School strip searches, felon in possession, and traffic cameras: A legislative update
By Gretchen Schuldt
Legislators are proposing to change the school strip search law to make much of girls' breasts available for inspection while restricting school officials' ability to touch or look at certain body parts covered by underwear. Also pending: One bill to toughen the penalties for felon in possession of a firearm and another allowing traffic enforcement via cameras in Milwaukee.
A table showing the sponsors of each of the bills is at the bottom of this post.
Senate Bill 111/Assembly Bill 108 – Girls' breasts up for grabs in school strip-search proposal
The underwear-clad "private areas" of students' bodies would be off limits to searches by school officials, under a Republican-backed bill, but most of girls' breasts would be fair game.
It is now a misdemeanor for school officials or their agents to conduct strip searches of students. A strip search is "a search in which a person's genitals, pubic area, buttock, or anus, or a female person's breast, is uncovered and either is exposed to view or is touched by a person conducting the search."
The bill would change the prohibited conduct to searches in which a student's "private area" is uncovered and either is exposed to view or is touched by the searcher. "Private area" is defined as the "naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple." The areola is the pigmented skin around the nipple.
The bill, according to its language, would leave the rest of the breast available for a strip search.
Senate Bill 106/Assembly Bill 58 – Minimum mandatory sentence for felon in possession
Some people convicted of felon in possession of a gun would face harsher penalties, including a mandatory minimum of five years in prison and a longer maximum prison sentence, under a bill pending in the state Legislature.
The Assembly's Criminal Justice and Public Safety Committee last week recommended approval of the bill by a 10-5 vote (see the table below).
The measure would impose the mandatory minimum of five years of incarceration and five years of supervised release on those previously convicted of a violent felony who are found guilty of felon in possession. It also would raise the maximum prison term for those people to 7½ years in prison and five years of supervised release.
The bill originally applied the five-year minimum to all people convicted of felon in possession, whether or not the previous felony was violent. The original bill also did not increase the maximum penalty.
Registering against the bill were the ACLU of Wisconsin and Wisconsin Gun Owners Inc. Registering in favor were the Badger State Sheriffs' Association, the Milwaukee Police Association, the National Rifle Association of America, and the Wisconsin Chiefs of Police Association.
Senate Bill 107/Assembly Bill 85 – Speeding and stop light camera enforcement in Milwaukee
Milwaukee could use cameras to ticket egregious speeders and stop signal violators, under a bill pending in the Legislature.
The bill also would allow the city to use cameras to identify those who "fail to stop properly" at red traffic signals.
Law enforcement is now not allowed to use radar plus photos to catch speeders. The bill would allow just Milwaukee to use those methods to ticket the owners of vehicles driven at least 20 mph over the speed limit.
It would not be a defense for owners ticketed through cameras to claim they were not driving the car at the time of the violation. Allowable defenses would include, according to the Legislative Reference Bureau summary of the bill,
The Milwaukee Police Department would receive any forfeitures collected through the use of the cameras.
Many of the same provisions, including allowable defenses, apply to the proposed use of red-light cameras. There is no provision for a 90-day period of issuing warnings rather than tickets, however.
The use of red-light cameras would be limited to high-crash areas and to no more than five intersections in any aldermanic district.
By Gretchen Schuldt
The definition of "serious harm" in a bill designed to impose cash bail on more people is so broad it encompasses "nearly all possible situations," a representative of the State Public Defender's Office told an Assembly committee recently.
"Serious harm" as defined in Assembly Bill 54 includes "personal physical pain or injury, illness, any impairment of physical condition, or death, including mental anguish or emotional harm."
The definition includes terms not found elsewhere in state law, said Adam Plotkin, SPD's legislative liaison.
"Personal pain" or "injury" "could be broadly and differently interpreted to mean that even minor pain could be considered grounds to set cash bail," he said.
Plotkin testified at a public hearing on the bill held before the Assembly's Judiciary Committee. The committee last week recommended recommended, 6-1, adoption of the bill.
The measure is a companion to a proposed amendment to the state constitution that voters will consider in the spring election. That proposed amendment, marketed as a "reform," would allow judges more discretion in determining who must post cash bail to be released from pre-trial custody.
