By Gretchen Schuldt
A former Milwaukee police officer was sentenced to 18 months probation and fined $500 for kicking a suspect in the face after he surrendered and was on the ground, surrounded by other officers.
Milwaukee County Circuit Judge Kristy Yang ordered Michael L. Gasser to serve 14 days in the House of Correction, with Huber work-release privileges at the discretion of the House superintendent, as a condition of probation. She allowed Gasser 45 days to report to serve his time, and allowed the sentence to be transferred to Walworth County at Gasser's request.
Gasser, who resigned from the Milwaukee Police Department after the incident, also is to complete 20 hours of community service, write the victim an apology letter, and "write a letter of self-compassion, which is really another way of saying reflection," Yang said.
In a highly unusual move, Gasser's case was open and closed in two days. He was charged Sept. 6 and appeared before Yang for plea and sentencing on Sept. 7. The prosecution was handled by Assistant Attorney General Annie Jay on behalf of State Attorney General Brad Schimel, records show. Gasser was represented by Michael J. Steinle.
Gasser pleaded guilty to one count of misdemeanor battery and two counts of misdemeanor disorderly conduct.
The Aug. 4, 2017 chase Rosales led police on was high-speed and dangerous, Jay told Yang, according to a transcript of the plea and sentencing hearing.
Rosales eventually surrendered to police, who dragged him through a car window and placed him face down on the ground, according to the complaint.
Greenfield Assistant Police Chief David Patrick said in a statement that he saw "a stocky Milwaukee Police Department officer wearing black leather boots" walk up and kick Rosales in the face. Patrick saw blood coming from Rosales' face. Patrick later identified Gasser from a squad video.
Greenfield Police Captain Michael Brunner said he grabbed Gasser after he kicked Rosales and pulled the officer away.
Videos show at least one kick and possibly a second, the complaint said.
The officers said they saw blood. Rosales suffered a broken nose and said he had a seizure, according to the complaint.
Once Gasser and his partner returned to their car, the complaint says, they discussed the chase and decided it was the "best fucking thing...best one ever."
Jay said Gasser did not even need to be part of the chase.
"This defendant was, I believe, car number five or six. He wasn't even supposed to be in the chase," she said. "He was on another call for the city of Milwaukee and heard it go out, and he and his partner decided it would be fun to join in. So they joined in."
The officers did not radio in their involvement, she said.
"So this isn't a case of somebody whose life was in jeopardy, or who was involved in a high stress incident and lost his temper, and did something stupid," she said. "This was somebody who in the middle of the day cleared another call and decided to have a fun time which if you watch all the videos, Mr. Rosales is completely subdued by the time the defendant gets involved."
"He wasn't even supposed to be in the chase. He was on another call for the city of Milwaukee and heard it go out, and he and his partner decided it would be fun to join in. So they joined in." – Special Prosecutor Annie Jay
Other police officers from Greenfield and Milwaukee subdued Rosales and had him handcuffed and on the ground "by the time the defendant comes up and kicks him in the face," she said.
"This is the kind of case that people in the community pay attention to, and people want to know what happens when an officer takes advantage of someone who's vulnerable, down on the ground, handcuffed, and unable to defend himself, and has given up" Jay said.
"It's not a case for a fine," she said. "There are real anger management issues that need to be addressed, and there is a real punishment component that needs to be imposed."
Gasser also was involved in the MPD body-cavity search scandal, but has never been disciplined by the department, Steinle said. He has received three merit awards and numerous letters of commendation, Steinle said.
Steinle told the judge that Gasser was a witness in the body-cavity litigation. A jury in a federal civil suit found he conducted an illegal stop-and-frisk search and U.S. District Judge J.P. Stadtmueller called the actions of Gasser and another officer "reprehensible examples of police misconduct."
Steinle said Gasser never denied kicking Rosales.
"He, obviously, has lost a lot," Steinle said. "He lost his employment as a result of it, judge."
"So, judge, I believe that my client does not need correctional treatment as a result of this," Steinle said. "He's lost his job. He's lost the respect of the community, obviously, and his peers."
Gasser, in his statement to the judge, said Rosales was not handcuffed until after Gasser kicked him in the head.
"But I did do it," Gasser said. "It was something that I kind of describe it as something that I did it but didn't mean to do. It wasn't an accident. I didn't trip or something like that, but it was – it was just something that I did and could explain why did it. I've never done this before."
Gasser said he was under stress at the time and Yang acknowledged that stress, adding "and granted, probably, officers aren't paid enough or well trained enough given the line of work they have to do."
However, she said "you were in a trusted position. And that trust is the trust that you will protect the community.… And here a member of the community was Mr. Rosales, the victim in this case. And so the need to protect the public here is great."
"Simply saying that you don't know why you did it is not enough because only you are in control of your conduct, and you are the one who makes the decision as to whether you take any corrective measures, whether it's anger management or something else."
After reviewing aggravating and mitigating factors, Yang said Gasser's character was "sort of a mixed bag.… And I think what I mean by that really is that, perhaps, your employer could have done more to help provide resources and tools."
She set the fine at $500 she said because Gasser was selling his home and moving, which she said were "financial consequences" of his actions.
By Gretchen Schuldt
Outagamie Circuit Judge Mark McGinnis insulted a defendant and dropped the Fbomb from the bench during a hearing held partly to determine whether the judge would purge the contempt of court finding he earlier issued against the man.
Brian D. Mitchell, sentenced to six months in jail because he rolled his eyes in front of McGinnis, angered the judge again when next they met in court. Mitchell rolled his eyes again. And he picked up some papers, which also angered the judge.
The hearing started off well enough but went downhill rapidly after the conversation turned to contempt. McGinnis wanted Mitchell to write an apology, orally apologize in court, and pay a $5,000 fine before the judge would purge the contempt finding. Mitchell was impoverished enough to qualify for representation by the State Public Defender's Office.
Mitchell was represented at the hearing by attorney Gary J. Schmidt. Mitchell was not represented by a lawyer when McGinnis first issued the contempt finding. McGinnis already had granted attorney Daniel Muza's request to withdraw.
