By Gretchen Schuldt
A police office’s testimony that victims of Somali-on-Somali crimes tend to lie about them was unduly prejudicial to a man accused of participating in a Hudson shooting that injured three people, the State Court of Appeals has ruled.
"We also generally agree with (defendant Ahmed Farah) Hirsi’s argument that the racial and ethnic aspect of (Officer Tracy) Henry’s testimony raises heightened prejudice concerns, as such a notion is firmly supported by our case law," the District III appeals panel wrote in an unsigned opinion.
The error was "fundamental, obvious and substantial," said the panel that included Appeals judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.
The panel, in overturning a ruling by Circuit Judge James M. Peterson, sent the matter back to Circuit Court for further proceedings. Peterson, a Dunn County judge, presided over Hirsi's St. Croix County trial.
Hirsi was convicted by a jury of multiple felonies stemming from a January 2014 shooting in a liquor store parking lot. Witnesses told police a passenger in a tan Cadillac fired multiple gunshots into an Kia SUV. Three of the six occupants were hit, and three were not. All six are Somali, as is Hirsi.
Hirsi was arrested later that day, along with a co-defendant.
The state's theory of the case was that Hirsi, recognizing one of the people in the car, referred to her in a derogatory manner. The woman responded in the same manner, and Hirsi began to shoot indiscriminately into the Kia.
Hirsi denied involvement and the woman said she did not know anyone in the Cadillac. She denied the derogatory term was aimed at her and said the shooting occurred about an hour after the name-calling. The woman did not identify Hirsi when shown a photo array that included him.
The Kia's driver testified that Hirsi was not the shooter and that he told law enforcement before the trial that "they had the wrong man in custody and that the man that shot me is out there and free."
Four victims did not testify, but one of them told police she did not know who did the shooting and another said she was asleep and did not see the shooting. Two declined to cooperate.
Only one person, a co-defendant, identified Hirsi as the shooter. The co-defendant had a plea deal with prosecutors under which he agreed to testify "truthfully" and plead guilty to two felonies. In exchange, 15 charges would be dismissed and prosecutors would recommend a two-year prison sentence, according to a brief filed by Hirsi's appellate lawyers, Cole Daniel Ruby and Albert T. Goins, Sr.
Hirsi was sentenced to 50 years in prison and 35 years of supervised release.
By Gretchen Schuldt
Advocacy groups on Tuesday called on Gov. Tony Evers to expand the compassionate release program to allow the release of more aged and infirm incarcerated people from state prisons.
"The prison health system cannot handle a massive outbreak of COVID-19. State officials must work to keep our communities safe without putting those serving prison sentences at unnecessary risk," the groups said in a letter to Evers. "You and the DOC (Department of Corrections) must act now to release some of those imprisoned. Lives really are at stake."
The letter was signed by the Wisconsin Justice Initiative; the ACLU of Wisconsin; the Milwaukee Turners Confronting Mass Incarceration Committee; the National Lawyers Guild, Milwaukee Chapter; and WISDOM.
The groups requested Evers to direct DOC to "aggressively" use the program to release qualified, low risk-people from "our overcrowded, understaffed prisons."
"Wider use of compassionate release will reduce prison crowding and help prevent the spread of coronavirus," the groups wrote. "It will reduce stress on prison medical staff and take a long overdue step toward making the compassionate release program an effective and useful tool. The risks posed by coronavirus to too many incarcerated people are greater than the risks these people pose to the public. "
By Gretchen Schuldt
A successful Milwaukee program to provide defense lawyers to indigent defendants in Municipal Court is over because the city ended funding for it.
Legal Action of Wisconsin, in the one-year, part-time pilot program, won or negotiated dismissal of 40% of citations issued in cases it defended, according to a report prepared by the agency.
"The system works better if all parties are represented," said Kori Ashley, a Legal Action lawyer who worked on the project.
Now that the program has ended, she said, "we're back to the same old, same old."
The city pays police to issue tickets and the city attorney's office to prosecute cases.
Indigent defendants in Municipal Court, though, are not entitled to court-provided lawyers, meaning that most indigent defendants who show up represent themselves, often not very well.
Municipal Court is a money-maker for the city. In 2018, the court cost $3 million but brought in $5 million, according to city budget figures.
The Common Council in November 2016 approved a budget amendment by Ald. Michael Murphy that allocated $45,000 to the defense lawyer project. Due to city delays in getting the paperwork done, however, the project did not launch until last year. Funding ran out at the end of 2019.
