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By Gretchen Schuldt A woman had a reasonable belief that she was not free to leave a parking lot after police officers parked in a way that made it difficult for her to drive away, shined a “take down” spotlight into her car, and knocked on her car window and announced themselves as law enforcement, the State Court of Appeals ruled last week.  Blanchard District IV Appellate Judge Brian W. Blanchard, in upholding a decision by Jefferson County Circuit Judge William V. Gruber to suppress evidence, found that the state did not “show that the court clearly erred in finding that a reasonable person in (Annika) Christensen’s position would have had, in the words of the court, an ‘actual or perceived inability to’ drive away from the police.”
Blanchard remanded the case back to Circuit Court, where Gruber had already dismissed the four misdemeanor counts filed against Christensen. Christensen, then 21, was arrested in November 2019 as she and a passenger sat in her car in a parking lot about 6:49 p.m. The lot, owned by the Department of Natural Resources, had a single entrance/exit, and trees blocked Christensen from driving forward or to the right, according to the decision. Town of Lake Mills Police Sgt. Ryan Walters, who was with Officer Vincent Pagliaro, drove a police truck into the lot and parked behind Christensen’s car and another car parked next to it, Blanchard wrote. The officers activated their take-down lights. Pagliaro testified in Circuit Court that Christensen’s car drew his attention because “it was parked while there was snow falling, it was running, its windows were fogged, and it was sitting in the dark,” according to a defense brief filed by attorneys Teuta Jonuzi and Tracey A. Wood. They added: “Pagliaro acknowledged that it would not be uncommon for fogging of windows to occur when it is cold outside and the heat is turned on in the vehicle.” Walters, though, said “he did not note the window fogging until he approached Christensen’s vehicle, and it was not part of his decision-making process in electing to make contact with Christensen’s vehicle,” Jonuzi and Wood wrote. “Similarly, he did not note any signs of drug activity with the vehicle before he made contact with Christensen. Per Walters, had Christensen attempted to drive her vehicle away, she would not have been free to do so.” Walters testified in Circuit Court, they wrote, that neighbors had complained about drug activity in the lot and that he had previously arrested people for drug offenses there. A subsequent open records request to the Lake Mills Police Department revealed, however, that there had been only one previous drug arrest in the parking lot. Walters later testified that he had arrested three juveniles in the lot five years earlier and that those were the only arrests he had made. There had been no drug-related contacts in the lot since then, Wood and Jonuzi wrote. The officers differed in how far they said they parked behind Christensen’s car. Pagliaro said about 30 feet, while Walters said about 10 feet, Blanchard wrote in his decision. Both said Christensen had room to leave, “although Sgt. Walters testified that ‘[i]t would have been tight,’ ” Blanchard wrote. Walters said he did not know whether Christensen would have been able to leave in “one maneuver” or whether she would have to “back up and pull forward to go around the back side of my vehicle.” Gruber found Walters’ testimony more convincing and accepted it. Blanchard said video of the truck’s position was not included in the appellate record and so he accepted the Circuit Court’s finding. After Walters activated the spotlight, Blanchard wrote, Pagliaro got out of the police truck and approached Christensen’s car on the passenger side. He announced he was a police officer and knocked on the front passenger-side window. The passenger rolled down the window and the smell of burned marijuana wafted out of the car. Christensen was charged with possession of marijuana, possession of paraphernalia, and two counts of possession of narcotics, all misdemeanors. The state, on appeal, argued that the officers’ initial contact with Christensen was a “consensual encounter” and that Fourth Amendment protections did not kick in. Gruber, Jefferson County District Attorney Monica Hall wrote in prosecution briefs, “did not find that Ms. Christensen could not have driven away, just that it would have been difficult for her to do so.” That, she said, is similar to cases in which the state Supreme Court ruled that stopped individuals were not “seized” for Fourth Amendment purposes. Hall argued that Walters’ testimony that Christensen would not be free to leave was irrelevant. “Rather, the analysis is whether, under a totality of the circumstances, an innocent reasonable person in Ms. Christensen's position would feel free to leave under the circumstances,” she wrote. The state maintains that a reasonable person in Christensen’s position would have felt free to do so, she said. Blanchard disagreed. While not the determining factor, he said, “the presence of uniformed officers arriving on the scene in a marked truck, with at least one of the officers getting out and approaching the car on foot, weighs in favor of a seizure. I reject the State’s thinly developed argument to the contrary.”
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Research on brain development of young adults could have been presented in 1997, appeals court says9/9/2022 By Gretchen Schuldt A judge erred when he used new research into the brain development of young adults to grant Jan. 1, 2023, parole eligibility to a man previously sentenced to life without parole, the state Court of Appeals has ruled.  Gill Existing case law prohibited Outagamie County Circuit Judge John DesJardins, now retired, from using the research as a “new factor” in Jonathan Liebzeit’s case “because the research and its conclusions were well known at the time of Liebzeit’s sentencing in 1997,” Appellate Judge Gregory B. Gill wrote for the three-judge District III Court of Appeals panel. He was joined in the opinion by Appellate Judges Lisa K. Stark and Thomas M. Hruz.