Mitchell, of Milwaukee, was charged with human trafficking. The case was eventually dismissed.
Below are excerpts from the June 23 hearing transcript:
McGinnis: I will find today that the written apology was appropriate and satisfies one of the purge conditions. I thought that was the written document that you were talking about before, Mr. Sargent. ... Okay. So Mr. Mitchell?
McGinnis: Mr. Schmidt said you wanted to address that issue.
Mitchell: Yes. It's my understanding that I was to give a publicized, verbal apology, which I intend to do. I would, first, like to apologize, I mean, to you, judge, your honor, for my suspension on my outburst, and the disrespectful manner in which the Court took it in, the disrespect to the Court that day. I apologize for, I mean, being – – my contemptuous behavior that day on June 6 in the courtroom.
As I wrote you in the letter, I intended to apologize and that I actually learned my lesson from that and that I didn't think it would be in my best interests. I thought I would satisfy the Court in a different manner rather than lockup conditions.
McGinnis: Anything on that, Mr. Sargent?
Sargent: No, your Honor.
McGinnis: Mr. Schmidt?
Schmidt: Nothing on that point. I think my client has a cash bond, but I think also the Court had sentenced him to six months in the jail on the contempt. So we would ask the Court to lift the six months if he's able to post the cash bond. Then he has that opportunity. Otherwise that's taken away from him.
McGinnis: I believe there were three purge conditions, right? The third purge condition has to do with paying a $5,000 amount.
Sargent: That's correct.
McGinnis: I'm just going on memory.
Sargent: That's correct.
McGinnis: What is the cash bond amount, Mr. Schmidt?
Sargent: $15,000, judge. Sorry.
McGinnis: What I think needs to be done, Mr. Mitchell is the following. It's something I think you need to either appreciate or, if you don't appreciate it, at least understand, that is, you know, in this society every day we deal with individuals who are unhappy, disgruntled, emotional, and it's not just defendants. It's attorneys. It's victims, witnesses, police officers; and in order to have a system that runs efficiently or smoothly and is done in a way – – do you need time to get rid of those documents?
McGinnis: You notice that disrespect that you are showing me in the last 35 seconds? You get that, right?
McGinnis: Okay. It's not showing up on a transcript but that's the type of disrespect that shouldn't exist in a courtroom. And I only say that, Mr. Mitchell, because like I told you last time, I'm going to be the guy who sentences you if you lose, and you know, you don't make – – it's not in your best interests to carry on the way you carry on. That's okay. You can do it if you want. You can roll your eyes when I am talking. You can purposely look away, and you can look at me and give me the fuck-you look, right, that you have been giving me for the last minute and that's fine. That's just who you are.
"I'm going to be the guy who sentences you if you lose, and you know, you don't make – – it's not in your best interests to carry on the way you carry on." – Outagamie Circuit Judge Mark McGinnis
But what you did the last time here, the disrespect and what I thought and I characterized as an aggressive, inappropriate way, which is different than what you are doing right now, which is contemptuous behavior; and it can't be tolerated by you or by attorneys or by anybody else who comes in here or else this is just going to turn into a complete circus.
The last time when you were here and what I was saying before is every day it happens to various degrees, and over 12 years of doing this you just kind of let some of it go kind of like I did for those first 35 seconds when you were doing this today. Those first 15 seconds I'm going to let you disrespect. Then it carried on for 20 or 25 seconds. Eventually I say no, this isn't acceptable; and I'm not saying you have to respect me because you won't and you haven't and that's all right; but you have to respect the environment and the fact that this is a courtroom and there are rules for people to follow and that's what you continue to violate.
"You can roll your eyes when I am talking. You can purposely look away, and you can look at me and give me the fuck-you look, right, that you have been giving me for the last minute and that's fine. That's just who you are." – McGinnis
And so before you disrespected me today for this last couple minutes with the way you are looking and the way you are carrying on, I was going to waive that $5,000 purge condition. I thought maybe your apology was genuine. I thought what you had written was sufficient. That's what I said, but it's clear that those are just words and that you don't really mean, and it's an intention that you continue to hope to carry on in the courtroom, which tells me that you don't understand what your role is here.
So the contemptuous behavior that happened last time and the purge conditions that I provided will continue. You have satisfied two out of the three conditions. The third condition will remain the same. Anything else, Mr. Sargent?
Sargent: No, your honor. Thank you.
McGinnis: Mr. Schmidt?
Schmidt: I guess I could advise the Court of one other matter which is probably going to come up soon. I did obtain a copy of the transcript from the hearing on June 6. There should be a copy in the Court's file. ... On the – – on the transcript on the bottom of the page 6 there's a discussion between the defendant and the Court.
The defendant states, "You have a problem, the way you talk to people."
And the court states, "Okay, good. Someday I'm going to sentence you."
Then the defendant says, "Probably."
The court says, "That's going to be a problem"
The defendant, "Maybe."
The Court, "– – for you that day."
My client has asked me to file a motion to ask the court to recuse himself because of that statement. So I probably will be filing a motion based on that section of page 6 and we probably have to schedule a hearing to come back on that in the future.
McGinnis: Go ahead and file it. Maybe include the conversation that we had today because I talked to him about it as well, and you might delay the trial. So you go ahead and file it. When you file it, the State will have 30 days to respond. When they respond, I'll do the research and I'll make my decision.
Obviously at first blush I don't think it's an issue. I will highlight those reasons. I am sure you have some legal authority, Mr. Schmidt, that you can cite; I just know Mr. Mitchell understands today, when I said that to you, at the time of sentencing we take into consideration everything we know, everything we've observed including your character. As I said again today, things you do at a hearing, the way you conduct yourself we're not blind to.
"He obviously isn't that bright of a guy. That's just the reality for him." – McGinnis
So the fact that I will tell you that at a hearing I think is not only appropriate, I think it's best because hopefully a person like you who is smart – – I'm not suggesting that you are – – or that you care – – and I'm not suggesting that you do care – – you would change your behavior or your conduct and you would handle yourself in a different way.
