By Gretchen Schuldt
Polk County sheriff's deputies had no legitimate basis to significantly extend a traffic stop to allow time for a drug investigation of the driver, the State Court of Appeals ruled last week.
"At best, the officers had an inchoate suspicion or 'hunch,' which is insufficient to support an extension of the stop for the traffic offense," the District III Court of Appeals panel said in an unsigned opinion.
The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark Seidl.
The panel, reversing Polk County Circuit Judge Daniel J. Tolan, ordered that evidence found in the resulting search be suppressed.
Deputy Del Stone stopped Tyler Thompson shortly after midnight for a "rolling stop" at a stop sign as Thompson drove away from a house Stone was monitoring for suspected drug activity.
Stone testified in Circuit Court that Thompson appeared extremely nervous and that he denied failing to come to a full stop. Stone questioned Thompson about where he was coming from and about his residence, and told Thompson that he was driving in the wrong direction.
Thompson told Stone he did not know anyone at the residence he just left and that he was helping a friend move.
Stone already knew that Thompson's truck was properly registered and returned to his squad to run a criminal background check on Thompson. He also ran a criminal background check on the friend Thompson said he was helping.
Another deputy, Anthony Puetz, arrived at the scene and Stone got out of the squad. Stone testified that he told Puetz there was reasonable suspicion to believe drugs were in the truck.
By Gretchen Schuldt
Fire and Police Commission Executive Director Griselda Aldrete on Tuesday accused aldermen of "outright grotesque and misogynistic" behavior at last week's meeting of the Common Council's Steering and Rules Committee.
"I always welcome open dialogue to discuss or debate policy issues with those who may not always agree, but what happened during that committee was classic blame-shifting and name-calling with veiled threats from elected officials," she wrote in an open letter to Common Council President Ashanti Hamilton. The letter was released publicly via the city's e-notify email system about 5 p.m. Tuesday.
"Rather than rationally asking questions and even the right to question the answers given, two women who lead key departments for the City were accosted," Aldrete wrote. "This seems to be the nature as of late for the Steering and Rules Committee - mainly by select alders. This ends now." (Video of the committee's discussion about the commission is here.)
Aldrete apparently was referring to herself and Director of Employee Relations Maria Monteagudo when referring to "two women who lead key departments." Monteagudo grew visibly angry during the meeting and said Ald. Robert Bauman was insulting her and was being disrespectful.
Bauman said he did not trust an assessment Monteagudo proposed to help determine what the commission needs to move forward. The office has been hit with high turnover and some staff have complained about Aldrete.
The proposed assessment would be done by a consultant the city has used before and would be hired without competitive bids. Monteagudo said that would allow the work to be done quickly.
Aldrete wrote, "As civil servants, we all work hard to gain and regain public trust while executing our daily mandates. How can we work in good faith with one another if the only words spoken are attacks?"
"I call upon you and leaders of this body to hold each other accountable and censure when necessary," she said.
She also said she thought fire and police commissioners should have city email addresses and cell phones or secure voicemail so members of the public could contact them directly. Communications from the public now are funneled through the commission staff.
Aldrete wrote that her office will launch a transparency campaign to increase communication with residents and "highlight progress and significant positive outcomes to the Council and media."
She also said that, due to time and staffing constraints, she may start sending a designee to update council members on commission activities.
By Gretchen Schuldt
Ald. Milele Coggs on Thursday criticized Mayor Tom Barrett, Police Chief Alfonso Morales, and members of the Fire and Police Commission for their silence on the release, for apparently political purposes, of a video related to an ongoing investigation into an alleged sexual assault.
Ald. Nik Kovac, meanwhile, said he hoped the release would be investigated and said the Police Department should not be the agency to conduct any probe since everyone there reports to Morales, the apparent intended beneficiary of the incident.
The "deafening silence about the wrongfulness of the public disclosure, potentially and possibly by an employee or a member of the Police Department, of a sexual assault accuser is disturbing to me," Coggs said. "All other mess aside – commissioners, chief, everything else – for a department that is supposed to uphold the law to be the very one that, it appears, leaks information about the potential, possible sexual assault victim to the media, to the public, is alarming."
