By Gretchen Schuldt

​A lawyer on Thursday called for an investigation into a Milwaukee deputy city attorney's suggestion to a jury that the African American plaintiff in an excessive force lawsuit would be irresponsible to have children if police injured him as badly as he claimed.

Deputy City Attorney Jan Smokowicz's comments were racist or close to it, attorney Nathaniel Cade said.
 
“Now you’re saying a black man should not have children because he’s injured," Cade said. "Would you say that to a veteran of a war?”

“Maybe he (Smokowicz) should not be handling these civil rights case if he harbors these views,” Cade said.

The investigation should be ordered by City Attorney Grant Langley or by challenger Tearman Spencer if he wins the April 7 general election, Cade said.

Smokowicz said Cade's recollection of his comment "is not accurate and understanding my actual remarks requires the context of the testimony provided by the plaintiff in the case.
 
"Mr. Harris testified that his shoulder injury from the incident with the police was so severe that he could not even help change his child’s diapers," Smokowicz said. "In my closing argument, I asserted that the jury should conclude that Mr. Harris was embellishing the degree of his injuries. I said, in particular, that I was certain he was not the type of person who would be so irresponsible as to leave to the mother of two of his children, born after the incident, the sole responsibility for their care.
 
"There was no racism in this statement—implicit or explicit.  Mr. Cade’s demand for any inquiry is completely unfounded," he said.

Cade represented Jimmy Harris, 47, in a federal court lawsuit alleging police used excessive force and violated Harris' constitutional rights when they arrested him after a traffic stop in November 2010. 

​A jury found in Harris' favor Wednesday and awarded him $1.67 million in damages.  (Previous WJI stories about this case and derogatory remarks made by an officer involved are here,  here, and here.)

Harris alleged in his lawsuit, among other things, that Officer Froilan Santiago injured Harris' recently operated-upon rotator cuff during the arrest, which led to long-term medical problems that plague him to this day. 
​
The Harris case is just the latest in a series of lawsuits against the police that have cost the city millions of dollars in settlements and verdicts.

“I would hope the city council would go into a closed session and make some decisions on how they want to handle this case and other cases because that’s reflective of the police force they have,” Cade said.

By Gretchen Schuldt

​A Milwaukee police officer repeatedly denied under oath stepping or standing on Milwaukee Buck Sterling Brown's leg after Brown was tased in a Walgreen's parking lot, even though a video clearly shows the officer did so.

"He was kicking at the time. I put my foot against his leg to prevent him from kicking anymore," Officer James Collins said. "I did not step on his leg. I did not stomp on his leg."

The start of the video shows that Brown moved his legs but did not kick in the moments before Collins stepped on him.

Brown was confronted by several Milwaukee police officers after he parked illegally in a handicapped parking space at a Walgreens parking lot about 2 a.m. Jan. 26, 2018. He was tased, taken to the ground, handcuffed, and arrested. 

He has filed a lawsuit alleging the officers violated his constitutional rights. His attorney, Mark Thomsen, has filed several deposition excerpts. WJI is printing excerpts of some of them.

Read previous posts, with transcripts, about Officers Joseph J. Grams and Bojan Samardzic and Sgt. Jeffrey Krueger. The full transcript of Collins' deposition is here.

The City of Milwaukee and other defendants in the suit have denied Brown's allegations.

After the incident, the officers involved, including Collins, were ordered to take remedial training that included showing video of and critiquing officers' conduct during the event,

Collins acknowledged that he was told during the training that his action was inappropriate.

"They (officers in charge of the training) said it was inappropriate, yes. They did not say I was standing -- I don't believe they used the terminology "standing," but I was informed that I was blocking. I was not standing on his leg," he testified.

"They told you specifically it was inappropriate," said Thomsen, Brown's lawyer.

Collins: Yes.

Thomsen: It was an unreasonable use of force. Correct?

Collins: Yes....

Thomsen: And you've just told me under oath that your standing on Mr. Brown's leg was not reasonable. Correct?

Collins: I was not standing on his leg.

Thomsen: Your -- whatever you want to say....

Collins: I was blocking his foot with my foot.

Thomsen: And it was not reasonable use of force. Correct?

​Collins: That's what I was told, yes.