Mr. Mitchell, as he's picking up his papers right now and continues to show that disrespect and is looking away and rolling his eyes and acting in a way that he has for the last couple hearings – – He obviously isn't that bright of a guy. That's just the reality for him. Whether that means I could be fair or that I have some bias against him, whether it's perceived or it's real, I think the record is clear as to what the facts are.
So file your motion. Make sure you support, the legal authority. The State has 30 days from whenever that's filed. I'm not sure I'm going to waste my time with a motion hearing on it; but once it's filed, I will read it. If I think it's necessary to have a hearing, I will. Otherwise it will just rule on it at the appropriate time. Anything else Mr. Sargent?
Next week: The case falls apart.
By Gretchen Schuldt
Outagamie Circuit Judge Mark McGinnis last year kept a defendant jailed for 42 days for contempt of court for rolling his eyes, shuffling papers and giving McGinnis, in the judge's own words, a "fuck-you look."
The contempt finding against Brian Mitchell was eventually overturned by a state appeals judge. Mitchell's lawyer on appeal, Joseph Ehmann, said Mitchell merely was reacting in frustration to comments McGinnis made.
A Court of Appeals panel last month overturned a prison sentence McGinnis handed down in a different case. The appeals panel ruled McGinnis showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison.
McGinnis did something similar but not identical in the Mitchell case. He told Mitchell during a pre-trial hearing that he better keep in mind that McGinnis would be the one to eventually sentence him.
McGinnis originally sentenced Mitchell to six months for the contempt but offered to purge the finding if Mitchell apologized in writing and orally in court and paid a $5,000 fine. Mitchell was poor enough to be represented by the State Public Defender's Office.
McGinnis let Mitchell out after 42 days. The human trafficking charge against Mitchell was dismissed less than a month later.
The action leading up to the jailing played out during two days of hearings. Below is an excerpt from the transcript from the first day.
During this June 6, 2017 hearing, Mitchell is accompanied by attorney Daniel Muza, who has just withdrawn from the case and no longer represents Mitchell. The defendant is without a lawyer.
This section begins after McGinnis cautions that Mitchell's request for a speedy trial means that there are factors that his lawyer might not have enough time to prepare.
Mitchell: I highly understand.
McGinnis: I'm not done talking yet.… There is a likelihood, a good likelihood, that that case will need to be rescheduled and pushed to a later date. Do you understand that?
Mitchell: yes. I – – I will feel that's a conflict.
McGinnis: I'm not sure what that means.
Mitchell: I would like it at the earliest convenient on the calendar dates, my jury trial. I want to, I intend, will exercise my right to exercise a speedy trial. If my attorney can't cooperate with that, it's a conflict of my interest.
McGinnis: How come it's a conflict of your interests? ... And if you're attorney is on vacation, for example, on that date – –
Mitchell: I understand that.
McGinnis: You must not.
Mitchell: I can sign a stipulation with my attorney. I mean, saying that I understand that it will probably put them in less effective -- It wouldn’t put me in the best defense, but that’s just my decision. Me and my attorney could probably come to some type of an agreement on that.
McGinnis: You’re obviously very confused. That’s probably one of the reasons Mr. Muza is withdrawing.
Mitchell: No. I -- I asked him to.
McGinnis: It wasn’t a question for you. Okay. So you use terms that don’t make sense, which is okay. Then when we try to explain things to you, you appear or you seem to want to know everything; and then you seem to make more comments that don’t make sense. So I’m not interested in trying to really have a conversation with you where you and I both agree.
Mitchell: Me neither. Me neither.
"You’re obviously very confused. That’s probably one of the reasons Mr. Muza is withdrawing." – Outagamie Circuit Judge Mark McGinnis
McGinnis: I’m just telling you the reality of something.
McGinnis: Okay. I want you to understand today.
Mitchell: I understood that already.
McGinnis: I wasn’t done asking the question. For some reason you have a problem with interrupting people when they are talking. You can roll your eyes. It’s really impressive.
Mitchell: You have a problem the way you talk to people.
McGinnis: Okay, good. Someday I’m going to sentence you.
McGinnis: That’s going to be a problem --
McGinnis: -- for you that day.
McGinnis: Maybe. For your sake you’d better hope it doesn’t happen because I have a pretty good memory of it and if it --
Mitchell: I’m innocent so I don’t worry about your sentencing.
McGinnis: You might be innocent. You might not have to worry about it. That’s fine.
Mitchell: All right then.
McGinnis: Are you done rolling your eyes?
"Someday I’m going to sentence you. ... That’s going to be a problem...for you
A few moments later, after another brief exchange, Mitchell urged McGinnis to proceed with the hearing.
McGinnis: I am trying, but you are interrupting and creating nonsense by rolling your eyes and other antics.
Mitchell: That’s not interrupting if I am rolling your (sic) eyes. I can roll my eyes.
McGinnis: No, you can’t roll your eyes, sir. I am going to find you in contempt of court for your conduct today, for the disrespect to the Court. Is there anything you’d like to say before I impose a consequence for that?
McGinnis: I’m going to sentence you to six months in the Outagamie County Jail in lockup. That sentence begins today. You may purge that contempt by writing an apology letter to me.
Mitchell: I will.
McGinnis: And, secondly, by appearing here in court and making a verbal apology.
Mitchell: I will.
McGinnis: And by paying a fine of $5,000. If you purge that contempt by doing those three things, then that contempt is purged and you’re no longer sitting. Otherwise you will sit for six months in lockup. Anything on that issue, sir?
McGinnis: Okay. So you can keep rolling your eyes and then I will keep giving you six months, or you can grow up and handle yourself the way that people are supposed to handle themselves in court. Do you have any questions about that?
Mitchell: Do I get appointed an attorney? Can I?
McGinnis: I asked if you had any questions about that?
Mitchell: Can I argue that?
McGinnis: Argue what?
Mitchell: The sentence you just gave me, your charge.
