By Gretchen Schuldt The Wisconsin Supreme Court is accepting comments until Jan. 3 on a petition to prohibit routine shackling of juveniles in court. A public hearing on the matter is scheduled for Feb. 15. Currently, many counties in the state routinely shackle children during their court appearances. Read WJI's previous petition coverage here. Watch the WJI Virtual Salon with Eileen Hirsch and Diane Rondini, the two lawyers who filed the petition with five circuit judges, here. The judges who joined in the request were Milwaukee County Circuit Judge Laura Crivello, Eau Claire County Circuit Judge Michael A. Schumacher, La Crosse County Circuit Judge Ramona A. Gonzalez, Dane County Circuit Judge Everett Mitchell, and Marathon County Circuit Judge Suzanne C. O'Neill. The petition pending before the court would require that restraints or shackles be removed from children before they are brought into a courtroom unless a judge makes all of the findings listed below. 1. The use of restraints is necessary due to any of the following factors: a. Restraints are necessary to prevent physical harm to the child or another person. b. The child has a history of disruptive courtroom behavior that has placed others in potentially harmful situations, or the child presents a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior. c. There is a founded belief that the child presents a substantial risk of flight from the courtroom. 2. There are no less restrictive alternatives to restraints that will prevent flight or physical harm to the child or another person, including the presence of court personnel, law enforcement officers, or bailiffs. The petition also would require a judge to allow the child’s lawyer to be heard before the court orders the use of restraints. The full petition and a supporting memo is posted on the State Supreme Court website here. Send any comments on the petition to Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688. If possible, email a Microsoft Word version of your response to clerk@wicourts.gov. See comment guidelines at the court's website here.
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Appeals court's electronic monitoring ruling is in favor of youth but skips the big questions12/14/2021 By Gretchen Schuldt A judge who orally gave one disposition for a juvenile offender but issued a different disposition in writing must adhere to his oral order, the state Court of Appeals ruled Tuesday. The ruling means that Brandon, if still on court-ordered supervision, does not have to wear an ankle bracelet unless the state specifically requests it and the judge agrees. District III Appellate Judge Gregory B. Gill Jr. did not rule on a key issue raised in the case: Is electronic monitoring something the court must order or can it be implemented by a juvenile justice worker as a "case management tool"? Brandon is a pseudonym to protect the juvenile's identity, Gill said in his opinion. Electronic monitoring of juveniles is widespread and controversial. Academics and advocates have expressed numerous concerns about the practice. As the University of California Berkeley School of Law’s Samuelson Law, Technology & Public Policy Clinic and the East Bay Community Law Center put it: Although generally perceived as a less punitive alternative to incarceration, electronic monitoring can be overly burdensome: it often entails home confinement, invasive surveillance, and high fees. As the report demonstrates, programs can impose dozens of strict and inflexible rules on participants. Financial burdens imposed by electronic monitoring programs disproportionately hurt low-income families. Personal privacy violations are also a concern. Brandon was on electronic monitoring because of a broken toilet tank cover and toilet paper dispenser. He was arrested in August 2020 after Antigo police received a complaint about damage at a local laundromat. The toilet tank cover was smashed and a toilet paper dispenser was ripped of the wall, resulting in total damages of $150 to $400. Surveillance footage showed Brandon walking into the restroom and leaving a short time later. The footage also showed the broken items on the floor a short time later. Brandon, when questioned by police, said the he punched the toilet paper dispenser because it was not working, Gill wrote. He said the toilet was not flushing properly, so he lifted the tank lid, and it slipped. He eventually admitted to one count of disorderly conduct; both his lawyer and the state recommended formal supervision. Langlade County Circuit Judge John B. Rhode explained during the disposition hearing that he could order electronic monitoring, among other things. Brandon was already on an ankle bracelet ordered during an earlier hearing, asked when he could have it removed. A juvenile justice worker said Brandon would have to show good behavior and then his treatment team would decide when to remove the monitoring. (Most of the records in the case are sealed because a juvenile was involved, so it cannot be determined how long Brandon was on electronic monitoring or when or if the monitoring ended before Tuesday's decision.) Brandon's lawyer requested the ankle bracelet be removed. "During argument, the State noted significant concerns about