Updated Sept. 12, 2018 to include responses from the State Public Defender's Office and Wood County Circuit Judge Todd P. Wolf.

By Gretchen Schuldt

​Trequelle T. Vann-Marcouex, who turned 18 in April, was facing serious charges when he appeared before Wood County Circuit Judge Todd P. Wolf on Aug. 14 for a preliminary hearing.

Vann-Marcouex was facing a maximum of 65 years in prison for allegedly participating in an armed home invasion and robbery. Vann-Marcouex denied involvement in the crime. He had been in jail for at least 11 days, and he still did not have a lawyer.

He qualified for representation by the State Public Defender's Office (SPD), which provides lawyers for very low-income defendants. A lawyer from that office represented him during his initial appearance, where bail was set at $25,000, but no one had been appointed to handle his case after that.

“I have been calling the Public Defender’s Office every single day, and they make it – I get on the phone with them, and they’d laugh,” Vann-Marcouex said at the end of the preliminary hearing, according to a transcript of the proceeding. “When I called them yesterday and I asked them how is it I don’t have a public defender and I got my court in less than 24 hours, and she is, like, right. How is that an answer, right? How is that an answer?”

“Well, you have to deal with them on that,” Wolf responded. “I can only do the hearings that are before me.”

Wolf also did not appoint a lawyer for Vann-Marcouex, either, even though he should have done so.

"I don't understand how this is enough evidence," Vann-Marcouex said after Wolf bound him over for trial. 

"Okay," the judge responded. "That will be something you can discuss with your attorney."
​
Vann-Marcouex hanged himself in the jail that night. It was the fifth suicide in two years in the Wood County Jail.

SPD spokesman Randy Kraft said the office did not take Vann-Marcouex's case because of a direct conflict of interest and so had to appoint a private bar attorney to take the case.

"Agency staff made approximately 300 calls and emails to private attorneys certified to take SPD cases before an appointment was ultimately made on Aug. 14," Kraft said in an email. "The Order Appointing Counsel was filed with the court on the same day.

"In cases in our more rural counties, the difficulty in locating a private bar attorney is fairly typical," Kraft said. "What is less typical, however, is the court proceeding with a preliminary hearing without the benefit of an attorney.  Defendants benefit from having an attorney with them in court. Attorneys not only have the skills necessary to protect the rights of their clients, but they are also able to guide them through the criminal justice system."

The Sixth Amendment to the U.S. Constitution guarantees defendants in criminal cases the right to effective counsel. The Wisconsin Supreme Court has specifically ruled that defendants are entitled to counsel at preliminary hearings.

​But Vann-Marcouex, who had never been in serious trouble before, was unrepresented as a prosecutor described the state’s case against him. When he did try to talk, the judge cut him off.

It is impossible to draw a line directly from the young man's lack of representation to his suicide, but a lawyer could have helped Vann-Marcouex deal with the overwhelmingly stressful situation he faced, said Chad Lanning, president of the Wisconsin Association of Criminal Defense Lawyers.

A lawyer can put things in context and "give them that hope that all is not lost," he said. Law enforcement may presume defendants are guilty and treat them that way, or frighten them with worst-case predictions in attempts to scare them straight.

While court and law enforcement officials often emphasize the maximum penalties a defendant faces, a lawyer can give them a more realistic, less dire picture and explain legal defenses and a basic strategy of how they will unfold as the case moves forward.

Vann-Marcouex wanted a lawyer. He just didn't get one, a fact acknowledged by the prosecution.

"I did have a brief off-the-record conversation with Mr. Vann-Marcouex," Assistant District Attorney Leigh Neville-Neil said at the beginning of the preliminary hearing, according to the transcript. "He indicated he applied and qualified for a Public Defender. He has been calling them repeatedly and has not been assigned counsel yet, just so the Court's aware."

"Okay," Wolf responded. "That's my understanding, Mr. Vann-Marcouex, though, in fact, what the Court is required to do by law is to have this preliminary hearing done within 10 days when someone's in custody on a cash bond, such as yourself."

Wolf did not raise the possibility of a court-appointed attorney, nor did Neville-Neil, who is now on leave.

Wolf declined to answer written questions from WJI. Wood County District Attorney Craig Lambert did not respond to written questions.

The lack of legal representation for defendants in criminal cases who cannot afford to hire a lawyer is creating a constitutional crisis in the state. The SPD appoints private bar attorneys to handle cases when it cannot do so because of excessive caseloads or potential conflicts of interest. The low pay the office can offer – $40 an hour, the lowest rate in the nation and not enough to cover the average lawyer's overhead costs – means more and more lawyers are turning down cases. The State Supreme Court earlier this year refused a request to increase the rate.