McGinnis: You can do anything you want you can keep rolling your eyes if you want, like you said. You told me a couple minutes ago you can roll your eyes. Sure you can go ahead and roll your eyes. That I can go ahead and do what I want to do.
Next: Another hearing, and the judge drops the Fbomb from the bench.
By Gretchen Schuldt
More than 400 Racine Correctional Institution inmates were waiting to see a dentist as of July, and 23 of those had waited more than 40 weeks, according to a state budget request.
Fifty-seven inmates on the list were waiting for "essential services" and 41 were waiting for dentures.
Dental care at the prison is "inadequate," the request said.
The Department of Corrections detailed the need for improved dental services at RCI in the 2019-21 budget request it submitted to Gov. Scott Walker, who has not visited a state prison during his years in office.
The department is seeking 27 new positions to staff the new $8 million health services unit at RCI scheduled to open in April 2020. The department also is seeking $1 million in fiscal 2020 and $2.8 million in fiscal 2021 to pay for the new positions.
The share of new staff that would go to dental services is fairly minimal - a 60 percent full-time equivalent dentist, a 60 percent full-time equivalent dental assistant, and a 20 percent full-time equivalent dental hygienist.
Those position should, however, help the institution "rectify the inadequate dental care that inmates receive as a result of long delays" in getting treatment, the request said.
Wisconsin is not alone in struggling to meet inmate dental needs. Standards vary from state to state and agency to agency, according to a report by The Marshall Project.
"Even before their incarceration, prisoners are likely to have unmet dental needs, research shows," The Marshall Project reported. "While in prison, they have a constitutional right to dental care, but the courts have offered little guidance on the services that institutions must provide. If a tooth or gum problem is causing more than minimal pain, facilities are required to treat it, said David Fathi, director of the ACLU National Prison Project. 'Even a few days of untreated dental pain is not allowed.' ”
Also included in the budget request for the new facility is funding for guards, nurses, and medical assistants.
The new unit, triple the size of the existing one, will allow DOC to better meet health care needs, the request said.
As of May, it said, "41.6 percent of RCI’s inmates had a mental health condition and 7.7 percent of inmates had a severe mental illness. ... Additionally, the DOC believes that the inmate population will continue to age going forward, which will further increase the need for expanded health services to inmates. "
With the smaller facility and smaller staff used now, staff members "currently struggle to consistently monitor chronic conditions," the request said.
There are seven to 10 offsite medical visits every day, and about one of those is a trip to the local emergency room.
"These offsite treatments not only have greater medical costs but also require at least one security staff member to accompany inmates on trips out of the institution," the request said.
Adding the requested staff would allow for improved preventative care for inmates, it said.
"Inmates’ chronic conditions, such as HIV, diabetes, and hypertension, would be less likely to worsen while they are incarcerated and less likely to result in expensive hospital visits," the request said.
Improved on-site health care also means fewer off-site trips for corrections staff, it said.
If the prison does not get the additional staff, it will have to rely on contracted help and limited-term employees, who are employees who sign on for short stints and do not plan to stay. Contracted and limited-term employees are harder to recruit and have higher turnover than full-time employees, the request said.
Relying on contracted and limited-term employees also would reduce the benefits of the new building as they "provide less continuity of care to patients due to their higher turnover and they are often less experienced than FTE staff," the request said.
By Gretchen Schuldt
An Outagamie Circuit Court judge showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison, a State Court of Appeals panel ruled Tuesday.
The ruling does not reflect on the four-year sentence Circuit Judge Mark J. McGinnis ultimately handed to Emerson D. Lamb, Appeals Judge Thomas M. Hruz wrote for the District III panel.
"However justified Lamb’s prison sentence may have been, we cannot ignore the constitutional requirement that Lamb be sentenced by an impartial tribunal," Hruz wrote. "Our adherence to this fundamental precept of due process compels us to reverse Lamb’s conviction."
The court ordered that Lamb be sentenced again by a different judge.
Hruz was joined in his opinion by Appeals Judges Lisa K. Stark and Mark A. Seidl.
Lamb originally was charged with two counts of felony bail jumping, one count of battery by a prisoner, and one count of disorderly conduct. He was charged as a repeater in each instance.
He eventually pleaded guilty to one count of battery by a prisoner as a repeater, and the other counts were read in. The judge ordered a pre-sentence investigation, and Lamb was released on bond.
He failed, however, to keep his appointment with the PSI writer and expressed a desire to withdraw his plea.
During a hearing, Lamb said he was wrongly charged with two counts of bail jumping and called the district attorney a "criminal," then left the courthouse, Hruz wrote. McGinnis issued a bench warrant for Lamb's arrest. He was eventually taken into custody.
At his sentencing hearing, Lamb said he no longer wished to withdraw his plea and to skip the PSI because prosecutors agreed to recommend a sentence of probation.
''I feel like I could potentially benefit from, you know, maybe being on probation," Lamb said. "Also, there’s the possibility of leaving today, so I just --"
"Not really," McGinnis said. "Okay. Just thought I’d tell you that so you don’t have any false hopes. I mean, there’s a possibility, but it’s probably not going to happen. Do you understand that? Yes?"
Lamb said he understood.
McGinnis continued, "I don’t want you waiving your rights thinking something that might happen that maybe isn’t going to happen. So now that you know that it probably isn’t going to happen that you’re going to get out today, do you still want to proceed with sentencing and not argue on your request to vacate the pleas or to withdraw the pleas and to waive your right to have a PSI?"
Lamb said he did.
"You’re going to prison today because we’re sick and tired of you."
McGinnis heard from the district attorney, Lamb's attorney, and Lamb himself. Then the judge himself spoke.
"Well, just so there’s no surprise, I mean, you are going to prison today," he said. "I’m making that decision, and I think it needs to be communicated to you clearly without keeping you on edge as I tell you what’s going to happen, and you’re going to prison today because we’re sick and tired of you."
Lamb had several chances at probation, but kept committing crimes, McGinnis said, adding that he did not "know many people with as low of character as you have."
McGinnis sentenced Lamb to two years in prison and two years on extended supervision.