Brandon, including several hospitalizations for self-harming activities," Gill wrote. "The State further argued that Brandon was able to transition back to his home while being accountable to his supervision...through the use of electronic monitoring. With respect to the electronic monitoring, the State noted that it was not a punishment but, rather, a case management tool." Gill did not address how electronic monitoring would prevent Brandon from hurting himself. Brandon's mother expressed concerns about his behavior and the juvenile justice worker said Brandon did not come right home after school as his mother had instruction the week earlier and on another occasion, had left home without permission. The worker "stated that Brandon was not confined by the electronic monitoring because he was able to go to school, appointments, and places with his mother." The worker also said he "considered electronic monitoring a great management tool," Gill wrote. "Conversely, Brandon’s counsel argued that electronic monitoring was not a case management tool but instead a 'sanction to be given by the Court,' ” Gill wrote. Rhode put Brandon on supervision for a year and declined to order electronic monitoring. (Online court records indicate that Brandon's supervision may have lapsed last month.) "All I will say to both sides if the [S]tate wants me to order it they can schedule further proceedings and we’ll take that up," Rhode said from the bench. "If the defense wants me to order that it stop they can schedule further proceedings and order that it stop or if they think it’s being used inappropriately." When Rhode's written decision came down, however, it adopted the county's juvenile "rules of supervision," which includes a rule that states: “The youth shall participate in the electronic monitoring program as deemed appropriate by the assigned juvenile worker for any violation of supervision.” Brandon appealed, arguing first that the Rhode cannot delegate to the juvenile justice worker the authority for imposing electronic monitoring. He also argued that electronic monitoring was not an appropriate sanction because it was not included in the state statute establishing approved punishments. "We need not address these issues because we conclude that the court's written order was inconsistent with its oral pronouncement," Gill wrote. When oral and written pronouncements conflict, he said, the oral pronouncement rules. By Gretchen Schuldt COVID cut an uneven path across state courts in five mid-size counties last year. Douglas County's criminal case backlog actually shrank by 17% from December 2019 to December 2020, while Shawano County's, highest among the five counties to begin with, grew by 46%, tops among the five. The number of pending criminal cases in Shawano County in December 2020 was more than three times the number in any of the other four – Douglas, Pierce, Marinette, and Oconto counties. WJI examined the numbers of pending cases in the state's five largest counties here and the five smallest counties here. This post, using Wisconsin Court System statistics from December 2019 and 2020, looks at pending cases in mid-sized smallest counties, as measured by population. Douglas County population: 44,295 Biggest change: The number of pending misdemeanor cases dropped by 74, or 37%. Of note: Pending cases fell in every category from 2019 to 2020, for a total decline of 95, or 17%. Median age of pending cases: 2019 – 108 days; 2020 – 104 days, down 4%. Pierce County population: 42,212 Biggest change: The median age of pending criminal cases shot up by 41 days, or 26%. Of note: Pending felony cases were up by 19, making up almost half of the total increase of 39. Median age of pending cases: 2019 – 156 days; 2020 – 197 days, up 26%. Marinette County population: 41,872 Biggest change: The number of pending felony cases rose by 80, or 48%. Of note: The number of pending criminal traffic cases fell by 20, while the number of other misdemeanors rose by 22. Median age of pending cases: 2019 – 86 days; 2020 – 153 days, up 66%. Shawano County population: 40,881 Biggest change: The number of pending felony cases rose by 263 cases, or 51%. Of note: Shawano County's pending case numbers were far greater in both years than those in any other of the five mid-sized counties. In 2019, Shawano had 958 total pending criminal cases in December. Douglas County was next, with 556 pending cases. Those two counties were numbers one and two, respectively, again in 2020. Shawano County had 1,402 pending cases; Douglas County had 461. Median age of pending cases: 2019 – 177 days; 2020 – 230 days, up 30%. Oconto County population: 38,965
