By Gretchen Schuldt
Police did not need a warrant or probable cause to search a vehicle parked in an Appleton East High School parking lot that resulted in the discovery of two guns in the car, the state Court of Appeals ruled this week.
"The duty of school officials to keep students safe applies equally to threats posed by students or non-students," appellate Judge Mark A. Seidl wrote for the three-judge District III Court of Appeals panel. "We therefore conclude that standard applies equally to searches on school grounds of both students and non-students of the school where the search occurs."
Seidl was joined in his decision by appellate Judges Lisa K. Stark and Thomas M. Hruz.
The decision affirmed the conviction in Outagamie Circuit Court of Blong Vang, who was convicted of one count of conspiracy to commit child abuse – intentionally committing bodily harm.
The incident started when two men were spotted in the commons area of the school by Jack Taschner, a school resource officer employed by the school and not by the police, according to the decision, Seidl said.
"The two individuals were wearing hats, which was in violation of the school dress code," Seidl wrote. "Taschner also thought their clothing indicated a gang affiliation."
The two – eventually identified as Travis and Daniel – told Taschner that they were not students at the school.
"When Taschner contacted dispatch to check for warrants on the individuals, no information was returned on one of them, which led Taschner to believe one of them gave Taschner a false birthdate," Seidl wrote.
The two said they were driven to the school by their uncle to pick up a student named Lucy, "who was known by school officials to have a history of truancy, verbal altercations with other students, and physical fights," Seidl said.
The school's athletic director, Timothy Zachow, who by that time had joined the questioning, testified that one of the men told him they were there to beat up another student.
By Gretchen Schuldt
A bill pending in the state Legislature that would allow "elder" victims and witnesses to provide early testify in criminal cases is unnecessary and provides undue benefits to prosecutors, WJI told a Legislative committee last week.
The bill, Assembly Bill 43, would allow witnesses and alleged victims at least 60 years old to give their testimony in criminal court cases ahead of the trial and possibly over the phone. The measure already has been approved by the state Senate as Senate Bill 18.
"Although we very much sympathize with complainants in criminal cases who are older, this bill duplicates a process that already addresses many of the concerns that exist in these situations," WJI President Craig Johnson said in testimony to the Assembly Judiciary Committee.
State law allows a witnesses' testimony to be taken provided through deposition if it appears the person will not be able to appear at trial. The law gives judges the power to reject deposition requests.
The law also allows either side to request deposition testimony. AB43, however, would allow only the prosecution to request early testimony and does not require a reason for the request. The judge would be required to hold a hearing within 60 days to take the testimony.
Johnson said the bill would create a speedy trial right for alleged victims and witnesses. That, he said, "could adversely impact a defendant's ability to prepare a defense. In so doing, it can create grounds for costly appeals which would drag out cases longer than under current law. This is the exact opposite result from what appears to be intended."
The bill does not say what happens if the judge fails to meet the 60-day deadline, Johnson wrote.
"What if the defendant does not have a lawyer representing him or her?" he asked. "What happens if the defense lawyer has been on the case for just a few days or a week and has not been given adequate time to prepare? What if a defense investigator has not finished work on the case? Again, these are issues that can result in lengthy and costly appeals."
The bill also could violate a defendant's constitutional right to confrontation because it would allow alleged victims and witnesses to testify by phone or by audivisual means, rather than face-to-face, "live" in a courtroom, he said.
"Finally," Johnson said, "the bill says that the elder's testimony 'shall be admissible in evidence against the defendant in any court proceeding in the case.' It does not make mandatory admissibility of the testimony on behalf of the defendant if it is exculpatory."
Other groups offered testimony in favor of the bill. The Alzheimer's Association, for example, said it has "witnessed an increase in criminal defendants and their attorneys utilizing the court system to delay court proceedings. These delays are meant to prolong a criminal case until a
victim's health deteriorates or a cognitive impairment progresses to the point that the victim is no longer able to testify in the case."