Judges are supposed to appoint lawyers at county expense at $70 per hour if no other lawyer is available. “If lawyers are unavailable or unwilling to represent indigent clients at the SPD rate of $40/hour, as is increasingly the case, then judges must appoint a lawyer under SCR 81.02, at county expense,” the State Supreme Court said in its order declining to increase the $40 rate.
 
Wolf instead explained that the state would outline its evidence to show probable cause that Vann-Marcouex committed the three crimes with which he was charged:  armed robbery, burglary, and child abuse (a 17-year-old was struck with a gun during the home robbery).

Prosecutors "have to introduce that type of evidence so I feel comfortable enough that the case can proceed with that probable cause finding, so I am going to go through and hear the evidence here today just to see if it meets that standard," he said, according to the transcript. "If it doesn't, the case would get dismissed. If it does, you are in no different position than you were in when you walked in here. ..."

Wolf continued: "You do have the right to ask questions of the officer, although if you had an attorney here, they would tell you not to do so because anything you say is being recorded here today on the record and could be used against you, and you clearly wouldn't want to give up your right for self-incrimination by making some statements that could be used against you. Do you understand that then, sir? Do you understand that."

"Yeah," Vann-Marcouex replied.

After Neville-Neil finished questioning an investigating officer, Wolf told Vann-Marcouex he could ask questions, "but again, realize anything you are saying is being taken down and could be used against you."

Later, the judge told Vann-Marcouex that he had a right to present evidence, but "I have to make a decision in the light most favorable to the state, and obviously you'd be giving up any right to self-incrimination if you did so. Do you wish to present any evidence?”

"I mean, I was watching my nephew that night," Vann-Marcouex said. "My sister isn't here right now, I don't see her, but, um –"

The judge cut him off. "You have to present evidence through testimony here, not make an argument, but no attorney would tell you to do that with each of the charges you are facing here because, again, I have to do it in the light most favorable to the State, all right?  Do you wish to present anything now or not?" Wolf said.

Vann-Marcouex shook his head.

That was his last court appearance.

It was the same day he got his lawyer.

That same night, jail staff found him in his cell, where he apparently tried to hang himself. He died a few days later. ​

Margo Kirchner contributed to this story.

By Margo Kirchner
​
The lawsuit brought by the estate of the man who died in the back seat of a squad car after repeatedly complaining that he could not breathe may face months of delay as the case bounces between the federal trial and appellate courts, thanks to an opinion last week by the Seventh Circuit Court of Appeals.

Derek Williams Jr. died in the back seat of a Milwaukee Police Department squad car on July 6, 2011. Officers failed to call for medical help for Williams until after he collapsed and stopped breathing. By then he could not be revived.

In July 2016, Williams’ estate and three children sued 10 officers for failing to attend to Williams’ medical needs while in custody and for wrongful death. The plaintiffs also sued the City of Milwaukee, claiming that its unwritten policies and practices caused Williams’ death.

U.S. District Judge J.P. Stadtmueller held in August 2017 that the case should go to trial. He rejected the officers’ summary judgment motion, which argued that the qualified immunity doctrine bars suit against them.

Under long-time U.S. Supreme Court case law, qualified immunity protects public officials from civil liability unless their conduct violated a clearly established constitutional right that a reasonable person would have known. The doctrine balances the need to hold public officials accountable when they act irresponsibly with the need to shield them from liability when they perform their duties reasonably.

The officers appealed to the U.S. Court of Appeals for the Seventh Circuit.  That court ruled last week that it could not decide the officers’ appeal because Stadtmueller failed to analyze qualified immunity for each officer individually; his decision addressed their actions as a group. The appeals court remanded for further review by Stadtmueller, setting up another opportunity for the officers to appeal if Stadtmueller again rules against them.

Friday’s appellate opinion was issued about 13 months after Stadtmueller’s initial ruling. Statistics available on the U.S. Courts’ website peg the median length of an appeal in the Seventh Circuit at eight months.

Senior U.S. District Judge Robert W. Gettleman of the Northern District of Illinois, sitting as a guest on the Seventh Circuit panel, authored the appellate opinion, joined by Seventh Circuit Judge Joel M. Flaum. Seventh Circuit Senior Judge Kenneth F. Ripple agreed that Stadtmueller did not properly consider each officer individually but dissented on other grounds.

