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.
By Gretchen Schuldt
Witnesses said Alphonso James was the man they saw with Delbert Pascavis or outside Pascavis' house the night he was murdered in July 1985.
James' friends, though, swore he was with them at those times.
Both things cannot be true. The jury believed the prosecution witnesses and James went off to prison for the next 31 years. To this day, James says he is innocent; he says he did not kill Pascavis.
Mistaken eyewitness identifications are a huge problem. The Innocence Project says they were involved in 71% of the more than 360 wrongful convictions in the United States later overturned by post-conviction DNA evidence.
After the Pascavis homicide, witnesses gave varying descriptions of the man they identified as James. One said he was in his late 20s to early 30s, 6' 1"-6'2', and 190-200 pounds. Another said he was about 25 and 5'5" to 6" tall.
James was 17, 5'9", and 154 pounds.
The witness accounts and James' confession, which he gave after more than seven hours in custody without a lawyer and almost immediately repudiated, were the key elements in his conviction.
One witness told police she observed Pascavis and James together starting shortly after 4 p.m. and saw them together "throughout the evening hours."
At one point, they were sitting on the porch and sharing a bottle. "She thought it was beer or something else, because the longer they talked, the louder they got," according to a police report.
The witness, who did not testify in court, told police the last time she saw Pascavis alive was about 11 p.m. July 26 and he still was with James.
The witness identified James from police photos. She could not pick him out of line-up, however.
James' girlfriend, Patricia Lewis – the two had a child together – told police that he came to her home about 8:30 p.m. the evening of the murder and left about 10:25 p.m.
By Gretchen Schuldt
People in Dane and Milwaukee counties were far less likely to be charged with marijuana crimes last year than were people in other counties in the state, but those charged in those two places were more likely to be African-American and male than in other counties, according to a review of 2018 cannabis cases in Wisconsin.
The review, a joint effort of the Wisconsin Justice Initiative and the American Constitution Society Milwaukee Lawyer Chapter, thus far has covered 24 counties, or one-third of the 72 counties in the state.
Milwaukee County had the largest gender gap among cannabis case defendants. A whopping 95% of the 288 people charged with marijuana crimes or misdemeanors were men, far more than in most counties reviewed thus far. Dane County, where 90% of 125 defendants were male, had the second-highest share of male defendants.
Green County, with just 27 criminal cannabis cases last year, came in third. Twenty-four of the defendants, or 89%, were men.
Forest County may have – may have – had more female marijuana defendants than male. If so, it would be the only county reviewed thus far where the number of female defendants exceeded the number of male defendants. There were 19 men and 23 women charged with cannabis crimes last year, but there also were seven charged whose genders are listed as "unknown" in online court records. The actual genders of those seven would determine whether Forest County actually was a female-majority cannabis defendant county.
(And yes, we understand that gender is not necessarily binary, but it is for court purposes.)
Dane County was the least likely among the 24 counties to issue criminal cannabis charges against anyone. Dane County filed one criminal case containing a marijuana charge for every 4,339 county residents. Milwaukee County, which filed a cannabis case for every 3,292 residents, had the second-lowest rate.
Gender of cannabis criminal case defendants in 2018
Milwaukee County was number one when it comes to the share of cannabis defendants charged who were African American – 85%. Dane County was second, with 68% Black defendants.
Dane County's defendants were more disproportionately African-American than were Milwaukee County's because Dane County's 5% Black population share is so much smaller than Milwaukee County's 27%.
The share of cannabis defendants charged in Dane County who were Black was 63 percentage points higher than the Black share of the county population; in Milwaukee County, the difference was 58 percentage points. The third place finisher was Fond du Lac County, where the difference was 31 percentage points.
Race of cannabis criminal case defendants in 2018
As these charts illustrate, there is not much that is consistent in cannabis enforcement in Wisconsin. Two people engaged in similar conduct in different counties may well be treated very differently by the criminal justice system.
Follow along as we document the wildly erratic enforcement of cannabis laws in Wisconsin.