The Greater Wisconsin Agency on Aging Resources, Inc., the Elder Law and Special Needs Section of the State Bar of Wisconsin, and AARP Wisconsin also supported the bill.
By Gretchen Schuldt
A bill introduced in the Legislature last week has the potential to criminalize possession of home-brewing equipment used for anything other than wine-making.
The bill, AB250, also would prohibit anyone with a felony record from getting a retail license to sell tobacco or cigarettes, though it does not explain the why the prohibition is needed or even helpful.
On the home-brewing front, the bill "generally prohibits a person from possessing a still or other apparatus for manufacturing, rectifying, distilling, refining, or purifying intoxicating liquor other than wine," according to the Legislative Reference Bureau. (Emphasis added.)
Violations would be punishable by up to nine months in jail and a $10,000 fine.
The bill does not prohibit brewing beer at home, but prohibits possessing the apparatus that could also be used for liquor-making. Think carboys and airlocks. The bill also would outlaw possession of stills not used to make alcohol. Collectors may have them, and stills are used to distill other, non-alcoholic products such as water, oils and perfumes.
The bill also carries a presumption of guilt. It says that mere possession of the equipment "is prima facie evidence of possession for the purpose of manufacturing, rectifying, distilling, refining, or purifying of intoxicating liquor other than wine."
Yes, there are exceptions to the proposed law. "The prohibition does not apply to a person that holds an intoxicating liquor manufacturer's or rectifier's permit from DOR or that has registered the still or a distilled spirits plant under federal law."
By Gretchen Schuldt
A bill that would dramatically expand the pool of people eligible to have their criminal records expunged drew strong support at a public hearing this week before the Assembly Criminal Justice and Public Safety Committee..
Grace, 34, a former Wisconsin resident, told about a crime she committed 13 or 14 years ago, when she took a plea deal on a theft charge, that continues to follow her.
Now she is married, lives in Florida, has children, and wants to be a firefighter.
"The haunting of my past continues to appear, and drag me into the stereotypical felon's barrier," she said. "I am not the felony charge, but it is defining the future I admire to become. Can you imagine the feeling of being known at every intersection of progress by the worst failure of your life? Probably not... I am being disabled by something many years ago should be put into proper context today. I can only imagine the thousands of stories of good people reestablishing their lives, but still walking around with invisible shackles of a poor decision."
Multiple organizations, including WJI, the State Public Defender's Office, the Badger Institute, and the Milwaukee Police Association, testified in favor of the bill, AB69.
WJI President Craig Johnson said the measure "is very important as it allows people who have made a mistake to get a fresh start without being stigmatized for life in their search for gainful employment, housing, and in other contexts."
Dale Bormann Jr., president of the Milwaukee Police Association, said his members see the devastation crime visits upon the victim and the perpetrator's family and future.
"We also see many outstanding members of the community who may have, for whatever reason, engaged in a single criminal act years prior, taking full responsibility for their act and have worked to better themselves, but struggle to move forward," he said.
The union hopes "this bill will allow people not to be defined by their worst day but rather the entirety of their collective actions throughout their life."
By Gretchen Schuldt
Police use of a jailhouse snitch after his target retained a lawyer amounted to an improper government interrogation, the State Court of Appeals ruled Tuesday.
"What occurred here was the intentional, surreptitious creation of an opportunity to confront (Richard Michael) Arrington without counsel present," Appeals Judge Mark A. Seidl wrote for the three-judge District III Court of Appeals panel.
In addition, Arrington's trial lawyer failed to provide effective counsel when he did not object to or try to suppress recordings of Arrington made by the informant, the panel said.
Seidl was joined in his opinion by Appeals Judges Lisa K. Stark and Thomas M. Hruz.
Arrington was charged in 2016 in connection with the shooting death of Ricardo Gomez in Green Bay.
A witness, 17, testified that Arrington fired a gun after exchanging words with another man, Shorty. Shorty was standing near another Gomez and one of the bullets instead struck Gomez in the chest, killing him.
