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. 

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. 
                                                                                ***

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.

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." 

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.

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.  ​

By Gretchen Schuldt

The Dane County Board will consider whether to hold a Nov. 6 advisory referendum on legalizing marijuana.

The resolution already has support from a majority of the County Board. Twenty of the county's 37 supervisors are sponsors. 

The resolution that would authorize the referendum is very similar to the one approved by the Milwaukee County Board last month.

By Gretchen Schuldt

​A Kenosha woman first was viciously attacked by a dog and then tased and shot by police trying to subdue the animal, according to Court of Appeals records.

And, because it was the second time the dog, named Tank, bit someone, the victim of the attack cannot collect from the dog owners' insurer.

The Integrity Mutual Insurance Company's policy "unambiguously excludes coverage for injuries caused by a dog that has previously injured a person," Appeals Judge Paul F. Reilly wrote in a decision handed down this week. The decision upheld a ruling by Kenosha County Circuit Judge Anthony G. Milisauskas.
​
The basic facts are not disputed, according to documents filed in the case.

Kathryn (Kit) Baumann-Mader was in her kitchen on Aug. 19, 2015 when she heard yelling from outside. She ran to the side door and saw another woman, Sara Hanson, holding her thigh and screaming "He bit me!"

Tank ran into a neighbor's yard, where he was tackled by "Junior," the son of Tank's owners, Shawn M. Lievense and Annette S. Salazar, according to a brief filed by attorneys for Kit Baumann-mader and her husband, David Mader; and Hanson and her husband, Cole Hanson.

"As Junior was trying to restrain Tank, he, too, began crying and yelling, 'They’re going to kill my dog,' 'they’re going to euthanize him,' ” the brief said.

Kit consoled Junior and helped him restrain Tank, then went into her house and got a tow strap to use as a leash for the dog. She help hold Tank down until police arrived. Then she turned the dog over an officer.

As the officer tried to get the dog into a squad car, Tank got loose, according to the brief.

"Tank 'lock[ed] eyes' on Kit and lunged at her, knocking her backwards to the ground," the brief said. "Tank bit her on the back/side of her thigh, the back of her thigh, her inner thigh, and her crotch area. As Kit  describes it, 'He just started - - kind of like just started munching all around the thigh.' ”

By Gretchen Schuldt

Seventy percent of the possession of marijuana cases filed in Milwaukee Municipal Court last year were against African Americans, records show.

Blacks account for just 40% of the city's population, but were defendants in 601 of the 860 marijuana possession cases.

In addition, 139 cases were filed against Hispanics, 30 more than the 109 cases filed against whites, according to Municipal Court statistics. Hispanics account for just 17 percent of the city's population; whites make up 45% of the city's residents. 

The Municipal Court caseload reflect activities of the Police Department. 

The Wisconsin Justice Initiative previously reported that African-Americans in Milwaukee County were far more likely to be charged with felony second offense possession of marijuana cases than are other races.

Simple possession of less than 25 grams of marijuana in the city can usually be charged as a municipal offense rather than as a state misdemeanor or felony. The municipal fine for possession is $50, though costs and fees will increase that to $124 for an adult and $94 for a juvenile. (Smoking marijuana in a public place is punishable by a fine of up to $250 plus fees and costs.)

Below is a map showing the Milwaukee or mostly Milwaukee zip codes where Municipal Court defendants charged with possession of marijuana resided and the number cases brought against those defendants.

Not all Municipal Court defendants live in Milwaukee and so not all cases are shown. 

By Gretchen Schuldt
​
Turning a car around at a wayside late at night does not provide police with enough reasonable suspicion enough to justify a search of the vehicle, a Court of Appeals judge affirmed last week.

District 2 Appeals Judge Brian K. Hagedorn upheld Fond du Lac County Circuit Judge Robert J. Wirtz's ruling tossing a search that resulted in an arrest for possession of marijuana.

