By Margo Kirchner

​Sentences in criminal cases in excess of plea-bargained terms should cease, says a Wisconsin attorney in an article written for the University of Illinois Law Review.
 
Kenosha criminal defense lawyer Michael D. Cicchini labels as “deal jumping” the practice by which a judge accepts a defendant’s guilty plea yet hands down a sentence harsher than agreed upon by the defendant and prosecutor. Judges who so act are “deal jumpers,” which is the name of Cicchini’s article.
 
According to Cicchini, deal jumping is fundamentally unfair to defendants and harmful to the criminal justice system, as more than 95% of cases are resolved by plea bargains. Yet the practice is permitted in several states, including Wisconsin, which is Cicchini’s focus. 
 
Cicchini advocates for state legislative reform to eliminate deal jumping by requiring judges to either (1) approve or reject sentence concessions at the same time they approve or reject plea agreements, or (2) allow defendants to withdraw their pleas if the judge plans to exceed the agreed-upon sentence.
 
But if legislative change fails to occur, judges should act on their own to end deal jumping and defense attorneys should protect their clients from the practice. Cicchini provides defense lawyers with practical ideas to ensure that defendants receive the benefits of their plea bargains.
 
To illustrate a deal jump, Cicchini describes a situation in which a defendant charged with multiple counts agrees to plead guilty to one count in exchange for the prosecutor’s dismissal of the other counts (a charge concession) and recommendation of a fine instead of probation or incarceration (a sentence concession). Deal jumping involves sentence concessions.
 
In some states, says Cicchini, the judge would be required by law to either sentence this defendant to a fine or, if the judge plans to impose a penalty more severe, allow the defendant to withdraw the guilty plea.
 
However, in other states, such as Wisconsin, regardless of the plea agreement the judge may impose whatever punishment the judge wishes up to the maximum allowed by law, and the defendant has no recourse to withdraw the guilty plea.
 
Cicchini asserts that Wisconsin “freely permits the most egregious forms of deal jumping when it comes to the sentence.”

By Gretchen Schuldt

​The number of people who were incarcerated in local jails for parole or probation violations dropped about 65% between Feb. 28 and Friday, April 3, according to the latest Department of Corrections statistics.

Those released had been held under the short-term sanctions program for violations. There were 534 such jail inmates on Feb. 28; on Friday, there were 189, a decline of 345 or 64.6%.

Although prisons and jails are excellent breeding grounds for the coronavirus, DOC is slow to move incarcerated people out of state prisons. The male prison population dropped 1.2% during the same time period, while the number of women held in all state correctional facilities dropped 3.4%. The number of prison inmates held under contract in county jails and the Milwaukee County House of Correction fell by 3.7%.

The population of DOC's Division of Adult Institutions, which includes prisons, is about 23% over design capacity, according to DOC numbers.

It is not clear how much of the decline in prison population is Gov. Tony Evers' March 22 announcement that the DOC would not accept inmate transfers from counties, and how much is due to additional releases.

Advocates, including WJI, have urged Evers to release low-risk offenders to decrease the danger of coronavirus transmissions among prison staff and incarcerated people.

​The latest numbers are below. The source for all three charts is the Wisconsin Department of Corrections. 

By Gretchen Schuldt

Advocates and medical experts around the country are urging prison officials to release low-risk incarcerated people from prison to stem the tide of the coronavirus, but prison populations in Wisconsin have declined just minimally, DOC figures show.

Wisconsin has experienced some success in reducing the number of people on community supervision who are locked up for one reason or another. That number dropped 39% in about a month.

The coronavirus crisis has been well-established in the public consciousness for more than a month. Gov. Tony Evers declared a public health emergency on March 13; he announced on March 22 that the State Department of Corrections would not accept inmate transfers from counties.

News about the dangers of coronavirus in prisons and jails specifically began appearing months ago; in January, the focus was on prisons in other countries, such as China; by early March, corrections officials in the United States were well aware of the dangers to incarcerated populations here.

Many court proceedings in the state have ground to a halt, meaning that fewer people are getting sentenced to prison, which should contribute to declines in prison populations.

The charts below tell the story. The source for the charts is DOC inmate population counts.

Men's prisons: No surprise that the maximum security male population has barely budged; after all, these are the men considered the greatest threats to public safety. But the declines in the populations of men considered to be of lesser risk also are minimal. 

Contract beds: A decline of a whopping 20 people,  and the Milwaukee County House of Correction accounts for more than half of that total. Meanwhile, the DOC is not accepting inmates from jails. 