Because of the summary-judgment stage of the case, all disputed facts were taken in the plaintiffs’ favor. Plaintiffs’ evidence showed that shortly after midnight on July 6, 2011, Williams was walking north on Holton Street in Milwaukee. He wore a mask and held a cell phone under his clothing, making him appear armed. Four officers in two squad cars noticed Williams as he approached a couple from behind and believed they were witnessing an attempted armed robbery. When one squad car stopped, Williams ran. An officer chased Williams on foot while both cars followed, and additional officers responded to the scene.

Williams was a 22-year-old African-American male in good physical shape. He ran 200 to 300 yards and jumped over a fence. After about eight minutes officers found him in a back yard; both Williams and the chasing officer were breathing heavily. After a brief struggle, two officers pulled Williams down onto his back and flipped him over to apply handcuffs, with one officer kneeling on Williams’ back. Williams said he could not breathe, at which point the officer lifted some of his weight off of Williams. A recorded radio call of an officer telling dispatch that Williams was in custody captured Williams complaining that he could not breathe.

Williams went limp as officers lifted him up. Williams was unresponsive, breathing heavily, and sweating, but the officers thought he was faking any distress. After they used a painful procedure to determine consciousness, Williams opened his eyes and told the officers that the two alleged victims were his friends and he was “just playing around” with them. Williams again complained about not being able to breathe. Neighbors heard his complaints and heard an officer tell Williams to “shut up.”

After five minutes the officers moved Williams to the front yard, where he went limp again and had to be dragged. Officers told him to stop “playing games” but Williams again said he could not breathe. A neighbor heard Williams say he could not breathe while officers cursed at him. Another neighbor called 911 but was told that paramedics would not be sent unless officers called for them.

The arresting officers placed Williams in the rear seat of a squad car but did not discuss Williams’ condition. Although the officer sitting in the driver’s seat turned on a back-seat video recorder, he failed to activate a feed to observe Williams on his computer screen. Nor did he turn to look at Williams.

Williams again said he could not breathe, that he was dying, and that he needed an ambulance, but the squad officer told Williams he was “breathing just fine” and “playing games.”

Nevertheless, the officer rolled down the window and turned on the air conditioner. A witness saw Williams rocking around in the back seat and heard him say he could not breathe. According to the Seventh Circuit, the recording of Williams in the back seat “shows him in obvious distress, eventually collapsing onto the door of the car.”

The squad officer was replaced with another, but the two did not discuss Williams’ breathing complaints and the video feed remained off. When the second squad officer turned to look at the back seat, Williams was slumped over. The officer checked Williams and found no pulse or breath, but he did not call for medical assistance. Instead, he unsuccessfully looked for help at another squad car and then radioed other officers. Finally, a responding officer called for medical help approximately 12 minutes after Williams was placed in the car and three minutes after he was found motionless.

An officer began CPR and paramedics took over, but Williams was declared dead at 1:41 a.m. The Milwaukee County Medical Examiner determined the cause of death as sickle-cell crisis triggered by Williams’ flight from and altercation with police, though another medical expert said the cause of death is indeterminable.

As noted by the Seventh Circuit in its opinion, qualified immunity does not protect a public official from suit when (1) the official violated a constitutional right and (2) that right was clearly established at the time of the challenged conduct.

Plaintiffs claim that the defendant officers violated Williams’ Fourth Amendment right to receive reasonable medical care while in custody.
​
The officers conceded that calling an ambulance would not have compromised any police interest or been burdensome. Therefore, the Seventh Circuit stated in its opinion, to establish the constitutional violation the plaintiffs had to show only that the officers had notice of Williams’ medical need and that the medical need was serious. 

Stadtmueller found that plaintiffs presented such evidence. Further, Stadtmueller found that an arrestee’s right to objectively reasonable medical attention was clearly established by at least 2007.

The Seventh Circuit, however, said that Stadtmueller improperly grouped the actions of the officers together when he assessed the case.  According to the court, “each defendant-officer had a different degree of contact with Williams and had different assigned responsibilities with respect to the apprehension of Williams and investigation of the alleged armed robbery. Although the district court’s recitation of facts acknowledges the officers’ varying encounters with Williams, its qualified-immunity analysis lacks any individualized assessment.”

The court remanded, directing Stadtmueller to articulate his qualified immunity analysis officer by officer. Only then, said the Seventh Circuit, can it review the officers’ appeal.

Trial was previously scheduled for late August 2017 but postponed due to the appeal. The  claims against the city were not part of the appeal and remain pending for trial.

It is unclear how much delay this do-over will cause. District courts generally cannot act on a remand until receipt of a document called a “mandate,” which often issues a few weeks after an opinion. Stadtmueller could act quickly, without additional briefing, but if he rules that any individual defendant is not protected by qualified immunity, that defendant could appeal again.