Additional data for each county is posted on The 2019 Pot Page and we'll be updating and expanding our charts on this blog.
y Gretchen Schuldt
Federal prosecutors send staff members to the Milwaukee County District Attorney's office to look through gun cases to determine which ones should go to the tougher federal system, according to federal court filings.
Milwaukee County, home to the largest share of African Americans in the state, is the only county of the 28 counties in the Eastern District of Wisconsin to get that personal touch from the U.S. government, according the filings by Assistant Federal Defender Joshua D. Uller.
The practice results in a disproportionately large share of African Americans getting charged with certain gun crimes, he said.
Some 50 percent (90 of 176) of the people charged with drug-trafficking offenses in the Eastern District were Black during the period from January 2017 through June 2018, though the district is just 10 percent African American, according to Uller's filings. Whites accounted for just 23 percent of people charged with drug trafficking, though the district is 84 percent White.
Thirty-five of the drug trafficking defendants also were charged with possessing a firearm in furtherance of the crime. Twenty-eight, or 80 percent, of those defendants were Black. Three, or 9 percent, were White, he said.
The firearm charge carries a mandatory minimum of five years in prison, which must be served consecutively to any other sentence.
And 100 percent of the 10 cases alleging possessing a firearm in furtherance of a marijuana trafficking crime were brought against minorities. Nine were filed against Black defendants originally arrested by Milwaukee police. The 10th minority was an Arab, Uller said. (Arabs are legally considered White.)
Uller says the charging disparity demonstrates selective prosecution and enforcement. He is asking a federal judge to allow the Federal Defenders Office to examine materials from the U.S. Attorney's Office that provide more evidence about how cases are selected for federal prosecution.
Prosecutors deny any selective prosecution or enforcement and U.S. Magistrate Judge Nancy Joseph has recommended Uller be denied access to the materials he wants.
"And unlike the district attorney’s office in Milwaukee, many of the prosecutor’s offices elsewhere in the district have the resources, time, and willingness to handle gun cases on their own. " -- Assistant U.S. Attorneys Jonathan H. Koening and Lisa A. Wesley
By Gretchen Schuldt
Polk County is not liable for the actions of a county jail corrections officer who repeatedly sexually assaulted two female inmates while they were incarcerated, a federal appeals court ruled last week in a split decision.
The assaults occurred over three years.
In tossing out two $2 million jury verdicts against Polk County for compensatory damages, the three-judge Seventh Circuit Court of Appeals panel did uphold $5.75 million in verdicts for each of the women against the guard, Darryl Christensen, who is now serving a 30-year stretch in prison.
Christensen is liable for the full $2 million compensatory damages verdicts and $3.75 million in punitive damages for each woman.
"Although we do not overturn a jury verdict lightly, we must assure the jury had a legally sufficient evidentiary basis for its verdict," U.S. Circuit Judge Michael B. Brennan wrote for the majority. "It is clear to us that the trial evidence fails to satisfy the necessary elements" to show county responsibility.
The decision is similar to one the Seventh Circuit made in a case involving the Milwaukee County Jail. In that case, too, the court found the county was not responsible for the acts of its employees when a guard repeatedly raped an inmate.
Brennan was joined in his opinion by U.S. Circuit Judge William J. Bauer. U.S. Circuit Judge Michael Y. Scudder Jr. dissented.
"What worries me about today's decision is that, as a very practical matter, municipalities may conclude that there is not much to be done to stop a rogue guard from engaging in secretive and heinous conduct in violation of a bright-line policy prohibiting sexual contact with inmates," Scudder wrote. "That view would be as mistaken as it is dangerous, for cities and counties have a meaningful responsibility and role to play in preventing the sexual abuse of inmates in their custody by the guards they employ."
"That view would be as mistaken as it is dangerous, for cities and counties have a meaningful responsibility and role to play in preventing the sexual abuse of inmates in their custody by the guards they employ." – U.S. Circuit Judge Michael Y. Scudder
By Gretchen Schuldt
A man who committed at least two felonies as he impregnated his first cousin and then largely ignored the resulting son is not entitled to any of that son's estate, the State Court of Appeals ruled this week.