Other institutions: The number of people on community supervision who are in locked up has dropped significantly. The number of women serving prison sentences, though, has not dropped much, and the number in minimum security institutions has actually gone up by four.

WJI is providing summaries of justice-related laws enacted during the 2019-20 state legislative session.

2019 Act 16 – Creates a definition related to child pornography. 

948.01 (1t)  “Lewd exhibition of intimate parts” means the display of less than fully and opaquely covered intimate parts of a person who is posed as a sex object or in a way that places an unnatural or unusual focus on the intimate parts."

The law originated as SB 68. The companion Assembly bill was AB 71. ​It was signed by Gov. Tony Evers on July 10, 2019.

Fiscal estimates 
​
None.

Testimony for

State Sen. Andre Jacque – Predators are using limited definitions of what is a sexually explicit video or image of children as a loophole, as present child pornography statues only apply when the child is engaged in a sexual act. Investigators are now very commonly seeing predators taking images of nearly naked children in see-through clothing that are suggestively posed and inappropriately sexualized and intended for sexual gratification in order to get around charges for possession of child pornography....

Finally, a few committee members expressed concern that sexts or innocent, 'baby in the bathtub' photos may be prosecuted as a result of enactment of SB 68. While those concerns are well-founded, we would like take the opportunity to reiterate and emphasize that sexts and 'baby in the bathtub' photos may be subject to child pornography charges under current law. The bill...(does) not affect the prosecutorial discretion district attorneys currently enjoy.

​Testimony against

ACLU of Wisconsin – This bill is unnecessary because possession and distribution of child pornography is already illegal. Under 948.12, it is illegal for a person to knowingly: (1m) possesses, or accesses in any way with the intent to view any visual representation of a child engaging in sexually explicit conduct. "Sexually explicit conduct" is specifically defined by statute in 948.01 (7)....

We have seen children in other states prosecuted under the current child pornography definition when minors take pictures of themselves with their cell phones and share them with each other. This bill would compound those problems further by increasing the universe of images people are prohibited from "possessing or accessing," and could affect the lives of countless minors who are foolishly sending one another images that fall within this overly broad definition. The way in which young people use social media like Facebook, Snapchat, or Instagram make them easy venues to inadvertently snare them in the criminal justice system....

Child pornography and obscenity are unprotected and rightfully so; however, this bill would criminalize speech that is neither pornographic nor obscene. Under the so-called Miller test developed in the 1973 case Miller v. California, three elements must be satisfied for a work to be deemed obscene and therefore unprotected under the First Amendment: (i) the average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to prurient interest; (ii) the work must depict or describe, in a patently offensive way, sexual conduct or excretory functions as specifically defined by applicable state law; and (iii) the work, taken as a whole, must lack serious literary, artistic, political, or scientific value. This bill would, on its face, criminalize publications that do not fit this definition, as it would include publications that (i) are not patently offensive, (ii) do not depict sexual conduct, and (iii) do not lack serious literary, artistic, political, or scientific value. 

The City of Milwaukee and the Wisconsin Chiefs of Police Association Inc. registered in support of the bill.

​The main authors of SB 68 were Jacque (R-DePere) and Lena Taylor (D-Milwaukee). 
​
Its two main co-sponsors were Representatives Ron Tusler (R-Harrison) and David Crowley (D-Milwaukee). 

By Gretchen Schuldt

​A police office’s testimony that victims of Somali-on-Somali crimes tend to lie about them was unduly prejudicial to a man accused of participating in a Hudson shooting that injured three people, the State Court of Appeals has ruled.

"We also generally agree with (defendant Ahmed Farah) Hirsi’s argument that the racial and ethnic aspect of (Officer Tracy) Henry’s testimony raises heightened prejudice concerns, as such a notion is firmly supported by our case law," the District III appeals panel wrote in an unsigned opinion.

The error was "fundamental, obvious and substantial," said the panel that included Appeals judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.

The panel, in overturning a ruling by Circuit Judge James M. Peterson, sent the matter back to Circuit Court for further proceedings. Peterson, a Dunn County judge, presided over Hirsi's St. Croix County trial.

Hirsi was convicted by a jury of multiple felonies stemming from a January 2014 shooting in a liquor store parking lot. Witnesses told police a passenger in a tan Cadillac fired multiple gunshots into an Kia SUV. Three of the six occupants were hit, and three were not. All six are Somali, as is Hirsi.

