By Gretchen Schuldt
The Wisconsin State Bar is backing a proposal to raise from $40 to $100 per hour the amount the state pays to private lawyers hired by the State Public Defender's office to represent defendants in criminal cases who can't afford lawyers.
The SPD makes the appointments when it has too many cases or has conflicts.
"The reality of the situation is that attorneys who take these appointments at the current private bar rate are, to a large extent, providing a pro bono service," State Bar President Paul G. Swanson wrote to the State Supreme Court earlier this month. "The rate discourages experienced practitioners and the general effect of this is a diminishment of the rights of individuals underrepresented or facing delays in representation, which only serves to prejudice those rights."
The Court is considering a petition seeking the pay increase, and has set a May 16 public hearing on the matter. Some justices have expressed sympathy with the pay raise, request, but some also have questioned whether the court, absent litigation and a formal ruling, should direct the Legislature how to allocate resources.
The Court, at WJI's request, is extending the deadline to submit comments on the petition. The new deadline is May 1. The previous deadline of April 4 came before the Court even officially ordered the public hearing and directed that it be advertised.
Judges, lawyers, citizens! Let the State Supreme Court know how you feel about raising the pay for lawyers who represent poor people in criminal cases! Submit your comments by May 1 to email@example.com and firstname.lastname@example.org or snail mail them to Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688.
Swanson, in his letter, said the 2017 edition of the "State Bar's Economics of Practice in Wisconsin" reported that lawyers who spend a substantial mount of their billable time working on criminal cases are paid a mean rate of $168 per hour.
Wisconsin lawyers generally spend about 35 percent of their revenues on overhead, meaning criminal law attorneys spend about $59 in that area, or far more than they are paid by the SPD.
While the pay issue is of great interest to lawyers, Swanson said, "it also continues to raise concerns over the issues of competent representation, delayed cases and extreme shortage of attorneys in certain areas of the state for these constitutionally mandated Sixth Amendment cases."
The Sixth Amendment guarantees the right to effective legal representation.
Criminal cases can also have civil justice impacts, he said.
"A criminal battery case may likely have alternative child custody, housing or workplace issues. In a domestic violence case, if the criminal case is delayed, the civil case may also be delayed," he said.
"We would ask the Court (to) join in a common voice to decry a situation which remains unaddressed since before the majority of the members of the State Bar of Wisconsin were in law school," Swanson said. "Adequate representation will help solve problems and aid in the administration of justice, thus creating a more fair and equitable system of criminal justice in the State of Wisconsin."
By Gretchen Schuldt
Defendants in criminal cases are sitting in jail for a month or more without legal representation because private lawyers are unwilling to take the cases at the low $40-per-hour rate offered by the State Public Defender's Office, according to a Bayfield County circuit judge.
"I find it hard to conclude that allowing someone to be held in custody without legal representation for that long is something other than a constitutional crisis,” Circuit Judge John P. Anderson wrote in a letter to the Supreme Court.
Anderson wrote to support a proposal to increase to $100 per hour the amount the state pays to private attorneys appointed by the State Public Defender's Office to represent clients who can't afford a lawyer. The Public Defender's Office makes the appointment when it has too many cases or has a conflict.
Private attorneys performing the same type of indigent defense work in the federal system are paid $140 per hour.
If a defendant sit too long, Anderson wrote, he feels compelled to appoint a lawyer, at county expense, for more than $40 an hour.
"It is ... becoming an unfunded mandate imposed upon the counties, requiring that they shoulder the costs which are supposed to be covered by the state through the public defender’s office," he wrote.
Anderson compared the amount paid to the lawyers to other professionals frequently paid by the courts. Psychiatrists and psychologists are paid $983 per hour and $542 per hour, respectively, he said.
"I have had lawyers appointed by the public defender’s office, often with years of experience, sitting in court getting paid $40.00/hour cross-examining a psychiatrist getting paid $983.36/hour and both are being paid by tax dollars," he said. "I find it difficult to justify such disparity. “
The Supreme Court has scheduled a May 16 public hearing on the pay hike proposal. By the time the Court formally set the hearing and directed that it be advertised, however, the deadline for submitting comments had passed.
The Court’s order came on April 5; the comments deadline was April 4.
The Wisconsin Justice Initiative has asked the Court to extend the comment deadline.