She continued: "And the fact that commission members, the mayor – who also was questioned about it – the chief, have not - have been silent - in outrage over that and finding out how that was allowed to happen is utterly disturbing to me."
The video showed questioning by police of Kalan Haywood Sr. Haywood was accompanied by Steven DeVougas, a lawyer and chairman of the Fire and Police Commission. The video was released as DeVougas was trying to delay the appointment of Morales to a four-year term as chief. Haywood has not been charged in connection with the alleged assault.
The police union said DeVougas violated ethics guidelines by accompanying Haywood during the police interview.
The release of the video and the police union's accusations came as DeVougas tried unsuccessfully to delay the vote on Morales' appointment until he could get more information.
"It would appear that whoever released that information was hoping to discredit the integrity and the authority of one of your colleagues," Kovac told Commissioner Nelson Soler during a meeting of the Common Council's Steering and Rules Committee. "That came from within the department. The department did not disavow it."
Morales' only comment on the matter, at least to the Milwaukee Journal Sentinel, was " 'Oh, that's really interesting,' " Kovac said. Morales "suggested essentially (that) – your colleague, the chair – that there might be something inappropriate there."
Kovac said he believed the release affected the commission as it weighed whether to appoint Morales to a new term.
"I would assume all of the commissioners were very much aware that was going on," he said.
The video release was inappropriate and the motivation for it was "highly suspect and related directly to the deliberation the commission had going on," Kovac said.
The Journal Sentinel story "was full of information that should not have been public," Kovac said. "It happened on the chief's watch. It may have directly benefited the chief's career. Should there be an investigation into that?"
Soler declined to respond directly.
"I think any behavior of that nature, as you described, should be investigated," he said.
DeVougas, who joined the meeting late into the discussion, said he thought the District Attorney's office and Fire and Police Commission could handle aspects of the investigation, and that he would recuse himself from involvement.
"I would even go so far to say an independent third party to have the investigation performed," he said.
WJI earlier this week wrote to the commission to inquire about the status of any investigation and to urge that an independent, third-party probe be conducted. From the correspondence:
By Gretchen Schuldt
A Milwaukee County judge's effort to force a man to remain a child's legal father after a DNA test showed he was not the biological dad was thrown out Tuesday by a State Court of Appeals panel.
The ruling reversed Milwaukee County Circuit Judge Paul R. Van Grunsven's decision that Deray J. Shaffale should remain the legal father because it was in the best interest of the child.
Shaffale had earlier signed a voluntary paternity acknowledgement because, he said, he thought he was the child's father and he wanted to get the child insured.
In sending the case back to Circuit Court, the three-member District 1 Court of Appeals panel said Van Grunsven applied the wrong standard and directed the judge and state attorneys involved in the case to read the relevant statutes.
Van Grunsven had found that requiring Shaffale to remain the legal father was in the best interests of the child.
"You signed that document, you’re the best and only father for this kid," Van Grunsven said during a 2018 hearing, according to the appellate decision.
He also said he had previously required men who erroneously acknowledged paternity to maintain their legal obligations even when they provided proof they were not the fathers.
"Let me explain this," Van Grunsven said. "I have had guys that I’ve known are not the father. I had genetic testing that establishes without a doubt that they’re not the father, but I continue to have that person under Wisconsin law be the legal father of the child because it was in the child’s best interest. That’s what the law is."
The appeals panel, though, in an opinion written by Appeals Judge Timothy G. Dugan, said that state law provides for voiding a paternity acknowledgement if a court finds that the male who signed it is not the biological father.
"We note that the statute does not reference a best interest of the child standard," Dugan wrote.
Shaffale wound up in court in the first place after the state filed a child support action naming both him and the child's mother, Vanidy R. Cross, as respondents.
Shaffale submitted the results of a privately obtained DNA test showing that he has 0% chance of being the father. Another man living in Seattle whom Cross said might be the father refused to submit to genetic testing that would determine whether he was.
The state argued that "it is better for the child to have a father on the birth records than no father at all," Dugan wrote. "The GAL agreed with the state."