DesJardins sentenced Liebzeit in 1997 to life without parole for his role in the 1996 murder of Alex Schaffer. Liebzeit, who had just turned 19, and two other men, Daniel Mischler and James Thompson, lured Schaffer into sewer tunnels where Liebzeit hit him repeatedly with a baseball bat, including in the head. The other two men held Schaffer in a pool of water until he stopped moving. The medical examiner determined that Schaffer died by a combination of drowning and blunt force trauma. The state Department of Corrections, in a pre-sentence report, noted Liebzeit’s long history of drug abuse, particularly with inhalants; his participation in a drug and alcohol treatment program; and his failed effort to get admitted to Winnebago Mental Health Institute due to suicidal tendencies. In 2019, 22 years after sentencing Liebzeit, DesJardins attended a judicial education seminar, where he learned about new research on brain development in emerging adults. He later wrote to Liebzeit’s appellate counsel and the state “suggesting that a sentence modification may be appropriate based on new scientific research…that was not available at the time of the 1997 sentencing,” Gill wrote. Liebzeit’s lawyer, Rex R. Anderegg, filed such a motion, citing both the new research and Liebzeit’s brain damage stemming from inhalant use. Information about the brain damage, included in a separate report concerning Liebzeit’s drug treatment, was not presented to the court at sentencing. DesJardins held a hearing, Gill wrote. “The court concluded that Liebzeit had proven by clear and convincing evidence that both the new scientific research on brain development in emerging adults, and Liebzeit’s brain damage resulting from his own inhalant use constituted new factors,” Gill wrote. DesJardins found that “the impact the brain damage may have had on Liebzeit’s impulse control was relevant to whether Liebzeit was likely to be successfully rehabilitated,” Gill said. DesJardins also found that “new scientific research on brain development in emerging adults had found that individuals between 18 and 21 years old function closer to adolescents aged 13 to 17, than adults aged 22 to 25 years old.” DesJardins eventually granted the sentence modification making Liebzeit eligible for parole Jan. 1. His case still would have to be considered by the Parole Commission. The appeals court, however, agreed with the state that nothing showed that Liebzeit’s inhalant use contributed to his impulsivity. “At best,” Gill wrote, “the (drug treatment) report shows that his brain damage might have affected his concentration. But the crimes for which he was convicted were not impulsive crimes caused by an inability to concentrate.” The crime was not impulsive, but planned, Gill said. DesJardins found at the time of sentencing that Liebzeit could not be rehabilitated. Liebzeit’s “new science” argument fails because under state Supreme Court precedent, Gill wrote, “the research cannot constitute a new factor…because the conclusions reached by the research were well known when Liebzeit was originally sentenced in 1997.”  Blanchard By Gretchen Schuldt
A court cannot refuse the return of property based on unproven allegations in a criminal complaint that never went to trial and that the defendant never had a chance to contest, the state Court of Appeals recently ruled. “The state had a fair opportunity to introduce evidence that (John Dean) Pleuss used the shotgun in the commission of a crime during the initial proceedings but failed to do so,” Appellate Judge Brian W. Blanchard wrote for the three-member District IV Court of Appeals panel. He was joined in his decision by JoAnne F. Kloppenburg and Michael R. Fitzpatrick. Before Pleuss, now 78, can get his gun back, however, he must return to Monroe County Circuit Court and demonstrate that his failure to file a motion for the return of property by the statutory deadline was excusable neglect. State law requires filing within 120 days of a defendant’s initial appearance; Pleuss filed his motion 127 days after his initial appearance, according to a brief filed by Assistant State Attorney General Donald V. Latorraca opposing the return. Pleuss allegedly pointed a shotgun at a deputy on Oct. 1, 2020, and the deputy pushed the barrel away, according to the state's brief. As the two talked, Pleuss denied pointing it at the deputy. Pleuss also refused to show the deputy his driver’s license, instead displaying his concealed carry permit, the brief said. Pleuss was arrested later that day and charged with intentionally pointing a firearm at or towards a law enforcement officer, disorderly conduct, and operating a vehicle without carrying or displaying a license. Pleuss had an initial appearance, according to a defense brief filed by attorney Steven L. Miller, but there were no other court proceedings before the charges were dismissed. The state said the charges were dismissed in exchange for an apology from Pleuss and his participation in a gun safety course. When Pleuss sought the return of the shotgun, the prosecutor told Circuit Judge Mark L. Goodman that the state met its burden of establishing that the shotgun was contraband. “I think the state has done that by the filing of the criminal complaint that demonstrates probable cause of the crimes therein,” the prosecutor said. Pleuss objected to the state’s total reliance on the complaint, arguing that the state did not meet its “‘burden…in any way, shape, or form,’” Blanchard wrote. Goodman ruled that Pleuss missed the deadline for seeking return of the gun and that the state had proven, based on the complaint, that the shotgun was used in a crime. The state, on appeal, said the allegations in the complaint were “substantive evidence” and were admissible hearsay in court. The panel, though, found that the complaint did not meet the standard of trustworthiness required for admissible hearsay as a public record. "While it is true that a police report standing alone may be admissible evidence ... the State here unambiguously relied exclusively on the factual allegations in the criminal complaint as purported evidence and did not call a witness to offer the police report as piece of evidence," Blanchard wrote. "The factual allegations in criminal complaints have no evidentiary value unless the applicant has admitted to them or at least failed to dispute them," he said. Pleuss never admitted in any form that the charges against him were true, Blanchard said. “In the circuit court Pleuss consistently objected to the state’s use of the allegations in the complaint as evidence,” he said. The state, he said, “completely failed to meet its burden of proof.” In returning the state’s missed-deadline argument to Circuit Court, the panel ruled that a flat declaration that the deadline was mandatory could negatively affect others, such as victims, who might have property seized during an investigation and might not even learn that their property is in law enforcement custody until after the 120 days have passed. Drop-kicking drop boxes, the sequel: Groups ask SCOW to reconsider its ballot drop-box ban8/26/2022 By Gretchen Schuldt