The unsigned ruling means that Marcus Crumble will not share in the $1.4 million the estate of Brandon Johnson received last year to settle a case with the Milwaukee County Mental Health Complex stemming from the 25-year-old's death in 2012.
Johnson died from a blood clot that moved to his lungs. His roommate told investigators that Johnson asked for help the night before, saying he could not move his legs. Staff members thought he was faking it and refused.
Crumble had minimal involvement with his son during his lifetime, a three-judge panel said in an unsigned opinion upholding a ruling by Milwaukee County Circuit Judge David Borowski. The panel included Appeals Judges Joan F. Kessler, Kitty K. Brennan, and JoAnne F. Kloppenburg.
Crumble "had little, if any contact with Brandon before Brandon's college graduation," the opinion said. Crumble moved to California when Johnson was 5 and, while Crumble suspected he was Johnson's father, that wasn't confirmed until Johnson was 17 and his mother, Alicia Johnson, requested a DNA test.
Crumble was subsequently ordered to pay child support, which he did until Johnson was 18. Crumble also went to his son's funeral and paid for funeral expenses.
Alicia went to court to prevent Crumble from inheriting. She argued that Crumble abandoned Marcus Johnson and so under state law was not entitled to a share of the estate.
Borowski ruled that the statute did not apply because Brandon Johnson was not a child when he died. Borowski also ruled, though, that allowing him to inherit a share of the estate would unjustly enrich Crumble.
Crumble was 20 and Alicia was 15 when she conceived Brandon.
"Under the tragic facts and circumstances of this case, including the fact that Mr. Crumble committed both statutory rape and incest, this Court will not allow a six figure windfall to be awarded to Mr. Crumble," Borowski said.
Crumble appealed, but the three-judge panel rejected his argument.
"To allow Marcus to retain a benefit conferred upon him by the estate of the son he barely acknowledged would violate both logic and the basic principles of fairness," the panel said.
By Gretchen Schuldt
Alphonso James kinda sorta confessed to murder.
At least he signed a paper on which a confession, written by a police detective, appeared.
James was 17 at the time, in 1985. An evaluation done by a clinical psychologist after his arrest for allegedly killing Delbert Pascavis put James' IQ at 75, considered borderline.
A Department of Health and Human Services evaluation after his conviction said this about James: "Alphonzo's (sic) Stanford Achievement Test scores indicate the possibility of functional illiteracy....A GED (general equivalency degree) may be grandiose."
At the time he signed the paper, he had been in custody for more than seven hours and was questioned without a lawyer. James says for part of that time the police took his clothes and left him naked. Police officers at James' 1986 trial denied that.
James quickly repudiated the confession and said, as he had earlier, that he did not kill Pascavis. Trial testimony indicates that police questioning of James was, at best, of highly questionable thoroughness. More on that later.
The police interviews leading to the alleged confession were not recorded. Police in those days objected strongly to the very idea.
False confessions, especially among the young, are not unusual. Of 130 murder convictions reversed on DNA evidence as of 2018, 81, or 62 percent, involved false confessions and 40, or 31 percent, involved eyewitness misidentifications, according to the Innocence Project.
When he signed the confession, James testified, "I was dizzy because I had a headache and stuff. I just got tired and I was hungry and I was sleepy because I haven't had no rest all that day."
There is no doubt that Alphonso James signed that paper.
"They start asking me did I do it," James testified at his trial. "I said no, I don't know nothing about it....(They said) they had fingerprints of me. I said I don't think. I said I know you couldn't have no fingerprints of me."
Witnesses testified they saw a Black man get into Pascavis' red car the night of the murder, try unsuccessfully to start it, then leave.
James' prints were not in the car.
Pascavis was seen the night he died sharing a bottle of whiskey with a Black man. Police found a whiskey bottle in Pascavis' apartment; There were prints on it that did not belong to Pascavis and did not match James'.
There were, in fact, no fingerprints connecting James to the crime.
