By Gretchen Schuldt

​A Milwaukee County circuit judge who repeatedly cited erroneous information about the cause of an infant's death when she sentenced the girl's father for his role in that death erred when she denied him a new sentencing hearing after the error was discovered, a State Court of Appeals panel ruled this week.

The District 1 Court of Appeals panel ordered a new sentencing hearing for Vaylan Morris, whom Circuit Judge Janet Protasiewicz had sentenced to four years in prison and five years extended supervision after he pleaded guilty to second-degree recklessly endangering safety.

During the sentencing hearing, Assistant District Attorney Matthew James Torbenson told  Protasiewicz that synthetic marijuana might be to blame for the girl's death, but Dr. Brian Linert of the Medical Examiner’s Office actually concluded that it was not the cause.

While there was synthetic marijuana in the girl's stomach contents, the drug had not circulated through her blood or nervous system and did not kill her, he said.

When the state admitted the error during a postconviction hearing, Protasiewicz found that Torbenson merely "misquoted" Linert's findings. 

The error did not necessarily mean the prosecutor's statement was wrong, she said, because "different medical examiners can disagree about the cause of death." 

No alternative medical examiner findings were actually offered.

By Gretchen Schuldt

​Police who searched the home of a man they had just arrested had no legitimate reason to do so without a warrant, a State Court of Appeals panel ruled this week.

The panel granted Jesse J. Jennerjohn's request to suppress the evidence police found in the search. 

The ruling is the second time this month an appeals court rejected the state's claims that law enforcement was acting in its "community caretaker" role when conducting a warrantless search.

That exception to the U.S. Constitution's Fourth Amendment search warrant requirement allows officers to conduct searches without warrants when necessary to  protect persons and property.

The Appleton police officers who searched the home of Jennerjohn, however, "were not exercising a bona fide community caretaker function," Appeals Judge Lisa K. Stark wrote for the District III Court of Appeals panel. 

"Even if they were, the public interest in searching the residence did not outweigh the intrusion upon Jennerjohn’s privacy," she wrote. Stark was joined in her opinion by Appeals Judges Thomas M. Hruz and Mark A. Seidl. 

According to Stark's opinion, Officer Dominic Hall responded to a report from Grumpy's Pub that a man was using profanity, throwing things, and was trying to start a fight at the bar.

Two bartenders told Hall they had expelled the patron, who warned them that they had "better run." One of the bartenders had written down the person's license plate number, and the car was registered to Jesse Jennerjohn.

When Hall and other officers went to Jennerjohn's house, they saw him and a woman standing outside the house next door. Jennerjohn ran inside his own house when he spotted the police.

One of the officers near Jennerjohn's car testified he could see a rifle case in the car but could not tell whether there was a weapon in it. 

Hall testified during a suppression hearing that he knocked on Jennerjohn's door for several minutes and repeatedly announced the officers were with the Police Department and they wanted Jennerjohn to open up. Another officer said he could see Jennerjohn moving inside his house and did not see anyone else. 

Jennerjohn's neighbor and a friend police contacted by phone told them Jennerjohn lived alone. So did his brother, who came to the scene.

Jennerjohn came out of his house voluntarily 30 to 60 minutes after police arrived. He was holding something – it turned out to be venison – in his hand. He made grunting, guttural sounds as he walked toward officers.
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"He ignored the officers' commands to stop and yelled something akin to 'Just shoot me,'" Stark wrote.

Officers tased him and put him in handcuffs. 

Jennerjohn eventually told police there were no people or animals in the house. One of the officers verified his statement by opening the door and calling out, “Appleton Police Department. If there’s anybody inside, announce yourself now.”

There was no response.

By Gretchen Schuldt

We're halfway through our examination of cannabis cases filed in circuit courts last year, and thus far it looks like law enforcement in the northeastern part of the state is more aggressive in pursuing criminal marijuana charges than is law enforcement in southern Wisconsin.

The map and chart below show one measure of prosecutorial interest in pursuing cannabis charges – the number of county residents per criminal case that includes one or more marijuana charge. It's not a perfect measure, but it does paint a general picture of where folks are more likely to face criminal prosecution for pot. 

The numbers are good evidence that cannabis laws are not consistently applied across the state. Some municipalities, such as Milwaukee, pursue most simple possession cases in municipal courts and not in state circuit courts. Other places just don't take cannabis enforcement as seriously as others do. 

Still, it seems problematic that people in Florence County, where there are just 139 residents for every cannabis case filed, are statistically so much more likely to face criminal charges than someone in Dane County, where there are 4,339 people for every cannabis case.

​The idea that everyone is equal before the law apparently does not apply across county lines.

There is more information and detail about what's going on in the 36 counties examined thus far on our 2019 Pot Page. We continue to add to it.

