By Gretchen Schuldt
A Kenosha County judge overstepped when he ordered a shoplifter to give notice of her conviction to the management whenever she entered a place that sells goods to the public, a state Court of Appeals panel ruled this week.
"That condition is overly broad and also falls into the category of shaming, which the circuit court appeared to acknowledge at sentencing," the three-judge panel wrote in an unsigned decision, invalidating the condition ordered by Circuit Judge Bruce Schroeder.
"We are not persuaded that embarrassing or humiliating defendants with a state-imposed broad public notification requirement promotes their rehabilitation," the panel said. The panel included Appellate Judges Lisa S. Neubauer, Paul F. Reilly, and Jeffrey O. Davis.
Markea L. Brown, 28, pleaded guilty to felony shoplifting in connection with helping to steal $2,655 worth of items from a store at the Pleasant Prairie Outlet Mall.
Schroeder sentenced her to 15 months in prison followed by two years of extended supervision. He also ordered, as conditions of her supervision, that Brown have no contact with the mall and to make the notifications of her conviction.
Brown challenged both conditions on appeal; the panel upheld the first, but struck down the second.
Schroeder told Brown the notification requirement " is 'going to embarrass you, of course,' ” the panel said. "It continued, noting that society no longer puts people in the stocks 'to be embarrassed and humiliated … but [the court] feel[s] that embarrassment does have a valuable place in deterring criminality.' ”
While Schroeder said he wanted to give merchants the opportunity to protect against theft, "the State has provided no legal support for the imposition of a requirement that repeat offenders must self-identify as they go about day-to-day life to personally notify any and all individual potential victims of their criminal history," the panel said. "We do not see where such a requirement would start and stop."
Brown has a history of shoplifting, according to online court records.
Brown, if required to notify store management of her conviction, could be refused service, even by those selling essential goods, such as groceries, the panel said.
"We understand that Brown has children, and as such the consequences of the condition could impact them as well," the panel said.
The condition would result "in an overly broad ban, with consequences...that are not reasonably related to rehabilitation or protection of society," the panel said.
"It is apparent that public shaming is the second condition’s primary effect; thus, we will require it vacated."
By Gretchen Schuldt
A bill in the State Senate that would greatly expand phone and audiovisual proceedings in criminal cases must preserve a defendant's right to reject such e-hearings in favor of "critical in-person hearings," WJI President Craig Johnson told a Senate Committee.
"Without preserving this 'opt-out' right for defendants (in criminal cases), video hearings likely will become more and more common, thus creating a culture in which defendants as well as witnesses and counsel will be expected to appear, as they have for much of the last year, via 'Zoom' and other remote technology for important fact-finding hearings," he told the Judiciary and Public Safety Committee in testimony submitted for a public hearing.
Senate Bill 219 would allow "any criminal proceeding" to be conducted over the phone or by audiovisual means "unless good cause to the contrary is shown." Currently, the law limits the proceedings that can be conducted electronically.
There are many defendants who face challenges with technology, Johnson said.
"An elderly person or someone with cognitive limitations may not understand how to use a smart phone or computer," he said. "Someone who is poor or lives in an area without good internet or wireless service may have trouble with this technology. If a person prefers to appear in person, in a courtroom, with their lawyer, before a judge, and see and hear the proceedings, including witnesses, LIVE, they should have the opportunity and right to do so."
Low-income and rural households may have limited access to the Internet or slower speeds, he said.
"We have seen this reflected in concerns about equal access to online education during the last year of this pandemic," Johnson said. "Increasing reliance on video conferencing in court proceedings can exacerbate this digital divide."
The Wisconsin Supreme Court, in State v. Soto, discussed the problems that could arise with video proceedings, Johnson said.
"The opinion notes that the physical presence in a courtroom provides a setting that emphasizes the solemnity and gravity of the proceeding," he said. "The physical courtroom setting also effectively displays the power and importance of the state, as personified by the circuit court judge."