By Gretchen Schuldt

Threatened by gang members at gunpoint in El Salvador, W.G.A. fled to the United States, where he was picked up by the Department of Homeland Security, denied asylum by an immigration judge and the Immigration Appeals Board, and wrongly returned by the United States government to El Salvador while his federal court appeal was pending.

The Seventh Circuit Court of Appeals last week gave the man another chance, rejecting the reasoning the Immigration judge and board gave when they turned down W.G.A.'s request and returning the case to the Board for further proceedings.

The government, while finding credible W.G.A.'s story about death threats from an El Salvadoran gang, rejected his pleas to remain in the United States. While he was indeed persecuted, the government argued, his persecution was not due to one of the five grounds that could keep him in this country: “race, religion, nationality, membership in a particular social group, or political opinion.”

The appeals panel disagreed. W.G.A.'s family is a particular social group, and he was threatened because of his membership in it.

W.G.A. was threatened by the Mara 18 gang because his brother tried to leave it, U.S. Circuit Judge David Hamilton wrote for a three-member panel that also included Circuit Judges Diane Sykes and U.S. District Judge John Z. Lee. 

W.G.A. and his family members are not identified  beyond initials in court filings, most of which are not available to the public.

"The Mara 18...is one of the two main gangs operating in El Salvador," Hamilton wrote. "Together with their rivals, MS‐13, the Mara 18 terrorize the Salvadoran population and government. The gangs use violence to exercise an enormous degree of social control over their territories, dictating where residents can walk, whom they can talk to, what they can wear, and when they must be inside their homes."

The gangs put together labor strikes and plotted to bomb government buildings. They extort millions of dollars from businesses  and, Hamilton wrote, "they are largely responsible for El Sal‐ vador’s homicide rate — one of the highest in the world." 

One day in 2014, when both brothers were still in El Salvador, W.G.A.'s brother, identified only as S.R.P., did not come home from a trip to the store. W.G.A. and his mother looked for him to no avail. They guessed that S.R.P. had been forcibly recruited by a gang.

They didn't hear from him until they got a phone call a few months later. He was crying and said he could not talk long because the gang might kill him, Hamilton wrote. Then he hung up.

S.R.P. was arrested a few months later and was released from prison in 2015. He called W.G.A. to say he did not want to be in a gang anymore and did not want to tell W.G.A. where he was going. Then he was gone.

By Gretchen Schuldt

​Information about Milwaukee Police Department stops, frisks, and searches will be publicly reported each year, while the civilian complaint process will be overhauled to ensure complaints are seriously considered, under a settlement reached in a federal court case challenging the constitutionality of MPD's stop-and frisk-practices.

The city also will be required to hire an independent consultant to determine if the city, the Police Department, and the Fire and Police Commission are complying with the settlement and making appropriate progress in correcting unlawful stops.

Combined, the provisions of the settlement are intended to "begin to change...the culture, the behavior" of officers, said Karyn Rotker, senior staff attorney for the ACLU of Wisconsin.

The ACLU of Wisconsin, along with the American Civil Liberties Union and the Covington & Burling law firm, brought the class action lawsuit on behalf of African-American and Latinx residents who challenged the constitutionality of MPD's traffic and pedestrian stops and alleged they were racially biased. 
 
The city denied wrongdoing.

The ACLU said traffic and pedestrian stop rates in Milwaukee were more than six times higher for Black people than for white people. The disparity was found after controlling for crime rates and other factors that can influence stop rates. Searches of Black and Latinx drivers were more than 20 percent less likely to lead to the discovery of drugs than searches of white drivers, the ACLU said in a statement.

Between 2010 and 2017, according to the civil rights organization, MPD conducted more than 350,000 pedestrian and traffic stops for which they have no record of reasonable suspicion of criminal activity or a traffic or vehicle equipment violation, as required by the Fourth Amendment, according to the ACLU.

The settlement, already approved by the Common Council, will make public far more information about MPD stop and frisks than is currently available or even is consistently collected.

"There was an extremely high rate for non-completion" of reports related to traffic and pedestrian stops, Rotker said in an interview. In addition, information was entered into two different databases, depending on whether the stop was a pedestrian or vehicular.

​Under the settlement, the department will be required to collect detailed information about each stop, including demographic information about the subject; location of the stop; the legal basis for the stop; whether a frisk was conducted; whether any contraband was found; whether the officer(s) used force; and whether officers took any action, such as making an arrest or issuing a ticket.

The Fire and Police Commission will publish a report on the information annually. 

The requirements should "show the public they're (police) eliminating unconstitutional stop and frisks," Rotker said.