By Gretchen Schuldt
Thirty-three years after he was wrongfully convicted of murder based on faulty bite mark evidence, Robert Lee Stinson 's lawsuit alleging that deliberate misconduct was instrumental in sending him to prison is finally close to trial.
His lawsuit was filed in November 2009, 8 1/2 years ago.
The U.S. Supreme Court last month refused to hear an appeal of Seventh Circuit Court of Appeals ruling denying the police and dentist defendants immunity in the suit.
Stinson, who ultimately spent 24 years in prison, was convicted in 1985 of the 1984 murder of Ione Cychosz in Milwaukee.
As the Seventh Circuit opinion put it, "no eye witness testimony or fingerprints connected him to the murder. Two dentists testified as experts that Stinson's dentition matched the teeth marks on the victim's body, and a jury found Stinson guilty."
It took four years for the case to make its way through the appeals court.
DNA exonerated Stinson and he was released from prison in 2009.
A DNA sample in 2010 implicated a convicted felon, Moses Price, in the murder.
Stinson's lawyer, Heather L Donnell, laid out her client's case in a 2012 hearing before US district judge Charles N. Clevert. He has since retired.
"I believe that we have shown in discovery sufficient facts for a jury to infer that there was a conspiracy among these defendants to fabricate and manipulate the bite mark evidence to wrongly convict my client," she said.
The defendants in the suit are James Gauger, an officer who in investigated the case; Lowell T Johnson, and Raymond Rawson, dentists who examined and opined on the bite mark evidence.
Gauger's partner in the investigation, Tom Jackelen, was a defendant, but has died.
Donnell said the two detectives rushed to judgment in deciding Stinson was their man.
"In fact Detective Jackelen said to the to defendant Gallagher, 'we've got him.' This is two days after the murder during a canvas of the neighborhood where the crime occurred," she told Clevert.
The dentists eventually testified that Stinson's bite matched bite marks on the body, even though it did not, according to the suit.
Stinson’s trial lawyer tried to keep bite mark evidence out of the trial, but his request was denied,
The detectives also were suspicious about Stinson based on an earlier case involving a murder. No charges were ever filed in that case, but Gallagher wrote in a book that he believes Stinson and his friends murdered the man.
"The allegation here is that the bite mark evidence, these physical pieces of evidence, the overlays, the analysis, the report, was fabricated," Donnell said.
She acknowledged that a jury may see the inconsistencies and contradictions as a result of negligence or another unexplained cause.
By Gretchen Schuldt
State Supreme Court Justice-elect Rebecca Dallet swept 313 wards in the City of Milwaukee in Tuesday's election for an open high court seat, while Sauk County Circuit Judge Michael Screnock won nine.
Screnock's total margin of victory in those wards, all on the far south side, was 51 votes; Dallet's, in the wards she won, was 29,455 votes. (They tied, 2-2, in ward 324.)
The ward-victory ratio was about 35 to 1 in Dallet's favor.
A map showing the extent of Screnock's victories is below. The red wards are those that he won.
Milwaukee Screnock victory map
Dallet, a Milwaukee County circuit judge, won a total of 75% of the city vote, outpolling her opponent 43,551 to 14,147.
She grabbed an even larger share of the vote – 85% – in Shorewood. crushing Screnock 3,888 to 662.
Though Dallet won the county by an almost 2-1 margin, Screnock beat her in Franklin, where he garnered 57% of the vote, Greenfield, (52%), Hales Corners (53%), and Oak Creek (52%).
Besides her victories in Milwaukee and Shorewood, Dallet won in Bayside (73% of the vote), Brown Deer (66%), Cudahy (58%), Fox Point (70%), Glendale (71%), Greendale (51%), River Hills (54%), St. Francis (61%), South Milwaukee (54%), Wauwatosa (62%), West Allis (53%), West Milwaukee (59%), and Whitefish Bay (67%).
The final county vote was 85,944 for Dallet to 44,745 for Screnock.
By Gretchen Schuldt
State Supreme Court Justice-elect Rebecca Dallet made deep inroads in Trump territory as she swept to victory Tuesday against Sauk County Circuit Judge Michael Screnock, who was crushed even in his own county.
In far western Wisconsin, Dallet won in Chippewa, Dunn, St. Croix, Pierce, and Pepin counties, all of which voted for President Donald Trump in the 2016 election.