The Wisconsin Supreme Court’s decision banning ballot drop boxes should be reconsidered because the court’s lead opinion contains “inaccurate and ahistorical analyses” of statutes and precedents, groups supporting drop boxes contend in a court filing. In response, lawyers for Richard Teigen and Richard Thom, who challenged drop boxes, said “every premise of their (the groups’) argument is incorrect” and the court should deny the reconsideration request. Last month, the court said in Teigen v. Wisconsin Elections Commission that state law prohibits the use of ballot drop boxes. The ruling depended on 1986 changes in state law that converted some statutory provisions related to absentee ballots from non-mandates into mandates. An action taken in violation of a mandatory provision in a law is void. The changes, the court said, made mandatory the language directing that absentee ballots be returned by mail or delivered by the voter to the municipal clerk at the clerk's office or a designated alternate site. The new filing by Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters of Wisconsin says the lead decision misunderstood a 1955 election case called Sommerfeld v. Board of Canvassers of City of St. Francis and subsequent rulings. The Sommerfeld court “reached a … holding that substantial compliance is sufficient to meet the requirements of a mandatory statute: ‘even in those states which have adopted a rule of strict construction ... substantial compliance therewith is all that is required,’ ” attorneys for the groups wrote. Even after the law was changed in 1966 to make statutory language about absentee ballots mandatory, the court held that substantial compliance was enough, the groups said. “In 1974, this Court decided Lanser v. Koconis, which resolved a challenge to 33 absentee ballots cast by nursing-home residents,” the lawyers wrote. “Rather than mailing an absentee ballot to each resident who applied for one, the clerk had an employee of the Wauwatosa Police Department deliver the ballots to the nursing home. Moreover, some of the residents did not fully complete the certification required for an absentee ballot to be counted.” A lawsuit challenging the ballots was filed. The Supreme Court ruled that the ballots were in substantial compliance with the law and so were valid. Lanser reaffirms that “interpreting an election statute as mandatory is not dispositive and marks the beginning, rather than the end, of judicial consideration,” the groups wrote. “Under Lanser, just as under Sommerfeld, once a court determines a statute is mandatory, it must then determine whether there has been substantial compliance. And, if there has been substantial compliance, that meets the mandatory statute’s command.” The legislature revised election laws again in 1986, specifically recognizing absentee voting as a privilege, not a right, the groups said. The revision also “picks up the theme previously scattered throughout various absentee-voting statutes, declaring that specific provisions ‘relating to the absentee ballot process ... shall be construed as mandatory’ such that absentee ballots ‘cast in contravention of the procedures specified in those provisions may not be counted.’ ” None of those changes, however, changed the “substantial compliance” standard, the lawyers wrote. “Drop boxes are safe, secure, convenient mechanisms designated by municipal clerks to facilitate voters returning completed absentee ballots,” the lawyers wrote. “Though return to a drop box is not precisely a return to the municipal clerk’s office, it comes close enough to satisfy the substantial-compliance test this Court prescribed in Sommerfeld and reiterated in Lanser. The Teigen Court reached the opposite outcome primarily because it misconstrued Sommerfeld and failed even to acknowledge Lanser.” “The Court should grant this motion for reconsideration and reverse its decision in Teigen,” the lawyers said. If the justices refuse to do that, the court should “issue a memorandum that fully and forthrightly addresses the statutory history and precedential decisions omitted from the Teigen opinions.” The groups are represented by the law firms of Stafford Rosenbaum and Law Forward, both of Madison. Teigen and Thom are represented by the Wisconsin Institute for Law & Liberty, of Milwaukee. To study bail jumping in Wisconsin, WJI and the Mastantuono Coffee & Thomas law firm are looking county by county at 2021 bail-jumping charges. Which counties are charging bail jumping the most? Who are some of the defendants? What happens to those cases? We'll report the statistics from individual counties and tell you the stories from randomly chosen cases.  Clark County Total number of cases with bail-jumping charges: 97 Total number of misdemeanor and felony cases: 321 Percent of misdemeanor and felony cases that include bail-jumping charges: 30% Total number of felony cases with bail-jumping charges: 78* Total number of all felony cases: 209 Percent of felony cases that include bail-jumping charges: 37% Total number of misdemeanor cases with bail-jumping charges: 19 Total number of all misdemeanor cases: 112 Percent of misdemeanor cases that include bail-jumping charges: 17% Largest number of bail-jumping charges issued in a single case: 13 Number of felony bail-jumping charges issued: 140 Number of misdemeanor bail-jumping charges issued: 69 *Felony cases can include felony or misdemeanor bail-jumping charges or both; misdemeanor cases can include only misdemeanor bail-jumping charges. Case counts reported as of January 2022. Criminal traffic cases are not included in this analysis. Case file
Phillip picked up four felony cases in six months and now faces a lifetime in prison. It started not long after Phillip got a new computer. Phillip believed people in the neighborhood were hacking into the wireless network in the house where he lived with his girlfriend. Phillip believed his girlfriend was behind the hacking, according to a criminal complaint. So when his girlfriend – let's call her Sue – returned from the bathroom to the bedroom sometime around 2 a.m. one April 2021 morning, Phillip followed her in. He'd just gotten home. Sue thought he'd been drinking, according to the complaint and Sue's statements to Clark County sheriff's deputies. Phillip, now 38, locked the bedroom door so Sue could not get out. Then he started going through her phone, according to the complaint. "She said Phillip began questioning her on all the phone number (sic) and blamed her for everyone that he believed was hacking him, and he was going to kill her," the complaint said. (Sue) stated "Phillip said he did not care about killing her because he had nothing else to live for." Phillip pushed her down onto the bed, grabbed a big dumbbell, lifted it over his head, and threatened to kill her, the complaint said. Sue said she "begged for her life and was scared for her safety and thought Phillip would actually kill her," the complaint said. Sue "stated even after Phillip put the weight down he still threatened to kill her and he did not care because he did not have anything to live for and would just kill himself." Phillip eventually let Sue out of the bedroom. They went to the backyard to let the dog out. Sue said she "thought if she could get outside she could run away from him but he stayed right beside her the entire time," the complaint said. Sue started smoking a cigarette, according to the complaint. "Phillip threatened to smash her head into the wall if she did not get back into the house," the complaint said. Phillip, Sue said, slapped the cigarette out of her hand and pushed her back inside. Once there, Sue said, "Phillip kept on rambling on about how she was behind the people hacking him," according to the complaint. Eventually, he gave Sue her phone and went to bed. Sue went to the sheriff's department the next day to report the incident. "While filling out the domestic abuse paperwork, (Sue's) body was physically shaking. Deputy Strzok asked if she was cold or scared, which (Sue) responded both," the complaint said. She told deputies that sometime around Thanksgiving, Phillip threw a phone at her and hit her between the