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.
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.
By Gretchen Schuldt
A defense lawyer who failed to seek a child protective services report indicating that a child made a false accusation of sexual abuse was ineffective in representing a man later accused of assaulting the same girl, the state Court of Appeals has ruled.
The lawyer, Gary Kryshak, was ineffective even though he testified that he was pursuing a different defense strategy, District IV Court of Appeals Judge Rachel A. Graham wrote for a three-judge appeals panel.
"The CPS report contained information that was not only material but also could have significantly enhanced counsel’s chosen strategy," Graham wrote. She was joined in her opinion by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold.
The panel reversed Shane A. Stroik's conviction and ordered a new trial.
Kryshak also erred when he did not object to a prosecutor's inference that Stroik's strong sex drive made it more likely that he assaulted the five-year-old girl, referred to in the decision only as "Amy." Kryshak, however, adequately addressed the insinuation in his closing argument, Graham said.
Amy's parents were separated and going through a contentious divorce at the time of the alleged assault by Stroik in 2016, according to the decision. Amy lived largely with her father and stayed with her mother and Stroik, who were in a relationship, every other weekend.
Amy told her father that Stroik had touched here "meme," meaning vagina, and her father reported it to the family social worker.
The girl was interviewed by a forensic interviewer and repeated her allegation.
"At one point during the interview, when asked to describe Stroik, Amy indicated that he was bald," Graham wrote. "However, it is undisputed that Stroik was not bald."
Amy also said that her paternal grandfather also had repeatedly assaulted her. The grandfather died earlier that year.
When police interviewed Stroik and Amy's mother, both said Amy had made an earlier allegation of sexual assault against a cousin, but nothing came of the child protective services (CPS) investigation.
Kryshak, Graham said, "was aware that there had been a CPS investigation into Amy’s statements about her cousin’s conduct. However, trial counsel did not look further into the matter related to the cousin and did not attempt to introduce evidence at trial about Amy’s prior allegation against her cousin."
During his opening statement, the prosecutor "made several comments about Stroik’s 'sex drive,' ” Graham said. For example, "the prosecutor asserted that Stroik had a 'very high sex drive' and therefore, according to the prosecutor, 'the presumption of course is that [he touched Amy] for a sexual purpose.' ”
The prosecutor also questioned Amy's mother about how frequently she and Stroik had sex.
"Do you remember saying that it was more sex than you ever had before?" he asked at one point.
He also asked her about Stroik's interest in pornography, although none of it involved child pornography.
"Trial counsel did not object to any of this questioning," Graham said.
When Amy testified, she was unclear about whether Stroik assaulted her.
"When the prosecutor initially asked Amy if she knew 'why we’re here today,' she responded, 'No,' ” Graham wrote. "Amy went on to testify that she remembered 'going to talk to a lady [that is, the forensic investigator] about something that happened with Shane [Stroik],' but that she did not remember anything happening between her and Stroik."
She offered other contradictory testimony as well, but was clear in testimony that her paternal grandfather assaulted her and she remembered those things.
A jury found Stroik guilty of first-degree sexual assault, and Portage County Circuit Judge Robert Shannon sentenced him to five years and eight months in prison and six years of extended supervision, according to the state's online court records system.
By Gretchen Schuldt
Waupaca County District Attorney Veronica Isherwood, in an extraordinary letter to defense lawyers, said Waupaca County Sheriff Tim Wilz acknowledged that his department regularly alters reports to remove information that could help defendants establish their innocence.
"Additionally we have received information that reports to my office of these irregularities are discouraged," she wrote.
Wilz admitted the practice of altering reports in testimony, Isherwood said, but she did not give specifics.
"It was also disclosed that evidence of any changes were not preserved," she said in a letter addressed to county defense attorneys and dated Friday. "We have no idea if the reports in the case you are defending were changed or altered in any way."
The state, Isherwood said, has evidence that in one case, "Waupaca County Sheriff Captain Julie Thobaben altered a report authored by a deputy which resulted in the removal of exculpatory information. Captain Thobaben testified to her actions this week."
That is the only instance "where we are certain a report was changed, but the sworn testimony that this happens regularly is very concerning," Isherwood said.
Under the legal doctrine called the "Brady rule," prosecutors must disclose evidence that is exculpatory or helpful to the defense.
"Under normal circumstances you would receive notification of a Brady violation, only when an affected officer was subpoenaed to testify," Isherwood said. "The attorneys at the Waupaca County District Attorney('s) office believe under this circumstance, the spirit of Brady/Giglio makes it incumbent upon us to notify you of this irregularity."
"We pride ourselves on upholding an extremely high ethical standard in our charging decisions and prosecution of criminal cases," Isherwood said. "The loss of someone’s liberty is a tremendous responsibility that we do not take lightly. The Courts have been notified of this information," she said.
By Gretchen Schuldt
There was just one primary election in state judicial contests Tuesday, with a winnowing of the field from three candidates to two in the race for the Kewaunee County Circuit Court bench.
Jeffrey Ronald Wisnicky and Kimberly A Hardtke advanced to the April 5 general election, while John Peterson got knocked out of the running.