Van Grunsven appointed the GAL, or guardian ad litem, to represent the child.
The state's lawyer told Van Grunsven the paternity acknowledgement could be voided only if its signing was tainted by fraud, mistake of fact, or duress, Dugan wrote. Van Grunsven found that Shaffale did not adequately show that it was, but the appeals panel said Van Grunsven did not do enough to determine that.
"There is no testimony or evidence in the record that establishes that Shaffale knew or had reason to believe that there were other potential fathers," Dugan wrote. "Cross was never called as a witness....There is no testimony or evidence in the record regarding Cross’s actions and representations to Shaffale....Further, because Cross was never called as a witness, Shaffale never had an opportunity to cross-examine her. He also was not given an opportunity to give his own direct testimony."
Dugan was joined in his opinion by Appeals Judges William W. Brash III and Joan F. Kessler.
Shaffale was represented on appeal by Demetra Christopoulos.
Updated Dec. 14, 2019 with Griselda Aldrete's response
By Gretchen Schuldt
Milwaukee Fire and Police Commission Executive Director Griselda Aldrete on two separate documents falsely stated what and when she taught at the Milwaukee Area Technical College.
Aldrete said on a full resume and a separate teaching resume that she taught criminal justice at the school, which she did not. She also said she taught there more recently than she actually did.
Employee Relations Director Maria Monteagudo acknowledged a "discrepancy" in Aldrete's resume, adding "A correction to her resume will be made by Ms. Aldrete for the record."
"This information does not change Ms Aldrete's qualifications for the Executive Director position," Monteagudo wrote in an email.
Aldrete's short tenure already has been controversial – she was confirmed in her job in July – marked by staff turnover that some see as necessary and others see and deeper management problems.
"I try to live life by the simple credo: “trust, truth and transparency,” Aldrete said during her confirmation hearing, according to written testimony.
Asked why gave incorrect information to the city, Adrete said, "From your line of questioning, you’re implying that this was done purposely on my resume. With all due respect, this is my resume and I know it well. As any professional in the workforce knows, when regularly adding new experience and jobs you must also update dates and times. There was nothing done here intentionally or to 'trick' anyone."
"What's important is: Did I work there? Yes. Did I teach? Yes? " she wrote in an email.
She said she had a master's degree and is an attorney.
"I’ve dedicated my career to helping people and strengthening communities in Milwaukee and across Wisconsin," she wrote.
Aldrete stated on the main resume she submitted to the city that she taught "Introduction of Criminal Justice" at MATC from 2009 to 2012.
She actually taught at the school part-time from November 2004 to December 2005 and never taught a course there related at all to criminal justice.
Rather, she taught mostly short basic education courses – basic communications, career exploration, and computer basics. Her class schedule is here.
The "teaching resume" also includes criminal-justice related teaching at MATC. The teaching resume does not contain specific dates, but lists a variety of courses Aldrete says she taught at Bryant & Stratton, Concordia College (now Concordia University), MATC, and Marquette University from 2008 to the time the resume was submitted. The teaching resume does not specify when or where she taught the individual classes.
Monteagudo did not respond to follow-up questions by late Friday afternoon concerning why why the city did not discover the incorrect information before WJI asked about it.
Aldrete said she did not think the issue would hurt her credibility.
"Absolutely not," she wrote. "What is hurting this Commission and the credibility of this office, and the many dedicated civil servants working here day-in and day-out, is the many attempts to unnecessarily discredit me, the FPC, or our employees. I have committed my professional life to helping the people of Milwaukee be successful and get help whenever needed. As mentioned above."
Sitting in a car at night not enough for police stop, appeals judge rules; Wood County trips over itself
By Gretchen Schuldt
Simply being in a car parked in a "24/7" boat landing parking lot does not provide police reasonable cause to question the occupants of the car, a state appeals judge ruled Thursday.
In addition, Wood County failed to show that Sheriff's Deputy Nathan Dean was acting in a community caretaker role when he approached the car, District IV Court of Appeals Judge JoAnne Kloppenburg said.
