MPD transparency, training, accountability to increase under ACLU stop-and-frisk settlement8/10/2018  Information about Milwaukee Police Department stops, frisks, and searches will be publicly reported each year, while the civilian complaint process will be overhauled to ensure complaints are seriously considered, under a settlement reached in a federal court case challenging the constitutionality of MPD's stop and frisk practices. The city also will be required to hire an independent consultant to determine if the city, the Police Department, and the Fire and Police Commission are complying with the settlement and making appropriate progress in correcting unlawful stops. Combined, the provisions of the settlement are intended to "begin to change...the culture, the behavior" of officers, said Karyn Rotker, senior staff attorney for the ACLU of Wisconsin. The ACLU of Wisconsin, along with the American Civil Liberties Union and the Covington & Burling law firm, brought the class action lawsuit on behalf of African-American and Latinx residents who challenged the constitutionality of MPD's traffic and pedestrian stops and alleged they were racially biased. The city denied wrongdoing. The ACLU said traffic and pedestrian stop rates in Milwaukee were more than six times higher for Black people than for white people. The disparity was found after controlling for crime rates and other factors that can influence stop rates. Searches of Black and Latinx drivers were more than 20 percent less likely to lead to the discovery of drugs than searches of white drivers, the ACLU said in a statement. Between 2010 and 2017, according to the civil rights organization, MPD conducted more than 350,000 pedestrian and traffic stops for which they have no record of reasonable suspicion of criminal activity or a traffic or vehicle equipment violation, as required by the Fourth Amendment, according to the ACLU. The settlement, already approved by the Common Council, will make public far more information about MPD stop and frisks than is currently available or even is consistently collected. "There was an extremely high rate for non-completion" of reports related to traffic and pedestrian stops, Rotker said in an interview. In addition, information was entered into two different databases, depending on whether the stop was a pedestrian or vehicular. The settlement, already approved by the Common Council, will make public far more information about MPD stop and frisks than is currently available or even is consistently collected.  Under the settlement, the department will be required to collect detailed information about each stop, including demographic information about the subject; location of the stop; the legal basis for the stop; whether a frisk was conducted; whether any contraband was found; whether the officer(s) used force; and whether officers took any action, such as making an arrest or issuing a ticket.
The Fire and Police Commission will publish a report on the information annually. The requirements should "show the public they're (police) eliminating unconstitutional stop and frisks," Rotker said. Officers who fail to fully document their stops or who do not properly make stops will be subject to counseling, training, retraining or discipline, she said. The reformation of the civilian complaint process will apply to all civilian complaints, not just those about stop and frisk incidents, she said. The changes will require training of complaint investigators "to not attack or blow off the complainant," she said. Some individual plaintiffs in the case did try to file complaints after they were stopped by police, but the complaint process was too difficult or complex or they were "blown off" so they did not complete it, she said. The settlement requires the city to make complaint forms available in a variety of languages. It also requires the city to accept complaints whether they are filed by phone, snail mail, email, or other methods and to ensure that staff who accept complaints "are trained not to, and in practice do not, discourage the filing of any complaint." The settlement prohibits the city from requiring that complaints be notarized, and requires investigators to interview complainants away from police stations unless the person consents to a station interview. The settlement also forbids the city from investigating complaints in a way that shows bias against complainants. Prohibited practices include asking hostile questions of complainants; “applying moral judgments related to the dress, grooming, income, life-style, or known or perceived criminal history of complainants; giving testimony by officers greater weight than testimony by complainants; providing summary reports that disadvantage complainants and are unrelated to facts developed in the investigation; issuing complaint dispositions that are not justified by the facts developed in the investigation; (and) recommending inconsistent discipline for officer misconduct." The 53-page settlement agreement also calls for the police / city to:
“We hope this sends a message to other cities about the need to advance fairness and equal treatment in policing,” he said in a prepared statement.
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 Flynn WJI just charted its 100th Milwaukee County case of felony second offense possession of marijuana. And yes, the defendant in the 100th case was African-American. Not much of a surprise there, since 87 percent of the defendants in these cases were African-American. Another non-surprise: the defendant in the 100th case was arrested in the City of Milwaukee, north of I-94, where 80 of the arrests occurred. (We've found just eight cases so far stemming from Milwaukee arrests south of I-94 and a total of 11 originating with arrests in the suburbs. One arrest took place on I-94.) And, finally, yes, as in many, many other cases, the 100th arrest started as a traffic stop, this time for excessively tinted windows. Police said they smelled marijuana, and the rest is history recorded in court documents. So is the racial / geographic concentration just a coincidence? Absolutely not, judging from data dug up by the ACLU during litigation over the city's stop-and-frisk policy. The city and civil rights organization settled the federal class action lawsuit last month. The ACLU found that between 2010 and 2017, Milwaukee police conducted more than 350,000 pedestrian and traffic stops for which they have no record of reasonable suspicion of criminal activity or a traffic or vehicle equipment violation, as required by the Fourth Amendment. Former Police Chief Edward Flynn contributed to that number through his policy of encouraging traffic stops in certain neighborhoods as a crime-fighting measure. The city has agreed to rescind the policy. Flynn said in a 2009 memo said that "the intelligent, assertive use of police authority to stop people and vehicles can be an invaluable tool that reduces crime and enhances safety in these same neighborhoods. ..." "Traffic enforcement will continue to be a key part of our policing strategy going forward," he said. "It must be recognized that many of the people we stop will be released without further action. In this context, how our authority is employed is as important as a results of its use," he said.  