eyes, requiring stitches. She did not report the incident at the time. When Phillip was questioned that day, the complaint said, he talked about how people were tracking him "on a google account," according to the complaint. He also said people were hacking his phone and stealing information and he could see files on his computer that were put there by people who hacked into it. He denied taking Sue's phone the previous evening, denied locking her in the bedroom, and denied threatening to kill her. He said she "makes things up all the time," the complaint said. Phillip was arrested and charged. The complaint was later amended to include felony stalking, but charges related directly to the April incident included one felony count of false imprisonment / domestic abuse, punishable by a maximum of six years in prison and a $10,000 fine; substantial battery / domestic abuse for the alleged Thanksgiving-time phone throw, punishable by up to 3½ years in prison and a $10,000 fine; and misdemeanor disorderly conduct / domestic abuse punishable by up to 90 days in jail and a $1,000 fine. Circuit Judge Lyndsey Boon Brunette set a cash bond of $250 and issued a no-contact order. In May, Sue told a sheriff's deputy that Phillip was contacting her non-stop in violation of that order. Phillip contacted her 46 times that very day by text and phone, she told the deputy. Phillip was charged with two counts of felony bail jumping, each punishable by up to six years in prison and a $10,000 fine. One of the counts was for allegedly violating the no-contact order. The other was for committing a new crime while on bond. Felony bail jumping occurs when a person out on bond on a felony charge violates the conditions of that bond. Misdemeanor bail jumping occurs when a person out on bond on a misdemeanor charge violates the conditions of that bond. A bail-jumping offense may not by itself be a crime. Missing a court date, violating a local ordinance, or having a drink could all be bail-jumping offenses if bond conditions prohibit those things. Misdemeanor bail jumping carries a maximum penalty of nine months in jail and a $10,000 fine; felony bail jumping carries a maximum penalty of six years in prison and a $10,000 fine. Three days later, Phillip was charged again, this time with two counts of felony bail jumping and one count of misdemeanor disorderly conduct. The complaint alleged that Phillip showed up at Sue's house and asked for a space on her couch for $50. Sue told deputies that Phillip came to her house after she told him not to. Phillip told deputies that Sue had had the no-contact order lifted, but Sue denied it and deputies could not find any record of it. The same day those two charges were filed, the state amended the April complaint to include a felony charge of stalking. The complaint cites the same 46-contact day Sue told a deputy about in May. The stalking charge carried a potential maximum penalty of 3½ years in prison and a $10,000 fine. Court Commissioner Bonnie Wachsmuth set a $1,500 cash bond and a $1,500 signature bond. Both were posted. In October, according to a complaint, Phillip was caught on camera entering Sue's house through a window about 9 a.m. Later, after she got home from work, Sue said, she checked her camera again and saw Phillip had returned to the house and moved the camera. "Once the camera was moved she did not know what he had done," the complaint said. "She did state that nothing was missing from her house." The deputy reviewed the camera video and confirmed Sue's account, the complaint said. Sue told the deputy Phillip was trying to constantly contact her and had tried 19 times that day. "She told me she was terrified of Phillip," the complaint said. She told the deputy she did not know what Phillip was going to do. Sue "stated she had been told by her neighbor Phillip drives by her house almost daily." Phillip was charged with burglary / domestic abuse, four counts of felony bail jumping, and felony stalking. The state asked for a $10,000 cash bond; Brunette set a $2,000 cash bond and it was posted. All the charges are pending. Phillip, who is represented by the State Public Defender's Office due to poverty, faces a maximum of 77½ years in prison and $137,000 in fines, plus domestic abuse assessments. Our methodology: WJI and Mastantuono Coffee & Thomas determined the number of felony and misdemeanor bail-jumping cases and charges in each county through court data. The total number of felony and misdemeanor cases filed in a county was obtained through the state's online court system. Cases selected for the "case file" section are chosen randomly through a random number-generator web site. The intent of the project is to show a variety of bail-jumping cases. To study bail jumping in Wisconsin, WJI and the Mastantuono Coffee & Thomas law firm are looking county by county at 2021 bail-jumping charges. Which counties are charging bail jumping the most? Who are some of the defendants? What happens to those cases? We'll report the statistics from individual counties and tell you the stories from randomly chosen cases.  Chippewa County Total number of cases with bail-jumping charges: 584 Total number of misdemeanor and felony cases: 1,006 Percent of misdemeanor and felony cases that include bail-jumping charges: 58% Total number of felony cases with bail-jumping charges: 489* Total number of all felony cases: 833 Percent of felony cases that include bail-jumping charges: 59% Total number of misdemeanor cases with bail-jumping charges: 95 Total number of all misdemeanor cases: 289 Percent of misdemeanor cases that include bail-jumping charges: 33% Largest number of bail-jumping charges issued in a single case: 13 Number of felony bail-jumping charges issued: 779 Number of misdemeanor bail-jumping charges issued: 227 *Felony cases can include felony or misdemeanor bail-jumping charges or both; misdemeanor cases can include only misdemeanor bail-jumping charges. Case counts reported as of January 2022. This analysis does not include criminal traffic cases. Case file
Kora was hit with her first criminal case in 2016 when she was 17 and charged with misdemeanor possession of marijuana and drug paraphernalia. The cannabis charge was reduced to a forfeiture violation and she pled no contest; the paraphernalia charge was dismissed. She's been in and out of legal trouble since, at first with smaller drug cases and traffic tickets, and then with multiple felony charges and two overdose deaths at a property Kora rented. The quick downward spiral started with an arrest in February 2021. Two Chippewa Falls police officers, responding to a report about a distressed woman walking a dog, found Kora and the dog. Kora appeared "very confused and was swaying back and forth while standing," according to the criminal complaint. Kora asked for a ride and one of the officers put her in the back of a squad so she could warm up. "Officers observed that (Kora) had been shaking and appeared to have been outside for quite some time, but she refused to say, or was too confused to know, how long she had been outside or where she was coming from," according to the complaint. The officers arrested Kora after learning she had an outstanding misdemeanor warrant from Monroe County. She was searched at the Chippewa County Jail, and a deputy found four opioid pills and about a tenth of a gram of a substance that field-tested positive for methamphetamine. Kora was charged on March 10, 2021, with felony possession of narcotics, second or subsequent offense, and possession of methamphetamine. She was looking at maximum penalties totaling 11 years in prison and $20,000 in fines. Chippewa