Legal Action has applied for Community Development Block Grant funding to continue the program, and the council will vote on that in late spring or early summer.
Murphy said he is "fully supportive" of the Municipal Court project. If it is not funded this year, he said, "I will certainly put it in the budget for next year."
Some results, according to the Legal Action report:
Many clients don't have permanent addresses because of chronic homelessness.
"These are individuals who absolutely need legal representation," Ashley said.
Some clients had mental health issues with "very stark competency issues....These individuals should not be getting citations," Ashley said.
Both the city attorney's office and Municipal Court judges were receptive to Legal Action's work, she said.
Sometimes, mental health issues result in a client receiving multiple citations for offenses such as loitering or disorderly conduct, Ashley said.
The agency cited in its report an example – a woman with severe mental health issues "routinely cited for retail theft from various stores for behavior that simply is out of her control."
Legal Action represented her in four cases that that were dismissed because those issues, saving the woman $1,500 in court charges.
In another case not related to mental health, a woman's identity was stolen by a relative, who then received several traffic tickets under the victim's name.
"LAW successfully obtained the dismissal of the citations and significantly, the client's driving privileges were not suspended," Legal Action said in the report.
In yet another instance, a woman for whom English is a second language was accused of shoplifting "and was unable to explain a simple misunderstanding due to the language barrier," LAW said.
"This client's story was particularly impactful, because she is an elderly woman who came to this country 25 years ago and had previously no contact with law enforcement. She endured a tremendous amount of stress and felt an immense amount of shame because of the ticket."
By Gretchen Schuldt
A lawyer on Thursday called for an investigation into a Milwaukee deputy city attorney's suggestion to a jury that the African American plaintiff in an excessive force lawsuit would be irresponsible to have children if police injured him as badly as he claimed.
Deputy City Attorney Jan Smokowicz's comments were racist or close to it, attorney Nathaniel Cade said.
“Now you’re saying a black man should not have children because he’s injured," Cade said. "Would you say that to a veteran of a war?”
“Maybe he (Smokowicz) should not be handling these civil rights case if he harbors these views,” Cade said.
The investigation should be ordered by City Attorney Grant Langley or by challenger Tearman Spencer if he wins the April 7 general election, Cade said.
Smokowicz said Cade's recollection of his comment "is not accurate and understanding my actual remarks requires the context of the testimony provided by the plaintiff in the case.
"Mr. Harris testified that his shoulder injury from the incident with the police was so severe that he could not even help change his child’s diapers," Smokowicz said. "In my closing argument, I asserted that the jury should conclude that Mr. Harris was embellishing the degree of his injuries. I said, in particular, that I was certain he was not the type of person who would be so irresponsible as to leave to the mother of two of his children, born after the incident, the sole responsibility for their care.
"There was no racism in this statement—implicit or explicit. Mr. Cade’s demand for any inquiry is completely unfounded," he said.
Cade represented Jimmy Harris, 47, in a federal court lawsuit alleging police used excessive force and violated Harris' constitutional rights when they arrested him after a traffic stop in November 2010.
A jury found in Harris' favor Wednesday and awarded him $1.67 million in damages. (Previous WJI stories about this case and derogatory remarks made by an officer involved are here, here, and here.)
Harris alleged in his lawsuit, among other things, that Officer Froilan Santiago injured Harris' recently operated-upon rotator cuff during the arrest, which led to long-term medical problems that plague him to this day.
The Harris case is just the latest in a series of lawsuits against the police that have cost the city millions of dollars in settlements and verdicts.
“I would hope the city council would go into a closed session and make some decisions on how they want to handle this case and other cases because that’s reflective of the police force they have,” Cade said.
By Gretchen Schuldt
State Supreme Court candidate Jill Karofsky won in most of the North Shore suburbs of Milwaukee County in Tuesday's primary election, while incumbent Daniel Kelly did better in the southern suburbs.
Karofsky, with 47,432 votes, was the top Milwaukee County finisher in the Feb. 18 primary. Incumbent Daniel Kelly finished second, with 44,088 votes, and Ed Fallone finished third, with 25,963 votes. Statewide, Kelly finished first with 352,855 votes, Karofsky got 261,723, and Fallone received 89,181.
Karofsky and Kelly will compete in the April 7 general election.