McGinnis' comments "reveal, by a preponderance of the evidence, a serious risk of actual bias because a reasonable lay observer would interpret them as prejudging Lamb’s sentence," Hruz wrote.
The timing of the judge's comments was important because they occurred before sentencing arguments and before Lamb had a chance to speak on his own behalf, Hruz said.
Wisconsin judges are required to consider several factors when passing sentence harsher than probation. They include the need to protect the public, the gravity of the offense, and the defendant’s rehabilitative needs, Hruz said.
McGinnis’ statements "failed to account for any of these sentencing factors and objectively show a 'serious risk' that he had already made up his mind about what kind of sentence Lamb would receive," Hruz said.
By Gretchen Schuldt
The State Public Defender's Office is proposing to increase from $40 to $70 per hour the rate it pays private bar attorneys to represent defendants who cannot afford to hire attorneys.
It is at least the office's 19th formal attempt to increase the $40 per hour rate since 1999, according to information provided earlier by the State Public Defender's Office (SPD).
The $40 rate, which is the lowest in the nation, "is impeding the SPD’s ability to recruit and retain private bar attorneys who consistently accept appointments and provide effective representation," the agency said in its 2019-21 budget request. "It also has a direct impact on county expenses through increased jail costs and costs for appointment of counsel at county expense."
The pay increase, which would take effect July 1, 2019, would cost $33.2 million over the biennium.
The agency suggested as an alternative that the pay raise be delayed until Jan. 1, 2020. That would reduce the cost to $25.3 million, the SPD said in its budget request.
Hank Schultz, a lawyer who has been heavily involved in working for a private bar pay increase, said the proposal is a stop-gap measure that does not address the basic problem.
"In a few years we'll be in the same place we are now," he said in an interview. "This is not a meaningful, long-term solution."
SPD appoints lawyers when its own caseload is too great, or when it has a conflict. When it cannot find a lawyer willing to take a case at $40 per hour, which is occurring with increasing frequency, judges are supposed to appoint lawyers at county expense. Some judges already are paying $100 per hour or more for those lawyers, Schultz said.
The minimum rate for court-appointed lawyers is $70 per hour.
In some counties, defendants remain in jail while they await appointment of counsel by either the SPD or a judge. Some judges proceed with hearings even if no lawyer is available. An 18-year-old inmate in the Wood County Jail hanged himself last month after trying to represent himself at a preliminary hearing – no lawyer was there to help him.
The Wisconsin Association of Criminal Defense Lawyers asked the State Supreme Court earlier this year to increase the $40 rate, but the Court, while acknowledging the rate was too low, declined to act, instead deferring to the Legislature. The court did agree to increase the rate paid to court-appointed lawyers from $70 to $100 per hour, but delayed implementation until Jan. 1, 2020.
"Considering the $40 rate and the cost of operating a law practice, it is unsurprising that there are fewer attorneys willing to accept SPD appointments," the Public Defender’s Office said in its budget request.
The $40 rate is not enough to cover the average attorney's overhead costs, SPD said, and other attorneys used by the state and federal governments are paid more.
"Defense attorneys are paid $140 per hour for noncapital federal cases," SPD said. "The Office of Lawyer Regulation uses outside counsel in some disciplinary matters and pays them $70 per hour."
Finding lawyers to represent clients in the northern part of the state is especially challenging, SPD said.
Bayfield County cases are now assigned to out-of-county lawyers 99 percent of the time, SPD said. In fiscal 2012, Ashland County appointed 28 percent of cases to out-of-county private attorneys; by 2017, that number had risen to 73 percent.
18-year-old who hanged himself in Wood County Jail didn't have a lawyer when he should have. Why not?
Updated Sept. 12, 2018 to include responses from the State Public Defender's Office and Wood County Circuit Judge Todd P. Wolf.
By Gretchen Schuldt
Trequelle T. Vann-Marcouex, who turned 18 in April, was facing serious charges when he appeared before Wood County Circuit Judge Todd P. Wolf on Aug. 14 for a preliminary hearing.
Vann-Marcouex was facing a maximum of 65 years in prison for allegedly participating in an armed home invasion and robbery. Vann-Marcouex denied involvement in the crime. He had been in jail for at least 11 days, and he still did not have a lawyer.
He qualified for representation by the State Public Defender's Office (SPD), which provides lawyers for very low-income defendants. A lawyer from that office represented him during his initial appearance, where bail was set at $25,000, but no one had been appointed to handle his case after that.
“I have been calling the Public Defender’s Office every single day, and they make it – I get on the phone with them, and they’d laugh,” Vann-Marcouex said at the end of the preliminary hearing, according to a transcript of the proceeding. “When I called them yesterday and I asked them how is it I don’t have a public defender and I got my court in less than 24 hours, and she is, like, right. How is that an answer, right? How is that an answer?”
“Well, you have to deal with them on that,” Wolf responded. “I can only do the hearings that are before me.”
Wolf also did not appoint a lawyer for Vann-Marcouex, either, even though he should have done so.
"I don't understand how this is enough evidence," Vann-Marcouex said after Wolf bound him over for trial.
"Okay," the judge responded. "That will be something you can discuss with your attorney."
Vann-Marcouex hanged himself in the jail that night. It was the fifth suicide in two years in the Wood County Jail.
SPD spokesman Randy Kraft said the office did not take Vann-Marcouex's case because of a direct conflict of interest and so had to appoint a private bar attorney to take the case.
"Agency staff made approximately 300 calls and emails to private attorneys certified to take SPD cases before an appointment was ultimately made on Aug. 14," Kraft said in an email. "The Order Appointing Counsel was filed with the court on the same day.
"In cases in our more rural counties, the difficulty in locating a private bar attorney is fairly typical," Kraft said. "What is less typical, however, is the court proceeding with a preliminary hearing without the benefit of an attorney. Defendants benefit from having an attorney with them in court. Attorneys not only have the skills necessary to protect the rights of their clients, but they are also able to guide them through the criminal justice system."
