By Gretchen Schuldt

​Mark Fritz could not find a job as a teacher after the State Department of Public Instruction posted on its public website that he was "under investigation" for immoral conduct.

He couldn't find out what was in the report, which was submitted by the Racine Unified School District. DPI wouldn't tell him.

This went on for 17 months.

Then, shortly after he hired a lawyer and demanded a hearing, DPI cleared his name and removed it from public purgatory. 

And now the Seventh Circuit Court of Appeals has ruled that Fritz's due process rights were not violated.

In a concurrence, though, U.S. Circuit Judge David Hamilton suggested the state may face due process problems in the future. The public identification of a teacher under investigation for immoral conduct can render that teacher unemployable until the investigation is resolved, he said.

"If that’s correct, the teacher may well be entitled at least to notice of the charge being investigated and a name‐clearing hearing – and within a reasonable time," he wrote.

Fritz resigned from his teaching job in March 2012. He learned later that month, and only when he was turned down for another job, that DPI had listed him as "under investigation."

State law requires DPI to "post on the department's Internet site the name of the licensee who is under investigation" if a complaint is made against an individual.

"For the next 17 months, he was in legal limbo: he was practically un‐hirable, yet he was un‐ able to discover why he was under investigation, and had no idea when it might end," Hamilton wrote.

Wisconsin Administrative Code requires DPI to notify the person under investigation of the specific allegations and allow that person a chance to respond, he said.

"Fritz alleges here that he did not receive the required notice," Hamilton said. "As a result, Fritz was in limbo indefinitely and did not know why."

By Gretchen Schuldt

​The fraud conviction of a man who tried to win a fishing contest by entering a salmon with a one-pound weight hidden inside was upheld Tuesday by the State Court of Appeals.

"While (Michael A.) Cefalu initially suggested that the fish might have swallowed the weight from the bottom of Lake Michigan, multiple witnesses testified at trial that salmon are not bottom feeders," the three judge District III appeals court panel said in an unsigned opinion. "In addition, multiple witnesses – each of whom had cut open a significant number of fish—testified they had never encountered a fish with a similar weight inside."

It also was clear from the lack of a hole in the weight to accommodate fishing line that the weight never had been used for fishing.

The appeals panel's decision upheld rulings by Door County Circuit Judges Peter C. Diltz and David L. Weber, who presided over the trial and sentenced Cefalu, respectively. 

The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.

Cefalu is a charter fishing boat captain in the Door County area and has more than 30 years experience, the panel said in its opinion. He tried to enter the weighted fish in the Kewaunee / Door Salmon Tournament, which awarded $10,000 in cash and $1,500 worth of other prizes to the first-place finisher. 

By Margo Kirchner

​​Defense attorneys are failing their clients if they neglect to understand, investigate, and present evidence of childhood trauma in criminal cases, says a legal and neuroscience expert.
 
Deborah W. Denno, a professor and founding director of the Neuroscience and Law Center at Fordham University School of Law, spoke last week at Marquette University Law School. 
 
Denno obtained her law degree and a Ph.D. in sociology from the University of Pennsylvania and has taught at Fordham Law, the London School of Economics, Columbia Law School, and Princeton University.
 
She visited Marquette Law to give the annual Barrock Lecture on Criminal Law, presenting her research and conclusions about the use of childhood-trauma evidence in adult criminal cases.
 
Denno studied criminal cases reported nationwide, investigating how defense attorneys introduced and how courts assessed the mitigating and aggravating impacts of neuroscience evidence.  Neuroscience is the branch of life science focusing on the brain and nervous system.
 
Denno researched written court decisions reported in the online legal databases Westlaw and Lexis from 1992 to 2012. She found 800 criminal cases involving neuroscience evidence. She reviewed those and then narrowed her focus to the 266 cases involving childhood trauma.
 
Denno acknowledged that written opinions reported in Westlaw and Lexis are predominantly from appellate courts, so her research similarly involved mostly appellate court decisions. Further, almost all of the 266 cases she reviewed in depth were homicide cases, and most involved the death penalty.