Thomsen: I want to know, do you believe it?

​Collins: I don't believe it, no....I did not stand on his leg. I was blocking his leg with my foot.

The topic came up again later.

Thomsen: So why do you think you got two days off for calling Mr. Brown a douchebag but you didn't get any time off for actually having your foot on his leg?

​Collins: My foot was blocking his foot. It was not on his foot. You keep implying that I was stepping on it. I was not stepping on his foot. I was not stepping on his leg. ​

                                                                                       ***
Thomsen: Do you agree based on the training that you received that because Mr. Brown was not allowed to leave, his constitutional rights were violated?

Collins: Knowing that it was just a parking citation, yes.

                                                                                       ***

By Margo Kirchner​

The Wisconsin Supreme Court said in two recent opinions that criminal defendants must meet the same standards as lawyers when appealing their cases if their actual lawyers abandon them before the appeal is filed.
 
That means incarcerated people fighting on their own behalf must meet the same deadlines and follow the same rules as lawyers even without access to the same resources, such as law books, paper, and online information.
 
In each of the two cases, the defendant told counsel he wanted to appeal, but counsel failed to file a required notice of intent to pursue postconviction relief, resulting in the loss of appeal rights.
 
Such a failure constitutes ineffective assistance of counsel. But in each case the Court held the defendant responsible for errors when acting on his own to restart his appeal.
 
Justice Rebecca Grassl Bradley joined with Justices Ann Walsh Bradley and Rebecca Dallet in strong dissents in both cases.

​State v. Pope
 
In the first case, after four days of trial, a jury in Milwaukee County Circuit Court convicted Robert James Pope of first-degree intentional homicide as a party to the crime. In early July 1996, the court sentenced Pope to life imprisonment without parole.
 
Immediately after sentencing, Pope and his attorney, Michael Backes, signed a form indicating that Pope intended to pursue postconviction relief and that counsel would file a formal notice of the same within 20 days. Filing the formal notice sets in motion preparation of the trial transcript and appointment of appellate counsel. But Backes never filed the notice, and Pope’s direct appeal rights expired.
 
Pope and his mother tried repeatedly, without success, to reach Backes by phone to ask about the appeal.
 
About a year later, in August 1997, Pope contacted the State Public Defender’s Office to inquire about his appeal. The SPD told Pope there was no appeal, the office had no idea why the formal notice was never filed, and Pope could ask the court to extend the time for filing the notice.

By Gretchen Schuldt

​Jacob Maclin lost his effort to show there is racial bias in federal prosecutors' decisions about who gets charged with certain drug and gun cases in federal court, where penalties are heavier than in state court.

The numbers are clear – African Americans in Milwaukee face the harsher federal criminal penalty at a greater rate than do Whites in Milwaukee and elsewhere in the Eastern District of Wisconsin.

Federal prosecutors work with gun prosecutors in the Milwaukee County District Attorney's Office to decide which cases should go federal, according to the U.S. Attorney's Office. The feds may never even find out about cases in other counties that could be prosecuted federally.

By Gretchen Schuldt

Shorewood Police Sergeant Cody J. Smith took action after Jonah Marciniak was found hanging in his cell during the early morning hours of Aug. 15, 2016.

First, Smith performed CPR. Then he doctored a Police Department document to show that he checked on Marciniak at 4:10 a.m., when he had not. Smith did not check on Marciniak during the 46 minutes from 3:33 a.m. to 4:19 a.m., when Smith found the 39-year-old inmate hanging.

Then he lied about checking on Marciniak. And lied. And lied. He lied to officers from the Greenfield Police Department, called in to investigate the death, on three separate occasions between Aug. 15 and Aug. 31,   2016, according to a criminal complaint. Smith admitted the truth only after he was confronted with a surveillance video clearly showing that he hadn't checked on Marciniak at 4:10 a.m.

Smith was fired and was charged with one misdemeanor count of obstructing an officer. It took until March 23,  2017, seven months after the hanging, to issue the complaint, but the case got wrapped up very quickly -– within five days – after that.

Smith was sentenced on March 28, 2017 to one day in jail. Because he had gone through the booking process, his jail sentence was considered already served, according to a transcript of the sentencing hearing. Milwaukee County Circuit Judge Jean Kies also fined Smith $500.

