Almost 90 percent of Taycheedah Correctional Institution inmates have mental 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 innate 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:               

• Schizophrenia (all sub types)      
• Delusional disorder
• Schizophreniform disorder (a mental disorder where symptoms of schizophrenia are present for a significant portion of the time within a one-month period, but not for the six months required for a schizophrenia diagnosis)
• Schizoaffective disorder (a chronic mental health condition characterized by symptoms of both schizophrenia, and a mood disorder)
• Psychosis not otherwise specified
• Major depressive disorders
• Bipolar disorder 1 and 2 (In bipolar 1, mania swings are more severe than with bipolar 2)

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.

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.

Milwaukee County Circuit Judge David Borowski should vacate his contempt of court finding against a lawyer whom he had handcuffed and detained or finalize the contempt order so the State Public Defender's Office can appeal it, an SPD official said in a letter dated Tuesday.

Borowski had accused Tsai of rolling his eyes, throwing his hands in the air, and treating the judge like an idiot.

A draft order submitted for Borowski's signature by SPD Deputy Regional Attorney Manager Paige Styler 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."

"If you are not willing to sign this order then we will send you a final order for contempt so that the order can be appealed," Styler wrote in her letter.

She continued: "It is of utmost importance to us that Attorney Tsai's reputation be restored. We expect that Attorney Tsai will be treated respectfully and professionally by the courts and their staff.

"We know you have asked if you can apologize to him and ask that your correspond with him in writing," Styler wrote. "We believe it would go a long way in restoring the relationship and allowing everyone to move forward."

Borowski found Tsai, an assistant state public defender, in contempt during a hearing Oct. 26. He was not released until supervisors from the SPD, alerted to the arrest by the prosecutor on the case, arrived in court.

​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