Kloppenburg upheld Wood County Circuit Judge Nicholas Brazeau Jr., suppressing in a drunk driving case evidence obtained by Wood County Sheriff’s Deputy Nathan Dean.
Dean saw nothing illegal and nothing suspicious before he approached the parked car to question to the two adults inside.
"The vehicle was not running, the lights were not on, and the hood was closed....The officer saw no indication that the persons were in distress," Kloppenburg wrote.
After Dean talked to the two, he cited one of them, Trevor Krizan, for first-offense drunk driving. Krizan, Dean testified, had glassy eyes and slurred his speech a few times when they talked.
Wood County argued for the first time on appeal that Krizan was never actually "seized," and so the Fourth Amendment prohibition against unreasonable search and seizures did not apply.
Lawyers generally are not allowed to raise an issue for the first time on appeal. Wood County not only did that; it directly contradicted in its appeal what it said in Circuit Court, according to Kloppenburg's decision.
There, the county argued that Dean was acting in his "community caretaker" role, which would allows exceptions to Fourth Amendment requirements when officers are acting as caretakers, rather than as crime investigators.
But a legitimate community caretaking function requires the occurrence of a seizure within the meaning of the Fourth Amendment, Kloppenburg wrote.
In short, Wood County tried to deny on appeal what it embraced in Circuit Court.
By Gretchen Schuldt
African Americans were defendants in 21% of criminal marijuana cases filed in Wisconsin circuit courts last year while accounting for just 7% of the state's population, a Wisconsin Justice Initiative / American Constitution Society analysis shows.
The analysis included cannabis cases filed in each of the state's 72 counties.
The figures demonstrate "that marijuana prosecutions impact more heavily on the African American population," even though African Americans and Whites use marijuana at about the same rates, WJI President Craig Johnson said.
The disparity "clearly points to another reason for legalizing it," he said.
There were 8,697 Circuit Court cases that included misdemeanor or felony cannabis charges, the analysis shows, and African Americans were defendants in 1,846 of those cases.
Whites, who account for 87% of the state's population, made up just 66% of defendants in marijuana cases, figures show. Whites were defendants in 5,776 cases.
American Indians / Alaska Natives also were over-represented among those facing cannabis charges. Members of that ethnic group account for about 1% of the state's population, but 5% of cannabis defendants.
Hispanics and Asians were under-represented in marijuana cases. Hispanics make up 7 percent of the state's population and were defendants in 3% of cannabis cases, and Asians accounted for 3% of the population and 1% of cannabis defendants.
The analysis also shows that the filing rate of criminal cases varies widely across the state. In Waushara County, for example, one cannabis case was filed for every 120 county residents, the highest rate in the state; in Dane County, one case was filed for every 4,339 residents, the lowest filing rate statewide. It was followed by Milwaukee County, where one cannabis case was filed for every 3,292 residents.
The Black/White racial disparities in those latter two counties, however, were bigger than in any of the other 70 counties in the state.
More information available on our 2019 Pot Page.
In Dane County, African Americans account for just 5% of the population but were 68% (85 of 125) of cannabis defendants, for a disparity of 63 percentage points, the largest in the state.
In Milwaukee County, 27% of residents are African-American, but Blacks accounted for 85% – (244 out of 288) – of cannabis case defendants, a gap of 58 percentage points, the state's second highest.
Those figures, Johnson said, shows that cannabis "is kind of the drug of the privileged."
There are some areas, he said, "where marijuana has sort of de facto legalization." Those areas are generally whiter, wealthier and more liberal, he said.
"My gut feeling is your over-policed communities end up with more charges," he said. "So we have unequal protection under the law."
The analysis also showed that 75% of the defendants in cannabis cases statewide were men. Milwaukee had the largest share of male defendants at 95%, followed by Dane and Jefferson counties. Some 90% of cannabis defendants in each of those counties were men.
The cases included in the analysis were those with some sort of marijuana charge, whether felony or misdemeanor. WJI counted cases filed with misdemeanor marijuana charges as misdemeanors and those with felony marijuana charges as felonies.
By Gretchen Schuldt
Milwaukee police officials during budget hearings attributed the decline in city traffic citations this year to the city's settlement in the ACLU's stop-and-frisk lawsuit.