Biggest change: The number of pending felony cases rose by 71, or 46%. Of note: The number of pending criminal traffic cases dropped by 13, while other pending misdemeanors rose by 23. Median age of pending cases: 2019 – 107 days; 2020 – 141 days, up 32%. State appeals court OKs restitution order for more than twice the value of the damaged property11/18/2021 By Gretchen Schuldt A Fond du Lac County judge did not err when he ordered a mentally ill man with $113 in monthly disposable income to pay $5,486 in restitution for repairs to a stolen truck worth less than half that amount, the State Court of Appeals has ruled. The 2-1 decision by the three-judge District II Court of Appeals panel upheld a ruling by Circuit Judge Robert J. Wirtz. Appellate Judge Shelley A. Grogan wrote the decision and was joined by Appellate Judge Lisa S. Neubauer. Appellate Judge Paul F. Reilly dissented. "The only issues are whether the circuit court erroneously exercised its discretion in setting the amount of restitution or in finding (Alex Scott) Stone had the ability to pay," Grogan wrote. State law, she said, allows a judge to order restitution for "reasonable repair cost." Wirch did that, she said. The defendant had mental health issues and disposable income of $113 per month. Reilly took issue with that analysis but outlined another basis of disagreement in a footnote. "It is my belief, however, that imposing a restitution order against a mentally disabled young man who could not work, who was under a...Ch. 51 (mental health) commitment order placing him in a group home with a third party handling his meager finances, who had a spinal infection, who was prone to hearing 'voices' and 'seeing things,' and who had a total of $3.75 of daily disposable income is not conducive to a defendant’s rehabilitative needs," he wrote. He acknowledged that Stone did not produce evidence that he had to use some of his $113 per month for transportation, medical costs, or other human needs and so did not meet his burden of proof that he did not have the ability to pay the restitution. Stone, who died while the appeal was pending, took the 1997 Chevy truck, which had 220,000 miles on it, from his friend Matt, who had taken it from the victim, identified in court records only as M.S., according to a brief filed in the case. Stone damaged the truck and was arrested after an officer saw sparks coming from the passenger side wheel. Stone, who at first was found incompetent to stand trial, eventually was convicted of operating a motor vehicle without the owner's consent. At the restitution hearing, M.S. did not present information about the value of the truck, but did offer an estimate to repair it: $5,486.37. Stone's lawyer presented Kelley's Blue Book information indicating that showed the truck, in very good condition, would be worth $2,394 in a private-party sale. The following exchange took place during the hearing, according to a defense brief. The state: If your – do you intend to repair the vehicle? M.S.: I’m probably just going to replace it. The state: Why is that? M.S.: Well, I can’t just go out and replace a pickup truck for twenty-three hundred, if that’s what they’re talking about, you know. The state: Would your preference be to repair the vehicle so that you can use it again, all things being equal? M.S.: I think there was way too much damage done to it to warrant sticking that in that vehicle. I would want to replace it. I have nothing to use on my farm. The state: Okay. And the reason you would not want to repair that vehicle is you think there’s too much damage to it? M.S.: Well, unless I stick the five thousand dollars in it to get it done correctly. Wirch, ordered Stone to make $5,486.37 in restitution for the repairs. He also ordered restitution for post-arrest towing costs, raising the total amount owed to $6,008.60. "The statute's plain language does not restrict the award to the actual value of the property even when the actual value may be less than the reasonable repair cost," Grogan wrote in confirming the restitution order. "Rather, the statute allows a circuit court to choose the 'reasonable repair' option in determining the restitution amount even if the repair cost exceeds the property's value." Grogan also rejected Stone's argument that it was illogical to order repair costs because M.S. intended to replace the truck, not repair it. "The victim’s testimony did not eliminate repairing the pick-up truck," Grogan wrote. "The victim still had the pick-up truck, and her last statement indicated that if she received the $5,000 in restitution, she could repair it." Grogan and Neubauer also found that Stone had the ability to pay. He testified that his monthly income was $773 and his monthly expenses were $600 for rent in a group home and food and $60 for his cell phone. That left $113 a month in extra income. Stone also testified that the only items he bought with his disposable income were soda and cigarettes, which he said were " 'not … really necessary,' " Grogan wrote. Stone, who did not work due to his disability, also said he might pick up a part-time job at McDonald's or "something like that" in the future, she said. "Although $113 may strike some as a small amount of disposable income, it was extra money for Stone after all his monthly bills were paid," Grogan wrote. "Accordingly, the circuit court’s decision on ability to pay was not an erroneous exercise of discretion." Reilly, in his dissent, rejected the idea that a repair estimate is always a proper basis for restitution. M.S. testified, Reilly wrote, that she would replace the truck rather than repair it because the truck wasn't worth putting a repair investment of $5,486.37. "The victim correctly recognizes that given the evidence produced at the restitution hearing, she should simply go out and buy a similar truck in 'good condition' at a price of $2,394...." he