There was no dispute during the jury trial that Arrington fired shots toward the house where Gomez and Shorty stood, Seidl wrote. Arrington, though, argued he fired in self-defense and that he believed that Shorty was reaching for a gun to shoot him.
Another witness testified that it appeared "Shorty reached for his waist as though he was reaching for a weapon," according to a brief filed in the appeal. The 17-year-old said it looked like Shorty was reaching for something, according to the brief.
"Arrington also claimed that it looked as if Shorty accidentally shot Gomez..." Seidl wrote.
Arrington turned himself into police after learning they were looking for him.
Arrington was housed in the Brown County Jail with the informant, Miller. Miller already was working with Green Bay Police Detectives Michael Wanta and Bradley Linzmeier in an effort to get information from two other inmates about a different homicide not involving Arrington.
"Miller believed Arrington would tell him things about the pending charges against him," Seidl wrote. "Miller asked the detectives if he should record his conversations with Arrington, and the detectives told him that he could."
By Gretchen Schuldt
Criminal cannabis convictions dropped significantly in Milwaukee County and the state over a 10-year period, but racial gaps remain, according to a new report by the Milwaukee County District Attorney's Office.
And the statewide decline largely was driven by what happened in Milwaukee County, according to the report.
While the number of cannabis arrests dropped dramatically in Milwaukee County from 2010 through 2019, the state's arrest numbers remained steady, peaking in 2018 at 17,428.
Statewide, "arrests for possession of marijuana have not decreased below 14,000" per year during the decade, the report said.
Overall, the number of marijuana possession arrests in Milwaukee County dropped 60%, from 4,785 to 1,927 from 2010 to 2019, according to the data. That is a decline of 2,858 arrests.
"Arrests now represent ~ (about) 13% of overall state arrests (down from ~33%), with ~16% of Wisconsin's population," the report said.
The number of convictions in the county declined 94% over the same time period, the report said. There were 1,285 convictions in 2010 and just 96 in 2019, a decline of 1,189.
The drop in Milwaukee County convictions drove a statewide decline over the decade, the report said. Convictions for marijuana possession dropped statewide from 5,108 in 2010 to 4,021 in 2019, a decline of 1,087, or 21%.
"Notably, 2018 conviction trends without Milwaukee saw 10-year highs," the report said. "And felony convictions only decreased ~3% instead of a ~43% decrease."
Still, racial disparities persist. Black people in 2019 were 3.2 times more likely than Whites to be arrested in Milwaukee County for marijuana possession only, without other crimes attached, according to the report.
The gaps were far larger in some other counties, the report said.
"The worst disparities in Wisconsin are in Ozaukee County (34.9 more likely) and Manitowoc (29.9 more likely)," the report said.
Statewide, according to an earlier ACLU study, Black people were 4.2 times as likely to be arrested for pot possession than Whites.
The new study, by District Attorney John Chisholm and researcher Brendan DuPont, is based on state circuit court records and FBI arrest data. The study is part of the office's efforts with the National Institute of Corrections Evidence-Based Decision Making Initiative to improve decision-making.
"We focused on diverting or declining cases, like possession of marijuana, away from the justice system when appropriate," the report said.
In 2015, Chisholm's office implemented a policy to not prosecute non-violent individuals who possess 28 grams (just under an ounce) or less of marijuana, the report said.
Chisholm said in an interview that his office is unlikely to charge marijuana possession cases unless there is another issue, such as impaired driving, possession of a firearm while impaired, or an associated crime of violence.
Chisholm favors cannabis legalization and regulation.
The policy does not mean that possession cases are not prosecuted at all or that the arrests just disappear.
"I suspect a lot of them are sent to municipal court," Chisholm said.
Municipalities in the state have the option of prosecuting marijuana possession cases in municipal courts, where offenses are punishable by forfeitures are considered civil, not criminal matters.
Counties other than Milwaukee County account for much of the racial disparities in convictions, according to the report.