Dangerous driving has become a major issue in Milwaukee, outraging many residents.
While attributing the decline in citations to the ACLU, however, police failed to note that the number of tickets issued in the city has been declining for years except for significant jumps in 2017 and 2018 – the year the ACLU's lawsuit was filed and the year it was settled.
"It's part of the ACLU lawsuit," Police Chief Alfonso Morales told the Common Council's Finance and Personnel Committee, referring to the decline in speeding tickets.
"We’re not doing the flooded over-policing area where we’re measured on our activity on traffic and subject stops that resulted in citations," he said.
The ACLU of Wisconsin, along with the American Civil Liberties Union and the Covington & Burling law firm, brought a class action lawsuit on behalf of African-American and Latinx residents who challenged the constitutionality of MPD's traffic and pedestrian stops and alleged they were racially biased. The city denied wrongdoing, but agreed to several reforms to settle the suit.
Morales, at the committee meeting, acknowledged that police previously stopped and cited people for reasons other than the violations they committed.
Police now are "actually pulling the person over that actually is speeding or doing something reckless.... So those are the people that are getting the tickets – We’re not just – again, that whole Center Street corridor, where we’re stopping a minivan because, a Dodge Carava(n) – a mini-van because it’s high steal, and we’re stopping every Dodge Caravan and giving them a ticket....Those are all things that came across in the agreement with the ACLU lawsuit."
Molly Collins, advocacy director of the ACLU of Wisconsin, said Wednesday that "there's nothing in the settlement that stops police from enforcing the law."
The lawsuit, she said, was "not about them enforcing the law, but about them breaking the law."
Annual number of traffic cases filed in Municipal Court
By Gretchen Schuldt
State Sen. Kathleen Bernier (R-Chippewa Falls) is a sponsor of the ill-conceived Marsy's Law amendment to the State Constitution that would give victims the right to attend every court proceeding in their case.
Allowing anyone interested to attend court proceedings is a good thing. Elevating such access to the level of a constitutional right can create logistical nightmares for court officials and create long delays in cases. (Visit our Marsy's Flaws page to learn more.)
WJI's questions for Bernier are about former Eau Claire County Treasurer Larry Lokken and his assistant, Kay Onarheim, who embezzled more than $600,000 from the county. The theft enraged county residents. Bernier represents part of the county.
Marsy's Law defines "victim" generally as "a person against whom an act is committed that would constitute a crime if committed by a competent adult."
Stealing public funds is clearly stealing from the folks who pay into the treasury.
WJI wrote to Bernier to ask a few questions about how, under Marsy's Law, Eau Claire County Circuit Court officials would manage likely demand from people to attend Lokken/Onarheimcourt proceedings.
A few details about Eau Claire County: its population is 104,534, according to the U.S. Census Bureau, and most of those people pay some sort of tax or fee to the county, which also gets state and federal money.
Our questions for Bernier:
If Marsy’s Law was in effect at the time the two were arrested, would each and every victim have a right to attend all court proceedings? How do you propose requests be coordinated?
Let’s say only 100 county residents requested to attend the court proceedings. Who would be responsible for finding dates when 100 people could be in court at the same time? Would the cost of that coordination fall to the District Attorney’s Office and the state? Or would the county be asked to pick up the tab?
Would the right of victims under Marsy’s Law to attend proceedings override the defendants’ right to speedy trials?
WJI will report on any response Bernier provides. We're still waiting on State Attorney General Josh Kaul and State Sen. Van H. Wanggaard (R-Racine).
The Sterling Brown case: There may have been dead people in that Walgreens, cop says a year-plus later
By Gretchen Schuldt
Parts of depositions of police officers involved in the detention, takedown, tasing, and arrest of Milwaukee Buck s player Sterling Brown in January 2018 have been filed in Federal Court.
Brown was confronted by several officers after he parked illegally in a handicapped parking space at a Walgreens parking lot about 2 a.m. Jan. 26.
Brown has filed a lawsuit alleging the officers violated his constitutional rights. His attorney, Mark Thomsen, filed several deposition excerpts.