The Sixth Amendment to the U.S. Constitution guarantees defendants in criminal cases the right to effective counsel. The Wisconsin Supreme Court has specifically ruled that defendants are entitled to counsel at preliminary hearings.
But Vann-Marcouex, who had never been in serious trouble before, was unrepresented as a prosecutor described the state’s case against him. When he did try to talk, the judge cut him off.
It is impossible to draw a line directly from the young man's lack of representation to his suicide, but a lawyer could have helped Vann-Marcouex deal with the overwhelmingly stressful situation he faced, said Chad Lanning, president of the Wisconsin Association of Criminal Defense Lawyers.
A lawyer can put things in context and "give them that hope that all is not lost," he said. Law enforcement may presume defendants are guilty and treat them that way, or frighten them with worst-case predictions in attempts to scare them straight.
While court and law enforcement officials often emphasize the maximum penalties a defendant faces, a lawyer can give them a more realistic, less dire picture and explain legal defenses and a basic strategy of how they will unfold as the case moves forward.
Vann-Marcouex wanted a lawyer. He just didn't get one, a fact acknowledged by the prosecution.
"I did have a brief off-the-record conversation with Mr. Vann-Marcouex," Assistant District Attorney Leigh Neville-Neil said at the beginning of the preliminary hearing, according to the transcript. "He indicated he applied and qualified for a Public Defender. He has been calling them repeatedly and has not been assigned counsel yet, just so the Court's aware."
"Okay," Wolf responded. "That's my understanding, Mr. Vann-Marcouex, though, in fact, what the Court is required to do by law is to have this preliminary hearing done within 10 days when someone's in custody on a cash bond, such as yourself."
Wolf did not raise the possibility of a court-appointed attorney, nor did Neville-Neil, who is now on leave.
Wolf declined to answer written questions from WJI. Wood County District Attorney Craig Lambert did not respond to written questions.
"You do have the right to ask questions of the officer, although if you had an attorney here, they would tell you not to do so . ..." – Circuit Judge Todd P. Wolf
The lack of legal representation for defendants in criminal cases who cannot afford to hire a lawyer is creating a constitutional crisis in the state. The SPD appoints private bar attorneys to handle cases when it cannot do so because of excessive caseloads or potential conflicts of interest. The low pay the office can offer – $40 an hour, the lowest rate in the nation and not enough to cover the average lawyer's overhead costs – means more and more lawyers are turning down cases. The State Supreme Court earlier this year refused a request to increase the rate.
Judges are supposed to appoint lawyers at county expense at $70 per hour if no other lawyer is available. “If lawyers are unavailable or unwilling to represent indigent clients at the SPD rate of $40/hour, as is increasingly the case, then judges must appoint a lawyer under SCR 81.02, at county expense,” the State Supreme Court said in its order declining to increase the $40 rate.
Wolf instead explained that the state would outline its evidence to show probable cause that Vann-Marcouex committed the three crimes with which he was charged: armed robbery, burglary, and child abuse (a 17-year-old was struck with a gun during the home robbery).
Prosecutors "have to introduce that type of evidence so I feel comfortable enough that the case can proceed with that probable cause finding, so I am going to go through and hear the evidence here today just to see if it meets that standard," he said, according to the transcript. "If it doesn't, the case would get dismissed. If it does, you are in no different position than you were in when you walked in here. ..."
Wolf continued: "You do have the right to ask questions of the officer, although if you had an attorney here, they would tell you not to do so because anything you say is being recorded here today on the record and could be used against you, and you clearly wouldn't want to give up your right for self-incrimination by making some statements that could be used against you. Do you understand that then, sir? Do you understand that."
"Yeah," Vann-Marcouex replied.
After Neville-Neil finished questioning an investigating officer, Wolf told Vann-Marcouex he could ask questions, "but again, realize anything you are saying is being taken down and could be used against you."
Later, the judge told Vann-Marcouex that he had a right to present evidence, but "I have to make a decision in the light most favorable to the state, and obviously you'd be giving up any right to self-incrimination if you did so. Do you wish to present any evidence?”
"I mean, I was watching my nephew that night," Vann-Marcouex said. "My sister isn't here right now, I don't see her, but, um –"
The judge cut him off. "You have to present evidence through testimony here, not make an argument, but no attorney would tell you to do that with each of the charges you are facing here because, again, I have to do it in the light most favorable to the State, all right? Do you wish to present anything now or not?" Wolf said.
Vann-Marcouex shook his head.
That was his last court appearance.
It was the same day he got his lawyer.
That same night, jail staff found him in his cell, where he apparently tried to hang himself. He died a few days later.
Margo Kirchner contributed to this story.
By Gretchen Schuldt
Threatened by gang members at gunpoint in El Salvador, W.G.A. fled to the United States, where he was picked up by the Department of Homeland Security, denied asylum by an immigration judge and the Immigration Appeals Board, and wrongly returned by the United States government to El Salvador while his federal court appeal was pending.
The Seventh Circuit Court of Appeals last week gave the man another chance, rejecting the reasoning the Immigration judge and board gave when they turned down W.G.A.'s request and returning the case to the Board for further proceedings.
The government, while finding credible W.G.A.'s story about death threats from an El Salvadoran gang, rejected his pleas to remain in the United States. While he was indeed persecuted, the government argued, his persecution was not due to one of the five grounds that could keep him in this country: “race, religion, nationality, membership in a particular social group, or political opinion.”
The appeals panel disagreed. W.G.A.'s family is a particular social group, and he was threatened because of his membership in it.
W.G.A. was threatened by the Mara 18 gang because his brother tried to leave it, U.S. Circuit Judge David Hamilton wrote for a three-member panel that also included Circuit Judges Diane Sykes and U.S. District Judge John Z. Lee.
W.G.A. and his family members are not identified beyond initials in court filings, most of which are not available to the public.
"The Mara 18...is one of the two main gangs operating in El Salvador," Hamilton wrote. "Together with their rivals, MS‐13, the Mara 18 terrorize the Salvadoran population and government. The gangs use violence to exercise an enormous degree of social control over their territories, dictating where residents can walk, whom they can talk to, what they can wear, and when they must be inside their homes."