By Gretchen Schuldt
The COVID-19 pandemic has the Milwaukee State Public Defender's Office doing what it rarely did in the past – sending out email blasts asking private bar attorneys to represent indigent defendants in criminal cases.
Those types of emails are fairly common in rural counties, where lawyers are scarce and SPD offices struggle to find enough private lawyers to take cases.
In Milwaukee County, though, there are more lawyers overall and enough have been willing to step in when SPD staff attorneys bow out of a case for reasons such as conflicts of interest or caseload issues.
"The pandemic, I'll have to say, has really had an impact," said Tom Reed, regional attorney manager for the SPD's Milwaukee Trial Office.
The cases are often serious felonies. In one email last month, SPD sought lawyers for 15 cases involving 12 defendants. Charges included intimidating a witness, stalking, child sexual assault, and armed robbery, among others. A few days later, SPD sent an email seeking one lawyer for one case – a homicide.
The numbers vary, but Reed said there are now generally about 30 to 40 defendants in custody for at least a week or two without representation, a much higher number than in pre-COVID times.
There are other factors to the lawyer shortage, but the pandemic looms large. When it hit, the courts essentially shut down and that had cascading impacts.
Judges, jailers, lawyers, and court officials worked to keep defendants out of the jail when they could because of concerns of COVID spread. More people charged with misdemeanors were told when to appear in court and released, rather than being booked through the jail., for example. The people held in jail were those accused of more serious crimes. There are about 150 people sitting in jail on homicide charges, Reed said.
The courts' shutdown meant backlogs built for SPD lawyers, prosecutors, private bar attorneys, judges, and everyone else in the system. Milwaukee County Chief Judge Mary Triggiano estimates it will take 18 months to two years to clear the build-up of criminal cases.
Courts are reopening, slowly, and cases are moving forward. Private bar attorneys are needed to handle SPD cases, but those private lawyers also have to handle the cases they already have on their docket. Lawyers who were willing to work SPD cases before the pandemic simply can't handle them now
"People feel unwilling to overload their calendars," Reed said.
The pandemic also may have helped some lawyers approaching retirement age decide that it was the perfect time to pull the plug, Reed said.
In addition, "I think there were lawyers who weren't retirement age, but they did back off if they felt some vulnerabilities," he said.
Some might have had caregiving duties or their own health concerns, he said.
The pandemic also may have made it financially more difficult for private lawyers to accept bar appointments, he said. They get $70 an hour for the work, and usually are not paid until a case is over, which can take some time. If lawyers are under financial stress, they just might not be able to wait several months or longer for a paycheck.
The generational turnover also means there are fewer lawyers available who have the experience to ably defend a murder case or other very serious felony, Reed said. Yet it is people charged with those types of crimes who have been sitting in the jail and whose cases judges are now giving priority.
The private bar pay has been criticized as too low, but Reed said he did not think that was a factor in the current situation.
Cases are moving now, though slowly. The SPD and private bar lawyers continue to work together, Reed said.
"Every day we're finding lawyers to take some of the cases," he said.
"Our program relies on the strength of the private bar," he said.. "They have been good partners in seeking justice."
By Margo Kirchner and Gretchen Schuldt
WJI is launching a project to fill some of the holes of Wisconsin legal history.
We're looking for the people and events that played significant but largely overlooked roles in the state's legal development.
There are likely many holes that can be filled; we just don’t know about them yet because the people and events have been deleted or relegated to the background for decades or longer. Their stories need to be told so we have a more comprehensive view of Wisconsin legal history.
This project was inspired by the absence of diversity in the four murals, completed in 1915, that hang in the State Supreme Court.
They depict historic events and that's all well and good, but the only mural that includes people of color depicts a murder trial where the defendant is a Native American and the person being celebrated is a White male judge, one with a somewhat cloudy historical reputation.