This project is a partnership between the Wisconsin Justice Initiative and the American Constitution Society Milwaukee Lawyer Chapter. 

By Gretchen Schuldt

Winnebago County deputy sheriffs failed to ask three different people about any injuries suffered by the driver in a one-car accident, then claimed they did not need a warrant when they conducted a search at his home because they were concerned for his well-being.

The argument failed to convince a state appeals judge.

"While the officers indicated concern for (Troy) Kettlewell’s well-being, they did not ask any of these people about Kettlewell’s well-being or to assist in determining if he needed immediate help," District 2 Court of Appeals Judge Lisa Neubauer wrote. "Their questions were largely focused on his drinking and driving."

Neubauer's ruling reversed Winnebago Circuit Judge Daniel J. Bissett, who had ruled against Kettlewell's motion to suppress evidence obtained in the search.

According to Neubauer's opinion:

A witness reported to authorities seeing a man leaving a car in a ditch. The man's speech was slurred and he may have been intoxicated, but did not appear to be injured, the witness said.

Deputy Michael Huth, upon learning that the car was registered to Kettlewell, went first to the nearby home of Kettlewell's cousin to see if he was there. Kettlewell was not, but the cousin called him to let him know police were looking for him. 

Then Huth went to the accident scene, Neubauer wrote.

"Upon inspection of the vehicle, he noted the following: no broken glass, no window or windshield damage, no blood visible on or near the vehicle, and no other indications of personal injury within the vehicle," she wrote. "Huth saw a half-full bottle of beer and a prescription medicine container with Kettlewell’s name."

The side air bags had gone off, but the front ones did not.

By Gretchen Schuldt

Shorewood Police Sergeant Cody J. Smith took action after Jonah Marciniak was found hanging in his cell during the early morning hours of Aug. 15, 2016.

First, Smith performed CPR. Then he doctored a Police Department document to show that he checked on Marciniak at 4:10 a.m., when he had not. Smith did not check on Marciniak during the 46 minutes from 3:33 a.m. to 4:19 a.m., when Smith found the 39-year-old inmate hanging.

Then he lied about checking on Marciniak. And lied. And lied. He lied to officers from the Greenfield Police Department, called in to investigate the death, on three separate occasions between Aug. 15 and Aug. 31,   2016, according to a criminal complaint. Smith admitted the truth only after he was confronted with a surveillance video clearly showing that he hadn't checked on Marciniak at 4:10 a.m.

Smith was fired and was charged with one misdemeanor count of obstructing an officer. It took until March 23,  2017, seven months after the hanging, to issue the complaint, but the case got wrapped up very quickly -– within five days – after that.

Smith was sentenced on March 28, 2017 to one day in jail. Because he had gone through the booking process, his jail sentence was considered already served, according to a transcript of the sentencing hearing. Milwaukee County Circuit Judge Jean Kies also fined Smith $500.

He remains in law enforcement today.

"I think the conviction is appropriate, given the tremendous lapse in judgment that this presents," prosecutor Benjamin Lindsay said at Smith's sentencing hearing. "An officer -- We rely on officers for their credibility, and that is something that is -- There's a level of community trust there. There's also trust that the Court places and our office places."

Smith was very busy the night of the hanging, defense lawyer Michael Steinle said at the sentencing hearing.

Smith "has no prior record," Steinle said. "He doesn't have anything in his personnel file. This is -- It is just one of those sad situations that he just made a bad judgment to make that entry, and he didn't have to. That's the sad part about it. As -- But when push came to shove, he did correct it, Judge, and he was too late. He had already told the -- Greenfield that, in fact, he had checked when he didn't."

A federal court lawsuit filed over Marciniak's death says that Smith failed to follow Shorewood Police Department policy, which requires visual checks of jail inmates every 30 minutes and of mentally unstable inmates – which the suit says Shorewood police knew Marciniak was was – every 15 minutes.

By Gretchen Schuldt

​Alphonso James was arrested in 1985 for killing Delbert Pascavis just hours after Pascavis' body was found.

James' name was given to police by a mentally unstable man who wore cowboy chaps and was described by area children as "crazy." 

James was young, poor, and black. Pascavis was gay, which police noted again and again in their reports.

James, 17, was taken to the police station where he was held for more than eight hours. Police said he was given his Miranda rights and that he refused the food, drink, a phone call, and a lawyer.
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He confessed, police said. James, who had a borderline IQ of about 75, said he was coerced into signing the police-written statement and recanted shortly after he signed it. He denied guilt during his trial and during the 31 years he served in prison.

James was waived into adult court, tried, convicted and sentenced to life in prison. He was paroled in 2017. 

Here's the thing about that confession: It doesn't match up with other evidence and testimony. But that didn't bother the police. They had their guy.