Officers who fail to fully document their stops or who do not properly make stops will be subject to counseling, training, retraining or discipline, she said.

The reformation of the civilian complaint process will apply to all civilian complaints, not just those about stop and frisk incidents, she said.

The changes will require training of complaint investigators "to not attack or blow off the complainant," she said.

Some individual plaintiffs in the case did try to file complaints after they were stopped by police, but the complaint process was too difficult or complex or they were "blown off" so they did not complete it, she said.

The settlement requires the city to make complaint forms available in a variety of languages. It also requires the city to accept complaints whether they are filed by phone, snail mail, email, or other methods and to ensure that staff who accept complaints "are trained not to, and in practice do not, discourage the filing of any complaint."

The settlement prohibits the city from requiring that complaints be notarized, and requires investigators to interview complainants away from police stations unless the person consents to a station interview.

The settlement also forbids the city from investigating complaints in a way that shows bias against complainants. Prohibited practices include asking hostile questions of complainants; “applying moral judgments related to the dress, grooming, income, life-style, or known or perceived criminal history of complainants; giving testimony by officers greater weight than testimony by complainants; providing summary reports that disadvantage complainants and are unrelated to facts developed in the investigation; issuing complaint dispositions that are not justified by the facts developed in the investigation; (and) recommending inconsistent discipline for officer misconduct."

The 53-page settlement agreement also calls for the police / city to:

• maintain the existing Milwaukee Collaborative Community Committee, established to review the U.S. Department of Justice report on the Police Department, to "seek community input on police department operations to improve trust between law enforcement and city residents";
• announce during trainings that there are no formal quotas for traffic stops, field interviews, frisks, searches or arrests;
• revise policies to make clear that officers cannot rely only on general factors, such as “appearance or demeanor” of a person, the “hour of the day or night,” or the “inappropriate presence” of a person in a neighborhood to make a stop;
• require officers to activate body cameras and audio recorders during traffic and pedestrian stops;
• prohibit MPD from entering into any criminal database information about individuals who are stopped but released without further legal action unless there are specific facts to support suspicion that the person is involved in criminal conduct;
• adopt policies to ensure "continuous supervision" of officers who conduct stops;
• ensure that police supervisors review arrest reports and at least 50% of documentation related to stops;
• audit data and video to identify officers who fail to conduct stops and searches properly;
• audit civilian complaints;
• publish data about complaints on the Fire and Police Commission website; and
• refer for investigation any officer who, in a three-year period, conducts four or more stops, frisks, or searches that are not supported by reasonable suspicion or are not properly documented.

The settlement signals a city "commitment to its people to break the pattern of baseless, unlawful police stops and frisks and racial and ethnic profiling,” said Jason Williamson, deputy director of the ACLU’s Criminal Law Reform Project.
​
“We hope this sends a message to other cities about the need to advance fairness and equal treatment in policing,” he said in a prepared statement.

By Margo Kirchner

​The recent challenge to Wisconsin’s "cocaine mom" statute that allows pregnant women to be locked up failed this week because the plaintiff moved out of state. 
 
The U.S. Court of Appeals for the Seventh Circuit ordered Tamara Loertscher’s challenge dismissed because she no longer is subject to the Wisconsin law and therefore cannot challenge its constitutionality. Loertscher was jailed without a lawyer after she told hospital staff that before learning of her pregnancy she used marijuana and methamphetamines to deal with medically induced depression and fatigue.
 
Loertscher lived in Wisconsin when she filed her case in late 2014. She later moved out of state.
 
U.S. District Judge James Peterson found that the move did not impact Loertscher’s claims and held the "cocaine mom" law unconstitutional for failing to give women fair warning about what conduct is prohibited and failing to provide authorities any meaningful standard for enforcement. Peterson blocked the law, but the U.S. Supreme Court stayed that order while Wisconsin Attorney General Brad Schimel appealed to the Seventh Circuit.

The appeals court, in a decision written by Senior Circuit Judge Kenneth F. Ripple, vacated Peterson’s order, but not based on the merits of Loertscher’s challenge. Instead, the Seventh Circuit disagreed with Peterson about the impact of Loertscher’s move. The court pointed to a constitutional provision limiting federal courts to deciding “actual, ongoing controversies.” The existence of a controversy when a case is filed is not enough; the issue must remain live and the parties must retain a personal interest in the outcome throughout the case, even on appeal.


Because Loertscher moved out of state during the case she no longer needs protection from the law, said the court. And in cases seeking to block enforcement of a statute, “once the threat of the act sought to be enjoined dissipates, the suit must be dismissed as moot.”
Ripple was joined in his opinion by Circuit Judges Joel M. Flaum and Daniel A. Manion.