"In 2019, Milwaukee County had 69% of the state's Black population, but only 8% of its marijuana possession convictions," the report said. "Ninety-two percent of Black marijuana possession convictions occur outside Milwaukee County, despite the rest of Wisconsin representing only 31% of the Black population."
Statewide, Black people had 14 convictions per 10,000, while the White conviction rate was 3.27 per 10,000. Black people were 4.3 times more likely than White people to be convicted, according to the report.
In Milwaukee County, both races were less likely to be convicted than elsewhere, but the disparity was larger. The Milwaukee County conviction rate in 2019 was .11 per 10,000 residents for White people and 1.7 per 10,000 for Black people, about 15.5 times higher than for Whites.
In 2010 Black people statewide were 9.5 times more likely to be convicted in marijuana possession cases. Black people then had 39.23 convictions per 10,000, compared to White people with 4.1 convictions per 10,000.
The study did not fully examine other racial groups due to a lack of reliable data. It did say, though, that convictions in marijuana possession-only cases for American Indians or Alaskan Natives hit a 10-year high in 2019.
By Gretchen Schuldt
The Department of Corrections must turn over a database containing information about sex offenders that a defense lawyer contends could show the state has been overstating how likely sex offenders are to commit future sexual violence, the State Supreme Court ruled, 4-3, this week.
Justice Rebecca Dallet's opinion for the majority recounts how far DOC officials went to block lawyers for Anthony Jendusa from getting the information.
Among other things, the Department of Corrections' legal counsel twice advised its staff not to turn over a database containing information about state sex offenders, despite a subpoena and then a court order requiring the agency to do so, Dallet wrote. A DOC psychologist testified he failed for more than a year to open an email that could potentially undercut his evaluation methods. And a DOC research committee said Jendusa could have the information, but then never provided it.
Dallet was joined in her opinion by Justices Ann Walsh Bradley, Brian Hagedorn, and Jill Karofsky. Justice Annette Ziegler dissented, joined by Justices Rebecca Grassl Bradley and Patience Rogensack.
Ziegler said state statute prohibited Jendusa from having access to the database because "neither the State nor Jendusa claimed they would introduce the raw data at trial."
Jendusa contends the database of Wisconsin offenders is key to demonstrating that Christopher Tyre, a DOC psychologist, used the wrong base from which to calculate the chances of repeated sexual violence.
The lawyers contend that using a base of Wisconsin offenders, rather than Canadian and Danish offenders, in a risk assessment tool used by the state, could significantly reduce the reoffense likelihood scored by his client, Anthony James Jendusa.
In fact, when Tyre finally gave a summary of the data in the email, the "preliminary (Wisconsin) base rate was roughly one-third of the base rate he relied on to predict Jendusa's recidivism risk," Dallet wrote.
(Tyre testified in November 2018 that in addition to his regular DOC job, he had made about $120,000 from the state performing private evaluations for the state in other sex offender commitment cases, Jendusa's appellate lawyer, Assistant State Public Defender Dustin C. Haskell, said in a brief.)
The risk assessments are critical in determining whether sex offenders should remain incarcerated under civil commitments after their prison terms end. A finding that the state has overstated the likelihood of reoffending could have a major impact on civil commitment proceedings for other sex offenders.
By Gretchen Schuldt
Crime victims and witnesses at least 60 years old would able to give their testimony in criminal court cases ahead of the trial and possibly over the phone, under a bill approved by the state Senate.
While some groups applauded the bill, Aaron Nelson, the president of a statewide lawyer's organization, said it is unconstitutional because allowing testimony by phone or video violates a defendant's right to confrontation. The bill has other flaws, as well, he said.
The bill, Senate Bill 18, would require a judge, at the request of the prosecutor, to hear within 60 days the testimony of an "elder" victim or witness and to preserve it in case something happened to the person.