Dallet also swept through the southwestern part of the state, picking up Vernon, Crawford, Grant, Richland, Sauk, Iowa, Columbia, and Lafayette counties, flipping them from Trump.
She took Screnock's Sauk County, 56% to 44%.
In southeastern Wisconsin, only Kenosha County switched from Trump to Dallet. Milwaukee remained solidly blue.
In the east-central part of the state, Winnebago, Outagamie, Brown, Manitowoc, and Door counties went for Dallet after supporting Trump.
She also picked up Trempealeau, Jackson, Wood, Marathon, Lincoln, and Oneida counties in west- and north-central Wisconsin, all of which went for Trump in 2016.
By Gretchen Schuldt
The City of Milwaukee wants a federal court to dismiss a class action lawsuit over allegedly unconstitutional stop-and-frisk practices by the Milwaukee Police Department because former Police Chief Edward Flynn retired and because the city has promised to change its stop-and-frisk practices.
"Flynn no longer exercises supervisory authority over MPD officer and MPD operations," the city said in a court filing. Flynn also does not have the power to continue to have police officers "conduct a high volume of traffic and pedestrian stops," the city argued.
"It is clear from public statements made by Milwaukee’s leaders that the interim and the permanent police chief will not continue the law enforcement strategies implemented by Chief Flynn of which Plaintiffs complain," the city said. The city is represented in the suit by the City Attorney's Office and the law firm of von Briesen & Roper.
ACLU of Wisconsin, which brought the suit on behalf of stop-and-frisk targets, argued against the city's request.
"Chief Flynn’s retirement does not repeal the City’s unlawful stop-and-frisk program," the ACLU said.
The city is trying to shift the blame for its "racially motivated and unlawful policies" to Flynn "while ignoring the allegations against the other defendants - the city and its Fire and Police Commission, the ACLU said.
In addition, the organization said, the vague promises the city made to change stop-and-frisk practices are not enough to warrant the suit's dismissal.
The ACLU said none of the defendants have disavowed the program and there have been no modifications to written police documentation.
The ACLU's suit alleges that thousands of people were stopped even though police did not have reasonable suspicion of criminal activity, making the program unconstitutional. The suit also alleges the stops were based on racial profiling.
The Washington, D.C. law firm of Covington & Burling is assisting the ACLU in the case.
By Gretchen Schuldt
Drug possession, bail jumping and traffic crime cases were the major drivers pushing Wisconsin's felony caseload up 8 percent last year, statistics show.
Circuit courts around the state in 2017 opened:
The number of all felony cases opened in the state rose from 39,171 in 2016 to 42,197, an increase of 3,026.
The numbers, provided by the Wisconsin Courts System do not reflect every charge filed, but the cases opened in which a drug possession charge was the most serious, or first listed.
Drug possession was the most common felony case opened in Wisconsin, accounting for about 19% of felonies filed in the state last year. The 14% increase doubtless reflects the increased presence of opioids and methamphetamine in the state.
Felony bail-jumping charges are criticized by defense lawyers for the negotiating advantage they give to prosecutors. There have been double-digit increases in felony bail jumping cases every year except one during the past six years – their numbers rose 20 percent in 2012, 11 percent in 2013, 6 percent in 2014, 12 percent in 2015, and 11 percent in 2016. They accounted for just under 19% of felony case openings statewide.
Felony bail jumping ranks second in the type of case opened. Felony bail jumping occurs when person out on bond in a felony case violates the condition of the bond, even if the violation is itsef not a crime. Having a beer in defiance of an "absolute sobriety" order, for example, could subject a person to a felony bail jumping charge, as could missing a drug test or a court date. Felony bail jumping is punishable by up to six years in prison, which may well be a longer sentence than the offender faces for the original crime.
The big jump in felony traffic cases last year was driven, no doubt, by tougher drunk driving laws that made fourth offense drunk driving a felony rather than a misdemeanor. There were 2,469 felony drunk driving cases opened statewide in 2017, up 40%, or 701 cases, from the 1,768 felony drunk driving cases filed in 2016, according to statistics.
The biggest declines were in burglary and armed robbery cases, according to the statistics.