In Milwaukee County Karofsky won in Bayside, Brown Deer, Fox Point, Glendale, Milwaukee, St. Francis, Shorewood, and Whitefish Bay. Kelly won in Cudahy, Franklin, Greendale, Greenfield, Hales Corners, Oak Creek, River Hills, South Milwaukee, Wauwatosa, West Allis, and West Milwaukee.
Karofsky, a Dane County circuit judge, and Fallone, a Marquette University law professor, are considered more liberal than Kelly, who was appointed by former Gov. Scott Walker and is a member of the conservative Federalist Society.
Kelly won in some communities because Karofsky and Fallone split the more liberal vote. All other things being equal, if Fallone voters back Karofsky in the general election, she will pick up Cudahy, River Hills, South Milwaukee, Wauwatosa, and West Milwaukee, all of which went for Kelly in the primary. She also would pick up an additional 96 wards in the city of Milwaukee.
Statewide, Karofsky would need to pick up all of Fallone's votes, plus 1,952 more to unseat Kelly.
Milwaukee County primary voter turnout was highest in Shorewood, at 34%, and lowest in West Milwaukee, at 18%.
By Gretchen Schuldt
A Milwaukee police officer repeatedly denied under oath stepping or standing on Milwaukee Buck Sterling Brown's leg after Brown was tased in a Walgreen's parking lot, even though a video clearly shows the officer did so.
"He was kicking at the time. I put my foot against his leg to prevent him from kicking anymore," Officer James Collins said. "I did not step on his leg. I did not stomp on his leg."
The start of the video shows that Brown moved his legs but did not kick in the moments before Collins stepped on him.
Brown was confronted by several Milwaukee police officers after he parked illegally in a handicapped parking space at a Walgreens parking lot about 2 a.m. Jan. 26, 2018. He was tased, taken to the ground, handcuffed, and arrested.
He has filed a lawsuit alleging the officers violated his constitutional rights. His attorney, Mark Thomsen, has filed several deposition excerpts. WJI is printing excerpts of some of them.
Read previous posts, with transcripts, about Officers Joseph J. Grams and Bojan Samardzic and Sgt. Jeffrey Krueger. The full transcript of Collins' deposition is here.
The City of Milwaukee and other defendants in the suit have denied Brown's allegations.
After the incident, the officers involved, including Collins, were ordered to take remedial training that included showing video of and critiquing officers' conduct during the event,
Collins acknowledged that he was told during the training that his action was inappropriate.
"They (officers in charge of the training) said it was inappropriate, yes. They did not say I was standing -- I don't believe they used the terminology "standing," but I was informed that I was blocking. I was not standing on his leg," he testified.
"They told you specifically it was inappropriate," said Thomsen, Brown's lawyer.
Thomsen: It was an unreasonable use of force. Correct?
Thomsen: And you've just told me under oath that your standing on Mr. Brown's leg was not reasonable. Correct?
Collins: I was not standing on his leg.
Thomsen: Your -- whatever you want to say....
Collins: I was blocking his foot with my foot.
Thomsen: And it was not reasonable use of force. Correct?
Collins: That's what I was told, yes.
Thomsen: I want to know, do you believe it?
Collins: I don't believe it, no....I did not stand on his leg. I was blocking his leg with my foot.
The topic came up again later.
Thomsen: So why do you think you got two days off for calling Mr. Brown a douchebag but you didn't get any time off for actually having your foot on his leg?
Collins: My foot was blocking his foot. It was not on his foot. You keep implying that I was stepping on it. I was not stepping on his foot. I was not stepping on his leg.
Thomsen: Do you agree based on the training that you received that because Mr. Brown was not allowed to leave, his constitutional rights were violated?
Collins: Knowing that it was just a parking citation, yes.
By Gretchen Schuldt
A proposal to require law enforcement to impound any vehicle operated by a person without a valid driver's license would cost the state and local governments up to $50 million a year if the proposal becomes law, according to the State Department of Transportation.
The cost estimate assumes costs of $28.9 million for 258.4 new employees to handle the work involved and $21.2 million in towing and vehicle storage costs that law enforcement agencies would not be able to recover.
In addition, the law proposed by State Sen. David Craig (R - Big Bend) and State Rep. Joe Sanfelippo (R-New Berlin) could leave car owners scrambling to retrieve from the impound lot their vehicles that were stolen and driven by the unlicensed thieves.
"It appears that the owner of the (stolen) vehicle would be responsible for paying the fees to get their own vehicle back," DOT said in a fiscal estimate.
