For a larger version of the graphic, click on the picture. For a PDF version, click here. The Senate sponsors are here.

These Wisconsin state representatives – 37 Republicans and four Democrats – teamed up to sponsor an amendment to the State Constitution that would seriously damage the concept of "presumed innocent."

The amendment will be before voters on April 7 and, if approved, will become part of the State Constitution. The referendum question the State Legislature OK'd and voters will get on their ballots actually says nothing about the contents of the proposed amendment or what its impacts would be.

You can learn about those things, though, by checking out WJI's "Marsy's Flaws" page. There are also links to stories about the problems arising in states that approved their own Marsy's Laws and must with the consequences. 

Marsy's Law is the brain child of billionaire felon Henry Nicholas III, who earlier this month bought his way out of any real consequences for allegedly trafficking heroin, cocaine, meth and ecstasy. 

Jacob Maclin lost his effort to show there is racial bias in federal prosecutors' decisions about who gets charged with certain drug and gun cases in federal court, where penalties are heavier than in state court.

The numbers are clear – African Americans in Milwaukee face the harsher federal criminal penalty at a greater rate than do Whites in Milwaukee and elsewhere in the Eastern District of Wisconsin.

Federal prosecutors work with gun prosecutors in the Milwaukee County District Attorney's Office to decide which cases should go federal, according to the U.S. Attorney's Office. The feds may never even find out about cases in other counties that could be prosecuted federally.

The Milwaukee Fire and Police Commission will not investigate the Wisconsin Justice Initiative's complaint about derogatory comments a police officer made because the complaint came from a third party and not someone directly affected.

The officer's comments, made during a Federal Court deposition, targeted North Side and central city drivers.  A transcript of the officer's deposition is on file in Federal Court and is a public record.

The commission's decision "is ridiculous and surprising," WJI Executive Director Gretchen Schuldt said. 

WJI filed the complaint in August, after reading the transcript of a deposition of Milwaukee Police Officer – now Detective – Froilan Santiago. The transcript is part of the public Federal Court record.

Santiago testified he would invite traffic stop subjects into his squad car if the stop was in a Downtown police district, but not if it was in a central city or North Side district.

"District 7, if you stop that person, that person is going to run. He might have drugs or guns, based on where I've worked at. District 7 or District 5," he said.

The populations of Police Districts 5 and 7 include the largest percentages of African Americans among all the districts in the city, according to a U.S. Justice Department draft report on the Police Department.

In District 1 Downtown, "it's more of people as far as the -- more able to communicate and more different lifestyle," he said.

He added: "District 1, you have a high percentage of people who's in college, who's in business, work, and stuff like that, and you deal with them differently as far as – and their behavior at that moment in time."

Fire and Police Commission guidelines generally require a complainant to have a "reasonably direct relationship" to an incident for a complaint to be considered.

"Complainants are considered to have a direct relationship if they were directly affected by the alleged misconduct, witnessed the alleged misconduct, or have special, professional, or organizational knowledge about the alleged misconduct, e.g., a lawyer, a judge, or an FPC employee," according to the guidelines.

The guidelines also state that "The purpose for requiring a reasonably direct relationship is to help the FPC respond effectively to complaints from persons who have the greatest interest in the outcome and who have the most reliable information about an incident. It is not intended to screen out otherwise reliable complaints that deserve investigation."

A commission employee informed WJI last week that its complaint did not meet the guidelines' criteria. 

"This gives a huge get-out-of-jail-free card for officer misconduct," Schuldt said. "It kills the idea of the third-party whistleblower complaints when it comes to the Milwaukee Fire and Police Commission. It's a bad day for Milwaukee."

Many, many thanks to everyone who turned out for Oct. 3 event with Pulitzer Prize-winning journalist Tony Messenger. 

​And a special thanks to our sponsors.

A few good-time memories. Photos by Eleanor Burns.

By Gretchen Schuldt

​A Milwaukee County circuit judge who repeatedly cited erroneous information about the cause of an infant's death when she sentenced the girl's father for his role in that death erred when she denied him a new sentencing hearing after the error was discovered, a State Court of Appeals panel ruled this week.

The District 1 Court of Appeals panel ordered a new sentencing hearing for Vaylan Morris, whom Circuit Judge Janet Protasiewicz had sentenced to four years in prison and five years extended supervision after he pleaded guilty to second-degree recklessly endangering safety.

During the sentencing hearing, Assistant District Attorney Matthew James Torbenson told  Protasiewicz that synthetic marijuana might be to blame for the girl's death, but Dr. Brian Linert of the Medical Examiner’s Office actually concluded that it was not the cause.

While there was synthetic marijuana in the girl's stomach contents, the drug had not circulated through her blood or nervous system and did not kill her, he said.