wrote. "By taking a piece of property worth $2,394 and increasing its value to over $5,000, the victim is made more than whole. The victim receives a windfall. "We do not use restitution to punish a defendant, and we do not use restitution to enrich a victim," he said. "We use restitution to return the victim to the position he or she was in before being victimized." By Gretchen Schuldt Courts in the state's smallest counties generally saw their criminal case backlogs swell as COVID-19 swept across Wisconsin. While the numbers of cases heard in the state's five smallest counties are much, much smaller than those in the five largest counties, the backlogs in some of the small counties grew at faster rates. WJI examined the numbers of pending cases in the state's five largest counties here. This post, using Wisconsin Court System statistics from December 2019 and 2020, looks at pending cases in the five smallest counties, as measured by population. We'll finish up by looking at five counties with populations that fall in the middle of the populations of the state's 72 counties. Forest County population: 9,179 Biggest change: The number of pending felony cases shot up by 160, or 205%. Misdemeanor and criminal traffic cases, which started at lower baselines, rose 342% and 388%, respectively. Of note: The total number of pending cases rose 254%, the largest increase in the 15 counties considered. Median age of pending cases: 2019 – 112 days; 2020 – 150 days, up 34%. Pepin County population: 7,318 Biggest change: The number of pending felony cases rose from 19 to 22, an increase of 16%. In the percent category, the number of pending criminal traffic cases fell from five to four, a decrease of 20%. The numbers in Pepin County are so small, however, it is difficult to determine how much significance should be attached to the changes. Of note: The median age of pending cases declined by 18%, one of just two counties among the 15 reviewed where the median age went down. Median age of pending cases: 2019 – 148 days; 2020 – 22 days, down 18%. Iron County population: 6,137 Biggest change: The number of pending felony cases rose from 25 to 40, an increase of 60%. . Pending criminal traffic cases rose by 120%, from five to 11. That is the largest percentage increase among the categories. Of note: The median age of the pending cases grew 63%, tops among the small-population counties. Median age of pending cases: 2019 – 114 days; 2020 – 186 days, up 63%. Florence County population: 4,558 Biggest change: The number of pending felony cases jumped from eight to 16, tops as measured in percentages. Of note: Florence County had no pending criminal traffic cases in 2019 and just one in 2020. Median age of pending cases: 2019 – 106 days; 2020 – 150 days, up 42%. Menominee County population: 4,255
Biggest change: The median age of pending cases rose by 118 days, or 62%. In the percent category, the number of pending misdemeanor cases rose 67%, but from just six to 10. Of note: The median age of pending cases of 307 days in 2020 was the longest among the 15 counties considered. The statewide median for all 72 counties was 170 days. Median age of pending cases: 2019 – 189 days; 2020 – 307 days, up 42%. By Gretchen Schuldt Milwaukee County Chief Judge Mary Triggiano has said it will take up to two years to clear the case backlog in the criminal division of the county's circuit court system. Outagamie County District Attorney Melinda Tempelis told officials there that the county's backlog has risen from 1,700 in 2019 to more than 3,000 this year. In counties all over the state, COVID has slowed courts to a crawl. There were 58,678 pending criminal cases in circuit court in December 2019, according to state statistics. By December 2020, that number had risen 28%, to 75,153, an increase of 16,475. State population: 5,822,434 Biggest change: The number of felony cases went up by 35%, or 9991 cases, from December 2019 to December 2020. according to state statistics. Median age of pending cases: 2019 – 130 days; 2020 – 170 days, up 31%. The increases have hit counties large and small and in between. WJI ecamined the differences in 15 counties – the five largest by population, the five smallest, and five smack in the middle. We'll look at the five largest cases today, and the rest next week. Large Counties Milwaukee County population: 939,489 Biggest change: The number of felony cases shot up by 33%, or 1,267 cases, from from December 2019 to December 2020. Of note: Pending criminal traffic cases fell by 437, or 43%, likely the result of less traffic and the reluctance of officers, due to COVID concerns, to come in direct contact with drivers. As measured as a percentage, Milwaukee County had the second smallest increase in pending cases among the five counties – 18%. Median age of pending cases: 2019 – 124 days; 2020 – 269 days, up 117%. Dane County population: 561,504 Biggest changes: As measured by numbers, pending felonies increased by 1,598, the most in any category. As measured in percent, pending misdemeanors rose 83%, also tops. Of note: Dane County saw big increases in all three categories. Pending felonies were up 73%, misdemeanors, as stated above, were up 83%, and criminal traffic cases were up 61%. Its overall