She looked particularly at the types of childhood trauma defendants had suffered, conditions caused by or related to the trauma, how evidence of the trauma or conditions was presented to courts, and the courts’ responses. From the 266 cases she identified 20 types of trauma, which she grouped as either family, developmental, or external trauma. On average, each defendant in the 266 cases had suffered five different types.

By Gretchen Schuldt

​Holding preliminary hearings without legal representation for poor defendants was "the practice" in Wood County when a defense lawyer wasn't immediately available, an assistant public defender told a reserve judge in March.

A second preliminary hearing could be held when a lawyer was eventually found, attorney Michael Scarantino explained to Reserve Judge Frederic Fleishauer, according to a transcript of the hearing.

The Sixth Amendment to the U.S. Constitution guarantees defendants in criminal cases the right to effective counsel. The Wisconsin Supreme Court has specifically ruled that defendants are entitled to counsel at preliminary hearings. The U.S. Supreme Court also has ruled that defendants are entitled to counsel at their "prelims."

There hearings are held to determine whether there is enough evidence to bind a defendant over for trial.

Defense attorney Hank Schultz, a past president of the Wisconsin Association of Criminal Defense Lawyers (WACDL), said it is "unconscionable that anyone in this system would condone proceeding without an attorney," especially after one had been requested.

Harm done to an unrepresented defendant during a preliminary hearing "can't be undone even if you have a second preliminary hearing," he said.

By Gretchen Schuldt

Milwaukee County Circuit Judge Janet Protasiewicz in January will assume the homicide / sexual assault caseload now assigned to Circuit Judge David Borowski, who will move to misdemeanors, Chief Judge Maxine White announced last week.

Borowski recently was involved in a controversy over a contempt of court finding he made against Assistant State Public Defender Puck Tsai, a finding that sparked outrage among the defense bar and that Borowski ultimately vacated.

Borowski will take over the calendar of Circuit Judge Jean M. Kies, who will oversee the misdemeanor / domestic violence court that now belongs to Circuit Judge Mary Kuhnmuench, who is retiring.

The changes take effect Jan. 7.

Other rotatations announced by White:

• Circuit Judge Clare Fiorenza will assume the family court calendar now assigned to retiring Circuit Judge Richard Sankovitz.
• Fiorenza's current civil calendar will go to Circuit Judge Carl Ashley.
•  Circuit Judge Cynthia Davis will assume Ashley's drug treatment / deferred prosecution court calendar.
• Davis' misdemeanor and domestic violence calendar will go to Circuit Judge David Feiss.
• Circuit Judge Lindsey Grady will take over Protasiewicz's felony drug calendar.
• Reserve judges will assume the Children's Court calendars now held by Feiss and Grady.

By Gretchen Schuldt

​Milwaukee County Circuit Judge David Borowski on Friday vacated a contempt of court order he issued against defense attorney Puck Tsai and recused himself from the criminal case against Tsai's client.

The order, drafted by Paige Styler, a lawyer with the State Public Defender's Office, says simply, "The contempt of court finding ordered on October 26, 2018 against attorney Puck Tsai in the above-entitled matter was entered in error and is hereby vacated."

Tsai is an assistant state public defender.

"The State Public Defender’s Office (SPD) requested  Judge Borowski vacate his contempt order regarding one of our trial attorneys," SPD said in a prepared statement. "We are pleased that the judge signed that order in a hearing today, noting that the contempt finding was entered in error....We respectfully defer to the judge regarding any questions about an apology."

Borowski declined to comment.

​The judge acted Friday after a hearing that was not even on his calendar as of Thursday afternoon. What was said at the hearing also is not public: "Matter held OFF THE RECORD," said minutes on CCAP, the state's online courts database. 
The case now is assigned to Circuit Judge Mark A. Sanders.

