By Gretchen Schuldt

​An appeals court judge on Tuesday ordered a new hearing on whether a juvenile accused of shooting eight people at Mayfair mall in November should be waived into adult court.

The ruling by District I Court of Appeals Judge Timothy G. Dugan reversed Milwaukee County Circuit Judge Brittany Grayson's finding that the case  should remain in juvenile court.

The court record Grayson established "does not reflect that the court set forth a reasonable basis for its conclusions," Dugan wrote.

The juvenile, identified as Xander in Dugan's decision, was charged in a November delinquency petition with eight counts of first-degree reckless injury with use of a dangerous weapon and one count of possession of a dangerous weapon by a person under 18. 

The state Division of Division of Youth and Family Services recommended the boy, then 15, remain in juvenile court and Xander's psychologist also testified on his behalf.

Grayson found that the state did not show that services available through the juvenile system would not adequately protect Xander and the public, according to the Milwaukee Journal Sentinel.

The Mayfair shooting occurred while Xander was serving a sentence from an earlier incident, where he ran from a car pulled over by police. Officers later found cannabis in a backpack the boy threw away while fleeing. Xander had several violations of his community supervision, Dugan said.

Xander allegedly shot the Mayfair victims after he and a friend, Eric Garcia, got in an argument there with some people they knew. Xander allegedly shot three people from the group, four bystanders, and Garcia.

He was arrested a few days later with the gun in his possession, Dugan wrote. 

During a later investigation, "police discovered text messages between Xander, his parents, and his sister, in which they devised a plan to help Xander flee to Florida via airplane and stay with his adult sister," he wrote.

Grayson, during the waiver hearing, "admitted and then relied on hearsay statements from Xander contained in the psychologist’s testimony and, in effect, allowed Xander to present an alternative version of events that contradicted the facts set forth in the delinquency petition," he said.

The psychologist testified that Xander “came across as anxious” based on the information that Xander gave to the psychologist. The psychologist also said that Xander was suffering from post-traumatic stress disorder on the day of the shooting, a diagnosis based on Xander's statement that the people in the group had shot at him and a friend a month earlier.

"The psychologist testified that Xander told him that he 'felt threatened' that day at the mall and that Xander said that 'when he shot – his eyes – he closed his eyes and shot,'" Dugan wrote. "He then testified that 'what it tells me is that he – he was simply reacting…. [H]e wasn’t trying to – trying to hit someone…. [H]e was just reacting.'” 

That testimony directly contradicted eyewitness accounts submitted by the state. Those witnesses said Xander appeared to target the group and fired at one person in particular as she tried to flee.

Xander did not challenge the description of the alleged crimes as outlined in the delinquency petition, Dugan said.

​"Allowing a contradictory version of events through the testimony of the psychologist would be absurd," he said. 

Grayson also erred, Dugan said, when she "described the unique and dangerous nature of this shooting of eight people, including innocent bystanders, in a crowded mall but then merely stated that the juvenile court handles serious cases like this 'all the time' and stated that the public interest is best served by allowing this case to proceed in juvenile court without further explanation."

​"As the juvenile court recognized, it is a miracle that no one died and that there were not more people injured when Xander opened fire (or, as the State described, 'empt[ied] the entire clip') in a crowded public place..." he wrote. 

Grayson did not adequately explain why keeping the case in juvenile court was not contrary to the public's best interest, Dugan said. She also failed to state on the record how the juvenile code would protect the public, given the seriousness of the crime and Xander's record of failing to comply with the rules of his previous supervision.

By Gretchen Schuldt

​When ​Kathleen Rose Harney married Joseph Michael Kruzel in 1971, she kept using her own name. And there the trouble began.

Her employer, Milwaukee Public Schools – Harney was a first-year art teacher – told her that she either had to use her husband's name or go to court and legally change her name to "Harney" if she wanted to add Joseph Kruzel to her health insurance policy.

The marriage, after all, meant that her name was no longer hers, according to her employer. MPS was not alone in that belief. Harney's wedding announcement in The Milwaukee Journal referred to her as "Mrs. Joseph Michael Kruzel" and the "former Miss Kathleen Rose Harney."