Craig is the lead sponsor in the Senate; Sanfelippo is the lead in the Assembly. Senate co-sponsors are Stephen Nass (R-Whitewater), Andre Jacque (R-DePere), and Howard Marklein (R-Spring Green). Assembly co-sponsors include Scott Allen (R-Waukesha), Barbara Dittrich (R-Oconomowoc), Rick Gundrum (R-Slinger), Cody Horlacher (R-Muskego), Terry Katsma (R-Oostburg), Daniel Knodl (R-Germantown), Mike Kuglitsch (R-New Berlin), Gae Magnafici (R-Dresser), David Murphy (R-Greenville), John Spiros (R-Marshfield), Ken Skowronski (R-Franklin), Paul Tittl (R-Manitowoc), Ron Tusler (R-Harrison), and Chuck Wichgers (R-Muskego).
The Craig/Sanfelippo bill would, with few exceptions, require that a car operated by a driver without a valid license "be immediately impounded." The requirement would apply in cases of driving on a suspended license, driving after revocation, and driving without a license.
"It appears that the owner of the (stolen) vehicle would be responsible for paying the fees to get their own vehicle back." – Wisconsin Department of Transportation
A person could get a car back at the end of an impound period by paying the fine or forfeiture for the license violation and any impound fees. A vehicle could not be released, however, unless it was properly registered and the person to whom it was registered showed proof of insurance and a valid operator's license.
The State Patrol, which issued 11,292 citations last year for driving without a valid license, doesn't have any impound lots and would have to get some, the DOT said.
"It is estimated that it could cost roughly $500,000 to establish each lot when factoring in the costs to obtain real estate, paving, fencing and the necessary security measures," the agency said. The estimate does not say how many impound lots the state would need.
By Gretchen Schuldt
(We'll be coming back to this forum in later posts.)
State Supreme Court Justice Daniel Kelly on Thursday accused challenger Jill Karofsky of "disgusting slander" before insisting that Karofsky apologize to Chief Justice Patience Roggensack, who hadn't been mentioned by anyone until Kelly brought her up.
Marquette University Law Professor Ed Fallone, the third candidate vying for a 10-year term on the court, remained removed from the back-and-forth.
"There may be people around the state of Wisconsin who are happy to see our Supreme Court elections descend to this level," Fallone said. "If there are, I've never met them."
The Karofsky-Kelly battle occurred during a Supreme Court candidate forum sponsored by the Milwaukee Bar Association and WJI. Karofsky went after Kelly hard, saying he catered to right wing special interests.
Near the end of the forum she said, "I just want to respond to Justice Kelly, saying I don't have any examples of him always finding (for) the right-wing special interest, and that's not true. The Koschkee case is a prime example. The lame-duck case is an example where the Supreme Court couldn't even wait to get their hands on that case to make a ruling."
In Koschkee, a 2019 decision, the Supreme Court ruled the governor had the right to reject rules proposed by the State Department of Public Instruction. The ruling reversed the court's 2016 decision on the same issue.
The "lame duck" reference is to the Supreme Court's 2019 decision to uphold laws passed by the Republican-dominated Legislature to strip newly elected Democratic leaders, including Gov. Tony Evers and Attorney General Josh Kaul, of powers their predecessors enjoyed.
"They plucked it from the circuit court before the circuit court could even hold a hearing on it," said Karofsky, a Dane County circuit judge, "and they did it in the budget veto case again, and no one is going to be surprised by how Justice Kelly rules on those cases. They pulled them from the circuit court so that they could make the decision that they want to make as soon as they possibly could."
Kelly responded sharply, and then pulled Roggensack into it.
"I think we really do have to take Judge Karofsky to task for this disgusting slander, not just on me, but on my colleagues as well," he said.
"This is about your personal advancement and you don't care who you are going to lie about," Kelly said. "But that's really not even the worst of it."
Since he and Roggensack often agree, he said, Karofsky must be referring with her criticism to the chief justice as well.
"And that is an outrageous slander on someone who has been a paragon of integrity for the entirety of her career and the practice of law and her service on the bench," he said.
"Now you owe me an apology for this disgusting slander," he said. "I don't think I'll get one. Because if you didn't have slander, you wouldn't have a campaign. But you do owe Chief Justice Roggensack an apology. She's not here. She's not been part of this campaign. And she did not ask to be slandered by some careless trial judge who can't even be bothered to keep her insults focused on the target. So this is your opportunity. Apologize to Chief Justice Roggensack right now."
"I'm not going to be bullied by you," Karofsky responded.