The City of Milwaukee and other defendants have denied violating Brown's rights.
WJI is publishing portions of the depositions. This first selection is from the deposition of Officer Joseph J. Grams, who first stopped Brown as Brown returned to his car from the store. Brown's date was in the car at the time.
Grams, in his May 2019 deposition, said his contact with Brown was effective because Brown did not get past him.
Grams: That was the intent; not to get -- not to let him get past me because he could have been a fleeing felon.
Thomsen: What do you mean he could have been "a fleeing felon"?
Thomsen: Tell me.
Grams: Well, my thought was that when he was coming out, was that, hey, we have a situation; could be an armed robbery. The car is, as we described before, positioned for a quick exit. It's the only car in the whole lot; positioned for a quick exit out of the parking lot; so a perfect armed robbery car. The car was running. There was a lookout in the car, and it's positioned to flee directly out the parking lot. So at that time until we investigated further, I couldn't let him pass into his car because there could have been dead people in the Walgreens until we verified that; so it worked. Stalled him until other squads could get there.
Context: Gram's lawsuit alleges that "Approximately ten seconds after first approaching Mr. Brown, and before Mr. Brown had any reasonable opportunity to respond to Defendant Grams’ demands, Defendant Grams unlawfully shoved Mr. Brown" and "less than thirty seconds after Defendant Grams first approached Mr. Brown, Defendant Grams phoned dispatch and requested backup. While Defendant Grams called in his request for backup, Mr. Brown waited quietly. After contacting dispatch, Defendant Grams returned to Mr. Brown again, telling him to 'back up!' in a loud voice. Mr. Brown asked Defendant Grams, 'for what?' Defendant Grams deceptively accused Mr. Brown of obstructing, and then told Mr. Brown 'I’ll do what I want, alright? I own this right here.' Mr. Brown replied, 'You don’t own me, though.' "
Later, while Brown was on the ground, "Grams used his right foot to stomp on Mr. Brown’s leg. Then after the Taser was shot into Mr. Brown’s back, Defendant Grams proceeded to stomp on Mr. Brown’s leg with both feet."
After Brown was tackled, tased, and cuffed, the complaint says, "Grams commented to Defendant Krueger, '[i]f the guy hadn’t been such a dick it would have been ‘hey, have a nice day!’ you know? But then I thought, okay he’s being an ass, he’s trying to hide something.'”
Thomsen: When did you first tell any human being that you said it could have been dead people in the Walgreens?
Grams: What's that?
Thomsen: When is the first time you told anybody that there could have been dead people in the Walgreens?
Grams: I think just now.· I don't remember – at the scene, you mean?· I don't think there was anybody I told that to.· I don't recall that anyway.
(After the incident, officers involved in it were directed to take remedial training, where they reviewed body camera footage and discussed flaws in the way they handled the situation.)
Thomsen: Let's be very clear.· At the remedial training, what did they tell you about your pushing Mr. Brown? ...
Grams: Okay. Yeah, it should have been more forceful because in that training – I mean, I tried to keep it from escalating; so I just pushed him with my fingers. That training shows that you strike the person straight up in the chest very forcefully to actually move them back. I didn't do that. I wanted to do try and keep it as low-key as possible; so that's what I should have done, and I didn't do it. I didn't strike him like that, which I should have by the book.
Thomsen: Who told you that at the remedial training, that you should have shoved him?
Grams: Well, I don't know if anybody -- I don't know if anybody told me that, but that's what the DAT book says.
Thomsen: My question, sir, was, what did they tell you at the remedial training about your contact with Mr. Brown?
Grams: I'm not sure if they addressed that or how they addressed it.
Thomsen: Lieutenant Stein writes, in quotes, Police Officer Grams displayed resistive and dismissive behavior throughout the remedial regarding the ProComm concepts Police Officer Anderson laid out. What were you dismissing about what Officer Anderson pointed out?
Grams: I don't think I was dismissive about it. I just didn't agree with him.
Thomsen: What didn't you agree with?
Grams: That – he was saying I should have stepped back and let him get in the car, and I didn't agree with that; so that's his opinion.
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