He remains in law enforcement today.

"I think the conviction is appropriate, given the tremendous lapse in judgment that this presents," prosecutor Benjamin Lindsay said at Smith's sentencing hearing. "An officer -- We rely on officers for their credibility, and that is something that is -- There's a level of community trust there. There's also trust that the Court places and our office places."

Smith was very busy the night of the hanging, defense lawyer Michael Steinle said at the sentencing hearing.

Smith "has no prior record," Steinle said. "He doesn't have anything in his personnel file. This is -- It is just one of those sad situations that he just made a bad judgment to make that entry, and he didn't have to. That's the sad part about it. As -- But when push came to shove, he did correct it, Judge, and he was too late. He had already told the -- Greenfield that, in fact, he had checked when he didn't."

A federal court lawsuit filed over Marciniak's death says that Smith failed to follow Shorewood Police Department policy, which requires visual checks of jail inmates every 30 minutes and of mentally unstable inmates – which the suit says Shorewood police knew Marciniak was was – every 15 minutes.

By Gretchen Schuldt

A Milwaukee police officer testified he would invite traffic stop subjects into his squad car if the stop was in the Downtown police district, but not if it was in a central city or North Side district.

Officer Froilan Santiago made the statements during a 2017 deposition taken during a Federal Court lawsuit alleging that Santiago used excessive force during a traffic stop. The suit is pending.

"So then getting back to my question," attorney Nathaniel Cade, Jr. asked Santiago, "how many times since 2006 have you initiated a stop of someone and suggested that they get out of the vehicle and get into the front seat and look at the computer?"

"Now, like I said, District 7, I wouldn't do," Santiago said. District 7 headquarters is at 3626 W. Fond du Lac Ave. on the city's North Side.

"Depends on the situation and environment," he continued. "District 1 is a different type of environment where it's more of people as far as the -- more able to communicate and more different lifestyle of the individual based on our training in District 1 -- or based on what -- my experience at District 1, it's a lot more common than if I was at District 7. "

District 1, Downtown, is headquartered at 749 W. State St.

He continued: "District 7, if you stop that person, that person is going to run. He might have drugs or guns, based on where I've worked at. District 7 or District 5."

District 5 is based at 2920 Vel R. Phillips Ave. 

"District 1, you have a high percentage of people who's in college, who's in business, work, and stuff like that, and you deal with them differently as far as – and their behavior at that moment in time. I don't know," Santiago said. "Like I said, it's just discretion of the individual of what's going on."

"So you're profiling the driver of the vehicle based on the district that you're in because it's more likely that if they're in a poor neighborhood, that it's drugs and guns?" Cade asked.

"You asked me how I'm going to perform my traffic stop," Santiago responded.

The plaintiff in the lawsuit, Jimmy Harris, alleges that Santiago in November 2010 stopped the car Harris was driving and asked him to get out of the vehicle. Santiago said he stopped the car because it was black and the color listed on DMV records as gray. It was about 4:45 p.m. and dark at the time of the stop.

The same mistake about the car's color had been made previously, according to the suit, and Harris offered to show Santiago on the squad computer how the error was made. Santiago accepted, but then "suddenly grabbed Mr. Harris' left arm that had recently been operated on and used it to maneuver Mr. Harris..."

This 29-minute video shows parts of Harris' encounter with police.

By Gretchen Schuldt

​A 39-year-old man hung himself in the Shorewood jail after police detained him without reason, searched him improperly, locked him in a cell alone despite knowing he suffered from mental illness,  and failed to check on him in a timely manner, according to a Federal Court lawsuit filed Friday.

The suit was filed by the son and estate of Jonah Marciniak, who died on Aug. 21, 2016. Izariah Jump, Marciniak's son, was 16 years old at the time.

The suit alleges false arrest and unlawful detention, unreasonable search, deprivation of due process, failure to provide medical care, failure to protect from self-harm, and wrongful death. 

According to the suit:

Shorewood police responded to a Marciniak drug overdose on Aug. 12, 2016. Marciniak told them then that he suffered from depression. The next day, his roommate, Eric Harper, told police that Marciniak had overdosed and attempted suicide previously and suffered from several kinds of mental illness, including depression, anxiety and bi-polar disorders.