Skwierawski "Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. Name: Audrey K Skwierawski Appointed to: Milwaukee County Circuit Court Appointment date: March 13, 2018 (up for election in spring 2019) Education: Law school – Georgetown University Law Center Undergrad – Northwestern University High School – Pius XI Catholic High School Recent Employment: 2011-present – Attorney General-Violence Against Women Prosecutor, Wisconsin Department of Justice 2008-2010 – Coordinator, Commission on Domestic Violence and Sex Assault, City of Milwaukee 1994-2008 – Assistant District Attorney, Milwaukee County Memberships: State Bar of Wisconsin Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Served as Milwaukee County and state prosecutor for a combined total of more than 20 years. Has conducted more than 100 jury trials and 50 court trials. Prosecuted a double homicide and sexual assault, along with traffic, general misdemeanor and juvenile court cases. Has special expertise in domestic violence, stalking and sexual assault cases. Job duties also include providing ongoing training and technical support statewide to prosecutors handling domestic violence and sexual assault cases. Civil law experience includes assisting with a client who ran a health insurance plan and handling motions in various states; handling civil commitments of sexually violent persons cases as assistant district attorney. No significant experience advocating in administrative proceedings. Number of cases tried to verdict or judgment: Jury, more than 100; non-jury, more than 50; arbitration, 0; administrative bodies, 0. Cases on appeal: None. Three most significant cases in which you were involved: 1. State v. Billy Lee Morford – (Milwaukee County) 1996; State v. Morford, 2004 This is a Chapter 980 sexually violent person commitment case in which the respondent had already been committed for some time. Due to several factors such as advancing age and poor health Mr. Morford petitioned for what is called “supervised release” from his commitment so that he could live in the community while being supervised. I was part of the litigation team that fought against this release but ultimately lost. What ensued was a many months-long search for a private residence in the city of Milwaukee where Mr. Morford could live while being supervised. The Morford case lead (sic) to an enormous public outcry, creation of a bi-partisan state legislative committee to seek placement alternatives (on which I served), ordinances passed by municipalities to stop offenders from being placed in their communities and a series of legislative changes to Chapter 980 relating to the supervised release process. It also led to a motion for reconsideration of the initial release determination, which eventually became the subject of the above Wisconsin Supreme Court decision. 2. State v. Kenneth Spaulding – (Milwaukee County) 1997, 1998 and 1998 I prosecuted the Reverend Spaulding for sexual assault of multiple children in West Milwaukee, all of whose families had allowed him access to their children as part of church related youth group activities. As I worked with West Milwaukee and West Allis police we uncovered a pattern of sexual abuse of children in many other states. The defendant had moved around the country abusing special needs and troubled children. The vulnerability of these children made them poor witnesses, and when authorities got close the defendant would immediately move out of the jurisdiction. The fact that the defendant used his ministry to violate children offended me on a deeply personal level. I believe the case to be significant not from a legal perspective but from a human one. So many victims of the defendant heard about the prosecution that they made pilgrimage to Milwaukee for the closing arguments and the sentencing. Many victims from other states submitted letters and finally found closure after the defendant was sentenced to a lengthy prison term. 3. State v. Nicholas Tuinstra – (Green Lake County) 2014 I worked with a litigation team of the elected District Attorney and another Assistant Attorney General to convict the defendant on two counts of first degree homicide and one count of stalking. The case involved domestic violence and I worked to bring in and qualify an expert on domestic abuse. The case is now in post-conviction motion stages. There are several issues of significance that will likely be decided on appeal during the next year. Prior judicial experience: Supplemental court commissioner for Milwaukee County Circuit Judge Stephanie G. Rothstein. In that capacity I have officiated for many weddings but have not conducted any other judicial/quasi-judicial activities. All previous runs for office: Ran unsuccessfully for Milwaukee County circuit judge in 2003. Judicial or non-partisan candidates that you have publicly endorsed in the last six years: Dane County Circuit Judge Jill Karofsky and Milwaukee County Circuit Judges Mark Sanders, Thomas McAdams, and Janet Protasiewicz Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application: Attorney General’s Statewide Sexual Assault Response Team Co-chair, 2012 - present Wisconsin Professional Society on the Abuse of Children, Executive Board Member, 1998 - 2001 • Wisconsin Association of State Prosecutors Executive Board member and vice president, 1996 - 2008 State of Wisconsin Violence Against Women Act Advisory Committee, 1999 - 2002, 2008 - present Milwaukee Commission on Domestic Violence and Sexual Assault Commissioner, 1998 - 2001 Wisconsin Legislative Council Special Committee Sex Offender Placement, 2007 Milwaukee County Judicial Oversight Initiative Advisory Committee, 1998 - 2000 Mt. Mary University Criminal Justice Advisory Board, 2014 - 2016 Polish Heritage Alliance, member Polanki Women’s Organization, member Washington Heights Neighborhood Association, member St. Sebastian Catholic Church, member Annunciation Greek Orthodox Church, member Philoptocos Greek Women’s Organization, member Pius XI High School Parent Producers (support performing arts at Pius XI High School), member Describe any courses on law you have taught or lectures you have given: Applicant cites a long list of courses and lectures. In my current role as violence against women resource prosecutor I am responsible for presenting numerous trainings throughout the state for diverse audiences including judges, prosecutors, law enforcement agencies, probation agents, victim witness professionals and community advocates. Pro bono legal work in the last five years: None. Wisconsin law dictates that prosecutors not engage in any other practice of law outside of their employment. Quotes: Why I want to be a judge – Our judicial system often represents the closest connection point for many Americans to interface with their Constitution and their government. With the exception of marriage and adoption, the hundreds who appear in circuit court in Milwaukee County every day come because of an unhappy, stressful circumstance. They come bearing the weight of criminal victimization, unresolved