Borowski came under heavy fire from defense lawyers upset that he held Tsai in contempt of court and had him handcuffed and detained in a holding cell. Tsai was brought back to court in chains after a prosecutor – not Borowski or court staff – alerted Tsai's supervisors that he had been detained.

The Wisconsin Association of Criminal Defense Lawyers had criticized Borowski for not following the law when he found Tsai in contempt and called for the judge to apologize or resign.

"We are pleased that Judge Borowski vacated his erroneous contempt of court finding against Attorney Puck Tsai," WACDL President Chad Lanning said Friday. "We were not a party to the court proceedings today and cannot comment on what occurred. WACDL will continue to promote the proper administration of criminal justice, foster and maintain the integrity and independence of the criminal defense bar."

Borowski, in his contempt finding, first said that Tsai, after being cut off in his argument by the judge, was  "rolling your eyes, throwing your hands in the air, acting like I'm some kind of idiot..."

But later, after Tsai was brought back into the courtroom and was represented by attorneys, Borowski said the defense lawyer was "mumbling under your breath about not liking my decision, then when you sat down you – what I perceived as you basically tossing yourself back in your chair like 'oh my God, what the hell is the judge doing increasing Mr. Wilborn's bail.'"

Tsai's client is Marcus Wilborn, charged with vehicular homicide. Wilborn had been released on a signature bond, but was in court because the urine he gave for a drug test was diluted. Dilution may suggest tampering but is not proof of it.

Borowski made clear that he did not think a signature bond was appropriate and granted the prosecutor's request for a $2,500 bond.

Tsai tried to tell the judge there are several reasons a urine test could be diluted, but Borowski cut him off. 

After another unsuccessful attempt to make a point, Tsai said, "Judge, this is – judge, I wasn't able to finish any one complete sentence. That's fine with Your Honor. You know I want to highlight for the court this is a person standing here in front of the court an innocent person." 

"No kidding," Borowski responded. "I get that. Sit down. Counsel, if you don't knock – – deputy, take him into custody for contempt."

Borowski did not allow Tsai an opportunity to allocate before he had Tsai taken away, although a requirement to do so is well-established in Wisconsin.

Tsai was released that day. Wilborn was released the same day, after a second urine test came back clean.

​Borowski did not give Tsai an opportunity to speak before having him incarcerated, even though the right to speak before contempt sanctions are imposed is well-established in Wisconsin. 

The contempt incident occurred during a bail hearing for Marcus Wilborn, who was charged with vehicular homicide. Wilborn had been released on a signature bond, but was in court because the urine he gave for a drug test was diluted. Dilution may suggest tampering but is not proof of it.

Borowski, clearly unhappy that Wilborn was out on a signature bond, agreed with a prosecutor's request to set a cash bail at $2,500. He found Tsai in contempt after Tsai told Borowski that Wilborn was "an innocent person."

"No kidding," Borowski responded. "I get that. Sit down. Counsel, if you don't knock – – deputy, take him into custody for contempt."

The judge continued: "Rolling your eyes, throwing your hands in the air, acting like I'm some kind if idiot gets you locked up for contempt. We'll discuss purge later. In the meantime he sits in custody."

The chaining and detention of Tsai infuriated defense lawyers, who first vented on social media and then, through the Wisconsin Association of Criminal Defense Lawyers, called on Borowski to either apologize or resign.

By Gretchen Schuldt

Whoops! Updated Nov. 7 to correct Milwaukee County referendum language.

Voters supported marijuana legalization in all 18 referendums held around the state Tuesday, sending a strong message to police, prosecutors and policy makers that Wisconsin residents want to see change in cannabis laws.

Even in the City of Waukesha, where Republican Gov. Scott Walker grabbed 58 percent of the vote in his unsuccessful re-election bid, 77 percent of voters approved a medical marijuana referendum.

And in Eau Claire County, just 15 percent of voters said the existing criminal statutes should stay on the books, while 54 percent supported legalizing recreational use for adults.

The referendums are not binding. The Wisconsin Justice Initiative worked with partners around the state to have the measures placed on the ballot.