"The ability to recall certain details is critical to the outcome of court cases," State Sen. Patrick Testin (R-Stevens Point), author of the bill, said in written testimony. "As degenerative brain diseases increase in senior populations, the system must be able to respond to the unique needs of an elderly victim's ability to testify."
Under the bill, now pending in the Assembly, the defendant would be required to be present during the testimony and the victim or witness would be subject to cross-examination.
The bill would allow the victim or witness to testify by phone or video if they have a good reason to do so, and would mandate that the recorded testimony be admissible against a defendant.
It also also would require a judges to work to ensure a speedy trial "in order to minimize the length of time the elder person must endure the stress of the elder person's involvement in the proceeding," the bill says.
But Nelson, head of the Wisconsin Association of Criminal Defense Lawyers, said the the bill is "certainly problematic."
"The good news is the 60-day limit could force judges to appoint lawyers for indigent defendants at county expense much sooner than they otherwise would," he said. "The defendants obviously have the right to counsel during this testimony."
"The good news is the 60-day limit could force judges to appoint lawyers for indigent defendants at county expense much sooner than they otherwise would," he said. "The defendants obviously have the right to counsel during this testimony." – Aaron Nelson, WACDL president
If the State Public Defender's Office cannot find a lawyer for an indigent defendant, the judge in a case has the power to appoint a lawyer at county expense. Many judges do not want to do that because of the costs to the county, and defendants can sit in jail, unrepresented, for weeks or months. The early testimony and the defendant's constitutional right to a lawyer would force judges to make the appointments.
Nelson cited three other concerns about the bill in addition to whether it is constitutional – it grants older victims and witnesses a semi-right to a speedy trial, which may deprive the defense of time needed to investigate the case and prepare a case; it does not allow a defense lawyer the same right to file a motion to preserve testimony as it grants a prosecutor; and it mandates that the preserved testimony be admissible against a defendant, but does not do the same for testimony that is favorable to a defendant.
"Some of these may be drafting issues, rather than ill intent," Nelson said, ""but they need to be fixed."
Backers of the bill, in written testimony, said it would benefit the victims or witnesses.
"Involvement in these types of court proceedings can be very stressful," said Janet Zander, advocacy and policy director for the Greater Wisconsin Agency on Aging Resources. "Court proceedings that drag on and have multiple continuances can create needless stress which can trigger trauma symptoms in both victims and witnesses."
And Michael Bruhn, public policy director for the Alzheimer's Association - Wisconsin, said that "we have witnessed an increase in criminal defendants and their attorneys utilizing the court system to delay court proceedings. These delays are meant to prolong a criminal case until a victim's health deteriorates or a cognitive impairment progresses to the point that the victim is no longer able to testify against in the case."
Evers proposes $45.8 million for Milwaukee juvenile facility; DOC capital budget totals $119 million
By Gretchen Schuldt
Gov. Tony Evers is proposing to spend $45.8 million on a new juvenile facility in Milwaukee, budget documents show.
"The facility in this request will assist DOC (Department of Corrections) with working towards meeting the requirements of Act 185 and Act 8, which were created with the intent of eventually converting Lincoln Hills and Copper Lake Schools buildings into adult facilities," the proposed budget says.
Lincoln Hills and Copper Lake are the state's secure juvenile prisons.
The proposal is part of the proposed 2021-23 state capital budget. The governor recommended a total of $119.1 million in DOC capital spending.
Milwaukee County last year held off on accepting $15.2 million in state funding to develop a secure residential center for juvenile offenders because the funding was inadequate.
The county earlier sought $41.8 million from the state to increase the number of juvenile beds available. It later reduced the proposal to $26 million, and then $17.9 million. Even then, the county would have to kick in $2.7 million of its own funding.
At the time he rejected the $15.2 million, County Executive David Crowley said that the funding gap and continuing operational costs "creates significant sustainability concerns,” according to the BizTimes.
Crowley said Friday he was encouraged by the governor's general and capital budget proposals.
