Drunk driving expunction doesn't mean the conviction goes away, State Supreme Court rules
By Margo Kirchner
An expunged operating-while-intoxicated (OWI) conviction can be counted as a prior offense when a defendant is prosecuted for a subsequent OWI, the Supreme Court of Wisconsin held last week.
Wisconsin law permits expunction of a criminal record after successful completion of a sentence if the defendant was under age 25 at the time of the offense, the maximum term of imprisonment for the offense is six years or less, and the judge ordered expunction at sentencing after finding that society would not be harmed by that result.
Upon successful completion of an expunged sentence, the clerk of court seals the case and destroys the court records. Expunction is intended to benefit a young offender, providing a second chance or a fresh start, according to the Supreme Court.
In Wisconsin, a first OWI offense is deemed a civil, not criminal, charge. Repeat offenses are criminal matters, and penalties increase with the number of offenses.
In 2011, Justin Braunschweig was convicted of a first OWI offense in Jackson County Circuit Court, and the judge ordered expunction.
Five years later, Braunschweig was arrested for driving while intoxicated with a blood-alcohol content of 0.16. The state relied on Braunschweig’s expunged 2011 conviction as a prior offense, charging Braunschweig with criminal misdemeanor, rather than civil, OWI and prohibited-alcohol-content (PAC) offenses.
Braunschweig argued that his expunged conviction could not be counted and that he should not have been charged criminally. He lost the argument in the trial court and at the Wisconsin Court of Appeals.
Had Braunschweig’s 2011 conviction not been expunged, it unquestionably would count, said the Supreme Court. The question before the Court was whether an expunged conviction counts.
The Court held that it does. Justice Annette Kingsland Ziegler wrote for the unanimous Court.
The National Association of Criminal Defense Lawyers is getting ready "to pursue a class action lawsuit" if the state does not adequately increase the amount the State Public Defender's Office (SPD) pays private lawyers to represent indigent defendants in criminal cases, according to a Milwaukee lawyer.
"The NACDL leadership has made it clear that $70/hour is constitutionally insufficient and will prompt a lawsuit," defense lawyer John Birdsall wrote in an email to his colleagues around the state. "We have already identified several potential plaintiffs. NACDL is securing a national law firm to pursue the class action, if necessary. "
NACDL represents thousands of lawyers in the United States and other countries.
SPD pays $40 per hour, the lowest rate in the nation, and has proposed raising the rate to $70 per hour.
SPD proposed the rate increase as part of its 2019-21 budget request. The $70 per hour rate also was included in a joint proposal put forward by SPD, the Wisconsin District Attorney’s Association, the Association of State Prosecutors, the Department of Justice, and Director of State Court’s Office.
The Wisconsin Association of Criminal Defense Lawyers was not consulted about the proposal, said Birdsall, a leader in the effort to raise the rate.
SPD appoints private lawyers to take cases when its own attorneys are overburdened or have a conflict.
More and more attorneys are refusing to accept cases at the $40 rate. That means pre-trial defendants are sitting in jail longer without lawyers to help them or with lawyers who are inexperienced or who cannot provide adequate representation. The situation is recognized as a looming constitutional crisis.
Birdsall said in his email that he and defense lawyer Hank Schultz, who also has been heavily involved in efforts to increase the $40 rate, have been working on a legislative proposal for variable rates ranging from $100 per hour to $140 per hour, depending on the seriousness and type of case involved. The proposal also would include automatic inflationary increases.
"Given how rotten things are now $70/ hr. might seem OK," Birdsall wrote. "But remember, SCOW (Supreme Court of Wisconsin) has already agreed with us that $100/ hr. is the minimum wage for indigent criminal defense work. And the most complicated cases deserve more than minimum wage compensation. Our plan is a permanent fix because it is indexed – plus the private bar will have an ongoing independent budget voice."
If SPD cannot find a private lawyer to take a case for $40 per hour, the judge in a case can appoint a lawyer for $70 an hour. The State Supreme Court this year ordered that the rate be increased to $100 per hour starting on Jan. 1, 2020. The Court also refused to give SPD-appointed lawyers any raise at all, though justices recognized the lawyers were underpaid.