Other results from around the state, as reported by county websites, are below. Referendum wording is via Marijuana Moment.

Brown County: Should cannabis be legalized in Wisconsin for medicinal purposes, and regulated in the same manner as other prescription drugs?
Yes: 76 percent
No: 24 percent

Clark County: Should the State of Wisconsin legalize the use of marijuana for medical purposes and regulate its use in the same manner as other prescription drugs?
Yes: 67 percent 
No: 33 percent

Dane County: Should marijuana be legalized, taxed and regulated in the same manner as alcohol for adults 21 years of age or older?
Yes: 76 percent
No: 24 percent

Eau Claire County: Should cannabis (choose one):
(a) Be legal for adult, 21 years of age and older, recreational or medical use, taxed and regulated like alcohol, with the proceeds from the taxes used for education, healthcare, and infrastructure in Wisconsin?
Yes: 54 percent

(b) Be legal for medical purposes only and available only by prescription through a medical dispensary?
Yes: 31 percent

(c) Remain a criminally illegal drug as provided under current law?
Yes: 15 percent

Forest County: Should the State of Wisconsin allow individuals with debilitating medical conditions to use and safely access marijuana for medical purposes, if those individuals have a written recommendation from a licensed Wisconsin physician?
Yes: 79 percent
No: 21 percent

Kenosha County: Should the State of Wisconsin allow individuals with debilitating medical conditions to use and safely access marijuana for medical purposes, if those individuals have a written recommendation from a licensed Wisconsin physician?
Yes: 88 percent
No: 12 percent

La Crosse County: Should the State of Wisconsin legalize the use of marijuana by adults 21 years or older, to be taxed and regulated in the same manner that alcohol is regulated in the State of Wisconsin, with proceeds from taxes used for education, healthcare, and infrastructure?
Yes: 63 percent
No: 37 percent

Langlade County: Should the State of Wisconsin allow individuals with debilitating medical conditions to use and safely access marijuana for medical purposes, if those individuals have a written recommendation from a licensed Wisconsin physician?
Yes: 77 percent
No: 23 percent

Lincoln County: Should the State of Wisconsin allow individuals with debilitating medical conditions to use and safely access marijuana for medical purposes, if those individuals have a written recommendation from a licensed Wisconsin physician?
Yes: 81 percent
No:  19 percent

By Gretchen Schuldt

​A police officer who walked briskly to catch up to a man who did not want to talk to him was in "hot pursuit" and so was entitled to enter the man's garage without a warrant, a State Court of Appeals judge ruled this week. 

A police officer went to Steven D. Palmersheim's home after a witness complained that Palmersheim was "all over the road" with his car and that Palmersheim publicly urinated after leaving his car, District II Court of Appeals Judge Mark D. Gundrum wrote.

Gundrum's ruling reversed Waukesha County Circuit Judge Michael J. Aprahamian, who found there was no hot pursuit and granted Palmersheim's motion to suppress evidence.

City of Waukesha Police Officer Richard Young watched Palmersheim walk from his vehicle toward the the garage attached to his house. The garage door was open.

The officer first politely said he wanted to talk to Palmersheim, Gundrum wrote. When Palmersheim did not stop, the officer yelled at him to do so.

Palmersheim turned and looked at the uniformed officer, then turned and continued into the garage.

"The officer 'briskly walked and hustled up to try to catch up' to Palmersheim," Gundrum wrote. 

Palmersheim hit the button to close the garage door, and the officer put his foot in a position to break the beam and the door to retract.

The officer asked Palmersheim to come out of the garage and he did so. He denied driving recklessly or urinating by the vehicle, but the officer saw a "stream" coming from beneath Palmersheim's vehicle that could have been urine.

Palmersheim was arrested for second offense operating while intoxicated and disorderly conduct.

"Upon cross-examination, the officer expressed that by 'briskly walking' toward Palmersheim to prevent him from entering his residence, he was 'chasing' Palmersheim in 'hot pursuit' for urinating in the street," Gundrum wrote. "The officer added that he 'certainly stepped up [his] pace to catch up' to Palmersheim although '[t]he distance wasn’t that far'.”