The proposed amendment would require judges to consider four new factors when determining whether cash bail should be imposed. They are the seriousness of the alleged offense, whether there is a past conviction for a violent crime, the need to protect members of the public from serious harm, and the need to prevent the intimidation of witnesses.
The bill would define as "violent crimes" offenses such as criminal damage to property, criminal trespassing, disorderly conduct, or violation of an injunction, Plotkin said.
"These...seem to go well beyond the stated intent of the amendment of focusing on violent crimes," he said.
The definitions "undermine the presumption of innocence and present issues related to excessive bail under the 8th amendment," he said. " ‘Excessive’ isn’t just a high cash bail amount, it’s a sum total of the impact. A low-level charge combined with even a low level of cash bail amount that is prohibitive of release can be excessive."
Plotkin also warned of the impacts to the court system if the bill is adopted.
"This will increase the pretrial jail population and the number of people who have non-monetary conditions imposed," he said. "It will increase the number of speedy trial demands. Both of these changes will place a significant burden on an already overtaxed criminal justice system."
The Wisconsin Chiefs of Police Association testified in favor of the bill.
"As members of law enforcement, we have witnessed violent offenders who were released from custody before the reports of their crimes were even completed. We have also heard from victims of crimes, who ask us in fear of how they can remain safe when their attackers are already back out on the streets," the organization said in prepared testimony.
Registering in favor of the bill were Americans for Prosperity, the Milwaukee Police Association, the Wisconsin Chiefs of Police Association Inc., and the Wisconsin State Lodge Fraternal Order of Police.
Registering against the bill was the ACLU of Wisconsin.
By Gretchen Schuldt
Republican legislators are proposing to block from voting more people with felony records. The bill is heavily weighted against people struggling with poverty. Also introduced recently were more bills calling for new or harsher penalties.
The sponsors of the individual bills are shown in the table at the bottom of this post.
Senate Bill 69 /Assembly Bill 76 – Disenfranchising more people
A bill that would likely disenfranchise thousands of additional people convicted of felonies is garnering opposition from a variety of civil rights and voting organizations.
State law now restores voting rights to people with felony records after they complete their terms of incarceration and probation, parole, or extended supervision. The Republican-sponsored bill would require that a person with a felony conviction also "must have paid all fines, costs, fees, surcharges, and restitution, and have completed any court-ordered community service, imposed in connection with the crime," according to the Legislative Reference Bureau summary.
The bill also would require the state Elections Commission to notify those affected when their voting rights are restored. Currently, the Department of Corrections provides the notification.
All Voting Is Local Action, ACLU of Wisconsin, Common Cause in Wisconsin, Wisconsin Conservation Voters, and the Wisconsin Democracy Campaign have registered against the measure. The Democracy Campaign called it a "modern-day poll tax."
Senate Bill 72/Assembly Bill 78 – Increasing penalties for crimes against adults at risk
An "adult at risk" is defined in Wisconsin statute as "any adult who has a physical or mental condition that substantially impairs his or her ability to care for his or her needs and who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation."
This bill would increase the penalty for any second-degree sexual assault against an adult at risk from a maximum of 40 years in prison and/or a $100,000 fine to 60 years in prison.
The bill also would allow increased penalties for other crimes against adults at risk. If the penalty is a year or less in prison, it could be increased to two years. A maximum penalty of up to 10 years could be increased by four years, and a maximum of more than 10 years could be increased by up to six years. Penalties that now apply to physical abuse of an elder person would apply to abuse of an adult at risk.
All of the increased penalties would apply whether or not the perpetrator knew the victim was an adult at risk.
The bill also would allow freezing the assets of a person accused of a financial crime against a person at risk. Assets worth the full amount of the amount at issue could be subject to the freeze "for purposes of preserving the property for future payment of restitution to the crime victim."
The bill also would allow an adult at risk seeking certain types of restraining orders to appear in court by phone or by audiovisual means rather than in person.
Senate Bill 73/Assembly Bill 79 – Prostitution surcharge
Judges would impose a $5,000 surcharge on people convicted of patronizing or soliciting prostitutes, pandering, or keeping a place of prostitution, under this bill. The money would be used for treatment and services for sex-trafficking victims and for law enforcement related to internet crimes against children. The bill does not indicate how the money would be divided between those categories.