business disputes, divorce or some other potentially life-changing problem. In short, they come to the court when things may be at the worst in their lives. That is precisely when they deserve the best that our justice system can provide. They deserve a circuit court judge who delivers on the promise of the rule of law, honors the Constitution and has a deep understanding of the separation of powers. Those appearing in Milwaukee courts also need a circuit court judge who can dispense justice without unnecessary delay. The courts in Milwaukee carry heavy dockets, so a circuit court judge must not only be able to follow the rule of law thoughtfully and accurately, but also expediently. I want to be a judge because I have the skills to deliver the high level of juridical excellence combined with the efficiency that the people of Milwaukee County should expect when they walk into the courthouse. My educational experiences at both Northwestern University and Georgetown University create the foundation for the intellectual rigor required to make well-reasoned decisions. My more than twenty years of real world experience as a litigator (first in Milwaukee courtrooms and then in courtrooms all over the state) has honed my ability to deftly handle large calendars and complex cases without sacrificing quality. They come bearing the weight of criminal victimization, unresolved business disputes, divorce or some other potentially life-changing problem. In short, they come to the court when things may be at the worst in their lives. Best Wisconsin or US Supreme Court decision in the last 30 years – Paroline v. United States (2014)
As a prosecutor I have worked with hundreds of crime victims throughout the state. I believe Paroline v. United States ... is one of the best decisions of the past 30 years because in it the U.S. Supreme Court modeled treating victims with sensitivity, dignity, and respect. The court showed empathy towards the victim, protecting her privacy, and instructing on the importance of restitution. The victim in Paroline, identified as "Amy," was sexually assaulted by her uncle as a young girl. Compounding his crimes, her uncle also recorded and distributed pornographic images of her abuse on the Internet. Paroline was convicted for possessing two of the 150 to 300 total images of child pornography in his custody. Amy sought $3.4 million in restitution, under the federal statute that mandates full restitution to child pornography victims, arguing that everyone who possesses images of her is continuing to contribute to her injury and, consequently, each of them should be required to pay the full amount for her losses. The Supreme Court ruled that Paroline was not responsible for the entire $3.4 million but he should have to pay his share of restitution and that amount must be enough to send the message that his part in the crime was not victimless. Although the court did not rule that Amy should receive the full $3.4 million from Paroline, the court's decision is exemplary in its treatment of Amy as a crime victim. In the decision, the justices show compassion and sensitivity towards Amy. In demonstrating empathy for Amy, the court signals to all who read this case that Amy is a real person worthy of our attention and respect. ... The court protected the victim's right to privacy by allowing Amy to use a pseudonym rather than her real name. This allows Amy to avoid further humiliation as she puts her life back together. Not all courts allow victims to remain anonymous. When victims’ identities are revealed along with graphic details of the crimes committed against them, it exacerbates the trauma they experience. In modeling the use of a pseudonym, the U.S. Supreme Court indicates to lower courts that this practice is not only acceptable, but preferred. Lastly, the court fully embraced the importance of restitution noting that restitution is effective in rehabilitating offenders because it forces them to concretely confront the harm they caused. Worst Wisconsin or US Supreme Court decision in the last 30 years – State v. Johnson (2013 WI 59.) Crime victims often rely on mental health providers to help them heal emotionally and psychologically after they have been harmed. The psychologist-patient privilege is especially important because it encourages these crime victims to fully disclose information, without fear of embarrassment or humiliation, in order to receive much-needed counseling and support. It is not uncommon for defendants (especially in sexual assault cases) to attempt to pierce this privilege, arguing that the mental health records contain exculpatory evidence. Current Wisconsin law creates a dilemma for victims because once a judge makes the requisite findings, victims must choose to disclose their mental health records and testify against their abuser or choose not to disclose and be barred from testifying. This dilemma is at the heart of the what I believe to be the worst decision issued by the Wisconsin Supreme Court in the past 30 years, State v. Johnson (2013 WI 59.) Curtis Johnson was charged with one count of repeated acts of sexual assault to his stepdaughter when she was between 12 and 15 years old. During discovery Johnson moved the court for an in camera inspection of his niece's therapy records, asserting the records contained information about their relationship and were exculpatory. The circuit court ruled that Johnson met the requisite burden and ordered the victim to disclose her records. The victim asserted the psychologist-patient privilege and declined to allow the judge to see her records. In response, and departing from precedent, the judge issued an order allowing the victim to testify, without disclosing her records, provided the jury was instructed that it could infer that the undisclosed records would be helpful to the defense. The Court of Appeals reversed the trial court's decision and ruled that the victim could not testify as long as she was "exerting" her privilege. State v. Johnson (No. 2011 AP 2864-CRAC). In State v. Johnson (2013 WI 59) the Supreme Court issued a per curiam decision in which two justices did not participate. The court offered no legal analysis in its decision. Rather the opinion presents various issues and indicates which justices decided one way or the other on each issue. Ultimately the court reversed the appellate court's decision and found "under varying rationales" that the victim could testify without disclosing her mental health records. The decision was silent as to the curative instruction. The parties and the trial court did not know how to proceed because the decision offered no analysis, departed from precedent, and did not discuss the curative instruction. Both the state and defense asked the court to reconsider this decision. The Supreme Court issued a second per curiam decision in which it admitted its first decision was confusing and left the parties and the trial court "without sufficient guidance or ability to proceed consistent with precedent." State v. Johnson (2014 WI 16). In the end, the court affirmed the Court of Appeals decision. The dilemma for Johnson's niece remained. Judicial philosophy: I recently