By Margo Kirchner
A Racine County judge on Thursday dismissed all charges against Daniel G. Scheidell, who served 20 years in prison for sexual assault before a court finally allowed him to present evidence that strongly suggested the attack was committed by someone else.
Racine County Circuit Court Judge Mark Nielsen granted the state’s motion to dismiss, after Racine County Assistant District Attorney Dirk Jensen said the state could not meet its burden in a new trial.
One of Scheidell’s supporters in the gallery clapped as the judge dismissed the case.
Scheidell’s conviction was vacated in 2015, but Attorney General Brad Schimel’s Department of Justice unsuccessfully appealed that decision twice.
A jury convicted Scheidell in October 1995 of attempted first-degree sexual assault and armed robbery following a trial based heavily on testimony of the victim, J.D.
J.D. awoke in her apartment early one morning in May, 1995, to find a knife-wielding man straddling her waist. The perpetrator during the attempted assault wore a black knit ski mask and jacket over his head and never spoke. J.D. managed to retrieve a pistol from her nightstand and the man left.
She was certain he was her upstairs neighbor, Scheidell, based on the man’s “distinctive body and walk” and part of the face she saw while she struggled with him.
When police arrived, they found Scheidell coming down the stairs, looking like he just woke up. He gave a voluntary statement and allowed police to search his apartment, but found nothing incriminating. They searched the alley – nothing.
At trial, defense counsel sought to offer evidence of a different, similar sexual assault that occurred five weeks after the attack on J.D., when he was in custody. The second assault occurred about four blocks away from J.D.’s residence, and many of the facts of the crime, including mode of entry, weapon, mask, time of day, and build of the assailant, were similar.
The assailant in the second crime, however, got away and was not identified.
Scheidell’s trial judge denied admission of the evidence because there was not any evidence directly connecting a third person to the crime Scheidell was accused of committing.
The jury found him guilty in October 1995 and Scheidell appealed all the way up to the State Supreme Court. He lost there, with the court ruling that mistaken-identity evidence is not admissible when a defendant tries to show that some unknown person committed the crime.
Scheidell applied to the Wisconsin Innocence Project for help. In 2013, the Innocence Project obtained a DNA profile from the second sexual assault and matched the profile to a Wisconsin inmate serving time for a 1998 sexual assault.
Scheidell moved for a new trial to present evidence that a now known perpetrator committed the crime for which Scheidell had been convicted.
In June 2015, Racine County Circuit Court Judge John Jude granted the motion and vacated Scheidell’s conviction. Scheidell was released on bond shortly thereafter.
Although the state appealed, a three-judge Wisconsin Court of Appeals panel (including two conservative Gov. Scott Walker appointees) affirmed the grant of a new trial in the interest of justice.
“It is undoubtedly reasonable to conclude that this new evidence casts doubt upon whether justice was done in the original proceeding,” Appeals Judge Brian K. Hagedorn wrote in a concurring opinion. The Supreme Court denied the Schimel team’s request for review and sent the case back to Racine for a new trial.
Thursday, at a hearing set for argument on a motion to modify bond, Jensen, the assistant district attorney, moved for dismissal based on additional investigation.
Nielsen granted the motion and dismissed the case without prejudice, meaning the state could theoretically file it again. The judge gave defense attorney Patrick Cafferty until Oct. 2 to file a new motion with legal support for his position that the case should be dismissed with prejudice, meaning it cannot be filed again.
Scheidell sighed audibly several times when he approached his family and friends after the hearing.
Cafferty said that he is “thrilled for this gentleman” and attributed Scheidell’s release to the work of many lawyers.
Cafferty indicated that Scheidell’s original trial counsel, in particular Debra Patterson, worked hard to get the evidence of the second assault admitted:
“The work the lawyers did early on laid the foundation” and “they deserve the credit,” he said
By Margo Kirchner
Pregnant women in Wisconsin remain at risk of being thrown in jail and forced into treatment despite a federal judge’s determination that the state’s “cocaine mom” statute is unconstitutional.
U.S. District Judge James D. Peterson last spring declared the law impermissibly vague and blocked its enforcement statewide. State Attorney General Brad Schimel immediately appealed, however, and the law remains in effect while the litigation continues.
Here’s what happened to two women under the law.
In May 2013, Alicia Beltran, then 28, learned she was pregnant. A few weeks later, she sought prenatal care at a clinic in Washington County. She informed a physician’s assistant that she previously abused Percoset, which contains an opioid, but recently finished a course of Suboxone to treat her addiction. The physician’s assistant recommended that Beltran take a second course of Suboxone and, when Beltran refused (believing she already kicked her Percoset use), the clinic reported her to a Washington County social worker.
In July 2013, five law-enforcement officers arrested Beltran at her home, handcuffed her, and took her to a doctor for evaluation. The doctor declared Beltran and her pregnancy to be healthy and said he did not consider inpatient drug treatment to be necessary. Nevertheless, the officers drove Beltran to the county jail.
