interference. The Roe Court came to that conclusion in large part because it considered the context of the procedure, how it impacts women’s lives and freedoms, how interference in the decision involves an extreme invasion of privacy, and that ultimately what is at stake is a woman’s control over her own body and medical care. The Court’s analysis in Dobbs simply disregards that context in favor of what white men thought was proper in the 1800s. That willful ignorance leads to the predictable consequences women across the country now experience. A state can impose its own choice on a woman whose doctor detects severe birth defects in a not-yet-viable fetus, a woman who does not have the financial security to care for a child, a woman whose rape caused her pregnancy, or a woman who simply does not want to have a child. And the impacts are disproportionately severe on historically marginalized communities, particularly women of color. The impact of this Court’s opinion will not stop at women’s reproductive rights. The Dobbs majority attempts to isolate the issue of abortion because it involves a “profound moral question.” In his concurrence, Justice Clarence Thomas reveals how thin the majority opinion’s assurance is by concluding the Due Process Clause does not secure “any substantive rights.” This threatens constitutional protections for privacy, marriage, and consensual relationships, protections the public may no longer be able to take for granted. Dobbs also weakens stare decisis. The Roe decision stood for fifty years. Though the circumstances and rationale articulated by the Roe court remain as relevant today, Dobbs disregarded this precedent and severely undermined the integrity of the Court. If the composition of the Court is now what defines a fundamental constitutional right rather than precedent, then how is the Court any different than a legislative body? Does the Court now simply represent the political majority, rather than defend the constitutional rights of everyone, particularly those without the power to defend themselves? The Dobbs majority sacrificed the integrity of the Court in order to strip fundamental liberties from women. With a severe and immediate negative impact on Wisconsin women and their families that will continue to be felt for years to come, Dobbs is the worst decision for the people of Wisconsin in at least the past 25 years. Two or three judges whom I admire and why: Sonia Sotomayor I admire Justice Sonia Sotomayor for her judicial philosophy. She has described her philosophy as “fidelity to the law”, which can mean different things to different people. To Sotomayor, that means that the law must be considered in context and as applied to real people. This can contrast with the approach of other justices. For example, in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 127 S. Ct. 2738, 168 L. Ed. 2d 508 (2007), Justice John Roberts asserts that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This might make for a catchy sound bite, but it ignores the entire history of racism in this country and how it continues to shape modern institutions and society. Instead, “fidelity to the law” is better described by Justice Sotomayor, who said in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary, “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” 572 U.S. 291, 381, 134 S. Ct. 1623, 1676, 188 L. Ed. 2d 613 (2014) (Sotomayor, J., dissenting). This philosophy guides my own approach to the law. The law should be considered within the full relevant history and context of American experience, so that it can serve real people. Ann Walsh Bradley I admire Ann Walsh Bradley for her preparation, insight, and judgment when applying the law. These qualities were apparent to me when I argued in front of the Wisconsin Supreme Court. Justice Bradley asked meaningful, relevant questions that struck at the heart of the matter in question. She had clearly studied the briefs and understood the legal question in front of the court and the applicable facts, and had a nuanced understanding of the parties’ arguments. Beyond her own understanding, her questions and responses indicated an equal understanding of her colleagues’ opinions and concerns. She asked questions not just to confirm or announce her own thoughts, but to assist her colleagues’ understanding of the law. As an advocate, I felt understood and respected, which should be an objective of every judge or justice hearing a case. Richard Niess I admire former Dane County Circuit Court Judge Richard Niess for his ability to command a courtroom through a combination of attention, empathy, humor, and decisiveness. I interned for Judge Niess during law school and also argued a motion in front of Judge Niess while representing then Superintendent Tony Evers. Like Justice Ann Walsh Bradley, Judge Niess was always well prepared, actively engaged with litigants to ensure they knew they were heard and understood, disarmed difficult conversations with dry – and appropriately restrained – humor, and was sincere in every word he said in court. As a judge, I hope to pattern my own demeanor and philosophy off of these esteemed and accomplished jurists. The proper role of a judge: The proper role of a judge is as a public servant. As a public servant, a judge should be humble, understanding that ego and pride only interfere with a judge’s obligation to the public. A humble judge is able to allow the attorneys in a case to educate the judge on the issues