The panel noted the lack of any evidence showing that Loertscher moved due to the statute or fear of its application to her.

According to the court, Loertscher’s case did not fall into a limited exception to the mootness rule for cases that are “capable of repetition, yet evading review.” The exception applies in rare situations when (1) a challenged action is too short to be fully litigated prior to its cessation and (2) a reasonable expectation exists that the same complaining party will be subject to the action again. In Roe v. Wade the Supreme Court said that pregnancy is a classic justification for the exception.

But the Seventh Circuit found that Loertscher cannot satisfy the second part of the exception because her voluntary and permanent departure from Wisconsin “makes the possibility of her once again being subject to the statute a matter of pure speculation.” Loertscher has no reasonable expectation that she will find herself within Wisconsin’s borders when she is both pregnant and using drugs, the panel said.

The court likened Loertscher’s case to that of two doctors who challenged Michigan’s physician-assisted suicide ban. The Sixth Circuit Court of Appeals dismissed the doctors’ case as moot when one doctor retired and the other moved from Michigan to California.

By Gretchen Schuldt

Thirty-three years after he was wrongfully convicted of murder based on faulty bite mark evidence, Robert Lee Stinson 's lawsuit alleging that deliberate misconduct was instrumental in sending him to prison is finally close to trial.

His lawsuit was filed in November 2009,  8 1/2 years ago.

The U.S. Supreme Court last month refused to hear an appeal of Seventh Circuit Court of Appeals ruling denying the police and dentist defendants immunity in the suit.  

Stinson, who ultimately spent 24 years in prison, was convicted in 1985 of the 1984 murder of  Ione Cychosz in Milwaukee.

​As the Seventh Circuit opinion put  it, "no eye witness testimony or fingerprints connected him to the murder. Two dentists testified as experts that Stinson's dentition matched the teeth marks on the victim's body, and a jury found Stinson guilty."

It took four years for the case to make its way through the appeals court.

DNA exonerated Stinson and he was released from prison in 2009. 

A DNA sample in 2010 implicated a convicted felon, Moses Price, in the murder.

Stinson's lawyer, Heather L Donnell, laid out her client's case in a 2012 hearing before US district judge Charles N. Clevert. He has since retired.

"I believe that we have shown in discovery sufficient facts for a jury to infer that there was a conspiracy among these defendants to fabricate and manipulate the bite mark evidence to wrongly convict my client," she said.

The defendants in the suit are James Gauger, an officer who in investigated the case; Lowell T Johnson, and Raymond Rawson, dentists who examined and opined on the bite mark evidence.

Gauger's partner in the investigation, Tom  Jackelen,  was a defendant, but has died.

Donnell said the two detectives rushed to judgment in deciding Stinson was their man. 

"In fact Detective Jackelen said to the to defendant Gallagher, 'we've got him.' This is two days after the murder during a canvas of the neighborhood where the crime occurred," she told Clevert.

The dentists eventually testified that Stinson's bite matched bite marks on the body, even though it did not, according to the suit.  

Stinson’s trial lawyer tried to keep bite mark evidence out of the trial, but his request was denied,

The detectives also were suspicious about Stinson based on an earlier case involving a murder. No charges were ever filed in that case, but Gallagher wrote in a book that he believes Stinson and his friends murdered the man.

"The allegation here is that the bite mark evidence, these physical pieces of evidence, the overlays, the analysis, the report, was fabricated," Donnell said.

She acknowledged that a jury may see the inconsistencies and contradictions as a result of negligence or another unexplained cause.

By Gretchen Schuldt

​The City of Milwaukee wants a federal court to dismiss a class action lawsuit over allegedly unconstitutional stop-and-frisk practices by the Milwaukee Police Department because former Police Chief Edward Flynn retired and because the city has promised to change its stop-and-frisk practices.

"Flynn no longer exercises supervisory authority over MPD officer and MPD operations," the city said in a court filing. Flynn also does not have the power to continue to have police officers "conduct a high volume of traffic and pedestrian stops," the city argued.  

"It is clear from public statements made by Milwaukee’s leaders that the interim and the permanent police chief will not continue the law enforcement strategies implemented by Chief Flynn of which Plaintiffs complain," the city said. The city is represented in the suit by the City Attorney's Office and the law firm of von Briesen & Roper.

ACLU of Wisconsin, which brought the suit on behalf of stop-and-frisk targets, argued against the city's request.

"Chief Flynn’s retirement does not repeal the City’s unlawful stop-and-frisk program," the ACLU said. 