Senate Bill 101/Assembly Bill 68 – Higher penalty for drug-induced homicide
The Assembly's Criminal Justice and Public Safety Committee has recommended approval of this bill, which would raise from 40 years to 60 years the maximum prison time for making or supplying certain drugs that lead to the death of another person (known as the "Len Bias" law). The vote was 13-2, as follows:
Research on brain development of young adults could have been presented in 1997, appeals court says
By Gretchen Schuldt
A judge erred when he used new research into the brain development of young adults to grant Jan. 1, 2023, parole eligibility to a man previously sentenced to life without parole, the state Court of Appeals has ruled.
Existing case law prohibited Outagamie County Circuit Judge John DesJardins, now retired, from using the research as a “new factor” in Jonathan Liebzeit’s case “because the research and its conclusions were well known at the time of Liebzeit’s sentencing in 1997,” Appellate Judge Gregory B. Gill wrote for the three-judge District III Court of Appeals panel. He was joined in the opinion by Appellate Judges Lisa K. Stark and Thomas M. Hruz.
DesJardins sentenced Liebzeit in 1997 to life without parole for his role in the 1996 murder of Alex Schaffer.
Liebzeit, who had just turned 19, and two other men, Daniel Mischler and James Thompson, lured Schaffer into sewer tunnels where Liebzeit hit him repeatedly with a baseball bat, including in the head. The other two men held Schaffer in a pool of water until he stopped moving.
The medical examiner determined that Schaffer died by a combination of drowning and blunt force trauma.
The state Department of Corrections, in a pre-sentence report, noted Liebzeit’s long history of drug abuse, particularly with inhalants; his participation in a drug and alcohol treatment program; and his failed effort to get admitted to Winnebago Mental Health Institute due to suicidal tendencies.
In 2019, 22 years after sentencing Liebzeit, DesJardins attended a judicial education seminar, where he learned about new research on brain development in emerging adults. He later wrote to Liebzeit’s appellate counsel and the state “suggesting that a sentence modification may be appropriate based on new scientific research…that was not available at the time of the 1997 sentencing,” Gill wrote.
Liebzeit’s lawyer, Rex R. Anderegg, filed such a motion, citing both the new research and Liebzeit’s brain damage stemming from inhalant use. Information about the brain damage, included in a separate report concerning Liebzeit’s drug treatment, was not presented to the court at sentencing.
DesJardins held a hearing, Gill wrote.
“The court concluded that Liebzeit had proven by clear and convincing evidence that both the new scientific research on brain development in emerging adults, and Liebzeit’s brain damage resulting from his own inhalant use constituted new factors,” Gill wrote.
DesJardins found that “the impact the brain damage may have had on Liebzeit’s impulse control was relevant to whether Liebzeit was likely to be successfully rehabilitated,” Gill said. DesJardins also found that “new scientific research on brain development in emerging adults had found that individuals between 18 and 21 years old function closer to adolescents aged 13 to 17, than adults aged 22 to 25 years old.”
DesJardins eventually granted the sentence modification making Liebzeit eligible for parole Jan. 1. His case still would have to be considered by the Parole Commission.
The appeals court, however, agreed with the state that nothing showed that Liebzeit’s inhalant use contributed to his impulsivity.
“At best,” Gill wrote, “the (drug treatment) report shows that his brain damage might have affected his concentration. But the crimes for which he was convicted were not impulsive crimes caused by an inability to concentrate.” The crime was not impulsive, but planned, Gill said.
DesJardins found at the time of sentencing that Liebzeit could not be rehabilitated.
Liebzeit’s “new science” argument fails because under state Supreme Court precedent, Gill wrote, “the research cannot constitute a new factor…because the conclusions reached by the research were well known when Liebzeit was originally sentenced in 1997.”
Brown County bail-jumping charges left nonviolent drug offender facing more than a century in prison
To study bail jumping in Wisconsin, WJI and the Mastantuono Coffee & Thomas law firm are looking county by county at 2021 bail-jumping charges. Which counties are charging bail jumping the most? Who are some of the defendants? What happens to those cases? We'll report the statistics from individual counties and tell you the stories from randomly chosen cases.