relevant to the case. Similarly, a judge should have the appropriate temperament to be able to effectively communicate with counsel, the parties, jurors and witnesses, and to effectively consider all relevant information and deliver an appropriate disposition. This is much easier said than done, particularly when disputes involve matters of immense importance to the litigants, intense emotions, high stakes, and an often long and difficult case history. I know how difficult these kinds of interactions can be, because I engage with them on a regular basis in my role with the Department of Public Instruction. I communicate with students who have been victims of sexual assault or grooming at the hands of teachers, families who are appealing an expulsion decision, and community members concerned with a school district’s adoption of a controversial new policy. These are all conversations that require patience, an even temperament, empathy, courtesy, active listening, and the ability to then clearly articulate how the law applies to those concerns. I am well tested and confident in my ability to effectively navigate these difficult conversations, including in a courtroom. A judge must actively strive to be an objective decision maker, to ensure the judge’s decisions are equitable and advance justice. This requires effort and constant attention. In my current representation, I am constantly examining my advice and decision making for bias, developing systems that reduce subjective analysis to reduce or eliminate that bias. In the same way, judges should examine the system of justice they are a part of to identify bias, and work to develop systems, policies, and strategies to eliminate those biases. A judge has to be aware they are a judge, both while on the bench and off. A judge is a high profile public figure and must represent the bench at all times. That judge must be committed to the independence and integrity of the bench, avoiding conflicts of interest, upholding the highest ethical expectations, ensuring the public’s confidence in the judge and the judiciary by extension. A judge must also be an actively engaged member of their community, to best be able to understand the concerns and challenges members of that community face in their lives. Without an understanding of the community, it is easier to disregard the real impact that decisions have on members of that community. That connection allows for empathy, understanding, and better- informed decisions to advance justice. Finally, a judge must be accountable. A judge should accept that they can be wrong, which allows a judge to maintain an open mind when hearing disputes and maintain the public’s confidence that the judiciary is committed to the rule of law, rather than the egos and pride of individual judges. By Alexandria Staubach
Legislation in response to the temporary suspension of Milwaukee County Circuit Court Judge Hannah Dugan quietly made its way through public hearing and voting in the Assembly’s Judiciary Committee. Bill AB380/SB381 would require judges who are suspended for misconduct to receive no pay. However, the law would not apply retroactively. So whether or not it passes, it will not apply to Dugan. The bill passed out of committee on Oct. 1 on a party-line vote: four Republicans for and three Democrats against. The Wisconsin Supreme Court in April suspended Dugan, who was charged criminally in federal court for allegedly helping an undocumented immigrant evade federal law enforcement. In doing so, the court invoked its “superintending and administrative authority over all courts in the state.” The Supreme Court did not impose additional sanctions or conditions beyond the temporary prohibition on Dugan from exercising the powers of a circuit court judge. She continues to be paid. At the public hearing on the bill on Sept. 25, Rep. Andrew Hysell (D-Sun Prairie) highlighted that the bill may not address the conduct that its proponents seek to censure. He pointed out that if a judge was subsequently found innocent, there was no mechanism to redress backpay. Hysell is one of the few attorneys in the Legislature, The bill was then amended to permit back pay from the date of suspension if ultimately the Supreme Court imposes no discipline on a judge and to clarify that the temporary suspension must be for criminal misconduct. The bill appears aimed at Dugan's actions rather than any wider issue that the Legislature otherwise would have addressed. In written testimony, bill sponsor Rep. Shae Sortwell (R-Two Rivers) said that “Wisconsin taxpayers must be protected from the misconduct and/or commission of a crime by rogue judges.” At the public hearing and before the committee vote, Sortwell focused on Dugan’s specific case. He characterized her suspension as a “taxpayer-funded vacation” and said he found it “mind-boggling . . . that some people are OK with judges helping criminals escape law enforcement officers.” He said he thought the Supreme Court was “obviously predisposed to be more favorable of the actions of Judge Dugan for their policy positions.” Judicial suspensions are rare. Legislative materials associated with the bill indicate only 15 judges have been suspended since 1978. The Senate’s version of the bill has been referred to its Committee on Judiciary and Public Safety and has not yet been scheduled for public hearing. Jury selection in Dugan's case is set to begin Dec. 11. |
Donate
Help WJI advocate for justice in Wisconsin
|
RSS Feed