increase in pending criminal cases was 76%. Median age of pending cases: 2019 – 126 days; 2020 – 211 days, up 67%. Waukesha County population: 406,978 Biggest changes: As measured by numbers, pending misdemeanors increased by 826, the most in any category. As measured as a percent, pending felonies rose 68%, also tops. Of note: Waukesha County also saw big increases in all three categories. The smallest increase was in pending criminal traffic cases, which were up 365, or 56%. Pending misdemeanor cases rose by 826, or 63%. It's overall increase in all three types of cases was 64%. Median age of pending cases: 2019 – 127 days; 2020 – 170 days, up 34%. Brown County population: 268,470 Biggest changes: Pending felony cases were up by 639, or 39%. Of note: Pending criminal traffic cases were up by just 53 cases, or 10%. Median age of pending cases: 2019 – 138 days; 2020 – 182 days, up 32%. Racine County population: 197,727
Biggest changes: Pending felony cases were up by 345, or 27%. Of note: Like Milwaukee County, Racine County saw a decline in pending criminal traffic cases. They were down by 115, or 16%. Racine County saw a 9% increase in pending cases of all types, the smallest increase among the five counties. Median age of pending cases: 2019 – 155 days; 2020 – 169 days, up 9%. By Gretchen Schuldt The Milwaukee County Board on Monday unanimously approved establishing a program to provide defense counsel to indigent defendants accused of violating county ordinances. The measure, introduced by Supervisors Joseph Czarnezki and Ryan Clancy, picked up 11 additional sponsors during Monday's meeting. They were Board Chair Marcelia Nicholson, and Supervisors Priscilla E. Coggs-Jones, Eddie Cullen, Russell Antonio Goodwin Sr., Jason Haas, Willie Johnson, Jr., Patti Logsdon, Felesia Martin, Shawn Rolland, Steven Shea, and Sequanna Taylor. Czarnezki, during the Board discussion, noted that the county put significant resources into writing tickets, prosecuting their recipients, and collecting forfeiture amounts owed. Yet defendants are expected to represent themselves in court without assistance if they cannot afford it, he said. (Full disclosure: Czarnezki is a WJI Board member.) Approving the pilot is a small thing the county can do to improve justice and equity in the county, he said. "By providing funding for legal counsel for indigent individuals, County Board members showed they believe in justice for the most vulnerable in our community," he said after the meeting. The 17-0 vote came during the County Board's deliberations on the 2022 county budget. The budget still must be approved by County Executive David Crowley. Because county ordinance violations are considered civil and not criminal violations, poor people accused of them are not entitled to government-provided attorneys if they cannot afford to hire their own.
Clancy said ordinance forfeitures were a "tax on the poor" and that he would prefer that fewer citations be written. "It really is an inherently unfair system," he said. The attorney pilot program is "an elegant solution," he said. Under the amendment, the corporation counsel's office would seek proposals for a contract attorney to represent the defendants. The $50,000 program would be a pilot, and data would be collected to help determine if it should be continued. The program would be patterned after one operated by Legal Action of Wisconsin that provides defense lawyers for indigent defendants in Milwaukee Municipal Court, which hears cases involving city ordinances. State law mandates that people arrested for certain ordinance violations, such as controlled substance offenses or some gambling cases, have their personal and arrest information entered into the state's criminal database, where it is available to potential employers, colleges, landlords, or anyone else with the $7 fee to get it, Czarnezki said. While those who are never actually charged or who are acquitted can request that their information be removed from the database if they submit a request and their fingerprints, most people don't know how to go about doing that. A lawyer, Czarnezki said, can help clients negotiate the court process. remind them about court dates, help them with payment plans, and help get records removed from the state database. By Gretchen Schuldt More than 16 years after the Milwaukee County judge presiding over Danny Wilber's murder trial ordered him shackled to a wheelchair during closing arguments, a federal appeals court ordered a new trial because the visible shackling was prejudicial to the jurors. The ruling by a three-judge panel of the Seventh Circuit Court of Appeals upheld a decision by U.S. District Judge William Griesbach, who last year granted Wilber's habeas corpus petition. The Seventh Circuit decision also overturned a 2008 State Court of Appeals' decision sustaining the shackling. (For more on the case, see WJI's previous post here.) "The visible shackles reinforced the very argument that the prosecutor was making as to why Wilber must have been the person who shot (David) Diaz, effectively signaling that the court itself agreed with the State’s characterization of Wilber as a “guy who couldn’t control himself,” U. S. Circuit Judge Ilana Rovner wrote for the panel. "It is difficult to