The officer had enough probable cause to arrest Palmersheim, Gundrum said.

​"Within the particular context of this case, where Palmersheim, as far as we can tell from the record, did not run from the officer but nonetheless continued to steadily advance closer to the escape of his abode, and even attempted to close the garage door, which obviously would have aided his escape, the officer’s pursuit of Palmersheim was 'immediate' and 'continuous' and amounted to a hot pursuit tailored to prevent Palmersheim’s escape under these circumstances," Gundrum wrote.

The definition of "hot pursuit" depends "on the particular circumstances of each case," Gundrum wrote. 

"In this case, there is no indication Palmersheim ran from the officer, so hot pursuit could be accomplished by the officer 'stepp[ing] up [his] pace' to 'briskly walk[ing] and hustl[ing] up' to try to catch Palmersheim," he said. "The officer then stopped the closing of the garage door as part of his pursuit. The manner in which the officer engaged in hot pursuit was appropriately measured to the manner Palmersheim used to try to evade the officer."

By Margo Kirchner​

A federal appeals court last week vacated a $10 million award to employees of Pewaukee’s Waterstone Mortgage Corporation for wage and hour violations because the claimants arbitrated as a group.
 
The Seventh Circuit Court of Appeals, citing the U.S. Supreme Court decision in another Wisconsin-based case involving Epic Systems, of Verona, held that a Waterstone employee’s employment agreement limiting arbitration to a single claimant does not violate the National Labor Relations Act’s protections.
 
Pamela Herrington sued Waterstone in U.S. District Court in Madison, asserting that the company failed to pay her minimum wages and overtime as required by the Fair Labor Standards Act (FLSA).  Under FLSA, claims may be brought as collective actions, meaning that other employees may opt in to the lawsuit.  Herrington filed her case as a collective action and 174 other Waterstone employees eventually joined her case.
 
Herrington’s employment agreement, however, contained an arbitration clause covering employment disputes.  The clause said Herrington’s arbitration could not be joined with or include any claims by others against Waterstone.
 
U.S. District Judge Barbara B. Crabb agreed with Herrington’s argument that any waiver of the right to join the claims of others was invalid under the National Labor Relations Act (NLRA), which protects the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
 
Crabb’s decision aligned with applicable law at the time. The National Labor Relations Board had determined that the right to engage in concerted activities for mutual aid or protection included the right to pursue collective or class claims. The Seventh Circuit later reached the same conclusion in a case involving Epic Systems.
 
As a result, Crabb struck the portion of the arbitration clause that waived collective or class action. She then sent the case to arbitration with instructions that Herrington be allowed to join other employees in her arbitration proceedings.  The arbitrator allowed other employees to opt in and, after further proceedings, awarded the claimants over $10 million in damages and fees.
 
Crabb then enforced the award through a court judgment, and Waterstone appealed to the Seventh Circuit.
 
While Waterstone’s appeal was pending, the U.S. Supreme Court overruled the Seventh Circuit’s decision in the Epic Systems case and held that an arbitration clause limiting arbitration to a single claimant does not violate the NLRA’s protection of concerted activities.
 
The Supreme Court’s decision meant the waiver in Herrington’s employment agreement was lawful and Crabb was wrong to strike it, the Seventh Circuit said in the Herrington case.
 
Herrington also argued the arbitration clause still allows for collective or class arbitration despite the waiver.
 
U.S. Circuit Judge Amy Coney Barrett, in the decision, called the argument “weak” and suggested it was “implausible,” but remanded the case to Crabb for a determination. Barrett was joined in her decision by U.S. Circuit Judges Amy J. St. Eve and William J. Bauer.
 
If Crabb agrees with Herrington, Crabb could confirm the $10 million award. If Crabb finds that Herrington’s arbitration is limited to her claims alone, the case could be sent back to arbitration for new proceedings.