​Even Harney herself believed she gave up her name. 

"I didn't really want to," she said in an interview. "I thought you had to."

Harney went to court. She appeared before Milwaukee County Circuit Judge Ralph J. Podell in December 1972 and asked the judge for permission to use the name that was hers since birth and that she had used on her marriage certificate. Technically, she asked to "change" her name from one she had never even used.

"That's when things snowballed," said Harney, who now lives in Wauwatosa. 

She was called to the stand during the hearing she thought would be routine.

"All they asked is, 'What's your name and are you pregnant?'" she said. Then the judge told her to sit down, she said, and the men in the room discussed what her name should be.

The judge denied her request for the good of any future children she might have. Having parents with different names would be bad for the young ones, he said.

If two people getting married can't agree on a single name, he said, "it would be better for them, any children they may have, and society in general that they do not enter into the marriage relationship."

Podell also said that he "feels very strongly that family unity also requires that all members thereof bear the same legal name" and "this court feels she should carry her husband's name."

Harney said her lawyer told the judge he rather agreed with him.

The February 1973 ruling made the newspapers. "Maiden Name Plea Rejected By Court," the Journal reported.

"My in-laws saw it in the paper," Harney said. "It didn't go over well."

It took a while for her in-laws to speak to her again, she said. 

Attorney  Priscilla Ruth MacDougall, who specialized in women's issues, found out about the ruling  and contacted Harney. The naming precedent was bad and should not stand, MacDougall said. Would Harney consider an appeal?

"We just got married and we're buying furniture," Harney, then 22, told her. "We can't afford an attorney."

MacDougall said she and others would find the money. Harney appealed; the state Supreme Court accepted the case.

Harney's appellate lawyer was a rookie attorney named Joan Kessler, who took the case pro bono. 

"I was just young and out of school and what did I know?" said Kessler, who would later serve as U.S. attorney for the Eastern District of Wisconsin and a state appeals court judge.​

​"Everyone was astounded" at Podell's decision," she said. It already was clear that a person's name was a matter of choice, she said. There simply was no law on the books requiring a woman to take her husband's name.

Kessler drafted a brief for the state Supreme Court. Since she was headed to New York for an American Bar Association meeting, she thought she would seek help from a more experienced lawyer – ACLU attorney Ruth Bader Ginsburg, who filed an amicus brief in Harney's support.*

Ginsburg invited Kessler to her apartment.

"I got to meet Ruth," Kessler said. Ginsburg read the younger lawyer's brief "while I was sitting there," Kessler said. 

Kessler liked a William Shakespeare quote that Ginsburg used in her ACLU brief. With Ginsburg's permission, Kessler used it in her own as well:​

"Why, as a condition of marriage," Kessler asked in her brief, "should this state compel one party to the marriage to exact from the other party so dear a price as one's own name? No rational answer suggests itself."

Podell's lawyer, Bruce O'Neil, argued that Podell did not abuse his discretion in refusing to allow Harney to use her own name. He told the court that Podell's decision was "neither sexist nor chauvinist," the Journal reported.

"It is submitted that whatever doubt may have existed in the trial court's mind vanished, when the appellant and her husband informed the court that, if they had children, they would give them surnames composed of a hyphenation of their two surnames," he said in his brief. "The trial court may well have asked what surnames they anticipated their grandchildren would bear, if one of their hyphenated children married the hyphenated child of two other parents bearing different legal surnames. And if they lived to see their great-grandchildren, they might well encounter a child listing under the burden of a hyphenated surname made up of eight different surnames."

The court rejected O'Neil's arguments.

Podell's points "could well be valid under proper circumstances, but only if proof were adduced to support the conclusions," Justice Nathan Heffernan wrote for the majority. "The reasons given for the denial of the change of name are completely conclusory and without any evidence of their applicability to the situation before the court....Unsupported generalizations do not constitute a cause shown to deny a change of name."