The county argued that Isaac A. Dahlke's actions when he entered a wayside about 12:30 a.m. and turned around near a boat launch "constituted reasonable suspicion that illegal activity was afoot," Hagedorn wrote in his decision. 

Deputy Lucas Olson testified that the park was used for illicit activity, "especially during that timeframe." He did not, however, see any illegal activity.

But, wrote Hagedorn, "The county has no constitutional authority to stop someone simply for driving when and where bad things often happen. While this may cause a reasonable law enforcement officer to have an inkling something is up, it does not rise to the level of providing a reason to suspect that the individual has committed, was committing, or is about to commit a crime. While it might be a reasonable hunch, without more, it is still just a hunch."  

The county also argued that Dahlke was on county park property when he entered the wayside. The park is closed after 10 p.m. by ordinance, the county argued, so the officer had a reasonable suspicion that Dahlke was violating the ordinance.

Hagedorn also rejected that argument. County ordinances do not clearly establish the boundaries of the park or whether the wayside is included. In addition, and the wayside, between Lake Winnebago and U.S. Highway 45, is marked for drivers approaching from either direction.

"An ordinary driver accepting the highway sign’s invitation to pull in to the wayside for an evening nap on a long journey would appear to have no idea they are breaking the law...." Hagedorn wrote. 

By Gretchen Schuldt

Thirty-six circuit court judges from 18 Wisconsin counties are together publicly supporting a proposal to increase pay for appointed defense lawyers. 

"As trial judges, we experience, on a daily basis, the impact that the underfunding of indigent criminal defense has on the quality and integrity of our criminal justice system," Milwaukee County Circuit Judge Glenn H. Yamahiro wrote to the State Supreme Court. Yamahiro was the main author of the letter and was joined by the author judges.

"These impacts often impede our ability to function effectively and efficiently. We have observed a decline in the quality of representation provided to indigent defendants. Many experienced lawyers have discontinued accepting public defender appointments out of economic necessity. As a result we face an increasing number of inexperienced or underqualified lawyers representing indigent defendants in serious criminal matters."

Yamahiro and the 35 other judges were commenting on a petition pending before the Supreme Court that seeks to raise from $40 an hour to $100 an hour the amount paid to lawyers appointed by State Public Defender's Office (SPD) to represent clients who cannot afford to hire a lawyer. SPD makes the appointments when the office has excessive caseloads or conflicts of interest. The Supreme Court will hold a public hearing on the matter May 16.

"It is imperative that our Supreme Court exercise leadership to address the Constitutional Crisis...because the executive and legislative branches of government have failed to address this problem...over the past 40 years," he said.

By Gretchen Schuldt

​Wisconsin's adult incarceration rate has passed the national average, according to a new federal report.

The state locks up a larger share of its population than does any of its neighboring states of Michigan, Illinois, Minnesota, or Iowa, according to a new federal report.

It's a significant change in status – the state has lagged behind or matched the average incarceration rate for the past several years. 

The statistics are based on 2016 data, and so do not reflect the impacts of legislative changes, such as tougher drunk driving laws that are sending more people to prison.

Wisconsin jails or imprisoned 790 out of every 100,000 adults, while the nationwide average for states was 780 per 100,000, according to the report, "Correctional Populations in the United States, 2016."

Michael O'Hear, a Marquette University Law School professor and author of Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway, said the state's incarceration rate actually was much lower than the national average in the 1970s. That the rate rose above the national average carries symbolic weight, even though the the actual increase from the previous year was relatively small. 

The state's incarceration rate in 2015 was 780 per 100,000 residents, the same as the national average. In 2014, the state locked up 770 people per 100,000, while the national average for states was 800 people per 100,000.

The figures include people aged 18 years and older in prisons and local jails, according to the report, published by the U.S. Department of Justice's Bureau of Justice Statistics.

The severity of crime is not the issue, O'Hear said. "The increased rate I don't think at all is dictated by the violent crime rate," he said.