There will be, as has become tradition for lower courts, few contested seats in the general election – just 10, including the one in Kewaunee County. There are 39 uncontested judicial races for circuit and appellate courts, according to the Wisconsin Elections Commission.
The nine other competitive races and candidates are listed below. (In Fond du Lac County, the Branch 5 circuit court seat is listed as having two candidates, incumbent Paul G. Czisny and Douglas R. Edelstein, but Czisny has filed a notification of noncandidacy, according to the WEC. WJI is considering that race non-competitive.)
District 2 Court of Appeals – Maria S. Lazar and Lori Kornblum (inc.)
Iowa County Circuit Court – Matt Allen and Rhonda R. Hazen. Incumbent Margaret M. Koehler is not seeking re-election.
Marathon County Circuit Court Branch 2 – Rick Cveykus and William A. Harris. Incumbent Gregory Huber is not seeking re-election.
Oconto County Circuit Court Branch 2 – Ed Burke and Jay Conley (inc.)
Portage County Circuit Court Branch 2 – Louis John Molepske Jr. and Stephen W. Sawyer. Incumbent Robert J. Shannon is not seeking re-election.
Sauk County Circuit Court Branch 1 – Michael Screnock (inc.) and Blake J. Duren.
Vilas County Circuit Court Branch 2 – Meg Colleen O'Marro and Daniel Overbey. The seat is vacant.
Winnebago Circuit Court Branch 3 – Lisa Krueger and Brian D. Keberlein. Incumbent Barbara Hart Key did not seek re-election.
Winnebago Circuit Court Branch 4 – Mike Gibbs and LaKeisha D. Haase (inc.)
Besides Edelstein in Fond du Lac County, there are 38 judicial candidates waltzing into office without an opponent (barring write-ins). They are listed below.
District 3 Court of Appeals – Thomas M. Hruz (inc.)
District 4 Court of Appeals – Brian Blanchard (inc.)
Adams County Circuit Court Branch 2 – Tania M. Bonnett. The seat is vacant.
Barron County Circuit Court Branch 1 – James C. Babler (inc.)
Crawford County Circuit Court – Lynn Marie Rider (inc.)
Dane County Circuit Court Branch 3 – Diane Schlipper. Incumbent Valerie L. Bailey-Rihn is not seeking re-election.
Dane County Circuit Court Branch 4 – Everett D. Mitchell (inc.)
Dane County Circuit Court Branch 5 – Nicholas J. McNamara (inc.)
Dane County Circuit Court Branch 14 – John D. Hyland (inc.)
Dane County Circuit Court Branch 15 – Stephen Ehlke (inc.)
Eau Claire County Circuit Court Branch 1 – John Francis Manydeeds (inc.)
Eau Claire County Circuit Court Branch 6 – Beverly Wickstrom. The seat is vacant.
Fond du Lac County Circuit Court Branch 2 – Laura Lavey. Incumbent Peter L. Grimm is not seeking re-election.
Fond du Lac County Circuit Court Branch 4 – Tricia L. Walker (inc.)
Lincoln County Circuit Court Branch 1 – Galen Bayne-Allison. Incumbent Jay R. Tlusty is not seeking re-election.
Milwaukee County Circuit Court Branch 5 – Kristela L. Cervera (inc.)
Milwaukee County Circuit Court Branch 14 – Christopher R. Foley (inc.)
Milwaukee County Circuit Court Branch 25 – Nidhi Kashyap. Incumbent Stephanie Rothstein is not seeking re-election.
Milwaukee County Circuit Court Branch 31 – Hannah C. Dugan (inc.)
Milwaukee County Circuit Court Branch 34 – Glenn H. Yamahiro (inc.)
Milwaukee County Circuit Court Branch 44 – Gwendolyn G. Connolly (inc.)
Milwaukee County Circuit Court Branch 45 – Jean Marie Kies (inc.)
Monroe County Circuit Court Branch 2 – Mark L. Goodman (inc.)
Outagamie County Circuit Court Branch 4 – Yadira J. Rein (inc.)
Outagamie County Circuit Court Branch 7 – Mark G. Schroeder (inc.)
Pierce County Circuit Court – Elizabeth Rohl (inc.)
Portage County Circuit Court Branch 3 – Trish Baker (inc.)
Racine County Circuit Court Branch 2 – Eugene A. Gasiorkiewicz (inc.)
Racine County Circuit Court Branch 4 – Mark F. Nielsen (inc.)
Racine County Circuit Court Branch 5 – Kristin M. Cafferty (inc.)
Rusk County Circuit Court – Annette Barna. Incumbent Steven P. Anderson is not seeking re-election.
St. Croix County Circuit Court Branch 4 – R. Michael Waterman (inc.)
Sauk County Circuit Court Branch 2 – Wendy J.N. Klicko (inc.)
Vilas County Circuit Court Branch 1 – Martha J. Milanowski (inc.)
Walworth County Circuit Court Branch 2 – Daniel Johnson (inc.)
Walworth County Circuit Court Branch 4 – David M. Reddy (inc.)
Waushura County Circuit Court Branch 2 – Scott C. Blader. The seat is vacant.
Winnebago County Circuit Court Branch 5 – John A. Jorgensen (inc.)
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