Twelve of 13 witnesses the prosecution wanted to call in a shaken baby trial will be excluded because the Kenosha County District Attorney's office ignored a defense request and two court orders to provide witness lists as part of the discovery process, the Court of Appeals ruled in an opinion released Wednesday.
"We decline the State’s request to adopt an exception for the discovery violation made by the district attorney so that the significant consequences of the court’s order will not be borne by the 'blameless public,' Appeals Court Judge Paul F. Reilly wrote in the decision. "It is difficult to imagine a circumstance in which the public would be to blame for the derelict performance of a prosecutor, and we cannot reconcile the State’s position with a criminal justice system that affords fairness to both the State and defendant."
Only a single expert witness will be allowed to testify in the trial of Caroline Prieto, who in 2012 was charged with one count of recklessly causing great bodily harm to a child after eight-month-old C.B. was diagnosed with a serious brain injury after Prieto took care of her.
After she was charged, Prieto's attorney made a discovery demand that included a request for a list of witnesses the prosecution planned to call. The DA's office ignored the request, wrote Reilly. In December, 2013 and in August 2014, circuit court judges ordered the DA's office to provide the witness list. The office ignored both orders.
In January, Kenosha County Circuit Judge Chad G. Kerkman granted Prieto's request to exclude any witness who had not yet been identified by the prosecution. At that point, the DA's office had turned over the name of only one witness. A few days later, 14 days before trial, the DA's office filed a witness list and asked the judge to reconsider his decision. Kerkman declined to reverse himself and the state appealed.
State law provides for witnesses to be excluded if the state does not have a good reason for failing to provide a witness list, Reilly said, writing for the District 2 Court of Appeals panel. Reilly was elected to his post in 2010.
"The district attorney’s office never argued that it had good cause for its disobedience of its statutory obligation and its duty to abide by court orders, and the State concedes that the district attorney’s office did not have good cause for its failure to provide a witness list pursuant to the court’s orders," Reilly wrote.
Reilly, whose opinion was joined by Appeals Court Judges Mark D. Gundrum and Brian K. Hagedorn, recognized that the decision may make it difficult to take the Prieto case to trial.
"We share the circuit court’s regret that the actions of the district attorney may prevent the merits of this case from being fully tried," Reilly wrote. "We remind the State that the magnitude of the sanction imposed...is measured by the degree of the district attorney’s violation (of state law)....It is the district attorney who ultimately determines what sanction is available against his or her office. The district attorney’s office ignored (the statute) and the court’s orders at its peril."
An appeals court panel said Wednesday that illegal police questioning of a burglary suspect was not enough to taint self-incriminating statements the suspect made a few minutes later.
In addition, the court, in a decision written by Appeals Court Judge Mark Gundrum, said it was fine for police to ask a suspect if he wanted to make a statement before informing the suspect of his Miranda rights. Gundrum, appointed to his seat in 2011 by Gov. Scott Walker, was joined in the decision by Appeals Court Judges Lisa S. Neubauer and Paul F. Reilly.
The District 2 Court of Appeals case stems from an incident in which a Kenosha police officer questioned Brian Harris after finding him hiding in a townhouse basement. Officer Justin Niebuhr also found cut copper piping and cutting tools. Niebuhr -- without advising Harris of his Miranda rights -- began questioning him about who he was and what he was doing in the basement. Police took Harris outside and put him in Niebuhr's squad car. The officer tried to get in touch with the townhouse owner and was completing paperwork when Harris said "that he’s been homeless for approximately seven years; that he frequently goes into vacant houses to sleep; that he was going to take the copper piping and sell it for money for food, and that he often commits misdemeanor crimes to get items to sell for food … to get by."
Later, in the Kenosha County Jail, Detective Chad Buchanan spoke with Harris, who still had not been informed of his rights. Buchanan testified that "I went there with the intention of asking Mr. Harris if he would like to come with me to the detective bureau to be interviewed. I asked him if he would, and he stated to me something to the effect that they caught me, what’s the point."
Harris eventually was found guilty of burglary, possession of burglary tools, criminal damage to property, and criminal trespass, all as a repeater. He appealed, contending his Fifth Amendment right against self-incrimination was violated because the trial judge, Circuit Judge S. Michael Wilk, allowed into evidence the statements he made before being told his rights.
The state conceded that Niebuhr's basement interrogation was illegal, "but asserts that 'the illegal activity … had ended and any semblance of an interrogation had been concluded by the time Harris was placed in the police squad,'” Gundrum wrote.
The appeals court agreed. The statements Harris made in the squad car were not made under questioning and the illegal questioning that occurred just a few minutes earlier did not have a significant impact the situation.
In those few minutes, Gundrum wrote, Harris was taken upstairs and placed in the squad. Niebuhr found a mugshot of Harris and tried to contact the townhouse owner and finish some paperwork.