When the state admitted the error during a postconviction hearing, Protasiewicz found that Torbenson merely "misquoted" Linert's findings. 

The error did not necessarily mean the prosecutor's statement was wrong, she said, because "different medical examiners can disagree about the cause of death." 

No alternative medical examiner findings were actually offered.

By Gretchen Schuldt

​Police who searched the home of a man they had just arrested had no legitimate reason to do so without a warrant, a State Court of Appeals panel ruled this week.

The panel granted Jesse J. Jennerjohn's request to suppress the evidence police found in the search. 

The ruling is the second time this month an appeals court rejected the state's claims that law enforcement was acting in its "community caretaker" role when conducting a warrantless search.

That exception to the U.S. Constitution's Fourth Amendment search warrant requirement allows officers to conduct searches without warrants when necessary to  protect persons and property.

The Appleton police officers who searched the home of Jennerjohn, however, "were not exercising a bona fide community caretaker function," Appeals Judge Lisa K. Stark wrote for the District III Court of Appeals panel. 

"Even if they were, the public interest in searching the residence did not outweigh the intrusion upon Jennerjohn’s privacy," she wrote. Stark was joined in her opinion by Appeals Judges Thomas M. Hruz and Mark A. Seidl. 

According to Stark's opinion, Officer Dominic Hall responded to a report from Grumpy's Pub that a man was using profanity, throwing things, and was trying to start a fight at the bar.

Two bartenders told Hall they had expelled the patron, who warned them that they had "better run." One of the bartenders had written down the person's license plate number, and the car was registered to Jesse Jennerjohn.

When Hall and other officers went to Jennerjohn's house, they saw him and a woman standing outside the house next door. Jennerjohn ran inside his own house when he spotted the police.

One of the officers near Jennerjohn's car testified he could see a rifle case in the car but could not tell whether there was a weapon in it. 

Hall testified during a suppression hearing that he knocked on Jennerjohn's door for several minutes and repeatedly announced the officers were with the Police Department and they wanted Jennerjohn to open up. Another officer said he could see Jennerjohn moving inside his house and did not see anyone else. 

Jennerjohn's neighbor and a friend police contacted by phone told them Jennerjohn lived alone. So did his brother, who came to the scene.

Jennerjohn came out of his house voluntarily 30 to 60 minutes after police arrived. He was holding something – it turned out to be venison – in his hand. He made grunting, guttural sounds as he walked toward officers.
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"He ignored the officers' commands to stop and yelled something akin to 'Just shoot me,'" Stark wrote.

Officers tased him and put him in handcuffs. 

Jennerjohn eventually told police there were no people or animals in the house. One of the officers verified his statement by opening the door and calling out, “Appleton Police Department. If there’s anybody inside, announce yourself now.”

There was no response.

By Gretchen Schuldt

We're halfway through our examination of cannabis cases filed in circuit courts last year, and thus far it looks like law enforcement in the northeastern part of the state is more aggressive in pursuing criminal marijuana charges than is law enforcement in southern Wisconsin.

The map and chart below show one measure of prosecutorial interest in pursuing cannabis charges – the number of county residents per criminal case that includes one or more marijuana charge. It's not a perfect measure, but it does paint a general picture of where folks are more likely to face criminal prosecution for pot. 

The numbers are good evidence that cannabis laws are not consistently applied across the state. Some municipalities, such as Milwaukee, pursue most simple possession cases in municipal courts and not in state circuit courts. Other places just don't take cannabis enforcement as seriously as others do. 

Still, it seems problematic that people in Florence County, where there are just 139 residents for every cannabis case filed, are statistically so much more likely to face criminal charges than someone in Dane County, where there are 4,339 people for every cannabis case.

​The idea that everyone is equal before the law apparently does not apply across county lines.

There is more information and detail about what's going on in the 36 counties examined thus far on our 2019 Pot Page. We continue to add to it.

This project is a partnership between the Wisconsin Justice Initiative and the American Constitution Society Milwaukee Lawyer Chapter. 

By Gretchen Schuldt

Winnebago County deputy sheriffs failed to ask three different people about any injuries suffered by the driver in a one-car accident, then claimed they did not need a warrant when they conducted a search at his home because they were concerned for his well-being.

The argument failed to convince a state appeals judge.

"While the officers indicated concern for (Troy) Kettlewell’s well-being, they did not ask any of these people about Kettlewell’s well-being or to assist in determining if he needed immediate help," District 2 Court of Appeals Judge Lisa Neubauer wrote. "Their questions were largely focused on his drinking and driving."

Neubauer's ruling reversed Winnebago Circuit Judge Daniel J. Bissett, who had ruled against Kettlewell's motion to suppress evidence obtained in the search.