imagine a more prejudicial action the court could have taken at that point in the trial." She was joined in her decision by U.S. Circuit Judges Daniel Manion and Michael Kanne. Both Griesbach and the appeals panel said the state's physical evidence tying Wilber to the 2004 crime was problematic, but that it was not so weak that the case should be dismissed on that basis. Both ruled, though, that Milwaukee County Circuit Judge Mary Kuhnmuench – now retired – erred seriously in February 2005 when she ordered Wilber visibly shackled. "For over 50 years, the Supreme Court has recognized that the fairness of a trial is brought into question when a defendant is made to appear before a jury bearing the badges of restraint," Rovner wrote. "This is the very sort of circumstance that can divert the jury’s attention and lead it to convict the defendant based on something other than the evidence put forward against him at trial." In a 2005 case, Deck v. Missouri, the U.S. Supreme Court set a standard for when defendants could be visibly shackled. Judges may need to order shackles "to prevent courtroom attacks, or the need to give trial courts latitude in making individualized security determinations," the Supreme Court said. The court also said, however, that the the reason for visible shackling must be tied to the specific circumstances of a particular case. That is where both Kuhnmuench and the state appellate court failed, Rovner said. Neither specifically stated why visible shackling was necessary.
Wilber's ankle was manacled and attached to a bolt in the floor during the trial. That shackle could not be seen by the jury. During the trial, after Wilber grew angry outside the presence of the jury, Kuhnmuench ordered additional deputies for the courtroom and that a stun belt be attached to Wilber's arm. The stun belt also was hidden from the jury's view. At different times during the trial, Wilber fought and argued with deputies outside the courtroom, asked them questions that suggested he might be planning an escape attempt, accused the judge of aiding the prosecution, and made facial and other gestures that Kuhnmuench took as signs of disrespect. In addition, three men in the courtroom made comments to court staff that could be heard as threats and one person was caught listening at the door of the judge's private office. Kuhnmuench, based on Wilber's disruptive behavior, "could reasonably conclude that restraints were warranted," Rovner said. Yet, until the trial's closing arguments, Kuhnmuench ensured that Wilber's shackleswere not visible to the jury. "Although the trial court articulated a justification for its decision to impose still more restraints at the closing-argument stage of the trial, it offered no explanation – none – as to why these additional restraints had to be visible to the jury, even when Wilber’s counsel objected repeatedly...." Rovner said. Likewise, the state appeals panel "never articulated why, to the extent the additional restraints were justified, they must be restraints that were visible to the jury," she said. "When the jury heard these (closing) arguments, Wilber was in a courtroom, sitting at the defense table, on trial for murder...." she wrote. "He had every incentive to behave himself in front of the jury charged with deciding his fate. Yet the visible shackles that he wore for closing arguments signaled to the jury that Wilber was incapable of self-control even when his own freedom was at stake, that the court itself perceived him to pose such a danger that he must be physically strapped to a wheelchair in order to protect everyone else in the courtroom." Milwaukee County courts: Staff, defense lawyer shortages, and recommended $3 raises for COs10/28/2021 By Margo Kirchner and Gretchen Schuldt The Milwaukee County court system’s biggest challenge in the wake of the COVID-19 pandemic is staffing, according to Chief Judge Mary Triggiano. And while the County Board’s Finance Committee on Thursday tried to address part of the systemwide shortage by recommending a $3-per-hour raise for correction officers, the county has not addressed another shortage – that of defense lawyers to represent indigent defendants in criminal cases. Triggiano, at a recent Zoom town hall hosted by the Milwaukee Bar Association and the Wisconsin Association of Criminal Defense Attorneys, said there were shortages of deputy court clerks, court reporters, and interpreters. Meanwhile, the Sheriff’s Department has reduced staff, so courts must coordinate with that department regarding bailiffs. Triggiano asked for patience by attorneys as courts work to solve staffing issues. Tom Reed, regional attorney manager for the State Public Defender, said there also is a significant shortage of private-bar attorneys available to take SPD appointments. (Private-bar lawyers take cases when the SPD has a conflict or lacks capacity.) About 270 cases currently await appointment of counsel, he said. About 150 of those have been delayed more than 20 days, while 40 or 50 have been delayed more than 40 days. Many defendants awaiting appointment are in custody, which makes the attorney shortage a serious problem, he said. Defendants are constitutionally entitled to effective assistance of counsel. Reed attributed the