"I told them after they just kept on asking me the same questions over and over, they said they wouldn't take no for an answer; so, I said, 'Well, if ...y'all said I did it, I did it.' " – Alphonso James
By Gretchen Schuldt
It is fine and dandy for police to lie to and deceive a cognitively and socially challenged man in circumstances deliberately designed to ensure he was not entitled to a lawyer during questioning, a State Court of Appeals panel has ruled.
Lying and trickery are tactics "common in law enforcement interviews of criminal suspects," Appeals Judge Mark D. Gundrum wrote in the decision, which was joined by Appeals Judge Lisa S. Neubauer.
"Were we to follow (defendant John) Finley's apparent suggestion that law enforcement should be limited to simply accepting a criminal suspect’s first-response denial to a one-time asked, open-ended question of 'Did you sexually assault your niece?' law enforcement may as well simply be precluded from questioning suspects altogether," Gundrum said.
Appeals Judge Paul F. Reilly, in an angry dissent, called the police tactics "coercive and improper."
"Being a judge is a noble position," Reilly wrote. "Being a law enforcement officer is a noble profession. There is something ignoble, however, in charging a person with a crime if that person lies, cheats, or fabricates statements or evidence to the government during an investigation, but if a law enforcement officer does the same, we consider the confession reliable. In life, we do not trust a liar or a deceiver, yet we are imposing that character trait upon our police. Having authorized dishonesty, we must be prepared to accept dishonest results."
Finley, now 41, was convicted of sexually assaulting his nine-year-old niece, identified as C.P. in court records, by touching her breasts and vagina under her clothes. Walworth County Circuit Judge's Kristine E. Drettwan in November 2016 sentenced Finley to 20 years in prison and 10 years of extended supervision.
While Whitewater police were investigating the matter, the girl's mother, who is Finley's sister, said that C.P. had autism and attention deficit / hyperactivity disorder and that she was affectionate and liked to hug people.
C.P.'s mother also told Police Officer Saul Valadez that Finley "has the mental capacity of a 12- year-old" and “socially functions at a first-grade level.” A doctor who evaluated Finley found he had an IQ of 72, not disabling but lower than 97% of the population.
During his questioning, police got Finley to admit to putting his finger in C.P.'s vagina –something the girl never said he did.
C.P. made her allegations against her uncle to her therapist, whom she was seeing for behavioral problems and sensory issues, according to a defense brief by attorney Ellen Henak.
By Gretchen Schuldt
Somebody in Delbert Pascavis' flat strangled him to death with a bedsheet and wrapped a telephone cord around his neck, waist, and right foot.
There was no sign of forced entry into the house.
Before the night of July 26, 1985, Pascavis was a church organist, a tutor, a man active in the gay community. He was a case worker for Milwaukee County whose job included interviewing potential foster parents.
He was a member of the Bel Canto Chorus, the Felix Chorale, the Neighborhood Block Watch, and the Black and White Men Together, an organization that currently describes itself as a "gay, multiracial, multicultural organization committed to fostering supportive environments wherein racial and cultural barriers can be overcome."
He also was "quite a drinking man," his landlord told police, according to a police report.
Pascavis "was a partier and had lots of different people coming and going at all times of the day and night....," the report said.
He was popular in the neighborhood and never turned anyone away from his house, the landlady told police. If a visitor brought a friend along, Pascavis would welcome that friend as well.
His landlord "also stated that most of his guests were young black males in their twenties," she said.
Pascavis was with a black man the night he was killed, witnesses said. Some later identified that male as Alphonso James, but those identifications were questioned later by the Wisconsin Innocence Project.
Another witness described the Pascavis' companion that night as a black male in his late 20s or early 30s, about six feet, one inch tall and 190-200 pounds.
James was 17, five feet, nine inches tall and weighed 158 pounds.
As soon as his body was found on the morning of July 27, 1985, Pascavis became a homicide case, the property of the justice system.
Soon enough, the life of Delbert Pascavis would be overshadowed in the justice system almost completely in by the next act: the prosecution of Alphonso James.
Next: The confession
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