The gangs put together labor strikes and plotted to bomb government buildings. They extort millions of dollars from businesses and, Hamilton wrote, "they are largely responsible for El Sal‐ vador’s homicide rate — one of the highest in the world."
One day in 2014, when both brothers were still in El Salvador, W.G.A.'s brother, identified only as S.R.P., did not come home from a trip to the store. W.G.A. and his mother looked for him to no avail. They guessed that S.R.P. had been forcibly recruited by a gang.
They didn't hear from him until they got a phone call a few months later. He was crying and said he could not talk long because the gang might kill him, Hamilton wrote. Then he hung up.
S.R.P. was arrested a few months later and was released from prison in 2015. He called W.G.A. to say he did not want to be in a gang anymore and did not want to tell W.G.A. where he was going. Then he was gone.
Four tattooed gang members showed up at W.G.A's house two days later. They were looking for his brother. When W.G.A. said he did not know, "one man grabbed him by the collar of his shirt, threw him to the ground, drew a gun, and put it to his head. One of the men told petitioner: 'if you don’t [hand] over your brother, you’re going to die here,'" Hamilton wrote.
The men gave W.G.A. four days to comply or they would kill him. They also said they would kill him and his family if anyone talked to police.
W.G.A. took off for the United States. Gang members threatened family members still in El Salvador. It got so bad that W.G.A.'s mother sent another son into hiding.
W.G.A. was arrested in the United States and denied asylum by both an immigration judge and a Board of Immigration Appeals. He petitioned for the Seventh Circuit to review the decisions, which should have put a hold on deportation proceedings.
It did not. Homeland Security sent him back to El Salvador, but when the appeals panel appeared ready to consider ordering him returned, the government voluntarily did so.
"We cannot accept the immigration judge’s conclusion that threatening phone calls and home invasion by masked gang members are not evidence that other family members have been harmed."
Hamilton was critical of the immigration judge's and appeals board's decisions. The board, for example, found that W.G.A. failed to adequately show that his gang persecution was due to his family connection because his family continued to live unharmed in El Salvador.
"This is factually inaccurate," Hamilton wrote.
Family members testified about the fear the gang caused them.
"W.G.A.’s mother reported that she had received at least four threatening phone calls from “angry,” yelling gang members and that the calls continued until she threw her cell‐phone chip away," Hamilton wrote. "W.G.A.’s mother and sister described how masked gang members have appeared at their home at least twice, threatening them. ... We cannot accept the immigration judge’s conclusion that threatening phone calls and home invasion by masked gang members are not evidence that other family members have been harmed."
By Gretchen Schuldt
The State Department of Justice should re-think its decision to require school districts receiving school safety grants to send teachers to mental health training designed for police officers and to participate in new, vaguely defined threat reporting activities, a group of mental health organizations says.
"I really hope there is an opportunity to correct the places where we're headed toward unintended consequences," Joanne Juhnke, policy director of Wisconsin Family Ties (WFT), said Tuesday. Wisconsin Family Ties is a statewide, parent-run organization working with families that include children with social, emotional or behavioral challenges.
WFT, along with Grassroots Empowerment Project, Kids Forward, Mental Health America of Wisconsin, NAMI Wisconsin, and the Wisconsin Association for Marriage & Family Therapy wrote to Attorney General Brad Schimel raising questions about the grant's requirements. Schimel's office is administering the grants.
"Our concerns involve both the required adolescent mental health training at schools receiving the grant and the proposed incident-reporting to the Department of Justice in the context of School Safety Intervention Teams (SSITs)," the letter said.
The groups recommended that Schimel's shop "consult with relevant stakeholder groups including advocacy organizations with expertise in youth mental health."
Under the state's grant requirements, participating districts would establish SSITs to perform "ongoing violence-related threat assessments, behavior monitoring, and intervention" and would track, monitor, assist, and intervene with at-risk youth, according to DOJ's grant application instructions.
The grant will require participating school districts to send 10 percent of their teachers and counselors to a 12-hour training in adolescent mental health, though the training was not designed for them.
"Although it does not appear in the grant materials, the full title of the training is 'Adolescent Mental Health Training for School Resource Officers,' and is the only approved training for this element of the grant," the groups' letter said. The target audience for the training is "school resource officers, security personnel, administrators, disciplinary staff, and treatment providers."
"Requiring teachers to undergo training in adolescent health, delivered by law enforcement and designed with a juvenile justice perspective reinforces unfounded linkages between mental health challenges and crime and encourages teachers to view themselves as 'disciplinary staff' in their response," the letter said.
Other available training would be more appropriate, the organizations said.
At issue is the second round in a grant process designed to award $100 million in school safety improvement grants. About $48 million will be awarded. Individual awards will range from $10,000 to $2.5 million, according to Department of Justice grant application information. School districts are required to submit their applications by Aug. 30 and project implementation will start Oct. 1.
Juhnke, in an interview, said the grant also requires information about potential threats to be entered "into databases about which we know practically nothing."
The grant application instructions do not say whether school districts would supply general, district wide aggregate data or information about specific students and perceived threats.
It says only that new School Safety Intervention Teams (SSIT) would “report VRA [Violence Risk Assessment] data from specific, plausible, and imminent threats to the DOJ utilizing DOJ reporting form,” but does not provide a copy of the form or describe it.
WJI asked DOJ for a copy of the form Tuesday, but did not receive a response.
The Department of Justice also would require winning districts to “participate in and promote the DOJ confidential reporting application or tip line, when this is developed and deployed.”
Again, DOJ provides no information about the tip line or how it would function.
The State Legislature in March approved a bill requiring teachers, school administrators, school counselors, other school employees, physicians, and other medical and mental health professionals to report school safety threats to law enforcement.
That bill, Juhnke said, was "passed at almost light speed" with very little deliberation or public input.
The grant is asking that "school districts commit themselves to processes that haven't been created," she said.