The court also made a broader, more significant finding: "We conclude...that the common law in Wisconsin has never ossified to the point of a holding that a wife is required to take her husband's name. The implicit assumption is to the contrary." ​

The Unsung Heroes in Wisconsin Legal History is supported by grants from the Milwaukee Bar Association Foundation and the Wisconsin Law Foundation.

By Gretchen Schuldt

​State court judges are slated to get 11% pay raises over the next two years, under the budget signed last week by Gov. Tony Evers.

The raises would boost the pay of state Supreme Court justices by almost $19,000. Circuit court judges will receive the smallest boosts – more than $16,000.

Judges would get pay hikes of 5% starting in January 2022 and another 6% in January 2023, for a two-year total increase of 11.3%. The money for the raises was approved in the budget, but the raises themselves must be approved by the Joint Committee on Employment Relations.

The budget also includes general wage hikes for other state employees of 2% each year, for a total wage increase of slightly more than 4%.

By Gretchen Schuldt

Even the most inconsequential violation of a condition of community supervision makes a person ineligible for expungement of the crime from their record, the State Supreme Court decided.

"Once an individual completes his term of probation, if it is undisputed that the individual violated at least one of his conditions of probation – as in this very case – circuit courts must deny expungement," Justice Rebecca Grassl Bradley wrote for the five-member majority. She was joined by Justices Annette K. Ziegler, Patience D. Roggensack, Brian Hagedorn, and Jill J. Karofsky.

The requirement for strict adherence applies both to conditions set by the court and those set by the Department of Corrections, Grassl Bradley said. Any violation makes a person ineligible for expungement.

Justice Ann Walsh Bradley, joined by Justice Rebecca F. Dallet, dissented.

"The majority opinion places expungement further out of reach of those defendants who would benefit most," Walsh Bradley wrote. "Although I agree with the majority that expungement requires satisfaction of conditions imposed by both the sentencing court and DOC, I part ways with the majority when it determines that the circuit court has no discretion to order expungement in the face of any rule violation, no matter how small."

The court's decision stemmed from a case involving Jordan A. Lickes' request to expunge three of four convictions related to a sexual encounter he had with a 16-year-old girl in 2012, when he was 19. 

Lickes was charged with fourth-degree sexual assault, sexual intercourse with a child age 16 or older, disorderly conduct, and exposing his genitals or pubic area. The first three charges were misdemeanors; the fourth was a felony.

He pleaded guilty to the sex with a child charge and no contest to the others and was sentenced to 90 days in jail with work-release privileges. He was also placed on probation, but violated some of the rules and was sanctioned. DOC, however, did not seek to revoke his supervision.

His probation ended in 2016 and Lickes applied for expungement. His probation agent eventually certified that Lickes had successfully completed his supervision.

The Supreme Court, agreeing with the state Department of Justice and Attorney General Josh Kaul, said he did not.

Walsh Bradley, in her dissent, noted that DOC's standard rules of supervision require "that a person meet regularly with the probation agent and obtain approval from the agent prior to moving; changing employment; leaving the state of Wisconsin; purchasing, trading, selling, or operating a motor vehicle; borrowing money; or buying anything on credit."

The rules also require those on supervision to adhere to conditions set by the court or their supervision agent, and that those conditions can change at any time.

"Does the majority's determination mean that if, without agent approval, probationers from the border community of Marinette, Wisconsin cross to Menominee, Michigan to do grocery shopping, that they must be denied expungement? The majority apparently responds, 'Yes. Under the standard rules of probation, it is a violation.' " 

"How about the standard rule of buying nothing on credit?" Walsh Bradley said. "What happens if the probationer, without agent approval, pays for gas with a credit card? 'It's out of our hands,' responds the majority. The same apparently holds true if the probationer misses a single meeting with the probation agent."

The statutory requirement that expungement candidates "satisfy" the conditions of their supervision leaves room for discretion by the judge and DOC, Walsh Bradley said.

Yet "the majority proceeds to rigidly interpret 'satisfaction' in an all-or-nothing fashion," she wrote. "In the majority's view the circuit court has no discretion at all in deciding whether to grant or deny expungement. 