Hirsi was arrested later that day, along with a co-defendant.

The state's theory of the case was that Hirsi, recognizing one of the people in the car, referred to her in a derogatory manner. The woman responded in the same manner, and Hirsi began to shoot indiscriminately into the Kia.

Hirsi denied involvement and the woman said she did not know anyone in the Cadillac. She denied the derogatory term was aimed at her and said the shooting occurred about an hour after the name-calling. The woman did not identify Hirsi when shown a photo array that included him.

The Kia's driver testified that Hirsi was not the shooter and that he told law enforcement before the trial that "they had the wrong man in custody and that the man that shot me is out there and free."

Four victims did not testify, but one of them told police she did not know who did the shooting and another said she was asleep and did not see the shooting. Two declined to cooperate.

Only one person, a co-defendant, identified Hirsi as the shooter. The co-defendant had a plea deal with prosecutors under which he agreed to testify "truthfully" and plead guilty to two felonies. In exchange, 15 charges would be dismissed and prosecutors would recommend a two-year prison sentence, according to a brief filed by Hirsi's appellate lawyers, Cole Daniel Ruby and Albert T. Goins, Sr.

​Hirsi was sentenced to 50 years in prison and 35 years of supervised release.

By Gretchen Schuldt

​Two organizations representing public health officials around the state called Tuesday on Gov. Tony Evers to reduce jail and prison populations to reduce the spread of coronavirus.

"Incarcerated individuals have much greater health concerns than the general public for many reasons, including the trauma and chronic stress that goes along with being incarcerated - - because chronic stress is a potent immune-system suppressant," they wrote. "As a result, people who are incarcerated are at high risk of not only contracting COVID-19, but also for suffering serious complications (or even death) from the infection."

The two groups, the Wisconsin Public Health Association and the Wisconsin Association of Local Health Departments and Boards, represent about 1,200 public health professionals in the state, the letter said. It was signed by Linda Conlon, co-chair of WALHDAB's Public Affairs Committee, and Maureen Busalacchi, who holds the same position with the Public Health Association.

"Wisconsin’s prisons and jails are already overcrowded, so it is not possible in these settings to practice the social distancing that is recommended by you, and by public health experts, to stop or slow the spread of COVID-19," they wrote.

Assistant District Attorney Rebecca Kiefer is challenging incumbent Daniel Gabler in the Branch 29 Milwaukee County Circuit Court judicial race.

The election is April 7.

WJI asked both candidates to respond to a series of questions designed to better inform voters about their candidacy. Kiefer did; Gabler did not. 

WJI, however, has previously written about Gabler, who was appointed to the bench in December 2018 by former Gov. Scott Walker. Gabler's "Walker's judges" profile is here;  a story about his judicial application and building code violations is here.

Kiefer, a Wisconsin native, is a graduate of Marquette University Law School. After graduating, she practiced for a time with her father, also a lawyer, before she became a Milwaukee County assistant district attorney, a position she has held for more than 15 years. Her full resume is here.

Gabler also is a Marquette Law grad. He was a Milwaukee County assistant district attorney and served under Walker as chair of the State Parole Commission. The resume he submitted with his judicial application to Walker is here.

​Here are Kiefer's responses to the WJI questionnaire as she submitted them.

Why do you want to become a judge?

I want to be a judge because I have the qualifications, experience, and values to serve. I believe that all people deserve a fair hearing under the law and everyone deserves respect in the courtroom.

I’m also concerned with leadership in the community and the courtroom. As an attorney and ADA, I’ve traveled statewide to train attorneys on issues regarding children and the law. My goal is always to gain more experience and tools to make a positive difference. As a judge, I can continue that effort from the bench and have a larger impact. Kids’ issues are central to everything that I do.
 
I am deeply concerned with keeping our community safe, and I’m also insistent on issues of equality and equity. Milwaukee County needs judges who can fairly apply the law, ensure we care about the needs of working people, kids, and victims, and treat everyone with respect. I intend to be that judge. In my current position in the District Attorney’s office, I help children get placed in permanent, loving homes. It is work that is both challenging and rewarding. As a judge, I will be able to affect positive change at a higher level.

Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

One of the best Wisconsin Supreme Court decisions in the past thirty years is State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). This case deals with how to evaluate a plea after the fact to decide if the plea was done freely, voluntarily and intelligently, with a full knowledge of the consequences of the plea. This case establishes a common-sense approach where the court will look at the entire record to determine what the individual understood at the time the plea was entered. This framework allows a court to examine all of the facts relevant to show what the individual did or did not know at the time the plea was entered, carefully preserving the rights of that individual while ensuring the public’s interest in swift and sure justice. The guidance of the Wisconsin Supreme Court in this case strikes a careful balance, which tends to encourage careful, conscientious plea colloquies, while also not permitting an individual to game the system by taking advantage of judicial mistakes.

Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

One of the worst United States Supreme Court cases of the last thirty years is Kelo v. City of New London, 545 U.S. 469 (2005), which deals with the Takings Clause of the Fifth Amendment of the United States Constitution. I believe this is the worst United States Supreme Court Case as it condones the government taking people's homes and transferring them to a private developer. This taking of personal property that was not blighted or otherwise a nuisance to the community, merely to increase the city’s tax base, worked to the benefit of a private corporation at the expense of individual homeowners. This is not what the Takings Clause the Fifth Amendment is meant to do, as it is not a true "public use" under the law.
 
Wisconsin has addressed this issue. In 2006 the legislature prohibited this type of taking, and established procedures designed to protect property owners. See 2005 WI Act 233 and 2005 WI Act 208. 

Describe your judicial philosophy.

My judicial philosophy is to understand what everyone in the courtroom needs and ensure that people are treated fairly. I do not think judges should have an agenda. Generally, I agree, judges should approach their role with restraint and deference to the rule of law. Of course I believe that the role of a circuit court judge is to interpret the laws of the State of Wisconsin, and not to legislate new policies from the bench -- the role of legislators is to legislate.

I believe it is the role of a circuit court judge to listen, without bias or prejudice, to the case before them, and adjudicate the matter fairly using the applicable law as their guide, without bringing any outside agenda into the courtroom.

I am a servant of the law. A servant of the law has no interest in the outcome of the case, but to see that justice be done. The twofold interest of a servant of the law is that guilt shall not escape nor innocence suffer. These are the beliefs I hold as an assistant district attorney for the State of Wisconsin, and I would continue to employ as a circuit court judge.  The cornerstone of this belief is fairness to all parties, to allow all litigants the time to be heard and advance their case, while at the same time moving cases along so that all may receive the finality of judgement in a reasonable time.

I know that judges can’t make all parties happy, nor should we try. But every litigant should feel heard, and have the opportunity to be heard. I don’t think we need assembly-line justice in civil or criminal court. We need judges who will adhere to the law, and ensure that agendas are set aside.

Finally, I think the Constitution is a living document. Judges must apply the law to today’s world, not some mythical view of how our Founders might have addressed issues they could not have foreseen more than 240 years ago.

The circuit court judge is a servant of the law. I believe the role of a circuit court judge is to look at each individual case, apply the applicable law to the facts, and render a decision that is fair, reasoned, and clearly supported by the record. 

By Gretchen Schuldt

Advocacy groups on Tuesday called on Gov. Tony Evers to expand the compassionate release program to allow the release of more aged and infirm incarcerated people from state prisons.

"The prison health system cannot handle a massive outbreak of COVID-19. State officials must work to keep our communities safe without putting those serving prison sentences at unnecessary risk," the groups said in a letter to Evers. "You and the DOC (Department of Corrections) must act now to release some of those imprisoned. Lives really are at stake."

The letter was signed by the Wisconsin Justice Initiative; the ACLU of Wisconsin; the Milwaukee Turners Confronting Mass Incarceration Committee; the National Lawyers Guild, Milwaukee Chapter; and WISDOM.

The groups requested Evers to direct DOC to "aggressively" use the program to release qualified, low risk-people from "our overcrowded, understaffed prisons."

"Wider use of compassionate release will reduce prison crowding and help prevent the spread of coronavirus," the groups wrote. "It will reduce stress on prison medical staff and take a long overdue step toward making the compassionate release program an effective and useful tool. The risks posed by coronavirus to too many incarcerated people are greater than the risks these people pose to the public. "

By Gretchen Schuldt
A successful Milwaukee program to provide defense lawyers to indigent defendants in Municipal Court is over because the city ended funding for it.

Legal Action of Wisconsin, in the one-year, part-time pilot program, won or negotiated dismissal of 40% of citations issued in cases it defended, according to a report prepared by the agency.

"The system works better if all parties are represented," said Kori Ashley, a Legal Action lawyer who worked on the project.

Now that the program has ended, she said, "we're back to the same old, same old."

The city pays police to issue tickets and the city attorney's office to prosecute cases.