According to Neubauer's opinion:

A witness reported to authorities seeing a man leaving a car in a ditch. The man's speech was slurred and he may have been intoxicated, but did not appear to be injured, the witness said.

Deputy Michael Huth, upon learning that the car was registered to Kettlewell, went first to the nearby home of Kettlewell's cousin to see if he was there. Kettlewell was not, but the cousin called him to let him know police were looking for him. 

Then Huth went to the accident scene, Neubauer wrote.

"Upon inspection of the vehicle, he noted the following: no broken glass, no window or windshield damage, no blood visible on or near the vehicle, and no other indications of personal injury within the vehicle," she wrote. "Huth saw a half-full bottle of beer and a prescription medicine container with Kettlewell’s name."

The side air bags had gone off, but the front ones did not.

State Sen. Van H. Wanggaard (R-Racine) is the chief sponsor of Marsy's Law, a proposed, lengthy  amendment to the State Constitution that clearly would violate the U.S. Constitution, be extremely difficult to implement, likely would add to jail crowding, and potentially would cost local taxpayers a bundle. 

The proposed amendment would grant 16 specific rights to alleged victims of crimes, but the ballot question voters will be asked to answer doesn't explain any of them. (See our "Marsy's Flaws" page for more details.)

We are asking supporters of the amendment for their views on how they see it working in Wisconsin. We wrote to Sen. Wanggaard with the questions below. We'll share his answers when we get them.

Marsy’s Law provides several new rights to victims. Among them is a right, “upon request, to attend all proceedings involving the case.” 

The state speedy trial law generally allows misdemeanor defendants to have trials within 60 days and felony defendants to have trials within 90 days. Would the right of victims under Marsy’s Law to attend proceedings override defendants’ right to speedy trials? What if there are several victims of a crime who want to attend proceedings, but they all have different schedules? How long could a defendant be held in pre-trial detention due to such scheduling conflicts? Would defendants held in jail longer because of these types of scheduling conflicts be liable for any jail boarding or other costs incarceration-related costs incurred during the “extra” time they are in jail?
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What will happen to relieve jail crowding if Marsy’s Law leads to fewer pre-trial detainees getting released in a timely fashion? Will the state provide more aid to counties to pay the cost of housing inmates and building additional jail capacity? Or will that be left to local taxpayers?

The one-sentence referendum question says virtually nothing about what the verbiage of the proposed amendment. Why not?

Stay tuned...​

By Gretchen Schuldt

Shorewood Police Sergeant Cody J. Smith took action after Jonah Marciniak was found hanging in his cell during the early morning hours of Aug. 15, 2016.

First, Smith performed CPR. Then he doctored a Police Department document to show that he checked on Marciniak at 4:10 a.m., when he had not. Smith did not check on Marciniak during the 46 minutes from 3:33 a.m. to 4:19 a.m., when Smith found the 39-year-old inmate hanging.

Then he lied about checking on Marciniak. And lied. And lied. He lied to officers from the Greenfield Police Department, called in to investigate the death, on three separate occasions between Aug. 15 and Aug. 31,   2016, according to a criminal complaint. Smith admitted the truth only after he was confronted with a surveillance video clearly showing that he hadn't checked on Marciniak at 4:10 a.m.

Smith was fired and was charged with one misdemeanor count of obstructing an officer. It took until March 23,  2017, seven months after the hanging, to issue the complaint, but the case got wrapped up very quickly -– within five days – after that.

Smith was sentenced on March 28, 2017 to one day in jail. Because he had gone through the booking process, his jail sentence was considered already served, according to a transcript of the sentencing hearing. Milwaukee County Circuit Judge Jean Kies also fined Smith $500.

He remains in law enforcement today.

"I think the conviction is appropriate, given the tremendous lapse in judgment that this presents," prosecutor Benjamin Lindsay said at Smith's sentencing hearing. "An officer -- We rely on officers for their credibility, and that is something that is -- There's a level of community trust there. There's also trust that the Court places and our office places."

Smith was very busy the night of the hanging, defense lawyer Michael Steinle said at the sentencing hearing.

Smith "has no prior record," Steinle said. "He doesn't have anything in his personnel file. This is -- It is just one of those sad situations that he just made a bad judgment to make that entry, and he didn't have to. That's the sad part about it. As -- But when push came to shove, he did correct it, Judge, and he was too late. He had already told the -- Greenfield that, in fact, he had checked when he didn't."

A federal court lawsuit filed over Marciniak's death says that Smith failed to follow Shorewood Police Department policy, which requires visual checks of jail inmates every 30 minutes and of mentally unstable inmates – which the suit says Shorewood police knew Marciniak was was – every 15 minutes.