shortage in part to a 35% reduction in attorneys on the appointment list as compared to two years ago. He asked attorneys on the list to take a few more cases each and for lawyers not on the list to join it. Reed also discussed how correction officer shortages at the Milwaukee County Jail and House of Correction are affecting defense attorneys. Because fewer corrections staff are available to move clients to Zoom stations, virtual meetings with defense counsel now occur only a few hours each day. Increased lockdowns may prevent clients from telephoning their attorneys when expected, making attorney-client communication even more difficult. The Finance Committee vote Thursday on the $3 “premium” pay increase is meant to make the county’s wages for correction officers more competitive with those in neighboring counties. Right now, at $20.58 per hour, Milwaukee County correction officer pay is the lowest in the region. The correction officer vacancy rate is about 27%, according to a report on the issue from county Budget Director Joe Lamers. Of 569 budgeted positions, 415 were filled and 154 were not as of the Sept. 9 payroll period. Correction officers have been forced to work extreme amounts of overtime and people incarcerated in the jail have been locked in their cells for long periods of time because of the lack of staff to supervise them, officials said. Under the committee’s recommendation, the pay hike would go to correction officers who are vaccinated for COVID-19 or who have a valid medical or religious excuse. The proposal would cost up to $941,000 this year, $4 million next year, and $5.1 million in 2023. The money would come from the county’s contingent fund this year and COVID relief funds next year. The funding source after that is not identified, leaving a possible hole in the county budget. While the county aims to make the raise permanent, it can be rolled back if necessary, Lamers said. Others in the justice system also are advocating for additional money. Several defense attorneys at the Zoom meeting pointed to the low rate of pay for private-bar attorneys as the primary obstacle in getting lawyers to take indigent clients. Even though the hourly rate for SPD-appointed lawyers increased from $40 to $70 a couple years ago, that amount is still too low, they said. The $70 must cover wages and attorneys’ overhead, including office space, utilities, staff, and insurance. Several attorneys expressed confidence that if the rate rose to $150, $120, or even $100, more attorneys would accept cases. One attorney said that the $70 rate is “insulting” because appointments in civil cases are paid at $100 per hour and the federal criminal-defense rate is $155 per hour. By Gretchen Schuldt A Milwaukee County Board committee on Tuesday unanimously recommended establishing a program to provide defense counsel to indigent defendants accused of violating county ordinances. The county pays for sheriff's deputies to write tickets, lawyers to prosecute the cases, and agencies to collect overdue payments of forfeitures levied as a result, Supervisor Joseph Czarnezki, a sponsor of the measure, told the Finance Committee. (Full disclosure: Czarnezki is a WJI Board member.) Yet defendants are expected to represent themselves, even if they don't understand what is going on in the courtroom or how to proceed. "This is not what I would call justice," Czarnezki said. Under the proposed 2022 budget amendment, co-sponsored by Supervisor Ryan Clancy, the corporation counsel's office would seek proposals for a contract attorney to represent the defendants. The $50,000 program would be a pilot, and data would be collected to help determine if it should be continued. The program would be patterned after one operated by Legal Action of Wisconsin that provides defense lawyers for indigent defendants in Milwaukee Municipal Court, which hears cases involving city ordinances. While indigent defendants in criminal cases are provided with publicly-funded lawyers, poor people accused of ordinance violations are not provided with lawyers because the violations are considered civil, not criminal, matters. Generally, those wanting legal representation ordinance cases must hire their own lawyers. State law mandates that people arrested for certain ordinance violations, such as controlled substance offenses or some gambling cases, have their personal and arrest information entered into the state's criminal database, where it is available to potential employers, colleges, landlords, or anyone else with the $7 fee to get it, Czarnezki said. While those who are never actually charged or who are acquitted can request that their information be removed from the database, most people don't know how to go about doing that. A lawyer, Czarnezki said, can help clients negotiate the court process. remind them about court dates, help them with payment plans, and help get records removed from the state database. As a matter of equity, he said, "I think this is something we should do." Clancy, who sponsored unsuccessful measures to reallocate some Sheriff's Department funding, said that having fewer deputies making arrests would be best, but the attorney resolution is "the second-best way to go." |
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