County Circuit Judge James M. Isaacson set a $2,500 signature bond. Isaacson ordered her, among other things, to report to pretrial monitoring right after court. She didn't. A sheriff's sergeant and deputy went to her house on April 5. Kora said she would deal with the warrant the next day, but the deputy spotted "suspected contraband" in Kora's bra, according to a criminal complaint. It turned out to be a baggie that contained a powder that field-tested positive for heroin. Kora was then charged with felony bail jumping, for allegedly failing to report to pretrial monitoring. That charge carries a maximum penalty of six years in prison and a $10,000 fine. A $500 cash bond was set. Felony bail jumping occurs when a person out on bond on a felony charge violates the conditions of that bond. Misdemeanor bail jumping occurs when a person out on bond on a misdemeanor charge violates the conditions of that bond. A bail-jumping offense may not by itself be a crime. Missing a court date, failing to report to pretrial monitoring, violating a local ordinance, or having a drink could all be bail-jumping offenses if bond conditions prohibit those things. Misdemeanor bail jumping carries a maximum penalty of nine months in jail and a $10,000 fine. Some 11 days after Kora was charged with bail jumping, prosecutors added three more counts, all felonies – possession of narcotic drugs and two more counts of bail jumping. She had violated two more conditions of her signature bond, according to the complaint – not to commit a new crime and not to consume or possess illegal drugs. Those three counts carried a total maximum penalty of 15½ years in prison and $30,000 in fines. Isaacson ordered that the $500 cash bond previously set and posted apply to the new case as well. Less than three weeks later, in May, she was charged with another felony bail-jumping count for failing to report for pretrial monitoring check-ins. She faced another maximum of six years in prison and a $10,000 fine. Kora now had four criminal cases pending against her in Chippewa County. Isaacson directed that the $500 cash bond already posted cover all four.  Nashold By Gretchen Schuldt
A woman convicted of child abuse and neglect will be sentenced anew because Lafayette County District Attorney Jenna Gill breached the plea agreement reached with her, under a state Court of Appeals ruling. In addition, Jamie Lee Weigel's lawyer, Peter A. Bartelt, "provided ineffective assistance in not objecting to the state's substantial material and substantial breach of the plea agreement," District IV Appellate Judge Jennifer E. Nashold wrote for the three-judge panel. She was joined in the opinion by Appellate Judges JoAnne F. Kloppenburg and Rachel A. Graham. Weigel was charged with two counts of child abuse and two counts of chronic child neglect in connection with the care of her two young children. Her partner, the children's father, also was charged. Weigel reached a plea deal under which the state agreed to recommend a sentence of no more than 20 years, including both prison and extended supervision time. As part of the deal, Weigel pleaded guilty to one count of child abuse resulting in great bodily harm and one count of chronic child neglect causing bodily harm. The other two counts were to be dismissed but read in at sentencing. When the children's father was sentenced to 20 years in prison and five years of probation, Lafayette County Circuit Judge Duane M. Jorgenson "appeared to assign greater culpability to Weigel, remarking that Weigel’s conduct was worse than the father’s," Nashold wrote. "Thus, both the defense and the State assumed it was unlikely that Weigel would receive a lesser sentence than the father received." A Department of Corrections pre-sentence investigation recommended a sentence of 14 years in prison and six years of extended supervision. Bartelt submitted a sentencing memo based on an alternative PSI. The memo recommended 10 years in prison, 10 years of extended supervision, and five years of probation, for a total sentence of 25 years. At the sentencing hearing, Gill said the state's recommendation was for 14 years in prison and six years of extended supervision, but then talked about the sentencing memo and said, "So, there’s not a lot that we’re arguing about today. Both parties agree that 25 years in total is appropriate. The only issue then is the amount of initial incarceration." Bartelt did not object to the statement. He said later that he recommended a longer than the agreed-upon sentence because he believed the judge would impose a sentence at least as long as the one handed to Weigel's partner. Jorgenson sentenced Weigel to 20 years in prison and 10 years of extended supervision. Weigel's new lawyer, Cary E Bloodworth, filed post-conviction motions alleging breach of the plea agreement and ineffective assistance by Bartelt. Jorgenson denied them and Weigel appealed. Gill's explicit recommendation for a 25-year sentence at best was an "end run" around the plea agreement, Nashold wrote. "Such indirect undercutting of the plea agreement is ... prohibited." The state argued on appeal that it never promised not to recommend a sentence that included probation. Instead, it said, the state agreed only to limit its recommendation for prison and extended supervision. But, Nashold said, the state did not explicitly recommend probation. "In any event, the State’s argument fares no better even if we assume that the State’s remarks, in full, were meant to convey its recommendation of a 20-year bifurcated sentence followed by a five-year term of probation," she wrote. Rather, the panel agreed with Weigel that “the [S]tate’s attempt to inject a technical definition of the word ‘sentence’ into the context of plea negotiations is misguided.” "Here," Nashold said, "the record shows that both Weigel and the State construed the term 'sentence' broadly, to include any term of probation that might be imposed by the court. At the Machner hearing (a post-conviction hearing regarding the effectiveness of counsel), Weigel testified that she believed that 'everything would be capped at 20 years.' And at sentencing, the state itself used the term 'sentence' to refer to the combined bifurcated sentence and period of probation recommended by Weigel, describing that 'total' 'sentence' as '25 years.' ” The panel rejected the state's argument that Bartelt's sentencing memo implicitly modified the plea agreement and Weigel was not deprived of the benefits of a bargained-for agreement. "We agree with Weigel that her strategy in arguing for a 25-year total sentence does not diminish the significance of the state’s breach," Nashold said. She added: "We also agree with Weigel that – given the circuit court’s apparent view that she was more culpable than the father – it was particularly important that the state adhere to the twenty-year cap that it had agreed to, so as to counteract the effect of the father’s sentence." Bartelt testified that he may not even have realized at the time that Gill breached the plea agreement, Nashold said. "In any event, we agree with Weigel that counsel’s failure to object would constitute deficient performance even if that failure were based on strategic considerations," she wrote. Weigel will be sentenced by a different judge.  