Burglary cases dropped from 2,002 cases in 2016 to 1,830 cases last year, down 172 cases, or 9 percent. Armed robbery cases 706 in 2016 to 553 last year, down 153, or 22%.
By Gretchen Schuldt
The State Supreme Court should decide whether Wisconsin's case law on imposing life without parole sentences on juveniles complies with related decisions by the U.S. Supreme Court, a State Court of Appeals panel said.
The State Supreme Court also should rule on whether the two judges who pronounced life sentences on juveniles adequately considered the mitigating effect of the defendants' youth, in compliance with U.S. Supreme Court standards.
The issues raised in the two cases considered "are matters of considerable statewide importance and constitutional dimension," the three-judge District 3 Court of Appeals panel said. The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.
The panel certified the cases to the Supreme Court for consideration.
From left to right: Stark, Hruz, Seidl.
Criminal justice experts are rethinking life sentences for juveniles more is learned about brain development. The U.S. Supreme Court said in 2012 that juveniles convicted of murder cannot be given a mandatory sentence of life imprisonment without parole.
The Court later ruled later that a no-parole sentence may be unconstitutional even if the judge considers the defendant's age if the crime reflects "unfortunate but transient immaturity." The Court also banned all life sentences for youth except "where the child is so irreparably corrupt that rehabilitation is impossible."
Both cases in Wisconsin considered by the appeals panel are homicide cases. The first occurred in 1994, when Curtis Walker and an accomplice shot and killed a Milwaukee police officer. Walker was six weeks shy of his 18th birthday.
The judge sentenced Walker to life in prison with the possibility of parole in 75 years, or when Walker is 95.
Walker's legal team is arguing that the de-facto life sentence is excessive and disproportionate and is inconsistent with the U.S. Supreme Court's rulings.
The state, however, says that the U.S. Supreme Court's decisions do not apply when the sentencing court, as it did in this case, has discretion to set a parole date. The state also is arguing that the issue of de facto life sentences are not included in that court's decision.
In the second case, Omer Ninham, then 14, helped throw a 13-year-old boy off the fifth floor of a parking garage in 2000. He was sentenced to life without parole.
Ninham previously appealed, but the Wisconsin Supreme Court concluded that a life sentence without parole for a 14-year-old does not “categorically constitute cruel and unusual punishment," and that Ninham’s sentence was not unduly harsh and excessive. The U.S. Supreme Court refused to review the case.
Ninham, like Walker, is arguing the sentencing judge did not adequately consider his youth at the time of the crime. The state is arguing that the U.S. Supreme Court decision was concerned with mandatory life sentences, not those imposed at the discretion the presiding judge. The appeals court said it reached a similar conclusion in a decision in another case.
The appeals panel also said it does not have the authority to disregard the earlier Wisconsin decisions upholding life-without-parole sentences for juveniles. That is true, the panel said, "regardless of advances in the science of brain development or other relevant research."
Sentencing courts "would benefit greatly" from guidance on how much weight to give the factors identified in the US Supreme Court decisions and to what extent “the prospect for the juvenile’s rehabilitation takes precedence over other legitimate sentencing considerations, such as general deterrence," the appeals panel said.
Trump judge nominee Giampietro: criminals came from public schools; the pill is an "assault on nature"
Criminals came from public schools, birth control pills are an assault on nature, and legal recognition of gay marriage could open the door to polygamy, according to Gordon Giampietro, President Trump's nominee to be a federal judge in Milwaukee.
Giampietro in 2014, commenting on a blog post, also wrote that “calls for diversity” are “code for relaxed standards (moral and intellectual),” Buzzfeed reported Thursday.
The in-house lawyer for Northwestern Mutual Life, is not a member of the Wisconsin Bar and has litigated, he says, about 31 cases to conclusion in his entire career. WJI outlined some of his history in an earlier post.
Buzzfeed published additional information about Giampietro, including comments he made during two interviews with Lydia LoCoco and links to the audio of the shows.
His comments about public schools came during a 2002 interview with the Milwaukee Business Journal. Giampietro, a strong supporter the Milwaukee Parental Choice voucher program, said his views about the program were affected by what he saw growing up in Washington and by having a university professor for a father.
"I grew up next to lawyers, architects and crack dealers," he told the paper. "The common denominator I saw was that the children who succeeded in Washington were in private schools, and the children who turned out to be criminals were in public schools."