The proposed youth facility would be about 59,000 square feet with "housing, food services, health services, education, counseling, vocational training, visitation, recreation, administrative services, and other supporting spaces for a population up to 32 juveniles," according to the budget proposal.
It would employ about 70 people and cost $7.7 million per year to operate.
Evers also rejected a $45.4 million funding request for a juvenile facility in Outagamie County.
Other DOC capital spending recommended by Evers include the projects listed below.
$18.6 million for a new health services unit at Dodge Correctional Institution. Dodge is the prison system's intake facility and in fiscal 2019 there were 7,178 intakes; the prison's population is more than 1,600. Each new inmate requires a minimum of 3 HSU appointments, and some can require four to eight appointments.
The existing 12,300-square-foot facility "is very congested," the proposed budget says. "There are no medical observation cells or negative pressure rooms. There are several shared areas, such as the treatment room is shared with ER. There are staff doing data entry for electronic medical records in the X-ray room because there is no space for them."
The new HSU would add 36,558 square feet.
By Gretchen Schuldt
The State Legislature has authorized pay raises for lawyers in the State Public Defender's Office that will allow them to regain parity with their counterparts in prosecutors' offices.
The bill will allow SPD to give merit pay increases of more than 10% for fiscal 2021-22. It now awaits Gov. Tony Evers' signature.
The public defender raises will be funded with money already in the SPD budget – partly with money saved because so many people are quitting the agency and partly with money saved due to the drop in caseload during the coronavirus pandemic.
"While these cases are likely to come back at some point, that does not seem likely in the next few months," State Public Defender Kelli Thompson told the Senate Judiciary and Public Safety Committee. "In using these savings now, we have the opportunity to fix this disparity without appropriating new funds."
Some 78 staff members have left the office since March 2020, she said.
"Continuing to visit clients and their families in person, going to jails, and in-person court proceedings and the added workload that has been associated with the pandemic has added significant pressure that has increased turnover," Thompson said.
The pay of assistant state public defenders and assistant district attorneys are usually linked, but that link got broken during 2019-2021 budget deliberations – assistant district attorneys got raises, but assistant state public defenders did not. A bill to restore pay period was introduced in the last legislative session, but died when the session ended.
"Throughout the pandemic, SPD attorneys have been working; their offices have remained open and staffed," said State Rep. Amy Loudenbeck (R-Clinton) and State. Sen. Jerry Petrowski (R-Marathon), authors of the bill, which received bipartisan support. "The global pandemic has not paused the Constitutional rights of poor and indigent clients, which means that SPD attorneys have continued to appear in court, visit clients in custody, and provide professional representation."
When staff members leave, their cases must be reassigned, Thompson said. It takes time to get a new attorney up to speed, she said.
"This impact can have significant ripple effects but in smaller more rural counties it can be that much more pronounced," she said.
Thompson said there also here has also been a drop during the pandemic in the number of private bar attorneys willing to accept SPD appointments to represent indigent clients. Private lawyers are appointed to cases that SPD can't take due to issues such as workloads or conflicts of interest.
The state last year increased the amount it pays private lawyers to $70 per hour, up from the previous rate of $40, which was the lowest in the nation.
The new $70 amount, however, judging from SPD emails seeking private lawyers to take cases, has not been altogether successful in ensuring that defendants get timely representation.
One defendant with three cases pending in Langlade and Forest counties has been waiting for a lawyer for five months, according to an SPD email this week; Langlade County was seeking private lawyers for eight other defendants as well. SPD also recently was looking for lawyers for nine Sheboygan County Circuit Court defendants, 10 Fond du Lac County defendants, and defendants in several other counties as well.
"The need to retain staff at this time is even more critical to ensuring that the rights of defendants, particularly those being held in custody during a pandemic, are protected and that the criminal justice system is not brought to a standstill by lack of counsel," Thompson said.
The State Bar, Americans for Prosperity, the Association of State Prosecutors, and the Wisconsin District Attorneys Association also supported the bill.
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