"One would expect a determination of such reach to be supported with more than the majority's cursory analysis," which was three paragraphs long, she said. "And it is an analysis that runs counter to the statutory language, has no basis in the case law the majority cites, and thwarts the purpose of the expungement statute."

By Gretchen Schuldt

A State Assembly committee recommended adoption of a bill that would make more people eligible to have their criminal records expunged, but also added four more crimes ineligible for expungement.

Felony stalking offenses, misdemeanor property damage to a business, misdemeanor criminal trespass to a dwelling, and violation of a domestic abuse injunction or restraining order would be ineligible for expungement under an amendment adopted by the Criminal Justice and Public Safety Committee on an 8-6 vote. The bill then was forwarded to the full Assembly on a unanimous vote.

The Senate's Judiciary and Public Safety Committee recommended Senate adoption of the bill, without the additional four ineligible crimes, on a 5-2 vote.  

The full Assembly is expected to consider its version June 16.

Wisconsin's expungement law is stricter than other states' laws. Currently, a person who wants to have a criminal conviction expunged from their Wisconsin record must ask the judge at the time of sentencing, before the judge has any idea how that person does in prison or on supervision. The law also limits the availability of expungement to those less than 25 years old at the time of the crime and to those who do not have a felony conviction record. The offense for which expungement is requested must not be a violent felony and must not carry a penalty greater than six years in prison.

Both the Assembly and Senate versions of the bill would change the law in several ways. It would remove the discriminatory age limit of 25 and would allow people convicted of crimes to request expungement when they complete their sentences.

Other limits, including a prohibition on expunging records related to violent crimes and crimes carrying penalties of more than six years in prison, would remain in place.

Under the bill, once an expunction petition is filed, a judge would review it and either grant or deny it. If denied, a new petition could not be filed for two years. 

The bill also would limit a person to one expunction.

The legislation also makes clear what it means to successfully complete a sentence. That would include completing community service, paying all fines, fees, restitution, and completing any community supervision without revocation. 

By Gretchen Schuldt

​(Updated 6/7/21 to correct Booth's biography.)

​Ezekiel Gillespie, born a slave, grew up to win the right to vote for Wisconsin's Black men. (All women would have to wait a while.)

Gillespie may be one of the better-known unsung heroes in Wisconsin's legal history – he at least has a pocket park named after him – but his story seems especially timely now, as the Legislature works diligently to increase restrictions on who can vote and when.

Gillespie was born a slave in Georgia. His mother also was enslaved and his father reportedly was their owner. Reports about how Gillespie got his freedom are contradictory, but he may have bought his freedom from his own father. 

State voters were asked in an 1849 constitutional referendum whether the voting franchise should be extended to African American men. There were numerous political offices up for a vote at the same time. The franchise referendum passed, 5,265 to 4,075, but a lot of voters who went to the polls didn't vote on the referendum question at all – they were more interested in other items on the ballot. Because the referendum did not receive a majority of all the votes cast that day, officials said, it failed.

By Gretchen Schuldt

​Penalties for crimes against anyone at least 60 years old – "an elder" –  would increase dramatically under a bill approved by the Legislature and now awaiting action by Gov. Evers.

The bill was approved despite the absence of any information about its financial impact.

Under Senate Bill 17:

• Any second-degree sexual assault against an elder would become a first-degree sexual assault and the maximum penalty would increase from 40 years in prison to 60 years in prison. It would not matter whether the offender knew the victim's age.
• There would be an entirely new crime of "physical abuse of an elder person," patterned after a law against physical abuse of a child. Penalties for violating of the new law would vary from up to 3½ years in prison for recklessly causing great bodily harm to up to 40 years in prison for intentionally causing great bodily harm. 
• Prosecutors could seek to freeze the assets of defendants in financial exploitation crime cases where the victim is an elder and the property involved is worth more than $2,500. The prosecutor could seek to freeze assets worth up to the full value involved in the alleged crime to preserve them for potential restitution to the victim.
• Maximum sentences for crimes committed against elders would automatically increase, whether or not the offender was aware of the victim's age. The sentence for any crime punishable by up to one year of incarceration could be increased to a maximum of two years; the sentence for a crime punishable by one to 10 years of incarceration could be increased by an additional four years; and the sentence for a crime punishable by more than 10 years in prison could be increased by up to six years.
• Elders seeking domestic violence, individual-at-risk, or harassment restraining orders would be allowed to appear in a court hearing by telephone or audiovisual means. They currently must appear in person.