Some inconsistencies, as compiled by the Wisconsin Innocence Project:

• James "confessed" that he left his girlfriend's house about 10:30 p.m. July 26, 1985 the night of the murder and started to walk home when he was approached by a strange man (Pascavis) asking for help moving a television.  But a prosecution witness testified that she saw James with Pascavis as early as 6 p.m. Witness statements say that the same man was seen drinking with Pascavis. Prints found on the whiskey bottle did not match James'.
  
  
• James "confessed" the man who approached him was white, around 35, and six feet tall. But Pascavis was 54 and just five feet five inches tall.
  
  
• When police arrested James, he was wearing a ring and a watch that police said he stole from Pascavis. But James "confessed" that he went through Pascavis' pockets and took his car keys. There is no mention of a ring or a watch. Police never had the watch tested to establish ownership and, amazingly enough, never even measured Pascavis' ring size.
  
  
• A phone cord was wrapped around Pascavis' neck and body when police found him. This was carefully done – the cord was pulled from one room into another and was still was plugged into the wall at one end and the phone on the other. James' "confession" said he did not remember wrapping a phone cord around Pascavis' neck, but could have done so.
  
  
• James' "confession" does not mention ransacking Pascavis' apartment, although that clearly had been done.
  
  
• James "confessed" to unsuccessfully trying to steal Pascavis' red car after the homicide.  But the "confession" is completely silent about the stereo that actually was taken from Pascavis' apartment and abandoned on the next block.
  
  
• James "confessed" to a first meeting Pascavis, immediately going to Pascavis' bedroom, killing him, and trying to steal Pascavis' car from the street. Everything from the first meeting to the attempted car theft happened quickly, about 10:30 p.m. But witnesses said they saw Pascavis and the young black man together between 6:30 p.m. and 11 p.m. Witness reported the attempted car theft about midnight, the woman who found the stereo in her yard heard voices outside her home between 3 a.m. and 3:30 a.m., and Pascavis' landlady, who lived in the flat below him, heard his door slam between 4 a.m. and 4:30 a.m.

During the trial, defense lawyer Martin Kohler asked Detective Gilbert Wank, who wrote James' "confession," about what the police did not ask James.

"You didn't ask him what the inside of the apartment looked like, isn't that correct?" Kohler said.

"That's correct," Wank said. 

"Did you ask him if he had walked up and down Booth Street looking for the car or how he knew which red car to go to?"

"No, I didn't."

"Did you ask him how he knew that the car across the street was the car that fit the keys?"

"No, I didn't."

By Gretchen Schuldt

​State Attorney General Josh Kaul supports the proposed Marsy's Law​ amendment to the State Constitution even though it clearly would violate the U.S. Constitution Kaul swore to uphold.

The attorney general has been pretty quiet about the proposed amendment. His scant comment includes this unenlightening sentence. "We must do all we can to protect victims of crime."
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He's not said anything about the ballot question that tells voters virtually nothing about what they actually are approving or disapproving, nor has he spoken about the very unsavory character Henry T. Nicholas III, who is bankrolling the Marsy's Law countrywide steamroller and who used his wealth to buy his way out of some real legal trouble.

So we wrote to Kaul to get some answers to a few questions about Marsy's Law. They are not all the questions we have about the law, but they are some important ones. We will be sending questions to other supporters as well.

The questions:

Marsy’s Law would grant a victim the right “to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused.” How does this proposed right reconcile with the Sixth and Fourteenth Amendments to the U.S. Constitution? Those amendments guarantee defendants a right to exculpatory information and evidence, at a minimum. Do you support allowing victims to withhold this information from defendants?
 
Marsy’s Law provides several new rights to victims. Among them is a right, “upon request, to attend all proceedings involving the case.” 
 
Some crimes have multiple victims. Let’s say a crime involves 10 victims. What happens if just a few of those people ask to attend all the proceedings? What happens if they have different work or school or child-care schedules and they can’t all make proceedings at the same time?
 
Another proposed right is to be provided “with timely notice about all rights under this section and all other rights, privileges, or protections of the victim provided by law, including how such rights, privileges, or protections are enforced.” Who makes sure that victims get this notice? The police? The district attorney? When would it happen? Again, many crimes have multiple victims. In addition, the crime may be relatively minor and the scene chaotic (an example may be indecent exposure on a crowded city bus). How could anyone ensure that all victims are provided notice? What would happen if all victims are NOT notified?

Stay tuned. When we get Kaul's answers, so will you.

By Gretchen Schuldt

A Milwaukee police officer testified he would invite traffic stop subjects into his squad car if the stop was in the Downtown police district, but not if it was in a central city or North Side district.

Officer Froilan Santiago made the statements during a 2017 deposition taken during a Federal Court lawsuit alleging that Santiago used excessive force during a traffic stop. The suit is pending.