​The city is trying to shift the blame for its "racially motivated and unlawful policies" to Flynn "while ignoring the allegations against the other defendants - the city and its Fire and Police Commission, the ACLU said.
​
In addition, the organization said, the vague promises the city made to change stop-and-frisk practices are not enough to warrant the suit's dismissal.

The ACLU said none of the defendants have disavowed the program and there have been no modifications to written police documentation.
​
The ACLU's suit alleges that thousands of people were stopped even though police did not have reasonable suspicion of criminal activity, making the program unconstitutional. The suit also alleges the stops were based on racial profiling. 

The Washington, D.C. law firm of Covington & Burling is assisting the ACLU in the case. ​

By Gretchen Schuldt
​
The State Supreme Court should decide whether Wisconsin's case law on imposing life without parole sentences on juveniles complies with related decisions by the U.S. Supreme Court, a State Court of Appeals panel said.

The State Supreme Court also should rule on whether the two judges who pronounced life sentences on juveniles adequately considered the mitigating effect of the defendants' youth, in compliance with U.S. Supreme Court standards.

The issues raised in the two cases considered "are matters of considerable statewide importance and constitutional dimension," the three-judge District 3 Court of Appeals panel said. The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.

​The panel certified the cases to the Supreme Court for consideration.

By Gretchen Schuldt

​A completely theoretical ability to use public records to identify and intimidate individuals is enough to deny the public access to those records, the State Supreme Court said this week in a ruling that is disastrous for the public records law.

The court, over a fiery dissent by Justice Ann Walsh Bradley, decided that records can be denied even without any evidence that harassment or coercion would occur or had occurred.

The 5-2 majority, in an opinion by Chief Justice Patience Roggensack, said it was fine to delay release of information about who voted in a union recertification election to avoid voter intimidation that was only an imaginary possibility. The union involved has no history of such activities, Bradley wrote.

The majority cited as justification, as dissenter Bradley described it, "one uninvestigated and unsubstantiated complaint from Racine County, involving a different union, in a different election, in a different year, that did not involve a public records request."  

"For the third time in three years this court continues to undermine our public records law," Bradley wrote, joined by Justice Shirley Abrahamson. "Yet again, this court overturns a lower court decision favoring transparency of records to which the public is rightfully entitled."

The majority also ignored an earlier Court of Appeals ruling that the possibility of threats, harassment or reprisals cannot be given significant weight when the records custodian has not  determined it is reasonably probable those things would occur.

While the ruling immediately applies only to the case brought by Madison Teachers, Inc. against James R. Scott, the chairman and records custodian for the Wisconsin Employment Relations Commission (WERC), the precedent and its new, extremely low bar for denying records likely will serve as a handy excuse for other governmental units to use when denying access to other types of records. 

In the Supreme Court's case, WERC denied Madison Teachers, Inc. access to information about who voted in a union recertification election until the voting, which occurred over 20 days, was over.

The union twice filed requests during the 20-day period for information about the voters, but WERC delayed complying. Madison Teachers filed suit, alleging violation of the public records law, and Dane County Circuit Judge  Peter C. Anderson ruled in the union's favor.

Scott, of WERC,  appealed directly to the Supreme Court with its permission, bypassing the Court of Appeals. 

Roggensack, in her opinion, said the public's right to government records is not unrestricted. 

"Preventing voter intimidation during elections conducted by phone and email, as occurred here, is challenging," she said. "Given MTI's repeated requests for the names of those who voted before the election concluded, it is entirely possible that those employees who had not yet voted would become subject to individualized pressure by MTI of a type that MTI could not exert when speaking to all members of the bargaining unit collectively." 

Then she went on to cite the unsubstantiated allegations:

​"Intimidation in the WERC certification election was a concern," Roggensack said. "Scott had received detailed and specific complaints of past coercion in other certification elections. Complaints included: a union representative directing an employee to a computer and coercing her to vote for recertification; another employee being repeatedly asked whether she had voted; and a third employee witnessing employees being similarly pressured to vote." 

Scott was correct in determining that keeping elections free of voter intimidation and coercion outweighed the public interest in access to public records, she wrote.

Wrote Bradley in dissent: "Scott's first argument——that disclosure would violate the secrecy of the ballot——rings hollow. Although the substantive votes on a ballot are confidential, the identity of those who voted is not.  Disclosing the names of those who have cast a ballot prior to the conclusion of an election does not violate the secrecy of the ballot." ​

Excerpts from Justice Ann Walsh Bradley's dissent.