An assistant district attorney filed an action against Beltran under the cocaine-mom law and an attorney was appointed for Beltran’s fetus. Beltran was taken in handcuffs and shackles to a courtroom, where she requested an attorney. The commissioner said none would be provided until the next hearing. Beltran was ordered to a treatment facility, where she tested negative for all drugs. The court held Beltran at the facility for over two months, scheduling a jury trial for late October. Beltran went to federal court to challenge her detention; the ADA, in response, dismissed the cocaine-mom action against Beltran and had her released.
In 2014, Tamara Loertscher, then 29, was unemployed and could no longer afford medication for her hypothyroidism. Without the medication she suffered depression and fatigue and began using marijuana and methamphetamine a few times a week.
When Loertscher in August 2014 suspected she was pregnant, she went to a hospital to confirm it. She acknowledged her drug use to hospital personnel but told them she planned to stop using drugs to have a healthy baby. She checked into the hospital for care and received the thyroid medication she needed. But the hospital reported Loertscher to the Taylor County Department of Human Services, saying her behavior with drugs and alcohol put her fetus in serious danger.
Taylor County appointed a lawyer to represent Loertscher’s fetus. Loertscher, however, was not entitled an appointed lawyer yet. While in the hospital, Loertscher had to appear by phone, with little notice, in a temporary physical custody hearing. Loertscher said she did not wish to speak without legal representation and refused to participate. The court commissioner considered this a waiver of appearance, continued without Loertscher, and ordered her held at the hospital and then transferred to an inpatient drug treatment facility.
Loertscher, though, checked herself out of the hospital.
After another hearing, at which Loertscher represented herself, the court found her in contempt and ordered her to report to either the inpatient treatment facility or jail. Loertscher spent 18 days in jail, during which time she received no prenatal care and experienced pain and cramping. She was not permitted to see an obstetrician. When Loertscher refused to take the redundant pregnancy test required by the jail doctor, she was placed in solitary confinement.
Loertscher on her own found a list of Taylor County public defense attorneys and contacted one;, a public defender was appointed. Loertscher was released after she signed a consent decree that required an alcohol and drug-abuse assessment and weekly drug testing at her own expense. All tests were negative. Loertscher delivered a healthy baby.
The cocaine mom law (also known as Act 292) allows medical staff or county social workers to report and detain a pregnant woman if they think she “habitually lacks self-control” regarding alcohol or drugs “to a severe degree” with a “substantial risk” of an effect on or danger for her fertilized egg, embryo or fetus.
Authorities can take a woman into initial custody if they think she meets this standard, but she refuses to accept abuse treatment. If a court agrees, it can order the woman to treatment against her will and keep her in custody indefinitely. Loertscher self-medicated, but stopped upon learning she was pregnant; Beltran previously used drugs but was clean at the time she was ordered to a treatment facility. Both women planned no further drug use during pregnancy and therefore refused abuse treatment.
In Loertscher’s case, Judge Peterson found that the statute’s language, especially in light of current medical knowledge, fails to give fair warning about what conduct is prohibited and fails to provide authorities any meaningful standard for enforcement. But Judge Peterson’s April ban on enforcement of the cocaine-mom law was short-lived. Schimel and his department immediately appealed and sought a stay of Peterson’s order.
Though both Peterson and the Seventh Circuit Court of Appeals refused to stay the order, the state was undeterred and sought relief in the U.S. Supreme Court. On July 7 the Supreme Court stayed Peterson’s injunction while the appeal is pending. The parties filed appellate briefs over the summer, but no date for oral argument is set; a decision could come months or even a year after argument. Meanwhile, pregnant women in Wisconsin remain subject to a law that may very well be unconstitutional.
The long-term future of Peterson’s injunction is uncertain. Federal courts decide only live, ongoing disputes. The state’s first argument on appeal is that Loertscher no longer has a live dispute---not because her pregnancy ended (a legal doctrine permits continuation of a case involving pregnancy if the issue is capable of repetition) but because she moved out of state before Peterson issued his order.
On appeal, the state argues that Loertscher no longer has any stake in enforcement of the law: she “makes no plausible argument that, having moved out of Wisconsin, she will be subject to Act 292 in the future.” According to the state, “the fact that the present dispute involves a pregnancy-related law does not dictate a different result---this case is moot not because of the short duration of pregnancy, but because Plaintiff has moved out of Wisconsin” and fails to show that she intends to move back.
If the Seventh Circuit agrees with the state, Loertscher’s case will be dismissed as moot, the cocaine-mom law will remain on the books, and pregnant women who once used drugs but no longer do will remain at risk.
Ten medical and public health organizations, meanwhile, filed a friend-of-the-court brief in the Seventh Circuit saying Peterson was right to declare the law unconstitutionally vague. The organizations represent hundreds of thousands of healthcare providers nationwide and include the American Medical Association, the Wisconsin Medical Society, the American College of Obstetricians and Gynecologists, and the American Academy of Pediatrics.
They argue that research contradicts the state’s assumption that prenatal exposure to controlled substances causes inevitable harm. The organizations say Peterson “rightly concluded that ‘no one knows at what level drug or alcohol use will pose a risk to the unborn child’”; thus, an expectant mother cannot know when she would be subject to the law. After repeatedly taking a pain killer before learning of pregnancy? After smoking marijuana once a week for a month or two? After having a single glass of wine?