Total number of cases with bail-jumping charges: 1,233*
Total number of misdemeanor and felony cases: 3,346
Percent of misdemeanor and felony cases that include bail-jumping charges: 37%
Total number of felony cases with bail-jumping charges: 959**
Total number of all felony cases: 2,178
Percent of felony cases that include bail-jumping charges: 44%
Total number of misdemeanor cases with bail-jumping charges: 274
Total number of all misdemeanor cases: 1,168
Percent of misdemeanor cases that include bail-jumping charges: 23%
Largest number of bail-jumping charges issued in a single case: 12
Number of felony bail-jumping charges issued: 1,465
Number of misdemeanor bail-jumping charges issued: 845
* Excludes three criminal traffic misdemeanor cases that include bail-jumping charges. Criminal traffic charges are not included in this analysis.
**Felony cases can include felony or misdemeanor bail-jumping charges or both; misdemeanor cases can include only misdemeanor bail-jumping charges. Case counts reported as of January 2022.
This is how piled-on bail-jumping charges meant a nonviolent, sometimes homeless serial drug offender named Adren ended up facing a possible century or more in prison.
Bail-jumping charges long have been criticized by defense attorneys as a hammer used by prosecutors to coerce defendants into plea agreements they might otherwise reject. Other critics argue that the charges are filed to puff up caseload numbers, putting local prosecutors' offices in a better position to ask for more money and staff. Prosecutors reject those arguments.
Before looking at decades in prison (spoiler alert: he didn't get them), Adren, now 31, had a drug problem and a history. The 2021 part of that history started when Adren was the passenger in a car pulled over in February by an Ashwaubenon police officer because its license plates didn't match those of any car on the road.
Adren had been convicted of felony possession of methamphetamine the year before in a case that involved .02 grams of the drug, according to the criminal complaint. Brown County Circuit Judge Donald R. Zuidmulder sentenced him in November 2020 to 30 months' probation.
He also was convicted, in a separate case, of misdemeanor obstructing an officer and misdemeanor bail jumping. He was homeless at the time he was charged, according to the criminal complaint. Zuidmulder sentenced Adren to two years' probation in that case.
Adren was charged again in December 2020 with felony meth possession and misdemeanor paraphernalia possession. He was out on a $5,000 signature bond when stopped by the Ashwaubenon officer.
The driver of the car Adren was in did not stop for almost a quarter of a mile after police tried to pull it over, according to the criminal complaint. That led an officer to request a canine sniff of the car (another problematic police practice). The dog indicated the presence of drugs and a search ensued, turning up some meth in Adren's sock and a meth pipe. The complaint does not list the amount of meth involved.
Adren was charged with meth possession as a repeater, a designation that could add up to four years to the 3½-year sentence maximum. He also was charged with felony bail jumping as a repeater, which could add four years to the six-year maximum sentence.
Felony bail jumping occurs when a person out on bond on a felony charge violates the conditions of that bond. Misdemeanor bail jumping occurs when a person out on bond on a misdemeanor charge violates the conditions of that bond.
A bail-jumping offense may not by itself be a crime. Missing a court date, violating a local ordinance, or having a drink could all be bail-jumping offenses if bond conditions prohibit those things.
Misdemeanor bail jumping carries a maximum penalty of nine months in jail and a $10,000 fine; felony bail jumping carries a maximum penalty of six years in prison and a $10,000 fine.
Under Wisconsin law, a person charged with a crime can be considered a repeater if the person was convicted of a felony during the five-year period immediately preceding the commission of the new alleged crime or if the person was convicted of a misdemeanor on three separate occasions during that same period.
Adren qualified as a repeater because he had been convicted of felony meth possession. He qualified for the felony bail jumping because he was out on bond in the December 2020 meth case. In all, he faced 17½ years in prison on the new charges, according to the complaint.
Brown County Court Commissioner Cynthia Vopal set a $5,000 signature bond. Adren at first refused to sign the bond, but did so three days later, according to online court records.
In April, 2021, Adren caught another case that exposed him to an additional 22 years and nine months behind bars. Bail-jumping charges were again involved. The underlying crime? For a brief time, he misidentified himself to a Green Bay police officer.