That particular mural, the only one that is actually about Wisconsin, represents territorial law by depicting the trial of Menominee Chief Oshkosh before federal judge James Doty in 1830. This mural shows Chief Oshkosh, other Menominees, and likely some Metis men (descendants of White French-Canadian men and Native American women) who were included in the jury.
Chief Oshkosh and two other Menominees were tried for murder of a Pawnee who had accidentally killed a member of Oshkosh’s tribe. Under Menominee law, such a killing in retribution was permitted. According to the Wisconsin State Capitol Tour Narration guide, “[a]lthough the jury found Oshkosh guilty of murder, Doty ruled territorial law couldn’t be applied to this case because Oshkosh proved he had followed his legal system, tribal custom of law.”
Nevertheless the actual decision was based at least in part on prejudice.
"Knowing, as we do, that these laws were not enacted for the Indian, it appears to me that it would be tyrannical and unjust to declare him, by implication, a malicious offender against rules which the same laws presume he could not have previously known," Doty wrote. "He is not considered, in regard either to the general scope of government or of the laws, as an intelligent conscious being." Source: "James Duane Doty: Frontier Promoter," by Alice Elizabeth Smith.
The other murals celebrate events that occurred in different times and places.
The mural most prominent to someone sitting in the Supreme Court gallery depicts the signing of the U.S. Constitution in Philadelphia in 1787. All persons depicted in the painting (and likely at the event itself) are White men.
This mural represents Roman law, showing Caesar Augustus Octavius presiding over the trial of a soldier; the scene depicts all White men.
The final mural depicts the signing of the Magna Carta in 1215 by King John of England, surrounded by soldiers and noblemen, all of whom are White men or boys.
There are a lot of people and historic events not recognized in the Supreme Court art. The murals are definitely a product of their time.
But it's a different time now.
We want to hear about the great variety of people and events that shaped Wisconsin legal history.
The people don’t have to be lawyers, but they must have played a significant role in advancing the cause of justice in Wisconsin. A plaintiff in a civil rights lawsuit could qualify, for example, or a defender of consumer rights, or someone who broke down a legal barrier so others could succeed.
We also are looking for the significant events that brought about positive change in Wisconsin law or in Wisconsin’s legal system, whether those events occurred in or outside of a courtroom.
White people, Black people, Brown people, men, women, children. Protests, court decisions, orations – let's hear about them!
We will publish information about these folks and events on our blog; funding willing, WJI eventually will transform the information into a book and make it available to the public. We also have various events in mind to celebrate these unsung characters and occasions.
Please help us identify people and events that deserve more recognition for their place in Wisconsin’s legal history. You can send as much information as you want, but at minimum we need:
-The name of the person / identity or name of event
-A picture, if available
-A brief description of the person or event and the person or event’s impact on Wisconsin law or legal history
-Where we can find out more about the person or event
We are closing this phase of the project on Nov. 15.
Please send the information to firstname.lastname@example.org or mail it to WJI, P.O.
Box 100705, Milwaukee, WI 53210
By Gretchen Schuldt
Police did not need a warrant or probable cause to search a vehicle parked in an Appleton East High School parking lot that resulted in the discovery of two guns in the car, the state Court of Appeals ruled this week.
"The duty of school officials to keep students safe applies equally to threats posed by students or non-students," appellate Judge Mark A. Seidl wrote for the three-judge District III Court of Appeals panel. "We therefore conclude that standard applies equally to searches on school grounds of both students and non-students of the school where the search occurs."
Seidl was joined in his decision by appellate Judges Lisa K. Stark and Thomas M. Hruz.
The decision affirmed the conviction in Outagamie Circuit Court of Blong Vang, who was convicted of one count of conspiracy to commit child abuse – intentionally committing bodily harm.
The incident started when two men were spotted in the commons area of the school by Jack Taschner, a school resource officer employed by the school and not by the police, according to the decision, Seidl said.
"The two individuals were wearing hats, which was in violation of the school dress code," Seidl wrote. "Taschner also thought their clothing indicated a gang affiliation."
The two – eventually identified as Travis and Daniel – told Taschner that they were not students at the school.