taught an undergraduate university course on the way our criminal justice system handles various forms of abuse – sexual abuse, domestic abuse, and elder abuse. I inherited a set of lesson plans from a previous professor who graciously shared them with me. But instead of starting with the first plan and chapter of the book, I started where I thought all students of criminal justice should start – with an intensive review of our system of separation of powers and checks and balances. Working from the municipal level to the county then the state and federal levels we developed a working “map” on the board depicting the three branches of government as well as their responsibilities. Just as I chose this lesson to be the foundation for the students, I recognize it as the foundation of my judicial philosophy. As judges in our courts work toward the ideal of “equal justice under law” each must have a firm grounding and understanding of their role in our democratic system. With this foundation in place, the circuit court judge works to conduct motions, facilitate truthful testimony, conduct fair trials and apply the laws as enacted by the legislature. And the good circuit court judge carries out these duties while striving to adhere to the highest level of personal and professional excellence in every case no matter how large or small. Conducting a great many day to day duties at a high level of excellence while keeping in mind one’s role in the larger system of democracy can seem an impossible task, but I am guided by the many exemplary judges in our state whom I have had the good fortune to observe in action. I do not pretend to be able to work to their levels because taken together they have set the bar high. Knowing it can be done, however, helps me to aspire. My own undergraduate alma mater, Northwestern University, was founded on the motto, “Whatsoever things are true” taken from Philippians, 4.8: Finally, brethren, whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report; if there be any virtue, and if there be any praise, think on these things. If a firm understanding of the separation of powers forms the foundational “floor” for my judicial philosophy, then these words capture the aspirational “ceiling.” For whatever else a judge may seek to do, he or she should take the bench thinking always upon the search for what is true, what is honest and what is just. Previous application for judicial appointment: Application for appointment as a Milwaukee County Circuit Court Judge submitted to the Governor’s Judicial Nominating Commission in 2003.  Seidl A defense lawyer who did not interview potentially helpful witnesses and cannot give a reason for failing to do so was ineffective in the representation of his client, a state appeals judge ruled this week. District 3 Court of Appeals Judge Mark A. Seidl, in rejecting rulings by St. Croix County Circuit Judge R. Michael Waterman, threw out the third-offense drunk driving conviction of Tanya Lynn Schmit and sent the case back to circuit court for further proceedings. During a post-conviction hearing, defense lawyer Aaron A. Nelson testified that “there was no strategy involved at all” in his non-investigation of one of the potential witnesses and that he simply “didn’t do it,” according to Seidl's one-judge opinion. The main question at Schmit's trial was whether she was driving when the car she was in crossed the center line of a road and crashed into a bridge wall. Another woman, Britney Aumer, was with Schmit in the car when the accident occurred. Neither Schmit nor Aumer testified at Schmit's jury trial. It is not clear whether Aumer could be found in time to testify, Seidl wrote. A police officer testified at trial that Schmit said both that she was the driver and that she was not the driver. Aumer declined to give a statement to police. About three years after the accident and two weeks before trial, a witness, Holly Korn, told Schmit that she saw Aumer leave the car by the driver’s door. Korn had not spoken up earlier because she assumed Aumer was the one charged with drunk driving, Seidl said. Schmit’s estranged husband, Chad, told Schmit before the trial that a distraught Aumer talked to him on the phone after the accident and acknowledge being the driver. Chad and Schmit owned the business that owned the vehicle. Schmit told her lawyer that there were two potential witnesses and that he should talk to them. During the post-conviction hearing, attorney Nelson testified that he knew about Chad even before Schmit told him, and also said he learned of the two witnesses about the same time. "There is a reasonable probability that, had (the witnesses) testified, the result of the proceeding would have been different." Waterman, the circuit court judge, ruled that the lawyer was not ineffective because a reasonable attorney would not have had time to investigate the new information obtained a week or two before trial.
Seidl rejected that reasoning, saying “Nothing in the record on appeal supports" the contention that Nelson did not have enough time. "Rather, and contrary to the circuit court’s statement, Schmit did present evidence clearly showing that the efforts could have been completed in time for trial….” he wrote. Waterman also ruled that even if Nelson had been ineffective, the outcome of the trial would not change and Chad’s testimony about Aumer’s phone call would have been inadmissable heresay. Wrote Seidl: “The court failed to provide any basis for its conclusions. ... There is a reasonable probability that, had Chad and Korn testified, the result of the proceeding would have been different. As an initial matter, the record sufficiently establishes that both witnesses could have significantly undermined the State’s case if they had testified at trial.  Seidl By Gretchen Schuldt No, mowing the lawn does not require a call to Digger's Hotline three days before that first blade is cut, according to a State Court of Appeals decision. Such a requirement would "lead to absurd results," District III Court of Appeals Judge Mark A. Seidl wrote for a three-member panel. He was joined by Appeals Judges Lisa K. Stark and Thomas M. Hruz. The decision means that Polk County won't have to pay for the damage its workers did to two pieces of equipment owned by Lakeland Communications Group LLC while the workers were mowing along a highway right-of-way. Under previous court rulings, counties are protected from liability for any mowing mishaps for which they are responsible. Lakeland, in its effort to collect $1,791.21 in damages, alleged that the county was negligent because it did not contact Digger's Hotline at least three days before mowing, as state law requires for excavation work. The requirement gives utilities time to mark the locations of underground equipment so it is not damaged during excavation. Lakeland argued that the county's mowing operation was excavation because vegetation on the ground was moved or removed.  Polk County Circuit Judge Jeffery L. Anderson, in rejecting Lakeland's small claims complaints, ruled that "excavation" did not mean mowing the grass or trimming the trees. It means actual moving of dirt and earth, he said.