"So then getting back to my question," attorney Nathaniel Cade, Jr. asked Santiago, "how many times since 2006 have you initiated a stop of someone and suggested that they get out of the vehicle and get into the front seat and look at the computer?"

"Now, like I said, District 7, I wouldn't do," Santiago said. District 7 headquarters is at 3626 W. Fond du Lac Ave. on the city's North Side.

"Depends on the situation and environment," he continued. "District 1 is a different type of environment where it's more of people as far as the -- more able to communicate and more different lifestyle of the individual based on our training in District 1 -- or based on what -- my experience at District 1, it's a lot more common than if I was at District 7. "

District 1, Downtown, is headquartered at 749 W. State St.

He continued: "District 7, if you stop that person, that person is going to run. He might have drugs or guns, based on where I've worked at. District 7 or District 5."

District 5 is based at 2920 Vel R. Phillips Ave. 

"District 1, you have a high percentage of people who's in college, who's in business, work, and stuff like that, and you deal with them differently as far as – and their behavior at that moment in time. I don't know," Santiago said. "Like I said, it's just discretion of the individual of what's going on."

"So you're profiling the driver of the vehicle based on the district that you're in because it's more likely that if they're in a poor neighborhood, that it's drugs and guns?" Cade asked.

"You asked me how I'm going to perform my traffic stop," Santiago responded.

The plaintiff in the lawsuit, Jimmy Harris, alleges that Santiago in November 2010 stopped the car Harris was driving and asked him to get out of the vehicle. Santiago said he stopped the car because it was black and the color listed on DMV records as gray. It was about 4:45 p.m. and dark at the time of the stop.

The same mistake about the car's color had been made previously, according to the suit, and Harris offered to show Santiago on the squad computer how the error was made. Santiago accepted, but then "suddenly grabbed Mr. Harris' left arm that had recently been operated on and used it to maneuver Mr. Harris..."

This 29-minute video shows parts of Harris' encounter with police.

By Gretchen Schuldt

​A 39-year-old man hung himself in the Shorewood jail after police detained him without reason, searched him improperly, locked him in a cell alone despite knowing he suffered from mental illness,  and failed to check on him in a timely manner, according to a Federal Court lawsuit filed Friday.

The suit was filed by the son and estate of Jonah Marciniak, who died on Aug. 21, 2016. Izariah Jump, Marciniak's son, was 16 years old at the time.

The suit alleges false arrest and unlawful detention, unreasonable search, deprivation of due process, failure to provide medical care, failure to protect from self-harm, and wrongful death. 

According to the suit:

Shorewood police responded to a Marciniak drug overdose on Aug. 12, 2016. Marciniak told them then that he suffered from depression. The next day, his roommate, Eric Harper, told police that Marciniak had overdosed and attempted suicide previously and suffered from several kinds of mental illness, including depression, anxiety and bi-polar disorders.

Two days later, Harper fell out of a fourth-floor window. When police responded, they tried to gain access to the apartment that Harper fell from so they could check on the welfare of anyone inside. They rang the buzzer and pounded on the door but received no response. The North Shore Fire Department eventually gained access.

Two defendants in the suit, Police Officers Cody J. Smith and Nicolas Taraboi found Marciniak naked, face down on a bed after a "loud search" of the rest of the apartment. Smith also had responded to the drug overdose days earlier.

"Jonah had very shallow breaths and did not respond to the SPD police officers’ multiple attempts to wake him," the suit says. "The SPD police officers screamed commands at Jonah, but there were no movements from him."

Smith recognized Marciniak when they rolled him onto his back, according to the suit. 

"It was obvious to all present that Jonah was impaired," the suit says.

By Gretchen Schuldt

​A federal judge has given the ACLU and its partners the go-ahead to argue that juveniles sentenced to life without a meaningful chance at parole are denied their constitutional right to a jury trial.

It is a new argument in the national battle over juvenile life sentences and one that, if successful, would lead to "significant extensions of current law," according to U.S. District Judge James D. Peterson, who is presiding over the case.

The ACLU of Wisconsin brought the class-action lawsuit in April on behalf of juvenile lifers. It seeks to reform the state's parole process and provide qualified juvenile lifers a meaningful chance at walking out the prison gates. 

The suit alleges that the state consistently denies "release on parole to juvenile lifers who demonstrate unmistakable maturity, rehabilitation and reform, and a low risk to public safety," violations of the Eighth Amendment's prohibitions against cruel and unusual punishment and of the 14th Amendment's guarantee of due process.

The suit also alleges the state violates the juveniles Sixth Amendment right to a jury trial because juries are not making key findings in juvenile lifer cases.

Peterson previously granted the ACLU's request to pursue the Eighth and Fourteenth Amendment arguments,  but initially delayed his ruling on the jury trial claim.