"When Taschner contacted dispatch to check for warrants on the individuals, no information was returned on one of them, which led Taschner to believe one of them gave Taschner a false birthdate," Seidl wrote.
The two said they were driven to the school by their uncle to pick up a student named Lucy, "who was known by school officials to have a history of truancy, verbal altercations with other students, and physical fights," Seidl said.
The school's athletic director, Timothy Zachow, who by that time had joined the questioning, testified that one of the men told him they were there to beat up another student.
By Gretchen Schuldt
A bill pending in the state Legislature that would allow "elder" victims and witnesses to provide early testify in criminal cases is unnecessary and provides undue benefits to prosecutors, WJI told a Legislative committee last week.
The bill, Assembly Bill 43, would allow witnesses and alleged victims at least 60 years old to give their testimony in criminal court cases ahead of the trial and possibly over the phone. The measure already has been approved by the state Senate as Senate Bill 18.
"Although we very much sympathize with complainants in criminal cases who are older, this bill duplicates a process that already addresses many of the concerns that exist in these situations," WJI President Craig Johnson said in testimony to the Assembly Judiciary Committee.
State law allows a witnesses' testimony to be taken provided through deposition if it appears the person will not be able to appear at trial. The law gives judges the power to reject deposition requests.
The law also allows either side to request deposition testimony. AB43, however, would allow only the prosecution to request early testimony and does not require a reason for the request. The judge would be required to hold a hearing within 60 days to take the testimony.
Johnson said the bill would create a speedy trial right for alleged victims and witnesses. That, he said, "could adversely impact a defendant's ability to prepare a defense. In so doing, it can create grounds for costly appeals which would drag out cases longer than under current law. This is the exact opposite result from what appears to be intended."
The bill does not say what happens if the judge fails to meet the 60-day deadline, Johnson wrote.
"What if the defendant does not have a lawyer representing him or her?" he asked. "What happens if the defense lawyer has been on the case for just a few days or a week and has not been given adequate time to prepare? What if a defense investigator has not finished work on the case? Again, these are issues that can result in lengthy and costly appeals."
The bill also could violate a defendant's constitutional right to confrontation because it would allow alleged victims and witnesses to testify by phone or by audivisual means, rather than face-to-face, "live" in a courtroom, he said.
"Finally," Johnson said, "the bill says that the elder's testimony 'shall be admissible in evidence against the defendant in any court proceeding in the case.' It does not make mandatory admissibility of the testimony on behalf of the defendant if it is exculpatory."
Other groups offered testimony in favor of the bill. The Alzheimer's Association, for example, said it has "witnessed an increase in criminal defendants and their attorneys utilizing the court system to delay court proceedings. These delays are meant to prolong a criminal case until a
victim's health deteriorates or a cognitive impairment progresses to the point that the victim is no longer able to testify in the case."
The Greater Wisconsin Agency on Aging Resources, Inc., the Elder Law and Special Needs Section of the State Bar of Wisconsin, and AARP Wisconsin also supported the bill.
By Gretchen Schuldt
A bill introduced in the Legislature last week has the potential to criminalize possession of home-brewing equipment used for anything other than wine-making.
The bill, AB250, also would prohibit anyone with a felony record from getting a retail license to sell tobacco or cigarettes, though it does not explain the why the prohibition is needed or even helpful.
On the home-brewing front, the bill "generally prohibits a person from possessing a still or other apparatus for manufacturing, rectifying, distilling, refining, or purifying intoxicating liquor other than wine," according to the Legislative Reference Bureau. (Emphasis added.)
Violations would be punishable by up to nine months in jail and a $10,000 fine.
The bill does not prohibit brewing beer at home, but prohibits possessing the apparatus that could also be used for liquor-making. Think carboys and airlocks. The bill also would outlaw possession of stills not used to make alcohol. Collectors may have them, and stills are used to distill other, non-alcoholic products such as water, oils and perfumes.