The appeals panel agreed. The Legislature, in adopting the Digger's Hotline law, did not include the word "vegetation," which it easily could have done, Seidl wrote. "Lakeland’s expansive interpretation would create ambiguity and impose wide-ranging consequences if adopted," he wrote. If simply moving material that is on the ground constitutes excavation, as Lakeland contended, "then anyone planning to rake leaves or mow a lawn would be required to call Digger’s Hotline" Seidl said. Such a requirement, as the Wisconsin Counties Association said in a friend of the court brief, “would result in a flood of inquiries” to Digger’s Hotline, impose "an additional utility tax on Wisconsin's citizens," and would force significant changes to public mowing operations, Seidl said.  Andrea wrote bad checks. She wrote them frequently, according to the Monroe County district attorney's office. A criminal complaint said her bad checks included $155 (including a $23 tip) to The Hair Gallery; $53.89 to a Kwik Trip; $47 and $30.19 to the Tomah Mini-Mart; $455 to the Tomah Cash Store; $42.27 to the Tomah Phillips Pharmacy; and $46.12 to Casey's General Store. By the time the DA's office finished writing them all up, Andrea faced 26 counts of misdemeanor theft by misrepresentation. Part 1 is here. But Andrea faced an even bigger problem. She was out on bond in two earlier cases – a misdemeanor possession of drug paraphernalia charge in Monroe County and two counts of issuing worthless checks in La Crosse County. A condition of each of those bonds was that Andrea not commit any crimes while her cases were pending. Violation of her bond conditions could be charged as new crimes – misdemeanor bail jumping. Based on her two pending cases, the Monroe County district attorney's office added 31 counts of bail jumping to the 26 counts of theft. Andrea now faced 57 criminal charges. Her maximum potential jail exposure jumped from 19.5 years to almost 43 years. And then the DA's office did what prosecutors around the state do – it reached a plea deal. Andrea pleaded guilty to five counts of misdemeanor theft and six counts of misdemeanor bail jumping. The remaining 46 counts were dismissed. She was sentenced to a total of 77 days in jail and three years probation. Monroe County Circuit Judge David J. Rice stayed a sentence of 60 days in jail on each count. Defense lawyers long have complained that felony and misdemeanor bail jumping charges are used to coerce defendants into pleading guilty to other charges. A new paper in the Wisconsin Law Review suggests that is indeed the case. Felony bail jumping occurs when a person out on bond on a felony charge violates the conditions of that bond. Misdemeanor bail jumping occurs when a person out on bond on a misdemeanor charge violates the conditions of that bond. A bail jumping offense may not by itself be a crime. Missing a court date, violating a local ordinance, or having a drink could all be bail jumping offenses if bond conditions prohibit those things. Misdemeanor bail jumping carries a maximum penalty of nine months in jail and a $10,000 fine; felony bail jumping carries a maximum penalty of six years in prison and a 10,000 fine. For her Law Review paper, author Amy Johnson analyzed the relationship between the disposition of bail jumping charges in the state and the disposition of other charges in the same cases. She considered the bail jumping cases "leveraged" to get plea agreements if at least one of the bail jumping charges was dismissed and defendants pleaded guilty to at least one of the underlying charges. Johnson considered cases closed at the county level from 2000 to 2016. In 2000, she found, 59 percent of cases (2,447 of 4,120) of bail jumping cases may have been leveraged; by 2016, that figure had risen to 66 percent, (5,864 of 8,841). Looked at another way, the number of potentially leverage plea bargained cases jumped 140 percent from 2000 to 2016, from 2,447 to 5,864. Johnson cautions that dismissed bail jumping charges along with a pleas to underlying charge do not conclusively prove that the bail jumping charges were used to coerce the plea. There are many other reasons charges are dismissed, she said. "However, when the percentage of bail jumping charges dismissed in cases where the defendant pled to other charges reaches 70, 80, or nearly 90 percent the correlation between the dismissal of bail jumping to the plea to other charge becomes hard to ignore, particularly when dismissal rates of other charges are significantly lower," she wrote. In Iowa County, for example, 85 percent of bail jumping cases closed in 2016 may have been leveraged; in Chippewa County, the figure was 83 percent; in Eau Claire County, 80 percent; in Dane County, 78 percent; and in Milwaukee County, 55 percent. In only 25 cases statewide were all bail jumping charges dismissed without a plea on other charges, Johnson wrote. That, she said, is "another data point that appears to support the inference that bail jumping is used as leverage."  Source: The Use of Wisconsin's Bail Jumping Statute: A Legal and Quantitative Analysis Supreme Court united in denying raises for some lawyers; divided on approving them for others7/11/2018 By Gretchen Schuldt The State Supreme Court spoke in three different voices when it decided to give court-appointed lawyers a raise to $100 an hour from $70 starting in January 2020, The Court was united, though, in refusing to give lawyers appointed by State Public Defender's Office (SPD) any raise at all. Those lawyers are paid $40 per hour to represent indigent clients, the lowest rate in the nation. The court recently released its order on appointed lawyer pay. It was in response to a petition seeking the raise for court-appointed lawyers, plus a $100-per-hour-rate for SPD-appointed lawyers.    A.W. Bradley The court said it had the power to increase the rate for the former group, but did not want a fight with the Legislature over a raise for the latter. Justices Ann Walsh Bradley and Shirley S. Abrahamson concurred and dissented with parts of the Court's order, saying the raise for court-appointed lawyers should begin sooner. Justices Daniel Kelly and Rebecca G. Bradley dissented, saying the Supreme Court should not even should not grant raises to court-appointed lawyers because the power of the purse belongs to the Legislature. So first, a few excerpts from the section of the unsigned order demurring on the raises for SPD-appointed lawyers. Chronic underfunding of the Office of the State Public Defender (SPD) has reached a crisis point. *** Most attorneys will not accept SPD appointments because they literally lose money if they take these cases. Consequently, the SPD struggles to find counsel who will represent indigent criminal defendants. *** The threshold question is whether this court has the authority to declare a legislative mandate "unreasonable." ...This court has traditionally exercised great care to avoid controversy with the legislature. We are highly mindful of the separation of powers and do not engage in direct confrontation with another branch of government unless the confrontation is necessary and unavoidable. ... We thus decline to use our administrative regulatory process to undermine a legislative enactment. We are, however, deeply concerned about the impact of prolonged underfunding of the SPD on our duty to ensure the effective administration of justice in Wisconsin. We agree that the consequence - significant delays in the appointment of counsel - compromises the integrity of the court system and imposes collateral costs on criminal defendants and their families, and on all citizens of this state: jobs lost, additional expenses incurred, and justice denied. We have a constitutional responsibility to ensure that every defendant stands equal before the law and is afforded his or her right to a fair trial as guaranteed by our constitution. We hope that a confrontation in the form of a constitutional challenge will not occur and trust that the legislature will work with the courts, the SPD, the petitioners, the counties, and other justice partners to ensure adequate funding for the SPD that is urgently needed to forestall what is clearly, an emerging constitutional crisis. *** The A.W. Bradley / Abrahamson concurrence / dissent was just two paragraphs long. They supported a raise for court-appointed attorneys, but wanted it sooner. "I would make the increase effective July 1, 2018," A.W. Bradley wrote. "I would not unduly delay the effective date of this change." Kelly was much more verbose in his dissent, which clocked in at more than 10 pages. He was joined by R. G. Bradley. Some brief excerpts follow. Compensation for attorneys appointed by the court to represent indigent criminal defendants is absurdly inadequate. The petitioners have established this proposition to an almost metaphysical certainty, which is no mean feat for a question of economics. The solution seems pretty simple——pay more. And it would be that simple if we shared the power of the purse with the legislature, there were no limits to financial resources or competing demands for them, and the money used to pay the attorneys belonged to the court. As it is, none of those conditions is true. So when we tell Wisconsin's counties to pay for the attorneys we appoint, we are trespassing on authority that belongs to others. ***  Daniel Kelly We know, and have known for over two-hundred years, that the power of the purse belongs to the legislature, not us.