Giampietro, as a Choice advocate, appeared in opposition to a 1999 bill that would have prohibited discrimination against voucher school students based on "sex, race, religion, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation or physical, mental, emotional or learning disability."
"Whenever you go against God’s plan, bad things are gonna happen.” – Gordon Giampietro
In 2014 and 2015 interviews with LoCoco on Relevant Radio, Giampietro further explained some of his views related to sexual orientation.
Recognition of same-sex marriage, he said, would undermine the “very idea of marriage.”
LoCoco talked during the July 2014 interview about Thomas More, who was beheaded after refusing to recongize King Henry VIII as the head of the Church of England. More, she said, went to his death to follow his conscience and follow his God.
"Do you think those times are coming?" she asked.
“I think we always have to be prepared for them," Giampietro responded. "Is it going to happen this year or next year, its hard to say. But I think at the end of the day, we’ve reached a point of, we’ve moved beyond civil society. When the government doesn’t allow people to disagree with it, to live in peace, what options are you giving those people to carry on? … It sounds alarmist, it sounds crazy, but we’re entering a very dangerous time in our history.”
In the July 2015 interview, not long after the U.S. Supreme Court did recognize gay marriage, Giampietro opined: "Given this constitutional principle that the Court has laid down there really is no principled reason polygamy isn't the next thing to go. ... There's no limiting principle here. There's no reason why it couldn't be these other arrangements. ..."
"The seeds for this problem go back decades, right?" he said. "As soon as the contraceptive mentality set root, what is the articulation for why marriage should be with opposite-sex couples? There isn’t one, unless society agrees that it has to do with the raising of children. And so we really are reaping what we sowed a few years ago.”
LoCoco continued the theme. “So when my husband rants and raves about every problem in the world and his answer to everything is, ‘It was the pill! It was the pill! He’s absolutely right. I mean, in a sense.”
“Yes. Yes," Giampietro said. "Because that’s an assault on nature. And anytime you assault nature there’s gonna be a backlash. And that’s what we’re seeing today. In all kinds of ways, not just with respect to contraception and marriage. Whenever you go against God’s plan, bad things are gonna happen.”
By Gretchen Schuldt
More than 400 inmates serving state prison sentences pass their time in county jails each day.
Those inmates have little programming and little to do except mingle with an ever-changing cast of pre-trial detainees of all security levels.
The jails profit nicely from the arrangement – the state pays them $51.50 per day per inmate – to house the state's overflow.
County jail time is "abysmal," according to Daniel Monge, who spent nine months of his state prison sentence in jail.
"County jail time is tough - it's really tough," he said.
“If push comes to shove and you have to do one or the other, my vote actually is to build a new prison because serving time in a county jail is no joke," he said. "It’s extremely rough, it’s extremely awful, it’s borderline inhumane.”
Monge was a panelist at the recent "Inmate 501" presentation by State Rep. Evan Goyke at Turner Hall. Below is a video of Monge; former inmate James Cross; and Goyke talking about state jail time. (There is more video from the event, sponsored by Milwaukee Turners and the Confronting Mass Incarceration work group, posted on the WJI Facebook page.)
A list of participating jails follows the video.
Contracted facilities, including jails, holding state inmates serving state sentences.
This is the final installment in WJI's "Our crowded Wisconsin prisons" series that details the building repairs, upgrades, and new facilities the Department of Corrections requested as part of the 2017-19 state budget. Here is Part 1, Part 2, Part 3, Part 4, Part 5, Part 6, and Part 7.
The great majority of the budget requests, including those for health facility improvements and adequate food preparation areas, were denied. Instead, Walker and the Legislature established a committee to study prison facility needs.
The Legislature and governor did approve spending $7 million to build a geriatric prison facility. The authorization came as an amendment to Gov. Scott Walker's proposed budget, and it is not clear how many inmates the facility will serve or whether it will meet the Department of Corrections' needs.
There were no requests submitted by the DOC for the facilities included in this last round-up. They are included to show how crowded facilities are and to serve as a reminder that action is needed to reduce the prison population, not just increase prison capacity.
Classification: Medium security
Capital budget request: None
Classification: Minimum security (center system)
Capital budget request: None
Institution: Milwaukee Secure Detention Facility
Classification: Medium security
Capital budget request: None
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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