The bill also carries a presumption of guilt. It says that mere possession of the equipment "is prima facie evidence of possession for the purpose of manufacturing, rectifying, distilling, refining, or purifying of intoxicating liquor other than wine."
Yes, there are exceptions to the proposed law. "The prohibition does not apply to a person that holds an intoxicating liquor manufacturer's or rectifier's permit from DOR or that has registered the still or a distilled spirits plant under federal law."
By Gretchen Schuldt
A bill that would dramatically expand the pool of people eligible to have their criminal records expunged drew strong support at a public hearing this week before the Assembly Criminal Justice and Public Safety Committee..
Grace, 34, a former Wisconsin resident, told about a crime she committed 13 or 14 years ago, when she took a plea deal on a theft charge, that continues to follow her.
Now she is married, lives in Florida, has children, and wants to be a firefighter.
"The haunting of my past continues to appear, and drag me into the stereotypical felon's barrier," she said. "I am not the felony charge, but it is defining the future I admire to become. Can you imagine the feeling of being known at every intersection of progress by the worst failure of your life? Probably not... I am being disabled by something many years ago should be put into proper context today. I can only imagine the thousands of stories of good people reestablishing their lives, but still walking around with invisible shackles of a poor decision."
Multiple organizations, including WJI, the State Public Defender's Office, the Badger Institute, and the Milwaukee Police Association, testified in favor of the bill, AB69.
WJI President Craig Johnson said the measure "is very important as it allows people who have made a mistake to get a fresh start without being stigmatized for life in their search for gainful employment, housing, and in other contexts."
Dale Bormann Jr., president of the Milwaukee Police Association, said his members see the devastation crime visits upon the victim and the perpetrator's family and future.
"We also see many outstanding members of the community who may have, for whatever reason, engaged in a single criminal act years prior, taking full responsibility for their act and have worked to better themselves, but struggle to move forward," he said.
The union hopes "this bill will allow people not to be defined by their worst day but rather the entirety of their collective actions throughout their life."
By Gretchen Schuldt
Police use of a jailhouse snitch after his target retained a lawyer amounted to an improper government interrogation, the State Court of Appeals ruled Tuesday.
"What occurred here was the intentional, surreptitious creation of an opportunity to confront (Richard Michael) Arrington without counsel present," Appeals Judge Mark A. Seidl wrote for the three-judge District III Court of Appeals panel.
In addition, Arrington's trial lawyer failed to provide effective counsel when he did not object to or try to suppress recordings of Arrington made by the informant, the panel said.
Seidl was joined in his opinion by Appeals Judges Lisa K. Stark and Thomas M. Hruz.
Arrington was charged in 2016 in connection with the shooting death of Ricardo Gomez in Green Bay.
A witness, 17, testified that Arrington fired a gun after exchanging words with another man, Shorty. Shorty was standing near another Gomez and one of the bullets instead struck Gomez in the chest, killing him.
There was no dispute during the jury trial that Arrington fired shots toward the house where Gomez and Shorty stood, Seidl wrote. Arrington, though, argued he fired in self-defense and that he believed that Shorty was reaching for a gun to shoot him.
Another witness testified that it appeared "Shorty reached for his waist as though he was reaching for a weapon," according to a brief filed in the appeal. The 17-year-old said it looked like Shorty was reaching for something, according to the brief.
"Arrington also claimed that it looked as if Shorty accidentally shot Gomez..." Seidl wrote.
Arrington turned himself into police after learning they were looking for him.
Arrington was housed in the Brown County Jail with the informant, Miller. Miller already was working with Green Bay Police Detectives Michael Wanta and Bradley Linzmeier in an effort to get information from two other inmates about a different homicide not involving Arrington.
"Miller believed Arrington would tell him things about the pending charges against him," Seidl wrote. "Miller asked the detectives if he should record his conversations with Arrington, and the detectives told him that he could."