Karofsky, Kelly said, "does not have the judgment or the character to get anywhere near the Supreme Court."
Forum moderator Steve Walters gave Karofsky a chance to respond.
The comments she made reflect "what the voters, the people in the state of Wisconsin, are seeing," she said. "They are seeing decisions made on the Supreme Court before anyone ever walks into the state Supreme Court chamber. That isn't what justice is."
Justice, she said, "is when a judge looks at the law and the judge allows the facts to percolate in a trial court, where I sit, so that witnesses can answer questions so that there can be a fair hearing, so that there is a process that is followed that everyone can see. That is what justice is. And then after that, the law is applied to the facts of the case and that's how you reach the right answer. That is what people in the state of Wisconsin are asking for and that is what they deserve."
By Gretchen Schuldt
The State Assembly's Criminal Justice and Public Safety Committee will hold an announced-at-the-last-minute public hearing on a package of partisan "tougher on crime bills" Thursday in the State Capitol.
The hearing is scheduled for 9 a.m. in room 412 East.
If you support criminal justice reform, chances are you will not like these Republican proposals. WJI opposes them.
The bill numbers, links to their text, and short summaries of what the legislation would do are below. The summaries are taken from Legislative Reference Bureau information and from the relevant bill's language. Each one will carry a fiscal cost, but the estimates are not yet available.
Please contact your legislator and join the fight for a reasonable criminal justice system. Find out who your state representatives are by going here and clicking on the "Who are My Legislators?" button.
The members of the criminal justice committee are listed here.
Assembly Bill 758 – Under this bill, a person in a facility to await a commitment trial as a sexually violent person is guilty of a Class H felony if he or she commits battery against an officer, employee, agent, visitor, or other resident of the facility. Class H felonies are punishable by up to six years in prison and / or a $10 000 fine.
Assembly Bill 802 – This bill would allow a judge, when determining when videoconferencing can be used in court, to consider the safety of the witness or the risk that the witness may be unavailable to testify if videoconferencing is not used
Assembly Bill 803 – The allowable use of deposition testimony in court instead of live testimony would be expanded under this bill. Deposition testimony would be acceptable if it appears that the witness is "at risk" of being intimidated and thus may not fully cooperate at trial. It also would be allowed if a judge finds that a witness "may have been" intimidated.
Assembly Bill 804 – This bill would increase the penalty for intimidating the victim or alleged victim of domestic abuse from a maximum of nine months incarceration and / or a $10,000 fine to a maximum of 10 years in prison and / or a $25,000 fine.
By Gretchen Schuldt
African Americans were defendants in more than three-fourths of the marijuana possession cases opened in Municipal Court last year, despite accounting for just 39% of the city's population.
Blacks were defendants in 462, or 77% of the 603 cases filed. Whites were defendants in 63 cases, or 10% of cases filed; Hispanics were defendants in 62 cases, also 10%; and Asians in 11 cases (2%), according to court statistics. Just one Native American was a defendant, and four defendants were of unknown races.
"Frankly, these numbers are outrageous," WJI President Craig Johnson said. WJI actively advocates for cannabis legalization.
The figures "illustrate once again the disparate impact of cannabis prohibition laws on communities of color," he said. "Just as is the case with state criminal prosecutions, the numbers regarding Milwaukee Municipal Court citations show that African Americans are cited far more often than whites - and studies have consistently shown that both groups use marijuana at the same rates."
"My position is that possession of marijuana cases must meet the standard of clear, satisfactory and convincing evidence to obtain a conviction. If 0.3 percent THC could be from the legal possession of hemp, then the ordinance violation should not be referred to court for prosecution." - Vince Bobot, candidate for Milwaukee city attorney
More defendants had home addresses in the predominantly African American zip codes of 53206 and 53209 – 65 and 64, respectively – than in any other Milwaukee zip code. (See map)
The city is 45% white, 39% African American, 19% Hispanic, 4% Asian, and 1 percent American Indian / Alaska Native, according to the U.S. Census Bureau.
Tickets for marijuana possession "shouldn't be dismissed as insignificant," Johnson said. "They can lead to warrants if unpaid, and can have a heavy financial burden on those who receive them, especially young people. They can also have an adverse impact on employment, rental applications and other areas of life. Wisconsin must join other Midwestern states in legalizing marijuana so that this source of disparity in our justice system can be eradicated."
Milwaukee home zip codes of defendants in 2019 Municipal Court possession of marijuana cases.
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