Graham By Gretchen Schuldt Police did not have probable cause to search a man driving a car that smelled like marijuana when the man himself did not, the state Court of Appeals has ruled. The decision also revolved partly around the issue of whether the smell of illegal marijuana can be differentiated from that of legal CBD. Quaheem O. Moore told two officers after a traffic stop that he was driving a borrowed car. The officers, who said they could smell marijuana emanating from the car, acknowledged that they could not smell it on Moore himself, the District IV appeals panel said in upholding a ruling by Wood County Circuit Judge Nicholas Brazeau Jr. Moore also told officers that a vape pipe he was carrying, discovered during a pat-down for weapons, was for CBD, which is legal in Wisconsin. "The officers...informed Moore that they were going to conduct a search of his person based on 'the odor of marijuana' coming from the vehicle," Appellate Judge Rachel A. Graham said in her decision for the three-judge panel. She was joined by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold. The officers at first found nothing, but eventually found cocaine and fentanyl in two baggies in a hidden pocket behind the zipper of Moore's pants. He was charged with intent to deliver drugs and possession with intent to deliver cocaine, both as a repeater. Moore, represented by attorney Eric Sheets, moved to suppress the evidence. Judge Brazeau acknowledged that "the odor of marijuana in a vehicle, alone, may give officers probable cause to arrest the driver, but...concluded that the officers in this case failed to link the odor to Moore and Moore offered innocent explanations for the odor," Graham wrote. Moore hit the curb with his car when he was pulled over, but Brazeau also said that was largely irrelevant because the officers did not emphasize any signs of intoxication. The officers also had contended they saw Moore throw a liquid from a car, but Brazeau said that, too, was largely irrelevant. The state appealed. Graham, in her opinion, said the state did not even show that the odor was "unmistakably" that of marijuana, as required by state Supreme Court precedent. Graham also rejected the state's contention that officers could infer that Moore's CBD consumption meant he also smoked marijuana. The Supreme Court had directed courts to consider officers' testimony regarding their training and experience in identifying the odor of marijuana, as well as its strength, recency, and source, she said.
"First, the State did not offer any evidence at the suppression hearing that the officers had training or experience that enabled them to reliably identify the odor of marijuana," she wrote. The state "did not elicit testimony or any other evidence that either officer had any training or experience relating to the odor of marijuana," Graham said. "Although the state elicited testimony that both officers had conducted at least one traffic stop prior to the traffic stop in question, neither officer was asked about their training or experience in identifying the odor of marijuana, whether raw, burnt, or in liquid form; in identifying the strength, recency, or source of marijuana; or, in distinguishing the odor of marijuana from other odors, including CBD. The state elicited no testimony that either officer had even smelled the odor of marijuana prior to stopping Moore." The state also said the smell of legal CBD is indistinguishable from that of illegal marijuana and Brazeau accepted that as fact. "Thus, the officers were confronted with two possible explanations for the odor: legal CBD or illegal marijuana," Graham wrote. "If CBD, which is legal, produces an odor that is indistinguishable from THC, which is illegal, then the odor of CBD may be 'mistaken' for the odor of marijuana." Still, officers were not required to accept Moore's explanation that he vaped CBD, she said. "However, with no discernible ability to identify the odor of marijuana or distinguish it from CBD, the officers could not rule out CBD, or even meaningfully undermine it, as the source of the odor. ... The odor cannot be unmistakably that of marijuana if officers are unable to rule out an innocent explanation for the odor," Graham wrote. The state also failed to link Moore's vaping device to marijuana, Graham said. She also rejected the state's contention that officers could infer that Moore's CBD consumption meant he also smoked marijuana. "Neither officer testified to having knowledge, based on their training and experience, that people who consume CBD are more likely to consume THC, and the State has not explained why it would be reasonable to draw that inference regardless of the lack of factual support," she said. "We conclude the officers lacked probable cause to arrest Moore. ...Therefore, the search of Moore was not a lawful search incident to arrest," Graham wrote. Moore was represented on appeal by attorneys Tracey A. Wood and Joshua Hargrove. The state was represented by Assistant Attorney General Jacob J. Wittwer and Wood County Assistant District Attorney David Knaapen. The SCOW docket: Drop-kicking drop boxes, part 4 (the Roggensack and Grassl Bradley concurrences)8/2/2022 Note: We are breaking our own rules again. WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in four: First the lead decision, then the dissent, and then, in two separate posts due to length, the three concurrences. Here's the first concurrence; today we publish the second and third. Why? Because this package of writings is significant and gives insight into how SCOW's seven justices think. And instead of allowing each writing justice 10 paragraphs, we are allowing up to 20. We've also removed citations from the opinion for ease of reading, but have linked to important cases and laws cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. The case: Richard Teigen and Richard Thom v. Wisconsin Elections Commission Concurrence: Justice Patience D. Roggensack (14 pages) Concurrence: Justice Rebecca Grassl Bradley (17 pages), joined by Chief Justice Annette K. Ziegler and Roggensack Concurrence: Justice Brian Hagedorn (35 pages) Dissent: Justice Ann Walsh Bradley (18 pages), joined by Justices Rebecca F. Dallet and Jill J. Karofsky Majority/Lead Opinion: Grassl Bradley (52 pages), joined by Ziegler and Roggensack; joined in part by Hagedorn Intervenor defendant-appellants included the Democratic Senatorial Campaign Committee, Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters of Wisconsin.  Roggensack The majority opinion concludes that the Wisconsin Elections Commission's (WEC) documents (hereinafter memos) are invalid because ballot drop boxes are not legal in Wisconsin and because absentee ballots must be personally delivered by the voter to the municipal clerk at the clerk's office. I agree, and join the majority opinion. I write further to explain that, under Wisconsin statutes, it is the elector who shall mail the absentee ballot to the municipal clerk. Accordingly, I respectfully concur. *** The circuit court decided that the elector was required to personally mail his or her own completed ballot to the clerk's office. Affirming the circuit court's decision is expressed in several briefs (sic), as is the need for uniform guidance. The WEC has issued memos that encourage drop boxes over mail-in ballot returns, and municipal clerks and election officials have acted on those memos. Teigen is a Wisconsin voter who is affected by the WEC's memos. Because the controversy is justiciable, I proceed to the merits of Teigen's statutory interpretation claim with regard to mailing absentee ballots, and conclude that the memos encourage drop boxes over mailing completed ballots and are inconsistent with Wis. Stat. § 6.87(4)(b)1. Therefore, they are contrary to law. *** The statute provides in regard to mailing that absentee ballots "shall be mailed by the elector . . . to the municipal clerk." Electors are statutorily defined as "[e]very U.S. citizen age 18 or older who has resided