Two days later, Harper fell out of a fourth-floor window. When police responded, they tried to gain access to the apartment that Harper fell from so they could check on the welfare of anyone inside. They rang the buzzer and pounded on the door but received no response. The North Shore Fire Department eventually gained access.

Two defendants in the suit, Police Officers Cody J. Smith and Nicolas Taraboi found Marciniak naked, face down on a bed after a "loud search" of the rest of the apartment. Smith also had responded to the drug overdose days earlier.

"Jonah had very shallow breaths and did not respond to the SPD police officers’ multiple attempts to wake him," the suit says. "The SPD police officers screamed commands at Jonah, but there were no movements from him."

Smith recognized Marciniak when they rolled him onto his back, according to the suit. 

"It was obvious to all present that Jonah was impaired," the suit says.

By Gretchen Schuldt

​Federal prosecutors send staff members to the Milwaukee County District Attorney's office to look through gun cases to determine which ones should go to the tougher federal system, according to federal court filings.

Milwaukee County, home to the largest share of African Americans in the state, is the only county of the 28 counties in the Eastern District of Wisconsin to get that personal touch from the U.S. government, according the filings by Assistant Federal Defender Joshua D. Uller.

The practice results in a disproportionately large share of African Americans getting charged with certain gun crimes, he said.

Some 50 percent (90 of 176) of the people charged with drug-trafficking offenses in the Eastern District were Black during the period from January 2017 through June 2018, though the district is just 10 percent African American, according to Uller's filings. Whites accounted for just 23 percent of people charged with drug trafficking, though the district is 84 percent White.

Thirty-five of the drug trafficking defendants also were charged with possessing a firearm in furtherance of the crime. Twenty-eight, or 80 percent, of those defendants were Black. Three, or 9 percent, were White, he said.

The firearm charge carries a mandatory minimum of five years in prison, which must be served consecutively to any other sentence.

And 100 percent of the 10 cases alleging possessing a firearm in furtherance of a marijuana trafficking crime were brought against minorities. Nine were filed against Black defendants originally arrested by Milwaukee police. The 10th minority was an Arab, Uller said. (Arabs are legally considered White.)

Uller says the charging disparity demonstrates selective prosecution and enforcement. He is asking a federal judge to allow the Federal Defenders Office to examine materials from the U.S. Attorney's Office that provide more evidence about how cases are selected for federal prosecution.

​Prosecutors deny any selective prosecution or enforcement and U.S. Magistrate Judge Nancy Joseph has recommended Uller be denied access to the materials he wants.

By Gretchen Schuldt

​A judge erred when he said that sperm DNA evidence helpful to the defendant in a sexual assault case was inadmissible under the state's rape shield law, the State Court of Appeals has ruled.

The shield law disallows evidence of a sexual assault victim's sexual history because of its prejudicial effect.

"In general, 'all relevant evidence is admissible,'” the panel said, quoting state law.  The case now heads back to Sauk County Circuit Court.

The unsigned decision by the District IV Court of Appeals panel reversed a ruling by Circuit Judge Todd J. Hepler, who barred sperm DNA evidence that excluded defendant Juan L. Walker as the source of sperm found on the victim's bed sheet. 
​
Hepler said the sperm was evidence of "prior sexual conduct" of the victim, Katherine, or someone else, and thus was inadmissible under the rape shield law.

Defendant Walker also was excluded as the source of other, non-sperm DNA evidence, but Hepler also ruled that evidence inadmissible.

Hepler said the absence of Walker's DNA on the sheet "does not necessarily equate to the absence of Mr Walker at the scene. Simply because there is no DNA there on that particular bed sheet does not necessarily mean that Mr. Walker was not there. The presence of another's DNA doesn't equate to the absence of another's DNA either."

The victim, identified only as Katherine, had been drinking before the assault, according to the appeal panel. Two friends helped her after she vomited outside a Lake Delton restaurant. Walker, whom none of the three had met before, stopped, offered to help, and eventually gave them a ride to Katherine's home, according  to the appeals panel, which included Appeals Judges Paul Lundsten, Brian Blanchard, and Michael R. Fitzpatrick.