Police were dispatched to a Shell gas station to check out a suspicious vehicle that had been parked for 30 minutes. Adren, along with at least two other people, was ordered out of the car.
"I asked the male was his name was (sic) and he informed me it was Michal...Smith" and that he was born in 1990," the criminal complaint said. "The male was seated in the back seat of my patrol vehicle on the passenger's side. The male informed me that his his names (sic) actually was Adren --."
Adren was charged with misdemeanor obstructing an officer and two counts of felony bail jumping, all as repeaters. He was accused again of violating the bond conditions of the December meth / paraphernalia case. He also was charged with violating the bond conditions of the February meth / bail-jumping case. The maximum prison terms were two years and nine months for the obstructing charge and 10 years each on the bail-jumping charges.
Brown County Court Commissioner Chad Resar set a $1,000 cash bail on April 13. Circuit Judge John P. Zakowski reduced the bond to $250 on July 23 and reduced it again, to $100, on Sept. 24. The $100 was posted on Oct. 7.
Meanwhile, in May, Judge Zuidmulder revoked Adren's probation in his first methamphetamine case and the misdemeanor bail-jumping and obstructing case and sentenced him to 6 months in jail with work release privileges.
In November, Adren was busted with a whopping 1.65 grams of marijuana in the car he was driving. Police also found a pipe and a grinder, a tool used to break cannabis into smaller and consistently sized pieces. He was charged with possession of marijuana as a repeater, possession of paraphernalia as a repeater, and three counts of felony bail jumping – for violating his bond in each of his 2021 cases – all as a repeater. He faced a maximum of 34 years and seven months in prison and fines totaling more than $30,000.
He was represented in his cases by the State Public Defender's office, an indication of poverty.
Brown County Court Commissioner Paul E. Burke set a $1,500 cash bond. Adren did not post it.
Prosecutors in November charged Adren again, this time for selling four grams of meth to a confidential informant in two separate deals that occurred the previous March and April. This time, charged with two counts of meth delivery as a repeater, and four counts of felony bail jumping, he faced up to 75½ years in prison.
Burke set a $5,000 cash bond. Adren remained in jail. He faced more than a century in prison on the two November cases alone.
In May and June of this year, Adren moved forward with his outstanding cases in a way that could resolve them without any prison time at all. He was accepted into drug treatment court. Under that program, non-violent drug offenders are placed on three years of probation with 90 days of conditional jail time either imposed or stayed. Their cases remain in court for at least a year before the participants graduate.
He also entered into a deferred prosecution agreement in the almost-35-year marijuana case. Under the agreement, he pleaded guilty to one count of felony bail jumping with sentencing deferred for three years. If he successfully completes drug court and probation, the case will be dismissed.
WJI calls for enforcement and accountability measures for Milwaukee curfew crackdown
By Gretchen Schuldt
The Wisconsin Justice Initiative on Tuesday called for Milwaukee officials to develop and adopt enforcement guidelines and accountability measures for the recently announced stepped-up use of the city's curfew ordinance against juveniles and their parents.
"We have seen in the past valid concerns raised about police practices by the ACLU’s stop-and-frisk lawsuit," WJI President Craig Johnson said in a letter to Mayor Cavalier Johnson, Police Chief Jeffrey B. Norman and the Common Council. "Any policy that increases the number of police-citizen encounters and places too much reliance on police discretion raises concerns that these practices will again prove problematic to certain groups."
The ACLU suit resulted in the Milwaukee Police Department and the city agreeing to reforms in pedestrian and vehicle stop and search procedures. The ACLU presented strong evidence of racial disparities in who was stopped and searched.
Mayor Johnson and Chief Norman announced the increased curfew enforcement last week, in the wake of the mass shooting near the Deer District after a Bucks' game. No juveniles have been arrested in connection with the shooting, and Norman said the stronger curfew enforcement was meant to protect them.
WJI's Johnson said the move could worsen police-community relations unless "the city adopts and publishes accountability measures and enforcement guidelines."
"Curfew enforcement guidelines should make clear how police will enforce the curfew and who is at risk of receiving citations," Craig Johnson wrote. "Is a 16-year-old making their way home from a Brewers’ game going to get a ticket? How about a youth waiting at a bus stop after work?"