"The events between Niebuhr’s questioning in the basement and Harris’s comments in the squad car did not act in any way to foster a sense of continuation of the questioning, and they provided a meaningful break—a discontinuity—between the questioning and Harris’s inculpatory comments," Gundrum wrote.
As for the jailhouse discussion with Detective Buchanan, Buchanan simply asked a question that could be answered with a "yes" or "no," Gundrum said.
"While one could argue, from a practical standpoint, Buchanan should have just 'played it safe' and provided Harris the Miranda warnings prior to saying a single word to him, Buchanan’s actual approach is understandable," Gundrum wrote. "If Harris rejected Buchanan’s overture to cooperate and provide a formal statement—as Harris essentially did when he responded to the effect of “I got caught, man, that is there’s nothing else to say”—there would be no subsequent interrogation requiring the Miranda warnings. Of his own volition, Harris chose to communicate “no” to Buchanan in a foolish manner—leading “there’s nothing else to say” with “I got caught”—that provided the State with additional evidence to use against him at trial."
Appeals court cases 'o the day
Feds end forfeiture sharing
State and local law enforcement agencies will lose millions of dollars per year under the US Department of Justice's decision to end the practice of sharing with smaller governments the loot grabbed through federal forfeitures.
In Wisconsin, the Department of Justice will be the biggest loser -- it received $1.6 million of the total $4.6 million received by state agencies in 2014, according to a federal report.
The Milwaukee Police Department is next on the hit list. It got a total of $574,211.
But no more, at least for now. The DOJ announced last week that it is suspending the program, called the "equitable sharing" program, because of its own financial difficulties, according to the Washington Post. The program's budget took a $1.2 billion hit.
While information about what each state law enforcement buys with its "equitable share" is not available, the Milwaukee Police Department supplies its plan for the next year to the Common Council. In September, the city's federal forfeiture fund balance was $1.1 million, Police Chief Edward Flynn wrote in a letter to the council. Spending plans included:
Taser lease and expansion -- $257,000 -- Lease costs for 130 tasers and purchase of 150 additional tasers.
Replace generator at District 4 -- $120,000.
Travel/training for officers -- $110,000.
Automated Fingerprint ID System upgrade -- $16,000.
Bicycle patrol -- $15,000.
Cell phones -- $25,000 -- for use in the field.
Canine unit -- $6,000 -- funds food, medical care and boarding for three dogs. Without the dogs, the letter said, the department will be "less successful in its attempt to secure ferally seized forfeiture funds."
Administrative and miscellaneous expenses for command -- $90,000.
The federal program can be quite profitable for state and local law enforcement, as it allows them to keep up to 80% of the value of seized property; state asset seizure law allows them to keep generally just 50% to 70%. The difference, according to some, encourages law enforcement to use the federal asset forfeiture program whenever possible. There's an additional bonus -- people losing their property don't need to be convicted of any crime.
There is a bipartisan proposal in the State Legislature to tighten up state asset forfeiture law and requires law enforcement to turn over to the state school fund proceeds from the sale of all forfeited property. It would also limit law enforcement's ability to use the federal forfeiture route. The bill is opposed by the Wisconsin Chiefs of Police Association and the Wisconsin Sheriffs and Deputy Sheriffs Association.
Bank of America misled a couple about the condition of a property the pair was buying, then claimed that an "as is" clause in the sales contract allowed the bank to escape responsibility for the deception.
Wrong, a state Court of Appeals panel said in a decision released Wednesday. The court upheld a $50,000 compensatory award made to a woman who bought the property after the bank falsely claimed it did not know much about its condition.
The bank originally acquired the Menomonee Falls property at issue through foreclosure, according to the Second District Court of Appeals decision written by Judge Lisa S. Neubauer.
A fire department report prepared the day before the bank's realtor visited the home said that:
Through front window, you could see ceilings that had fallen in family room.… Found ceilings down throughout first floor with pooling throughout. Plumbing fitting in the ceiling appeared to have given way. Second floor had similar wet floors, especially in master bath.… Basement had moderate amount of water leaking down and soaked floors.
A quarterly water bill showed that 246,500 gallons of water were used at the property, according to the decision.
The realtor had the house cleaned and some repairs and mold remediation done, but informed the bank that the repair work was not satisfactory and the remediation was not complete. The bank listed the property for sale and sold it to Catherine Fricano for $175,111. Fricano knew there still was some mold in the basement, but did not think there was any in the main living areas in the house, according to the opinion.
Fricano signed an "as is" agreement that included language stating the bank did not guarantee any mold remediation work.
The bank also stated that it had “little or no direct knowledge about the condition of the [p]roperty.”
Shortly after closing on the house, Fricano "discovered mold 'saturated' throughout the house," according to the opinion. "As a result, the house was stripped down to the studs, the mold and water damage was remediated, and the interior of the house was reconstructed."
Fricano sued and won. The bank appealed the Waukesha County Circuit Court case tried before Circuit Judge Patrick C. Haughney, but the Appeals Court ruled that the "as is" clause did not exempt it from complying with the state law prohibiting deceptive trade practices. The bank also argued, among other things, that its false statement about not knowing the condition of the property did not induce Fricano to buy the property.