The organizations argue that the law deters women from being honest with medical personnel or seeking essential prenatal care in the first place. Moreover, the law puts pregnant woman and her fetus on opposite sides of a legal dispute, but their health cannot be separated from each other.
The National Coalition for a Civil Right to Counsel, in a second friend-of-the-court brief, sided with Loertscher in challenging the lack of legal representation at critical proceedings. Sexual predators and mentally ill individuals receive appointed counsel at all significant stages of confinement proceedings. Fetuses are appointed attorneys at the very start of cocaine-mom proceedings. Yet pregnant women, even if poor, are not appointed lawyers for the initial temporary-custody and plea hearings, which can result in forced treatment and involuntary confinement.
Loertscher’s and Beltran’s cocaine mom proceedings show that even when a woman requests counsel at these hearings her request may be ignored. Counsel may be appointed for a later fact-finding hearing, but only if the woman contests the case at the earlier hearings. Before any right to counsel arises, the woman must decide on her own how to plead, to demand a jury, and to demand that the fact-finding hearing be held within 30 days.
Loertscher and Beltran appear to be the only two women to have challenged the cocaine mom law in the 20 years since passage. Shortly after Beltran filed her federal case, authorities released her and dropped all abuse charges.
Beltran filed a type of case used to seek release. Because she obtained that release U.S. District Judge Charles N. Clevert, Jr. dismissed the case as moot while calling what happened to Beltran “extremely disturbing” and suggesting that the result may have been different in a civil rights case. Loertscher’s challenge uses civil-rights and declaratory action laws, which could allow the case to continue after her release or delivery of her baby.
etween 2005 and 2014, said Peterson in his decision, 3,326 reports of alleged unborn-child abuse were pursued by caseworkers. Some 467 of those reports were substantiated with some evidence. The briefs in Loertscher’s appeal suggest why challenges to the law are rare.
First is the law’s coercive nature. When a woman refuses to receive treatment “voluntarily,” she faces a temporary hold in custody and a formal petition for confinement and treatment. Such a choice may coerce women to simply submit to unwanted treatment.
Second, the woman proceeds though preliminary stages without the assistance of counsel, while her fetus has counsel and is pitted against the mother. Then, by the time the woman may find a lawyer on her own or be appointed counsel, she is closer to delivery and possibly unwilling to get involved in stressful litigation.
Third, cocaine mom proceedings are not public. They occur in juvenile court, where files are sealed. The briefs in Loertscher’s appeal note only one additional publicly known case, which made the Racine paper in 2005. No public record means no public outcry and no awareness by attorneys who could advise the women affected.
If Loertscher’s case is dismissed because she moved out of state, perhaps another pregnant woman will step forward to challenge the cocaine mom law.
But how about repeal?
State Attorney General Brad Schimel accepted a $2,500 campaign donation from a predatory loan king who was in business with a reputed mob figure, records show.
Schimel accepted the donation from Rod Aycox, of Alpharetta, GA, on March 15, campaign finance records show. The donation is listed in Schimel's latest campaign finance report.
Aycox is the founder and chief executive officer of Atlanta-based Select Management Resources and routinely pumps big money into campaigns of candidates symapthetic to the exhorbitant-interest payday/title loan industry. Aycox also operates companies under the names LoanMax, Midwest Title Loans and several other brands, according to the Center for Public Integrity.
The profits he derives from charging high interest rates to poor people allows him to live in luxury.
Aycox, a former used car and insurance salesman, was at one time a co-owner with Alvin Malnik of Title Loans of America. Malnik is a reputed mob associate.
As the Los Angeles Times put it:
If you believe Forbes magazine ("The Invisible Enterprise"), Malnik essentially invented the black art of money-laundering, taking mob money and routing it to legitimate ventures (like real estate). To wit:
"In the 1960s, Miami lawyer Alvin Malnik set up the Bank of Commerce in the Bahamas. Mob money flowed into its secret numbered accounts by the hundreds of millions--(mob financier Meyer) Lansky money, most of it--and then out again into Tibor Rosenbaum's International Credit Bank of Switzerland before returning to the United States for investment."
By the way, did you know that Swiss francs were used to finance construction of the apartment buildings in Clairemont and Rancho Penasquitos.
The gaming commissions of New Jersey and Las Vegas have made Malnik persona non grata . All lies, he says.
And the Arizona Republic reported in 1999:
In a January 1997 sworn deposition for a Georgia civil action, Aycox, then president and part-owner of Title Loans of America, revealed Malnik as an owner of U.S. Title Trust, which owns 50 percent of Title Loans of America. In the same deposition, Aycox reported that he is a 33 percent owner and Kenneth Partiss of Atlanta was a 17 percent owner. In 1983 Partiss was among 84 defendants indicted in Miami after a U.S. Drug Enforcement Administration drug-smuggling probe that covered 20 states. He was acquitted.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
Sign up for the free WJI newsletter.
Help WJI advocate for justice in Wisconsin