The new law does not require development of a new reporting system, she said.
The mental health groups, in their letter, said the tip line "risks promoting a culture of suspicion, adding to stigma regarding mental health challenges and further discouraging students and families from seeking help."
Many questions about the system remain, they said.
"What would be the benefit over and above any existing mechanisms for dealing with threats at school?" the letter asked. "Is there an evidence base for the benefits and drawbacks of such a system? What would be the threshold for reporting? Who would have access to the data? How long would the data be maintained? Would there be an appeal procedure for having reports removed?"
Juhnke said it was important to recognize and stop any actual school threat, but "we're spiralling off in ill-defined directions from that."
Appeals panel sides with Innocence Project client in case linked to North Side Strangler serial killer
By Gretchen Schuldt
A man sentenced to five years in prison two decades ago should be allowed to withdraw his guilty plea after showing convincing evidence that a serial killer was actually responsible for a murder police accused him of participating in, an appeals court panel ruled Tuesday.
The real killer very likely was Walter Ellis, known as the Milwaukee North Side Strangler, who was responsible for a string of rapes and killings in the city.
The panel overturned a decision by Milwaukee County Circuit Judge M. Joseph Donald, threw out the conviction of Sammy Joseph Hadaway, and sent the case back to Circuit Court.
Donald was the judge who heard and rejected Hadaway's post-conviction motion to withdraw his plea. The appeals court, in a decision written by Appeals Judge Timothy G. Dugan, ruled that had trial judge Diane Sykes known all the facts of the case revealed after the case was over, she would not have accepted the plea.
Hadaway was convicted of attempted robbery after reaching a plea agreement.
Hadaway, now 34, has severe cognitive and intellectual disabilities, cerebral palsy and seizure disorders. He was arrested in October 1995 in connection with the death of Jessica Payne.
Payne, a runaway prostitute, was found beneath a mattress in the back yard of a north side Milwaukee house, according to Dugan's decision, joined by Appeals Judges Joan F. Kessler and William W. Brash III.
"Her throat had been slashed, her bra had been torn, and her pants had been pulled down to her ankles. The evidence suggested that she had been sexually assaulted," Dugan wrote.
Police collected physical evidence from the scene, including vaginal swabs that revealed semen. Tests of the swabs proved inconclusive.
A month later, a jailhouse snitch told police that Richard Gwin had implicated himself in the murder of a white woman.
Gwin, Dugan wrote, told police that he drove the victim, Hadaway, and a man named Chaunte Ott, to an abandoned building. The three got out of the car and Hadaway and Ott came back a short time later, without Payne.
Gwin said he asked where the girl was, and Hadaway responded, “she didn’t have no money so [Ott] cut her throat.”
Gwin later recanted his confession. His sister said Gwin tld her that police put "severe pressure" on him during the investigation, the decision said.
Hadaway's interrogation by police continued over several days. At first Hadaway denied knowing any white girls at all and said he never met Payne.
Hadaway was formally arrested in October 1995. He later said that when police interviewed him, they "regularly threatened" that he would be raped in prison, Dugan wrote.
Hadaway later said "the police played 'nice cop/bad cop' and yelled at him and scared him, and told him that 'he would do eighty years' if he did not implicate Ott," Dugan wrote. "The police promised Hadaway that if he implicated Ott, he would serve five years in prison instead of eighty years. The police also shared the details of the murder with Hadaway, and showed him Gwin’s statements."
Police also told Hadaway what to say, Dugan wrote.
"After two days of interrogation, Hadaway gave a confession regarding Ott and his involvement with Payne," he wrote. He said he and Ott attempted to rob Payne, then Ott sexually assaulted Payne and killed her."
The detectives who interviewed Hadaway did not record notes in their memo books, Dugan wrote.
"Instead, they took notes during witness interviews—including their interviews of Gwin and Hadaway—on steno pads, and then destroyed the notes," Dugan wrote. "Further, no record was ever made of the first one and one-half hours of the detectives’ October 27, 1995 interrogation of Hadaway."
Ott was arrested, tried and convicted of first-degree murder, despite a complete lack of physical evidence linking him or any individual to the crime.
In a plea deal, Hadaway pleaded guilty to attempted robbery and served five years in prison.
The Wisconsin Innocence Project took on the case in 2002 and requested retesting of the swabs taken from Payne. The new tests excluded all three men – Gwin, Hadaway, and Ott – as the source of the semen found at the murder scene. The semen, in fact, did not match any profile known at the time.
Later, in 2007, the state matched the sample to semen collected during two other murder investigations, also on the city's north side. Ott could not have committed those murders – he was locked up at the time.
That same year, Ott filed a motion for a new trial based on the DNA evidence in the Payne case. He was denied and appealed. He cited several new pieces of evidence including recantations by Hadaway and Gwin of their earlier statements. Both attributed the recanted statements to police pressure.
Ott's conviction was eventually reversed by the Court of Appeals and the state dismissed all charges against him. A state board found “clear and convincing evidence” that Ott was innocent of the crime.
Ott eventually sued the City of Milwaukee and several officers for violating his rights. He received $6.5 million under a settlement.
The state, meanwhile, matched the DNA from all the three north side murders to Ellis, a serial killer who raped and murdered at least eight other women besides Payne. Those women were found in the same neighborhood as Payne, and their murders had several similarities to Payne's slaying.
Ellis was arrested in September 2009 and eventually pleaded no contest to seven murders. He was sentenced to seven consecutive life terms. He died in prison in 2013.
The state, in opposing Hadaway's request to withdraw his plea, argued that the DNA linked to Ellis and the clearing of Ott's name was irrelevant to whether Hadaway was guilty of attempted robbery.
The appeals panel disagreed.
"We conclude that, based on the new facts regarding the presence of Ellis’s DNA on Payne’s body and the presence of Ellis’s DNA and his involvement in the murders of seven women committed in the same vicinity that also have several other characteristics of Payne’s murder, Hadaway has presented clear and convincing evidence that if known by the trial court, would have prevented it from accepting his guilty plea," Dugan wrote.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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