The city's primary curfew ordinance makes it illegal for anyone 16 or under to "congregate, loiter, wander, stroll, stand or play in or upon the public streets, highways, roads, alleys, parks, public buildings, places of amusement and entertainment, places of employment, vacant lots or any public places in the city either on foot or in or upon any conveyance being driven or parked thereon." Violations can bring forfeitures of $100-$200.
Parents and guardians can be cited if they "suffer or permit or by inefficient control to allow" violations by minors.
There are exceptions to the prohibitions. A youth can be out and about while with a parent or guardian or when "exercising first amendment rights protected by the United States constitution or the Wisconsin constitution, including freedom of speech, the free exercise of religion, and the right of assembly," according to the ordinance. A parent or guardian will not be held liable for any violation if they have filed with the police a missing persons report regarding the youth.
"How will an officer determine whether a young person qualifies for one of the exemptions in the ordinance?" Craig Johnson asked, adding, "What are the standards for deciding what parents are cited and when?"
Craig Johnson cited the city's "contributing to truancy" ordinance as an "object lesson in the need for enforcement standards."
In 1995, when lobbying for such an ordinance, then-Police Chief Philip Arreola said he was concerned about adults and businesses who "were responsible for contributing to the students (sic) absence from school by hosting parties and/or allowing students to congregate/loiter on their premises.”
The contributing to truancy ordinance, since then, however, has been used mostly against Black women, Johnson said.
"From 2015 through September 2020, according to Municipal Court statistics, 94% of contributing-to- delinquency citations were issued to women, 62% to Black people, 25% to Hispanic people, and 11% to Whites," he wrote. "That disproportionate caseload suggests inequitable enforcement."
"How will MPD ensure that police equitably enforce the curfew ordinances?" he asked. "Is MPD willing to publicly report the demographics and ages of those cited?"
He also asked whether businesses would be subject to curfew ordinances that apply specifically to them. One ordinance, for example, requires venues with a public entertainment license to announce an approaching curfew 20 minutes before it takes effect.
"All entertainment shall cease for the 20-minute period prior to curfew," the ordinance says.
Violations carry forfeitures of $500 to $2,000.
It also is generally illegal for a business to allow anyone under 17 to enter or stay on the premises after curfew, and hotels, motels, and rooming houses are prohibited from allowing anyone under 18 to "visit, loiter, idle, wander or stroll in any portion of such" business from 10 p.m. to 7 a.m.
Violations of that ordinance carries forfeitures of $100 to $200.
By Gretchen Schuldt
A man who did not have a chance to cross examine the officer who issued him a citation or to present evidence on a new charge determined by a judge is entitled to a new trial, a state appeals court ruled Tuesday.
District 1 Court of Appeals Judge Timothy G. Dugan did not even decide the case on the issue raised by defendant Roosevelt Cooper, Jr. – that he was denied discovery – but instead relied on Milwaukee County's recognition of errors in Cooper's trial.
"As the County acknowledged in its supplemental brief, '[a]t no point throughout the trial was Cooper afforded the opportunity to question or cross-examine' the officer and 'Cooper was denied his right to trial,' ” Dugan wrote. "A review of the record confirms the County’s characterization of the proceedings."
Cooper was cited in December 2020 for reckless driving / endangering safety. The officer who issued the citation testified at trial before Milwaukee County Circuit Judge Jonathan Richards that the officer observed Cooper speeding and making multiple lane changes while close to other vehicles. The officer said Cooper was driving about 80 mph in a 55-mph zone.
The officer's dash cam video showed that Cooper drove on a non-traffic area of the roadway, changed lanes without signaling, and drove faster than the cars around his, Dugan wrote. Cooper said he swerved into the non-traffic area to avoid an accident with a car in front of him when its driver slammed on the brakes.
The video, however, was never moved into evidence and Dugan said in a footnote that Cooper was not under oath when he began explaining his actions. "It was not until the county started questioning Cooper following Cooper's explanation of the video that Cooper was put under oath," he wrote.