*** So our constitution, our cases, and the wisdom of the Founders all tell us that only the legislature may make appropriations. But when we tell counties to pay the attorneys we appoint, we are exercising that power. *** I am not insensible to the fact that Wisconsin's judiciary has been ordering counties to pay for appointed counsel for almost as long as we have been a State. Such a lengthy history is due considerable respect. ...But the judiciary cannot expand its authority into the legislative domain through adverse possession,1 or the legislature's long acquiescence. *** We should honor the wisdom of the Founders, and relinquish this incursion on legislative prerogatives. This would fix the error we have entertained for an exceedingly long time, but it will not fix the very real problem the petitioners brought to us. They speak truly when they say there is a constitutional crisis on the horizon. The evidence that indigent defendants are being held in jail for extended periods of time for want of counsel is deeply disturbing. The constitution may have something to say about the predicament of such defendants; it would be unfortunate if a declaration on that question were necessary. *** By Gretchen Schuldt The number of criminal bail jumping charges resolved in the state jumped 134 percent from 2000 to 2016 and the number of those charges dismissed soared 170 percent, according to a new Wisconsin Law Review paper. In 2000, bail jumping accounted for 7 percent of criminal charges adjudicated in the state; in 2016, that figure was 17 percent. The data suggest that bail jumping charges are used to induce defendants "to plead to their original charge rather than to punish them for violating their bond conditions," Amy Johnson wrote in "The Use of Wisconsin's Bail Jumping Statute: A Legal and Quantitative Analysis." Johnson's conclusion, buttressed by her quantitative findings, is something that defense lawyers also have argued based on their courtroom experiences. Felony bail jumping occurs when a person out on bond on a felony charge violates the conditions of that bond. Misdemeanor bail jumping occurs when a person out on bond on a misdemeanor charge violates the conditions of that bond. A bail jumping offense may not by itself be a crime. Missing a court date, violating a local ordinance, or having a drink could all be bail jumping offenses if bond conditions prohibit those things. Misdemeanor bail jumping carries a maximum penalty of nine months in jail and a $10,000 fine; felony bail jumping carries a maximum penalty of six years in prison and a 10,000 fine. The charges and penalties mean that a person charged with, for example, a felony that carries a two-year maximum sentence could face an additional six years in prison if they violate their bond in any way. There were 11,567 bail jumping misdemeanor and felony charges adjudicated in 2000 and 27,042 in 2016, an increase of 15,475. Of those resolved charges, 7,385, or 64%, were dismissed in 2000; by 2016, dismissals increased to 19,946, or 74% of bail jumping cases resolved. The 74 percent figure "is particularly informative considering that for all other fully adjudicated charges in 2016 the percentage dismissed was a significantly lower 47.32% (61,852 of 130,713 charges)," Johnson wrote.  Source for charts: "The Use of Wisconsin's Bail Jumping Statute"  Johnson's paper, published as a comment, called for state courts to embrace reforms that "prevents extreme numbers of bail jumping charges. Doing so would reduce the leverage effect that prosecutors have without eliminating it entirely." The courts’ past and current interpretations of the bail jumping statute has “led to an increase in bail jumping charges, absurd consequences, and potential sentences to the charged crimes,” she wrote. “The result is that defendants are at a marked disadvantage when negotiating plea deals.” The Wisconsin Supreme Court, for example, has held that a defendant can be charged with multiple counts of bail jumping for violating a single bond. Johnson, as an example cited the example of a J.E., a composite of clients in actual cases she worked on during a 2016 legal internship. J.E., she said, is an alcoholic homeless man who got into a disturbance with another man on Madison’s State Street. Both men were charged with disorderly conduct; both admitted to being under the influence of alcohol. J.E. was granted a signature bond, but as conditions of that bond, was ordered to maintain absolute sobriety and to stay away from State Street. A few weeks later police arrested an intoxicated J.E. on State Street. He was charged with two counts of misdemeanor bail jumping. J.E.’s potential imprisonment suddenly jumped from a maximum of three months to a maximum of 21 months, Johnson wrote. “Ultimately, J.E. agreed to a plea deal that would dismiss the bail jumping charges if he pled guilty to the disorderly conduct….,” Johnson wrote. “Even if he was acquitted of the disorderly conduct, he would still have been subject to the bail jumping charges, and the likelihood of conviction resulting from those charges was too great for him not to take the plea.” Johnson graduated this spring from the University of Wisconsin Law School. Before she enrolled, she was an IT project manager and analyst for more than 20 years. During that time, she managed large software projects and gained considerable experience analyzing data. She said she got interested in the bail jumping topic when she read a State Supreme Court bail jumping decision, State v. Anderson. The court held that it was fine and dandy to issue multiple criminal charges for multiple violations of a single bond. In her paper, Johnson said that then-Justice Janine Geske, in a dissent, "points out a variety of scenarios where a detailed set of bond conditions that are violated could result in punishments that far exceed the initial crime." She continued: "This seems particularly outrageous when many conceivable conditions, like not drinking or not being in a certain area of town, are not criminal acts in and of themselves. A defendant with one criminal felony count could end up with punishment for violating bail conditions that far exceed the punishment for the crime itself." Geske’s dissent, Johnson said in an email, “rang very true based my anecdotal observations while working with clients that had bail jumping charges. I was curious about whether she was right or not.” Johnson’s planned paper “turned into a research project that took hundreds of hours," she said. Johnson analyzed Wisconsin Consolidated Court Automation Programs (CCAP) data for the years 2000 through 2016. The data included more than 1.6 million cases and 3.2 million charges. Statewide, disorderly conduct was the most frequently resolved offense in 2000, while misdemeanor bail jumping – charged when the underlying crime is a misdemeanor – was the fifth most common charge. Felony bail jumping was the tenth most commonly adjudicated crime. "Combined, bail jumping was third overall but the number of bail jumping charges was less than half of the number of disorderly conduct charges," she wrote. That changed dramatically by 2016. "Disorderly conduct was first," she wrote. "Misdemeanor and felony bail jumping were second and third, respectively. However, combined, bail jumping was the number one charge in Wisconsin, ahead of disorderly conduct by over 5,000 charges."  