By Gretchen Schuldt
Criminal cannabis convictions dropped significantly in Milwaukee County and the state over a 10-year period, but racial gaps remain, according to a new report by the Milwaukee County District Attorney's Office.
And the statewide decline largely was driven by what happened in Milwaukee County, according to the report.
While the number of cannabis arrests dropped dramatically in Milwaukee County from 2010 through 2019, the state's arrest numbers remained steady, peaking in 2018 at 17,428.
Statewide, "arrests for possession of marijuana have not decreased below 14,000" per year during the decade, the report said.
Overall, the number of marijuana possession arrests in Milwaukee County dropped 60%, from 4,785 to 1,927 from 2010 to 2019, according to the data. That is a decline of 2,858 arrests.
"Arrests now represent ~ (about) 13% of overall state arrests (down from ~33%), with ~16% of Wisconsin's population," the report said.
The number of convictions in the county declined 94% over the same time period, the report said. There were 1,285 convictions in 2010 and just 96 in 2019, a decline of 1,189.
The drop in Milwaukee County convictions drove a statewide decline over the decade, the report said. Convictions for marijuana possession dropped statewide from 5,108 in 2010 to 4,021 in 2019, a decline of 1,087, or 21%.
"Notably, 2018 conviction trends without Milwaukee saw 10-year highs," the report said. "And felony convictions only decreased ~3% instead of a ~43% decrease."
Still, racial disparities persist. Black people in 2019 were 3.2 times more likely than Whites to be arrested in Milwaukee County for marijuana possession only, without other crimes attached, according to the report.
The gaps were far larger in some other counties, the report said.
"The worst disparities in Wisconsin are in Ozaukee County (34.9 more likely) and Manitowoc (29.9 more likely)," the report said.
Statewide, according to an earlier ACLU study, Black people were 4.2 times as likely to be arrested for pot possession than Whites.
The new study, by District Attorney John Chisholm and researcher Brendan DuPont, is based on state circuit court records and FBI arrest data. The study is part of the office's efforts with the National Institute of Corrections Evidence-Based Decision Making Initiative to improve decision-making.
"We focused on diverting or declining cases, like possession of marijuana, away from the justice system when appropriate," the report said.
In 2015, Chisholm's office implemented a policy to not prosecute non-violent individuals who possess 28 grams (just under an ounce) or less of marijuana, the report said.
Chisholm said in an interview that his office is unlikely to charge marijuana possession cases unless there is another issue, such as impaired driving, possession of a firearm while impaired, or an associated crime of violence.
Chisholm favors cannabis legalization and regulation.
The policy does not mean that possession cases are not prosecuted at all or that the arrests just disappear.
"I suspect a lot of them are sent to municipal court," Chisholm said.
Municipalities in the state have the option of prosecuting marijuana possession cases in municipal courts, where offenses are punishable by forfeitures are considered civil, not criminal matters.
Counties other than Milwaukee County account for much of the racial disparities in convictions, according to the report.
"In 2019, Milwaukee County had 69% of the state's Black population, but only 8% of its marijuana possession convictions," the report said. "Ninety-two percent of Black marijuana possession convictions occur outside Milwaukee County, despite the rest of Wisconsin representing only 31% of the Black population."
Statewide, Black people had 14 convictions per 10,000, while the White conviction rate was 3.27 per 10,000. Black people were 4.3 times more likely than White people to be convicted, according to the report.
In Milwaukee County, both races were less likely to be convicted than elsewhere, but the disparity was larger. The Milwaukee County conviction rate in 2019 was .11 per 10,000 residents for White people and 1.7 per 10,000 for Black people, about 15.5 times higher than for Whites.
In 2010 Black people statewide were 9.5 times more likely to be convicted in marijuana possession cases. Black people then had 39.23 convictions per 10,000, compared to White people with 4.1 convictions per 10,000.
The study did not fully examine other racial groups due to a lack of reliable data. It did say, though, that convictions in marijuana possession-only cases for American Indians or Alaskan Natives hit a 10-year high in 2019.
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