Several organizations supported the bill, including AARP, the Alzheimer's Association, the Greater Wisconsin Agency on Aging Resources, the Outagamie County Board, and the State Bar. No organization registered against it.

"Senate Bill 17 helps to discourage bad actors from engaging in the abuse and exploitation of older Wisconsinites by increasing criminal penalties for related crimes and makes it easier for victims to file restraining orders," State Rep.  John J. Macco (R-Ledgeview) said in testimony supporting the bill. "Additionally, this bill streamlines court processes to freeze assets of a defendant, making it more likely for victims to receive financial restitution." 

By Gretchen Schuldt

​A Kenosha County judge overstepped when he ordered a shoplifter to give notice of her conviction to the management whenever she entered a place that sells goods to the public, a state Court of Appeals panel ruled this week.

"That condition is overly broad and also falls into the category of shaming, which the circuit court appeared to acknowledge at sentencing," the three-judge panel wrote in an unsigned decision, invalidating the condition ordered by Circuit Judge Bruce Schroeder.

"We are not persuaded that embarrassing or humiliating defendants with a state-imposed broad public notification requirement promotes their rehabilitation," the panel said.  The panel included Appellate Judges Lisa S. Neubauer,  Paul F. Reilly, and Jeffrey O. Davis.

Markea L. Brown, 28, pleaded guilty to felony shoplifting in connection with helping to steal $2,655 worth of items from a store at the Pleasant Prairie Outlet Mall.

Schroeder sentenced her to 15 months in prison followed by two years of extended supervision. He also ordered, as conditions of her supervision, that Brown have no contact with the mall and to make the notifications of her conviction.

Brown challenged both conditions on appeal; the panel upheld the first, but struck down the second.

Schroeder told Brown the notification requirement " is 'going to embarrass you, of course,' ” the panel said. "It continued, noting that society no longer puts people in the stocks 'to be embarrassed and humiliated … but [the court] feel[s] that embarrassment does have a valuable place in deterring criminality.' ” 

While Schroeder said he wanted to give merchants the opportunity to protect against theft,  "the State has provided no legal support for the imposition of a requirement that repeat offenders must self-identify as they go about day-to-day life to personally notify any and all individual potential victims of their criminal history," the panel said. "We do not see where such a requirement would start and stop."

Brown has a history of shoplifting, according to online court records.

Brown, if required to notify store management of her conviction, could be refused service, even by those selling essential goods, such as groceries, the panel said. 

"We understand that Brown has children, and as such the consequences of the condition could impact them as well," the panel said.

The condition would result "in an overly broad ban, with consequences...that are not reasonably related to rehabilitation or protection of society," the panel said.

"It is apparent that public shaming is the second condition’s primary effect; thus, we will require it vacated."

By Gretchen Schuldt

​A bill in the State Senate that would greatly expand phone and audiovisual proceedings in criminal cases must preserve a defendant's right to reject such e-hearings in favor of "critical in-person hearings," WJI President Craig Johnson told a Senate Committee.

"Without preserving this 'opt-out' right for defendants (in criminal cases), video hearings likely will become more and more common, thus creating a culture in which defendants as well as witnesses and counsel will be expected to appear, as they have for much of the last year, via 'Zoom' and other remote technology for important fact-finding hearings," he told the Judiciary and Public Safety Committee in testimony submitted for a public hearing.

Senate Bill 219 would allow "any criminal proceeding" to be conducted over the phone or by audiovisual means "unless good cause to the contrary is shown." Currently, the law limits the proceedings that can be conducted electronically.

There are many defendants who face challenges with technology, Johnson said. 