in an election district or ward for 28 consecutive days before any election where the citizen offers to vote[.]" Accordingly, when the statute says "the elector[,]" it means, the voter. The plain statutory text, provides that if a ballot is returned by mail, it is the "elector" who does the mailing. The legislature could have said "may be mailed by the elector" if it were not mandatory that the elector do the mailing. ... *** That agents are not permitted by the terms of Wis. Stat. § 6.87(4)(b)1 to mail absentee ballots is further supported by comparing the language in that statute with other statutes in which the legislature has explicitly allowed an agent or non-elector to participate in the absentee voting process. Those statutes, in keeping with the policy in Wis. Stat. § 6.84(1), have formalistic, regulated conditions attached. For example, when a voter is a member of a sequestered jury, the legislature has provided very detailed instructions about voting and returning the ballot where a non-voter participates. ... Another example of the legislature's recognition of agents involved in voting or ballot return is found in Wis. Stat. § 6.86(3)(a) for hospitalized electors. ... Wisconsin Stat. § 6.87(5) also permits the use of an agent when the elector is disabled. ... Once again, when the legislature decided that use of an agent in voting was permissible, it specified the circumstances under which an agent could be employed and defined criteria for performing as an agent in regard to absentee ballots. Accordingly, because the text and context of § 6.87(4)(b)1. instruct me to do so, I conclude that no one but the elector may mail an absentee ballot unless the elector and his or her designated agent fit within a different statutory circumstance that explicitly permits it.  Grassl Bradley This court's binding precedent allows WEC – a creature of the legislature authorized only to implement Wisconsin's election laws – to make law by executive fiat, thereby granting it a potent "Badge[] of Domination[.]" In Trump v. Biden, a majority of this court gave WEC's "advice" the force of law. It declared this "advice" is "the rulebook" for elections – never mind what the statutes enacted by the legislature say. ...
Even properly promulgated administrative rules do not have this kind of weight; in the hierarchy of laws, rules fall beneath statutes (if rules may even be called law). I would overrule Trump, but it remains binding precedent under which the WEC memos have the force of law. Because a majority of this court accords them this effect, they must be rules. Because they were not promulgated according to statutorily prescribed procedures, they are invalid for this additional reason. ... This court's decision in Trump gave WEC the power to materially alter how elections in this state are conducted – without a single procedural check. Trump should be overruled, but if the court continues to hold the memos need not be promulgated as administrative rules, they should at least be subject to the statutory procedures we struck down in SEIU (Service Employees International Union, Local 1 v. Vos). As the law stands, WEC's staff have absolute prerogative power. The constitution does not permit such corruption of the carefully calibrated powers among the branches of government. In that case, Grassl Bradley writes, SCOW denied the legislature a role in previewing and clearing guidance documents issued by the administration. *** Although the memos should not have the force of law, the majority erroneously concluded otherwise in Trump. In that case, Donald Trump, the incumbent President, and his campaign appealed the results of a recount in two Wisconsin counties. The ballots President Trump sought to strike fell into four categories; two are most relevant in this case. First, he argued "that a form used for in-person absentee voting [wa]s not a 'written application' and therefore all in-person absentee ballots should be struck." Second, President Trump argued "that municipal officials improperly added witness information on absentee ballot certifications, and that these ballots [wer]e therefore invalid." As the majority acknowledged, "Wisconsin law provides that a 'written application' is required before a voter can receive an absentee ballot, and that any absentee ballot issued without an application cannot be counted." A majority of this court refused to consider whether the form utilized for in-person absentee voting, EL-122, constituted a written application. It noted, "both counties did use an application form created, approved, and disseminated by the chief Wisconsin elections agency." The majority emphasized "local election officials used form EL-122 in reliance on longstanding guidance from WEC." Therefore, it concluded, "[p]enalizing the voters election officials serve and the other candidates who relied on this longstanding guidance is beyond unfair." "To strike ballots cast in reliance on the guidance now, and to do so in only two counties, would violate every notion of equity that undergirds our electoral system." In Trump, a majority of this court allowed its notions of "equity" and "unfair[ness]" to trump the law. Invoking the same rationalizations, the majority declined to examine whether election officials violated a statute by adding missing witness information to absentee ballot certifications. Wisconsin Stat. § 6.87(6d) provides, "[i]f a certificate is missing the address of a witness, the ballot may not be counted." The majority defied this clear textual command because it was concerned that "election officials followed guidance that WEC created, approved, and disseminated to counties in October 2016." It continued, "the election officials relied on this statewide advice and had no reason to question it." Overall, the majority compared voting – the foundation of free government – to a football game: "[E]lection officials in Dane and Milwaukee Counties followed the advice of WEC where given. . . . Our laws allow the challenge flag to be thrown regarding various aspects of election administration. The challenges raised by the Campaign in this case, however, come long after the last play or even the last game; the Campaign is challenging the rulebook adopted before the season began. Election claims of this type must be brought expeditiously. The Campaign waited until after the election to raise selective challenges that could have been raised long before the election. . . . The Campaign is not entitled to relief, and therefore does not succeed in its effort to strike votes and alter the certified winner of the 2020 presidential election." (Emphasis added by Grassl Bradley.) Note: We are breaking our own rules again. WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in four: First the lead decision, then the dissent, and then, in two separate posts due to length, the three concurrences. Why? Because this package of writings is significant and gives insight into how SCOW's seven justices think. And instead of allowing each writing justice 10 paragraphs, we are allowing up to 20. We've also removed citations from the opinion for ease of reading, but have linked to important cases and laws cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. The case: Richard Teigen and Richard Thom v. Wisconsin Elections Commission Concurrence: Justice Brian Hagedorn (35 pages) Dissent: Justice Ann Walsh Bradley (18 pages), joined by Justices Rebecca F. Dallet and Jill J. Karofsky Majority/Lead Opinion: Justice Rebecca Grassl Bradley (52 pages), joined by Justice Patience D. Roggensack and Chief Justice Annette K. Ziegler; joined in part by Hagedorn Concurrence: Roggensack (14 pages) Concurrence: Grassl Bradley (17 pages), joined by Roggensack and Ziegler Intervenor defendant-appellants included the Democratic Senatorial Campaign Committee, Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters of Wisconsin.   