At the end of the bench trial, Richards said he could not see where Cooper endangered safety, but that Cooper was speeding, passed six cars, and drove in the non-traffic area, Dugan wrote. The judge found Cooper guilty of unreasonable and impudent speed.
"The county expressed confusion over the finding, and the clerk interrupted saying that Cooper was not charged with speeding," Dugan wrote. The county said it could amend the charge to unreasonable and imprudent speed "and over Cooper’s objection, the trial court accepted the amended charge and found Cooper guilty" of the charge.
Richards ordered Cooper to pay a $100 forfeiture, according to online court records.
The county, in its appeals briefing, said a judge has the power to amend a charge to conform to the evidence, but that the court also must find that the parties consent to the change, Dugan wrote. That is also state Supreme Court precedent, Dugan said.
"The county...concedes that the trial court failed to make any finding that Cooper consented to the amended charge, and in fact, the county maintains that Cooper was clear that he did not consent to the amended charge," Dugan said. "The county also concedes that the trial court failed to give the parties an opportunity to present additional evidence to support the amended charge."
In addition, "Despite receiving an assurance that he would have an opportunity to question the officer, Cooper received no such opportunity," Dugan wrote.
While he is not required to accept the county's concessions, it is appropriate in this case, Dugan said.
"As a result, this court concludes that Cooper is entitled to a new trial on the amended charge of unreasonable and imprudent speed," he said.
LBy Gretchen Schuldt
Defendants facing bail-jumping charges are among the favorite targets of those pushing for tougher bail standards in the wake of the Waukesha parade tragedy.
"If someone has proven through past behavior that they...cannot abide by the conditions of a bond imposed by the court, it only makes sense that they should be required to have a minimum vested interest in attending court dates and integrating into society," said Ryan Windorff, president of the Wisconsin State Lodge of the Fraternal Order of Police. Windorff was testifying in support of a bill that would establish a $5,000 minimum bail for criminal defendants previously convicted of bail jumping.
Another proposal under consideration would amend the state constitution to allow judges setting bails to take into consideration factors including criminal histories and amorphous physical or non-physical "serious harm" to the public that would be defined by the Legislature and could be changed by legislative whim.
Backers of both those proposals and others cite the case of Darrell Brooks, the man allegedly responsible for killing six and injuring others when he ran a vehicle into a crowd at the Waukesha parade. Brooks was out on bond at the time and faced domestic violence and bail-jumping charges. Milwaukee County District Attorney John Chisholm has acknowledged that Brooks should not have been released from the Milwaukee County Jail and that his office erred in seeking a bail of just $1,000.
The stakes behind these bail-tightening proposals are huge, and not just for defendants. Any bill that would make it harder for people to win pretrial release will hit counties hard because counties, not the state, pay for the local jails where those awaiting trial are held. There were 45,454 felony cases and 56,870 misdemeanor cases opened in the state last year. The median number of days it took to close out a case was 161 for misdemeanors and 241 for felonies. None of the bills proposing tougher bail rules would provide assistance to counties to pay for the increased cost and there is a lot of room there for lengthy stays and jail overcrowding if onerous bail restrictions are adopted.
As for bail jumping, there were a total of 29,791 misdemeanor and felony cases filed in the state last year. Bail jumping is one of the most common charges filed in the state.
While the tough-on-crime crowd cites Brooks endlessly in their quest to keep the presumed innocent behind bars, not all people accused of bail jumping are Darrell Brooks – far from it. A bail-jumping charge can be (and is) issued for any violation of a condition of a bond, whether or not that violation is a crime itself. A person doesn't even have to be charged with a crime – a mere arrest is enough – to be guilty of bail jumping for violating a bond related to it.
Case in point: Melodie Taylor was arrested by Platteville police for disorderly conduct and released on $150 bond issued with a condition that she not drink alcohol, according to a brief filed in the Court of Appeals. Some time later, she contacted the police about the bond and was told that if she didn't hear anything in a few days, she could assume that she would not be charged with a crime.
'By Gretchen Schuldt
A proposed Milwaukee ordinance that would label some repeated traffic offenses a public nuisance was sent back to committee by the Common Council Tuesday after the city attorney's office said it was too broad and unenforceable.