The number of cases with multiple bail jumping counts loaded on to them also have increased, Johnson wrote. In 2000, 23 percent of bail jumping cases closed had more than bail jumping charge; in 2016, the percentage was 35 percent. "Were Justice Geske’s assertions in her dissent in Anderson correct?" Johnson wrote. "Has the bail jumping statute and its interpretations resulted in a large number of bail jumping charges and an excessive exposure to penalties? The CCAP data suggests that she was indeed correct."   Dugan By Gretchen Schuldt A Milwaukee County judge must hold a hearing to determine whether a defense lawyer was ineffective because he told a jury he wasn't sure he believed his client, failed to impeach witnesses who provided inconsistent statements, and did not challenge key testimony that was clearly incorrect, a state appeals court said Tuesday. The hearing was sought by Ronald Lee Gilbert, who was convicted of trafficking of a child, second-degree sexual assault of a child, and intentional child abuse. Gilbert's lawyer, Robert L. Taylor, during his closing argument to the jury in Gilbert's trial, questioned the truthfulness of his client and witnesses against him. "I’m not sure I believe any of them, to be quite frank," Taylor said. "A little bit here, a little bit there, but I’m not sure I believe any of them. ... Maybe they get this, but morality is what’s missing here. There’s no good guys." Taylor also told the jury that in the United States "we would rather...let some scumbags go free because we can't find that person guilty if we don't have enough evidence." While Taylor did not mention Gilbert by name, Appeals Judge Timothy G. Dugan wrote, "the jury could reasonably understand that trial counsel was referring to Gilbert." Taylor was appointed by the State Public Defender’s Office to represent Gilbert. Such lawyers are paid $40 an hour, the lowest hourly rate in the nation and one that many say is not enough to convince experienced and quality lawyers to take public defender appointments. The State Supreme Court, however, has declined to increase it. Gilbert didn't have a choice in accepting Taylor, whose license previously had been revoked for a variety of reasons, including felony convictions. Taylor was Gilbert's second lawyer. When Gilbert sought to replace his first attorney, Circuit Judge Rebecca Dallet allowed him to do so, but warned that he "would get one more attorney appointed and if he doesn't get along with the new attorney, he will represent himself," according to court records. The state alleged in its criminal case that Gilbert had oral sex with a 14-year-old girl and sold her to his friend, Brandon Pratchet, for prostitution for $100 and a piece of stereo equipment. The girl and Pratchet testified against Gilbert at trial. Pratchet had a plea deal with the prosecution that reduced from 98 years to 25 years the maximum prison term he would face, Dugan wrote. Prosecutors also agreed to inform Pratchet's sentencing judge about his cooperation. Gilbert was ultimately convicted and sentenced by Circuit Judge Dennis R. Cimpl sentenced Gilbert to 10 years in prison and five years of extended supervision. Cooperator Pratchet was far more fortunate. Dallet sentenced him to three years probation one one count of soliciting a child for prostitution. Three other counts – keeping a place of prostitution, panderinging/pimping, and second degree sexual assault of a child, were dismissed but read in. Dallet stayed a sentence of four years in prison and three years extended supervision. The officer's testimony was "inaccurate," Dugan wrote. "It is undisputed that cell phone mapping does not provide the location of a cell phone within feet." Key to the case against Gilbert was a police officer's testimony about the location of Gilbert's cell phone at the time that Pratchet and the girl said Gilbert was at an Econo Lodge selling the girl. Gilbert said he was not there. The officer, who was not an expert in cell phone technology, testified that Gilbert's cell phone data proved he was within 120 feet of the hotel at the time. "However," Dugan wrote, "that testimony was inaccurate – the data did not indicate that Gilbert's cell phone was within 120 feet of the Econo Lodge....It is undisputed that cell phone mapping does not provide the location of a cell phone within feet." The map the officer relied upon when testifying showed three 120-degree sectors, not 120-foot sectors, Dugan wrote. The prosecutor emphasized the erroneous cell phone location information during her closing argument. Taylor never challenged it – the critical error was not exposed at trial. At a post-conviction hearing, rejecting testimony from an expert witness for the defense that it is "completely impossible" to use historical cell phone records to put a phone within 100 feet of a specific location, Circuit Judge Stephanie Rothstein ruled that Gilbert had not shown the cellular information was inaccurate. She did not rule on whether Taylor was ineffective, according the appeals decision and a defense brief filed in the case. Besides failing to challenge the cell phone information, Taylor failed to either obtain or review discovery available to him, including the cellular information, Gilbert alleged in his post-trial motion. Rothstein rejected the argument without a hearing, but the appeals panel ordered one. "The conflicting facts presented involve credibility determinations and were improperly resolved without a hearing," Dugan wrote. He was joined in his opinion by District 1 Court of Appeals Judges Joan F. Kessler and William W. Brash III. Gilbert also deserves a hearing on whether Taylor was ineffective when he did not impeach the girl or Pratchet with prior inconsistent statements, the appeals panel said. Gilbert said