"We finally have the attention of some decision-makers so the importance of this moment cannot be overstated," Birdsall wrote. "Whatever happens we will likely have to live with it for the next 20-30 years. Seventy dollars/hour is insufficient to fund quality legal representation. Already, in multiple Wisconsin counties, judges can’t find lawyers who will take $100/ hr."
A story in a chart: Cannabis legalization wins in every Milwaukee County community
By Gretchen Schuldt
The question on the Nov. 6 Milwaukee County election ballot was this: "Do you favor allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana?"
Rejection of two-year trial delay did not deny defendant's rights, appeals panel rules
By Margo Kirchner
A federal judge’s refusal to delay trial for two years so that “Coupon King” Thomas (Chris) Balsiger could be represented by a particular lawyer did not violate Balsiger’s right to counsel, a federal appeals court ruled last week.
The ruling means that the 10-year federal criminal case against Balsiger will not be retried. The U.S. Court of Appeals for the Seventh Circuit affirmed the bulk of Balsiger’s conviction and sentence with the exception of a recalculated forfeiture amount.
Balsiger ran International Outsourcing Services, one of the nation’s largest product-coupon processors, in El Paso, Texas, and Bloomington, Indiana.
He and 10 others were indicted in 2007 on 25 counts of wire fraud, conspiracy to commit wire fraud, and conspiracy to obstruct justice. The fraud allegations involved coupon payments made by Wisconsin manufacturers Sargento Foods, Good Humor/Breyers Ice Cream, Kimberly-Clark, LeSaffre Yeast, and S.C. Johnson & Sons. The indictment alleged that the wire-fraud scheme caused $250 million in losses to manufacturers.
Pretrial proceedings dragged on for years. During that time, in July 2014, Balsiger’s lawyer, Joseph Sib Abraham, passed away.
U.S. District Judge Charles N. Clevert, Jr. was notified in August 2014, and a lawyer who worked with Abraham said Balsiger expected to hire new counsel within 30 days. Yet by early December 2014 no new attorney had appeared in the case and Balsiger claimed he could not then hire a new attorney due to financial difficulties.
Clevert set trial for October 2015.
At a status conference in early January 2015 Balsiger told Clevert he planned to hire El Paso attorney Richard Esper, and asked for a deadline of April 1, 2015, to hire Esper. Balsiger said he did not have sufficient funds and could not sell his home because of a filing the government made against the property.
Clevert soon learned that Esper could not be ready for trial until 2017 at the earliest. The judge also found that Balsiger could afford to hire a lawyer and ordered him to hire someone by Feb. 17, 2015.
The court found that Balsiger was not working diligently to hire counsel and warned that failure to hire an attorney would be considered a waiver of the right to counsel.
Almost 90 percent of Taycheedah Correctional Institution inmates have mental health needs, and more than 300 – 35 percent of the population – have serious mental health illnesses, according to state budget documents.
Overall, according to the Department of Corrections' 2019-21 budget request, 41 percent of state inmates have mental health issues. The percentages range from 98 percent at the Wisconsin Resource Center, which is designed to serve inmates with special mental health issues, to 0 percent at four smaller facilities.
Among prisons housing men, the Green Bay Correctional Institution has the highest rate – 55 percent – of inmates with mental health needs.
Critics decry the use of prisons as dumping grounds for people with mental health problems. The population of mentally ill inmates grew as communities closed down inpatient mental health facilities.
A 2016 report by the Treatment Advocacy Center said that mentally ill inmates remain in jail longer than other inmates, cost more to house than other inmates, cause problems that too often result in stays in solitary confinement, and are more likely than other inmates to commit suicide.
The U.S. Bureau of Justice Statistics reported last year that "14 percent of state and federal prisoners and 26 percent of jail inmates reported experiences that met the threshold for serious psychological distress (SPD)."
In contrast, just five percent of the general population met that threshold, according to the report, Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2011-12.
The incidence of mental illness is higher among female inmates than male inmates nationwide, the bureau said.
DOC officials recognized the significant needs of Taycheedah inmates in the prison's 2018 annual report.
Among the serious mental illnesses affecting inmates are "major depressive disorder, bipolar disorder, psychotic disorders, and behavioral disorders, which significantly impact the inmate’s ability to function effectively," the report said.