"The ordinance would apply to a single violation of one of the listed traffic laws; and the listed traffic laws include both serious and relatively minor violations," Deputy City Attorney Todd Farris wrote in a memo. "For example, one violation for 'driving too slow' would, under the proposed ordinance, be a nuisance per se."
"We believe that in an injunction proceeding brought by the City, a court would likely conclude that the proposed ordinance is unreasonably broad....In other words, we do not believe that the proposed ordinance would accomplish the goal of making it easier for the City to obtain injunctive relief against problem drivers," he wrote.
Ald. Michael Murphy, the main sponsor of the measure, introduced it as a way to deal with the endemic reckless driving that is infuriating residents and threatening lives and limbs. Under the proposal, numerous driving offenses related to reckless driving, such as speeding, fleeing an officer, running stoplights, or driving on sidewalks, could be considered a public nuisance, allowing the city to file suit to seize the car involved. Murphy has said the ordinance was meant to target people stopped multiple times,
Some statutes included, however, go beyond reckless driving. One offense covered by the ordinance, for example, would be leaving a leaflet on a car.
In a memo provided by his office last week, the Milwaukee Police Department said the driving-related state laws included in the ordinance "were intended to broadly cover sections that refer to behavior that falls within the spirit of reckless driving, since not all reckless driving violations are cited under that specific statute. For example, driving on the wrong side of the road is perceived as "reckless' and could be cited under reckless driving... Not all subsections within those statutes may directly apply. They are broadly defined to buttress a nuisance litigation action under a nuisance per se theory."
The city attorney's opinion, also signed by City Attorney Tearman Spencer, suggested that "an ordinance declaring habitual or repeated violations of the more serious traffic laws to be a nuisance per se would stand a much better chance of being upheld by a court in an injunction proceeding."
By Gretchen Schuldt
A County Board committee has recommended, 3-1, rejecting a proposal to support minimum bail for some people charged with crimes.
Instead, the Intergovernmental Relations Committee unanimously recommended the state adopt a program similar to New Jersey's, which allows preventive detention of people who have been found by a validated risk-assessment tool to pose a significant danger to the community, and allows release of defendants charged with less serious and non-violent offenses.
County Supervisor Patti Logsdon sought support for bills in the legislature that would require a minimum $5,000 bail for anyone accused of a crime who had previously been convicted of bail jumping and a $10,000 bail for anyone accused of a violent misdemeanor or any felony.
"These people – they're not following the law," Logsdon told the Intergovernmental Relations Committee.
"If you have a felony conviction in the past, you should have a bail set...They need to be put in our jail or House of Correction until we find the facts of it," Logsdon said.
She said existence of the minimum bails could also be "a good consideration for them to think before they do the crime."
If Darrell Brooks Jr. had not been released from the Milwaukee County Jail on $1,000 bail, she said, the six people he allegedly killed in the Waukesha parade tragedy "would still be with us."
Committee members agreed, as has District Attorney John Chisholm, that Brooks should not have been released.
Supervisor Anthony Staskunas said he believed the resolution supporting the New Jersey program would be a better way to deal with pre-trial defendants and any threat they may pose. That resolution was introduced by Supervisors Shawn Rolland, Ryan Clancy, and Willie Johnson Jr.
"These people aren't convicted of anything yet," Staskunas said. "They're presumed innocent."
The minimum-bail proposals, he said, are "unfunded mandates to stuff our House of Correction and stuff our jail when we don't have any room and not give us any money to do anything."
Clancy, who is not a committee member, spoke against Logsdon's proposal at the meeting, noting the need to look at data and "what actually works, rather than what feels like justice."
"I understand the desire for justice in this case (the Waukesha parade tragedy) in particular as well as in others, but this resolution does not get us closer to justice, but to vengeance," he said. The "people of Milwaukee County deserve safety, not punitive retribution."
"Higher bails do not keep us safe," Mia Noel, founder and director of the Milwaukee Freedom Fund, told the committee. "They keep poor people in jail for months," she said. "Additionally, it costs Wisconsin taxpayers millions of dollars a year to keep poor people in jail."
Johnson was the only committee member to support Logsdon's resolution. Supervisors Joseph Czarnezki, who is committee chair and a WJI Board member, Staskunas, and Sequanna Taylor opposed it.
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