"There is more than sufficient credible evidence to believe that had the Bank not misrepresented its knowledge of the condition of the property, Fricano would not have gone forward," the Appeals Court said.
Flip through their decisions, and it soon becomes apparent that judges in the four Wisconsin Court of Appeals districts stick together in their decisions -- there simply are not very many dissents or concurrences. Cases big and small are decided unanimously almost all the time. It's somewhat amazing, in this day of political polarization, that so many people can agree on so many cases involving so many different facts.
And state appeals judges apparently are not eager to attach their names to opinions. The opinions decided "per curiam" -- unanimously, anonymously and likely drafted by a staff attorney -- far outnumber those authored and signed by an individual judge.
We thought it would be interesting to see how the numbers actually stack up. And so we've come up with a tracker to show exactly what is happening in each district. The first day's tally is below.
Judges with signed opinions were Lisa S. Neubauer and Paul F. Reilly, both of District 2.
Gun toters who have Wisconsin concealed carry permits nestled next to their firearms will lose their right to carry concealed in Virginia as of Feb. 1.
Attorney General Mark R. Herring, a Democrat, decided to end recognition of concealed carry permits issued by Wisconsin and 24 other states because their concealed carry laws are weaker than Virginia's, according to the New York Times. (Wisconsin does not now recognize Virginia's permits.)
Virginia's concealed carry law has numerous disqualifiers "designed to prevent potentially dangerous or irresponsible individuals from being able to lawfully conceal handguns," Herring's office said in a statement. States losing Virginia concealed carry recognition do not have similar conditions.
Folks disqualified from Virginia concealed carry include those who:
Incarceration rates more than 2,000% in two Wisconsin counties and more than 1,000% in 18 counties since 1970, according to a new study from the highly-respected Vera Institute of Justice.
The biggest increase in the jail incarceration rate -- 2,598% -- was recorded in Green Lake County, in the east central part of the state. The second biggest increase was in northern Wisconsin's Vilas County, where the rate rose 2,306% from 1970 to 2014, according to data released with the the report, In Our Own Backyard: Confronting Growth and Disparities in American Jails.
Counties with increases of 1,000% or more, besides Green Lake and Vilas, include Door, Polk, Marquette, Dodge, Bayfield, Green, Taylor, Langlade, Barron, Fond du Lac, Ashland, Wood, Columbia, Waushara, Manitowoc, and Kewaunee.
The jail incarceration rate for Milwaukee County, the state's largest county, rose 191%, the 10th smallest increase among the 70 counties for which data was available.
The disparity between Milwaukee and some many smaller counties is not unusual, according to Vera.
Vera is an independent, nonpartisan, nonprofit center for justice policy and practice.
Nationwide, the institute said, large-county jails "have neither grown the most nor are they necessarily found in the jurisdictions with the highest incarceration rates. Rather, mid-sized and small counties—which account for the vast majority of jails have largely driven growth, with local jail populations increasing since 1970 by 4.1 times in mid-sized counties and 6.9 times in small counties. In contrast, jail populations in large counties grew by 2.8 times."
Twenty-two states -- but not Wisconsin -- are fighting back against an effort to change the traditional "one person, one vote" rule in a way that would limit legislative representative for minorities and children.
The US Supreme Court will hear arguments Tuesday in Evenwel v Abbot, a case that would change the generations-old interpretation of "one person, one vote" to include all people in a state, including those, such as children and non-citizen immigrants. Two Texas residents challenged that interpretation, arguing that only those who are eligible to vote should be considered in the rule.
If the court decides in favor of the plaintiffs, Wisconsin's congressional district populations would shrink dramatically, with the Milwaukee-based 4th District taking the hardest hit, according to socialexplorer.com. There are 710,873 people in the district, but just 479,802 are citizens of voting age. Some 26% of the total are children and 5.5% are non-citizens over 18, all of whom are ineligible to vote. The geographic size of the district would have to grow substantially if it were to include 520,125 potential voters, the ideal size under Evenwel.
Every other district in the state would be affected as well, though to lesser extents.
Twenty-one states, led by New York, filed a joint brief urging the court to leave the status quo in place. Besides New York, they include Alaska, California, Delaware, Hawaii, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, North Dakota, Oregon, Rhode Island, Vermont, Virginia, and Washington. Texas, where the case originated, continues to support existing interpretation of the rule.
The Brennan Center for Justice, in a brief description of the case, said that observers "have pointed out that it could potentially make it much more difficult to draw majority-minority districts if states were required to draw districts based on citizen voting population. They also note that, in addition to removing non-citizens, such a rule would exclude children and citizens who are simply not registered to vote. This exclusion, advocates for using total population argue, would be improper because children and noncitizen permanent residents still require constituent services from their elected officials and, as a result, excluding them would dilute their representation."
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