"Less significant" mental health issues include "anxiety disorders, adjustment disorders, and less disturbing mood disorders," the report said. "Approximately 74 percent of the inmates at TCI are prescribed psychotropic medications."
The prison has a 66-bed special unit for women with significant mental health needs and has psychiatric and psychology services.
The table below shows the levels of mental health needs and the numbers of inmates in each category for each state correctional facility. The table is based on a May 31 snapshot of inmate populations.
The definition for each category is below the table. The definititions are taken largely from the DOC budget request.
MH-1 – The inmate is receiving mental health services but does not suffer from a serious mental illness. This code is not appropriate for inmates who are receiving only program services, such as substance abuse or sex offender treatment, and have no other mental health needs.
MH-2A – Inmates with serious mental illness:
A. Inmates with a current diagnosis of, or are in remission from, the following conditions:
B. Inmates with current or recent symptoms of the following conditions:
C. Inmates with head injury or other neurologic impairments that result in behavioral or emotional dyscontrol.
D. Inmates with chronic and persistent mood or anxiety disorders or other conditions that lead to significant functional disability.
MH-2B – Inmates with a primary personality disorder that is severe, accompanied by significant functional impairment, and subject to periodic decompensation; i.e., psychosis, depression, or suicidality. Those who qualify for both MH-2A and MH-2B are coded MH-2A.
Man held 18 years too long in prison, on probation can sue, Seventh Circuit says
By Margo Kirchner
Robert W. Huber Jr. spent 18 years too many in prison or on probation because of bureaucratic blunders and refusal to listen to his protests.
Now a federal appeals court has cleared the way for his civil rights lawsuit to proceed.
Huber is seeking damages for violations of his constitutional rights. U.S. District Judge J.P. Stadtmueller granted summary judgment to the defendants, holding that Wisconsin’s six-year statute of limitations barred most of Huber’s claims and that no reasonable jury could find in Huber’s favor on any remaining ones.
Huber appealed. On Monday, the Seventh Circuit Court of Appeals reversed, reinstated Huber’s claims, and remanded the case for further proceedings. The appellate court denied Huber’s request to reassign the case to a different district judge, however.
Huber pleaded guilty in 1988 in Milwaukee County Circuit Court to fraudulently using another man’s credit card for charges totaling $800. His sentence, originally a four-year probation term, turned into a 25-year odyssey of probation and prison.
First, an additional three years of probation were tacked on because Huber failed to pay restitution.
“With that extension, his sentence should have ended on November 3, 1995,” U.S. Circuit Judge Diane P. Wood wrote for the three-judge panel of the Seventh District Court of Appeals. “But it did not.”
Wood was joined in her opinion by U.S. Circuit Judges Joel M. Flaum and Frank H. Easterbrook.
First, in May 1993 and while still on paper, Huber stopped showing up for appointments with his probation agent. He was arrested in November 1994, but the state did not move to revoke his probation or to extend it. His agent even wrote that his discharge date was “11-3-95.” Later, in her last entry before Huber’s discharge date, the agent wrote, “no changes – all ok.”
“November 3 came and went without any action; no release, no modification of Huber’s probation, no formal extension,” Wood wrote. “Two weeks later, without any reference to her repeated notes acknowledging the November 3, 1995 release date, (Probation Agent Gloria) Anderson issued an apprehension request for Huber.”
Huber argued for years that his probation term expired on the November 3, 1995 date. But, he alleges, various probation officers and Wisconsin Department of Corrections (DOC) officials did little or nothing to investigate whether his probation was illegally extended. Not until October 2013 did officials determine that Huber was right.
Huber was arrested in January 1996, not terribly long after Anderson issued her apprehension request.
Anderson and her supervisor, Elizabeth Hartman, then told him that his probation had been suspended from May 1993 to November 1994 and he still had time to serve. They had him sign a form requesting reinstatement of his probation. Huber alleges that the form was blank at the time and changed later to make it appear that he admitted to absconding from probation.
Huber’s probation was extended to July 1998.
Another absconding led to more extensions, until in October 2000 Huber’s probation was revoked, resulting in a 10-year prison sentence for an $800 credit card fraud conviction that originally netted him four years of probation.
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