Hagedorn Concurrence The principal issue in this case involves the lawfulness of ballot drop boxes. This case is not about the risk of fraudulent votes being cast or inspiring confidence in elections. This is not about ensuring everyone who wants to vote can, nor should we be concerned with making absentee voting more convenient and secure. Those are policy concerns, and where the law does not speak, they are the business of the other branches, not the judicial branch. This case is about applying the law as written; that's it. To find out what the law is, we read it and give the words of the statutes the meaning they had when they were written. *** A careful study of the text, including its history, along with the supporting statutory context, reveals that unstaffed drop boxes for absentee ballot return are not permitted. Rather, this statute specifies return of absentee ballots through two and only two means: mailing by the voter to the municipal clerk, or personal delivery by the voter to the municipal clerk. And personal delivery to the clerk contemplates a person-to-person exchange between the voter and the clerk or the clerk's authorized representative at either the clerk's office or a designated alternate site. The two (Wisconsin Elections Commission) memos advising otherwise therefore conflict with the law and are properly void. *** Before diving into the law, I offer two observations. First, the election law statutes we are asked to consider are by no means a model of clarity. Many of the controlling provisions were originally enacted over 100 years ago and have been layered over with numerous amendments since. Reasonable minds might read them differently. Significant questions remain despite our decision in this case, especially as absentee voting has become increasingly common. Although our adjudication of this case will provide some assistance, the public is better served by clear statutes than by clear judicial opinions interpreting unclear statutes. The legislature and governor may wish to consider resolving some of the open questions these statutes present. Second, some citizens will cheer this result; others will lament. But the people of Wisconsin must remember that judicial decision-making and politics are different under our constitutional order. Our obligation is to follow the law, which may mean the policy result is undesirable or unpopular. Even so, we must follow the law anyway. To the extent the citizens of Wisconsin wish the law were different, the main remedy is to vote and persuade elected officials to enact different laws. This is the hard work of democracy. *** Standing Standing is the foundational principle that those who seek to invoke the court's power to remedy a wrong must face a harm which can be remedied by the exercise of judicial power. Some of my colleagues have begun to describe standing in far looser terms. It is a really nice thing to have in a case, they seem to say, but not important at the end of the day. I disagree. We have said standing is not jurisdictional in the same sense as in federal courts and that its parameters are a matter of sound judicial policy. But as Justice Prosser put it, "Judicial policy is not, and has not been, carte blanche for the courts of Wisconsin to weigh in on issues whenever the respective members of the bench find it desirable." *** Teigen argues that Wis. Stat. § 5.06 gives voters like him a statutory right to have local election officials in the area where he lives comply with election laws. ... Teigen has a legal right protected by Wis. Stat. § 5.06 to have local election officials in his area comply with the law. The only question, then, is whether the memos at least threaten to interfere with or impair Teigen's right to have local election officials comply with the law. I conclude they do. The two memos challenged in this case provide local election officials advice on absentee ballot return – advice Teigen contends is unlawful. Regardless of whether the memos are themselves binding on local election officials (a question explored further below), they no doubt carry persuasive force with those administering elections. Many local election officials will follow advice offered by WEC, even when that advice is not legally binding. Indeed, the record in this case reveals that many local election officials employed drop boxes consistent with WEC's advice after the memos issued. If that advice is contrary to law, it stands to reason that many local election officials, including those in Teigen's area, are likely to rely on and implement erroneous advice. Applying the plain terms of Wis. Stat. § 227.40(1), the memos Teigen challenges at the very least threaten to interfere with or impair his right to have local election officials comply with the law. ... In this case, the question is whether WEC issued an allegedly unlawful rule or guidance document that makes it likely local election officials will not follow election laws. And on that question, Teigen has sufficiently alleged standing. ... *** Yet the majority/lead opinion suggests it creates broad voter standing against any election official or WEC by any elector for nearly any purported violation of any election law. Without tethering the analysis to an on-point text, this analysis is unpersuasive and does not garner the support of four members of this court. Hagedorn writes that Teigen did not have to file a complaint with WEC before going to court. In addition, Wis. Stat. § 227.40(1) expressly opens the courthouse doors to those challenging administrative rules or guidance documents: "A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule or guidance document in question." This seems to carve out a particular kind of legal claim – a challenge to rules and guidance documents – and relieves the petitioner of pleading one's case with the agency first. Applying this as written, and in the absence of other contrary arguments, I conclude Teigen was not required to take his case to WEC before seeking judicial relief. ... Drop boxes and ballots
In the two memos at issue here, WEC advised clerks that absentee voters could cast their ballots via staffed or unstaffed drop boxes, that drop boxes may be placed at (the) clerk's office or elsewhere, and that individuals other than the voter may deliver the voter's absentee ballot to the clerk. These three positions are inconsistent with Wisconsin's election statutes. The law requires that to return an absentee ballot in person, voters must personally deliver their ballot to the clerk or the clerk's authorized representative at either the clerk's office or a designated alternate site. Because WEC's memos conflict with these statutory directives, they are invalid. *** Wisconsin Stat. § 6.87(4)(b)1 was originally enacted as part of Wisconsin's earliest comprehensive absentee voting law in 1915. Regarding return of a ballot, the law provided: "Said envelope shall be mailed by such voter, by registered mail, postage prepaid, to the officer issuing the ballot, or if more convenient it may be delivered in person." This wording, plainly read, suggests both the mailing and the delivery must be done by the voter, and directed to the ballot-issuing officer. |
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The Wisconsin Justice Initiative Inc. does not endorse candidates for political office. The Wisconsin Justice Initiative Inc. is a 501(c)3 organization.