Indigent defendants in Municipal Court, though, are not entitled to court-provided lawyers, meaning that most indigent defendants who show up represent themselves, often not very well.

Municipal Court is a money-maker for the city. In 2018, the court cost $3 million but brought in $5 million, according to city budget figures.

The Common Council in November 2016 approved a budget amendment by Ald. Michael Murphy that allocated $45,000 to the defense lawyer project. Due to city delays in getting the paperwork done, however, the project did not launch until last year. Funding ran out at the end of 2019.

Legal Action has applied for Community Development Block Grant funding to continue the program, and the council will vote on that in late spring or early summer. 

Murphy said he is "fully supportive" of the Municipal Court project. If it is not funded this year, he said, "I will certainly put it in the budget for next year."

Some results, according to the Legal Action report:

• The mostly half-time project, as of the time the report was written, served 71 people who between them had 138 tickets.
• 55, or 40%,  of the tickets were dismissed after a trial or after negotiations with the city attorney's office.
• The clients collectively saved $20,594 in forfeitures, or about $290 per family.

​Many clients don't have permanent addresses because of chronic homelessness.

"These are individuals who absolutely need legal representation," Ashley said.

Some clients had mental health issues with "very stark competency issues....These individuals should not be getting citations," Ashley said.

Both the city attorney's office and Municipal Court judges were receptive to Legal Action's work, she said. 

Sometimes, mental health issues result in a client receiving multiple citations for offenses such as loitering or disorderly conduct, Ashley said.

The agency cited in its report an example – a woman with severe mental health issues "routinely cited for retail theft from various stores for behavior that simply is out of her control."

Legal Action represented her in four cases that that were dismissed because those issues, saving the woman $1,500 in court charges.

In another case not related to mental health, a woman's identity was stolen by a relative, who then received several traffic tickets under the victim's name. 

"LAW successfully obtained the dismissal of the citations and significantly, the client's driving privileges were not suspended," Legal Action said in the report.

In yet another instance, a woman for whom English is a second language was accused of shoplifting "and was unable to explain a simple misunderstanding due to the language barrier," LAW said.

"This client's story was particularly impactful, because she is an elderly woman who came to this country 25 years ago and had previously no contact with law enforcement. She endured a tremendous amount of stress and felt an immense amount of shame because of the ticket."

By Gretchen Schuldt

​A lawyer on Thursday called for an investigation into a Milwaukee deputy city attorney's suggestion to a jury that the African American plaintiff in an excessive force lawsuit would be irresponsible to have children if police injured him as badly as he claimed.

Deputy City Attorney Jan Smokowicz's comments were racist or close to it, attorney Nathaniel Cade said.
 
“Now you’re saying a black man should not have children because he’s injured," Cade said. "Would you say that to a veteran of a war?”

“Maybe he (Smokowicz) should not be handling these civil rights case if he harbors these views,” Cade said.

The investigation should be ordered by City Attorney Grant Langley or by challenger Tearman Spencer if he wins the April 7 general election, Cade said.

Smokowicz said Cade's recollection of his comment "is not accurate and understanding my actual remarks requires the context of the testimony provided by the plaintiff in the case.
 
"Mr. Harris testified that his shoulder injury from the incident with the police was so severe that he could not even help change his child’s diapers," Smokowicz said. "In my closing argument, I asserted that the jury should conclude that Mr. Harris was embellishing the degree of his injuries. I said, in particular, that I was certain he was not the type of person who would be so irresponsible as to leave to the mother of two of his children, born after the incident, the sole responsibility for their care.
 
"There was no racism in this statement—implicit or explicit.  Mr. Cade’s demand for any inquiry is completely unfounded," he said.

Cade represented Jimmy Harris, 47, in a federal court lawsuit alleging police used excessive force and violated Harris' constitutional rights when they arrested him after a traffic stop in November 2010. 

​A jury found in Harris' favor Wednesday and awarded him $1.67 million in damages.  (Previous WJI stories about this case and derogatory remarks made by an officer involved are here,  here, and here.)

Harris alleged in his lawsuit, among other things, that Officer Froilan Santiago injured Harris' recently operated-upon rotator cuff during the arrest, which led to long-term medical problems that plague him to this day. 
​
The Harris case is just the latest in a series of lawsuits against the police that have cost the city millions of dollars in settlements and verdicts.

“I would hope the city council would go into a closed session and make some decisions on how they want to handle this case and other cases because that’s reflective of the police force they have,” Cade said.