This time the majority undermines the presumption of open access to public records by imputing an unsupported and ​nefarious purpose to the records requests based on nonexistent facts.
***
In short, it is difficult to imagine a scenario where there is less evidence of potential harm in the record than here. One would expect the highest court of this state to rely on more than such unrelated and unsubstantiated allegations for its assertion that the risk of voter intimidation or coercion here was great enough to overcome the strong presumption of open access to public records. It does not.​
***
The identity of the requester and the purpose of the request should not matter here. Nevertheless, if the majority is going to erroneously superimpose its own speculative motive upon the requester, it should at least mention existing facts of record that support a contrary conclusion. It fails to do so.
​***
The annual elections for public employees to select representatives for purposes of collective bargaining were previously conducted in person. They are now conducted electronically and employees vote either by phone or computer. MTI asserts that what was formerly an open and observable government process is now closed. It contends that the only opportunity that the public has for oversight of WERC's election administration is through public records. MTI explains that the need for oversight is revealed by the facts of record.

​However, the majority omits these facts. 
***
When speculating about the intent behind these records requests, the majority also ignores the record evidence that MTI advised WERC that it "w[ould] not engage in voter coercion or any other illegal election practices during the upcoming election." MTI explained at oral arguments that it made these records requests to ensure WERC properly executed its election administration duties. 
​***
Scott undermined his purported concern about protecting the secrecy of the ballot by releasing the names of those who voted after the conclusion of the election. I agree with the circuit court that refusing to disclose the names of voters during the election but releasing that information after the election is "entirely contradictory" and "paradoxical." Accordingly, I afford Scott's purported concern about maintaining the secrecy of the ballot little weight in the balancing test.​
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The usual admonition is that if you do not have the facts, then argue the law. Conversely, if you do not have the law, then argue the facts. The majority has neither.

By Margo Kirchner
​
A federal judge chastised lawyers for acting “like fourth graders in a lunchroom,” but said labeling as “lunging” or “assault” a lawyer’s actions when he slammed a pen on a desk in front of a deposition witness went too far.

U.S. District Judge Pamela Pepper said she found it “shameful” that she and seven attorneys had to spend time in a hearing discussing attorney behavior.

The pen incident occurred in October, during the deposition of Corrections Officer Terina Cunningham in a lawsuit brought by Shadé Swayzer over the death of her newborn daughter, Laliah, in the Milwaukee County Jail in July 2016.

Swayzer and Laliah’s estate sue former Sheriff David Clarke, Milwaukee County, several jail employees, Armor Correctional Health Services, Inc. (the contractor providing medical services at the Jail), and several Armor doctors and nurses.

Swayzer’s lawyer, James J. Gende II, lost his temper and slammed his pen into the table in front of Cunningham and attorney Douglas S. Knott, who represents Cunningham and the county. Knott immediately halted Cunningham’s deposition and later sought a court order to prevent Gende’s participation in future depositions in the case.

Armor’s lawyer, Michael P. Russart, also moved to preclude Gende from conducting future depositions.

Knott said at a later hearing that Cunningham, the corrections officer, was shaken by Gende’s outburst and lunging. Knott argued that Gende’s conduct constituted assault and merited more than an admonishment.

Russart, for Armor, said he sought to protect his witnesses and argued that there was no “reset button” or “Mulligan” for Gende’s conduct.

Counsel for Gende, Terry E. Johnson, admitted that Gende showed a lapse in judgment but argued that barring Gende from future depositions was too severe a sanction for an incident lasting five seconds.

Pepper, in her ruling, said the lawyers’ filings in the case showed finger-pointing and snide comments in front of witnesses. Pepper said she saw an “ongoing toxic relationship” between Gende and Knott.

“Something needs to change” in their interactions, she said.

Gende, Pepper said, violated rules governing the treatment of deposition witnesses, which justified an end to additional questioning of Cunningham.

But Pepper found that barring Gende from conducting future depositions in the case would be a disproportionate sanction.

Instead, she indicated that all depositions should be videotaped. In addition, the lawyers must not argue in front of witnesses, and they are to call the court with any significant problems arising during a deposition.
​
She warned of greater sanctions should additional deposition problems occur and said she would monitor the attorneys’ civility. As she put it in her signed minutes of the hearing, she will, if necessary, “review every video to make certain that the lawyers were treating each other, and the witnesses, with the respect and civility the profession demands.” 

In another matter related to the case,  U.S. Magistrate Judge William E. Duffin this week agreed with former Sheriff David Clarke that Clarke’s 2016 personal calendar and whereabouts are not relevant to claims in the case. Duffin ruled that Clarke did not have to produce the calendar or identify his location on dates when five inmates died in custody.