the girl previously had backed up his version of events. "We emphasize that we are not deciding that trial counsel was ineffective, only that Gilbert’s original and supplemental post-conviction motions were sufficient to require that the post-conviction court conduct an evidentiary hearing," Dugan said. Taylor has an interesting history, records show. He was licensed in 1979, but his license was revoked in 1987 following his conviction for felony theft from two clients. Later, in 2003, it was retroactively revoked effective Dec. 14, 1992 for other violations, including a 1990 conviction in federal court for conspiracy to defraud by misapplying funds and embezzlement from a federal credit union, according to State Supreme Court records. He also represented three clients in 1985, when his license was suspended for failure to comply with continuing legal education requirements. The State Supreme Court reinstated his license in 2006 over the objections of the Office of Lawyer Regulation.  Ripple By Margo Kirchner The recent challenge to Wisconsin’s "cocaine mom" statute that allows pregnant women to be locked up failed this week because the plaintiff moved out of state. The U.S. Court of Appeals for the Seventh Circuit ordered Tamara Loertscher’s challenge dismissed because she no longer is subject to the Wisconsin law and therefore cannot challenge its constitutionality. Loertscher was jailed without a lawyer after she told hospital staff that before learning of her pregnancy she used marijuana and methamphetamines to deal with medically induced depression and fatigue. Loertscher lived in Wisconsin when she filed her case in late 2014. She later moved out of state. U.S. District Judge James Peterson found that the move did not impact Loertscher’s claims and held the "cocaine mom" law unconstitutional for failing to give women fair warning about what conduct is prohibited and failing to provide authorities any meaningful standard for enforcement. Peterson blocked the law, but the U.S. Supreme Court stayed that order while Wisconsin Attorney General Brad Schimel appealed to the Seventh Circuit. The appeals court, in a decision written by Senior Circuit Judge Kenneth F. Ripple, vacated Peterson’s order, but not based on the merits of Loertscher’s challenge. Instead, the Seventh Circuit disagreed with Peterson about the impact of Loertscher’s move. The court pointed to a constitutional provision limiting federal courts to deciding “actual, ongoing controversies.” The existence of a controversy when a case is filed is not enough; the issue must remain live and the parties must retain a personal interest in the outcome throughout the case, even on appeal. Because Loertscher moved out of state during the case she no longer needs protection from the law, said the court. And in cases seeking to block enforcement of a statute, “once the threat of the act sought to be enjoined dissipates, the suit must be dismissed as moot.” Ripple was joined in his opinion by Circuit Judges Joel M. Flaum and Daniel A. Manion. The panel noted the lack of any evidence showing that Loertscher moved due to the statute or fear of its application to her. According to the court, Loertscher’s case did not fall into a limited exception to the mootness rule for cases that are “capable of repetition, yet evading review.” The exception applies in rare situations when (1) a challenged action is too short to be fully litigated prior to its cessation and (2) a reasonable expectation exists that the same complaining party will be subject to the action again. In Roe v. Wade the Supreme Court said that pregnancy is a classic justification for the exception. But the Seventh Circuit found that Loertscher cannot satisfy the second part of the exception because her voluntary and permanent departure from Wisconsin “makes the possibility of her once again being subject to the statute a matter of pure speculation.” Loertscher has no reasonable expectation that she will find herself within Wisconsin’s borders when she is both pregnant and using drugs, the panel said. The court likened Loertscher’s case to that of two doctors who challenged Michigan’s physician-assisted suicide ban. The Sixth Circuit Court of Appeals dismissed the doctors’ case as moot when one doctor retired and the other moved from Michigan to California. Her voluntary departure from the state “makes the possibility of her once again being subject to the statute a matter of pure speculation.” WJI reported details of Loertscher’s case and the "cocaine mom" law previously. After Loertscher acknowledged her past drug use to hospital staff, the hospital reported Loertscher to the Taylor County Department of Human Services, claiming that her behavior with drugs put her fetus in serious danger. Taylor County appointed a lawyer to represent Loertscher’s fetus (but not Loertscher) and began proceedings under the "cocaine mom" law to determine whether Loertscher’s fetus needed protection or services.
Loertscher refused to participate in a quickly scheduled temporary physical custody hearing unless she had legal representation. The court conducted the hearing without her and ordered that she submit to an assessment and possible treatment for drug abuse. When Loertscher refused to comply with the order, the court held her in contempt and in jail for 18 days, during which time Loertscher received no prenatal care even after asking to see a doctor. Loertscher on her own contacted an attorney and secured appointment of a public defender. She obtained release only after agreeing to an alcohol and drug-abuse assessment and weekly drug testing at her own expense. All tests were negative and Loertscher delivered a healthy baby in January 2015. While pregnant, Loertscher sued the state, alleging that the "cocaine mom" law is unconstitutional and cannot be enforced. Judge Peterson agreed on the merits, but his decision no longer has any effect after the Seventh Circuit’s decision on appeal. Loertscher’s suit is the second unsuccessful attempt to overturn the law through litigation. A prior plaintiff also lost her case on procedural grounds. |
AuthorGretchen Schuldt is executive director of the Wisconsin Justice Initiative. Sign up for the free WJI newsletter.
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The Wisconsin Justice Initiative Inc. does not endorse candidates for political office. The Wisconsin Justice Initiative Inc. is a 501(c)3 organization.
The Wisconsin Justice Initiative Inc. does not endorse candidates for political office. The Wisconsin Justice Initiative Inc. is a 501(c)3 organization.