"An elderly person or someone with cognitive limitations may not understand how to use a smart phone or computer," he said. "Someone who is poor or lives in an area without good internet or wireless service may have trouble with this technology. If a person prefers to appear in person, in a courtroom, with their lawyer, before a judge, and see and hear the proceedings, including witnesses, LIVE, they should have the opportunity and right to do so."

Low-income and rural households may have limited access to the Internet or slower speeds, he said. 

"We have seen this reflected in concerns about equal access to online education during the last year of this pandemic," Johnson said. "Increasing reliance on video conferencing in court proceedings can exacerbate this digital divide."

The Wisconsin Supreme Court, in State v. Soto, discussed the problems that could arise with video proceedings, Johnson said.

​"The opinion notes that the physical presence in a courtroom provides a setting that emphasizes the solemnity and gravity of the proceeding," he said. "The physical courtroom setting also effectively displays the power and importance of the state, as personified by the circuit court judge."

By Gretchen Schuldt

​The COVID-19 pandemic has the Milwaukee State Public Defender's Office doing what it rarely did in the past – sending out email blasts asking private bar attorneys to represent indigent defendants in criminal cases.

Those types of emails are fairly common in rural counties, where lawyers are scarce and SPD offices struggle to find enough private lawyers to take cases.

In Milwaukee County, though, there are more lawyers overall and enough have been willing to step in when SPD staff attorneys bow out of a case for reasons such as conflicts of interest or caseload issues. 

"The pandemic, I'll have to say, has really had an impact," said Tom Reed, regional attorney manager for the SPD's Milwaukee Trial Office.

The cases are often serious felonies. In one email last month, SPD sought lawyers for 15 cases involving 12 defendants. Charges included intimidating a witness, stalking, child sexual assault, and armed robbery, among others. A few days later, SPD sent an email seeking one lawyer for one case – a homicide. 

The numbers vary, but Reed said there are now generally about 30 to 40 defendants in custody for at least a week or two without representation, a much higher number than in pre-COVID times.

There are other factors to the lawyer shortage, but the pandemic looms large. When it hit, the courts essentially shut down and that had cascading impacts.

Judges, jailers, lawyers, and court officials worked to keep defendants out of the jail when they could because of concerns of COVID spread. More people charged with misdemeanors were told when to appear in court and released, rather than being booked through the jail., for example. The people held in jail were those accused of more serious crimes. There are about 150 people sitting in jail on homicide charges, Reed said.

The courts' shutdown meant backlogs built for SPD lawyers,  prosecutors, private bar attorneys, judges, and everyone else in the system. Milwaukee County Chief Judge Mary Triggiano estimates it will take 18 months to two years to clear the build-up of criminal cases.

Courts are reopening, slowly, and cases are moving forward. Private bar attorneys are needed to handle SPD cases, but those private lawyers also have to handle the cases they already have on their docket. Lawyers who were willing to work SPD cases before the pandemic simply can't handle them now

"People feel unwilling to overload their calendars," Reed said.

The pandemic also may have helped some lawyers approaching retirement age decide that it was the perfect time to pull the plug, Reed said.

In addition, "I think there were lawyers who weren't retirement age, but they did back off if they felt some vulnerabilities," he said.

Some might have had caregiving duties or their own health concerns, he said. 

The pandemic also may have made it financially more difficult for private lawyers to accept bar appointments, he said. They get $70 an hour for the work, and usually are not paid until a case is over, which can take some time.  If lawyers are under financial stress, they just might not be able to wait several months or longer for a paycheck.

The generational turnover also means there are fewer lawyers available who have the experience to ably defend a murder case or other very serious felony, Reed said. Yet it is people charged with those types of crimes who have been sitting in the jail and whose cases judges are now giving priority. 

The private bar pay has been criticized as too low, but Reed said he did not think that was a factor in the current situation.

Cases are moving now, though slowly. The SPD and private bar lawyers continue to work together, Reed said.

"Every day we're finding lawyers to take some of the cases," he said. 

"Our program relies on the strength of the private bar," he said.. "They have been good partners in seeking justice."