By Gretchen Schuldt
Allowing jurors to see a defendant visibly shackled into a wheelchair during the closing arguments of his trial was so potentially prejudicial that he must be released from prison or retried, a federal judge ruled this week.
The state must free Danny Wilber or initiate a new trial within 90 days, U.S. District Judge William C. Griesbach said.
"It's 16½ years late," said Robert Henak, Wilber's lawyer.
Wilber, now 41, was convicted in 2005 of first-degree intentional homicide in connection with the 2004 shooting of David Diaz. The case included recanted eyewitness statements and physical evidence that cast serious doubt on whether Wilber was the shooter. Wilber was sentenced to life in prison, with eligibility for extended supervision after 40 years.
"The burden of proving prejudice is not Wilber’s," Griesbach wrote in his decision. "Instead, the state must prove that visibly shackling Wilber during closing argument did not contribute to his conviction....Given the inconsistent testimony of the eyewitnesses and the physical evidence suggesting Wilber could not have fired the fatal shot, the error may well have contributed to Wilber’s conviction."
Henak said the physical evidence showed Wilber "could not have been the one who shot the victim."
Diaz was shot in the head during a party at his South Side Milwaukee home. Two people allegedly identified Wilber as the shooter. At trial, however, both denied actually seeing the shooting, Griesbach said.
Even "more problematic" was the physical evidence, he said. The medical examiner testified that evidence indicated that Diaz was shot from behind at close range. Witnesses, though, said Wilber was in front of the victim, and one witness said there was another man with a gun at the party – behind Diaz.
In addition, witnesses said the gun Wilber had was a semi-automatic, which would have ejected a shell casing when fired. No casing was found, though, and a firearms expert testified that the bullet that killed Diaz was fired from a revolver.
From the start of the trial, Milwaukee County Circuit Judge Mary Kuhnmuench – now retired – expressed unhappiness with Wilber's demeanor and what she perceived as his disrespectful demeanor, according to Griesbach's decision.
"Beginning the first day of trial before jury selection had even begun, the trial judge cautioned Wilber that he would not be allowed to make 'facial gestures,' 'sounds,' 'act imprudently,' or be disrespectful to the court," Griesbach wrote.
Kuhnmuench objected to Wilber turning to look at the prosecutor, Griesbach said.
"You can’t do that," she said, according to the decision. "You have to face frontwards at all times. You’re not allowed to look back into the gallery. You’re not allowed to turn back and make faces or gestures at the state table. You’re supposed to be sitting straight in front in your chair, eyes forward, confer with your lawyer, but always facing this direction."
Wilber's behavior would not be allowed to continue, she said.
"One, because it’s disrespectful, and I'm going to have to take some steps to stop you if you don't do it, if you don’t stop, and I don’t want to have to do that," she said. "And the second thing is it’s -- it’s bad for you and it looks bad in front of a jury."
Wilber's lawyer, Michael Chernin, explained that his client meant no disrespect, but that Wilber disagreed with the court's rulings.
"What I'm trying to tell you is it's a disrespect to the court to show you disagree," Kuhnmuench said.
Updated July 23, 2020
By Gretchen Schuldt
State prosecutors will not retry a man who spent 12 years behind bars before a federal judge found police so badly violated his constitutional rights that he should be freed or given a new trial.
Ladarius Marshall, 16 when he was arrested and now 28, was released from the Green Bay Correctional Institution on Friday, according to the Department of Corrections website.
“The state’s choice not to prosecute Mr. Marshall is an extraordinary result," said Matthew Pinix, his lawyer. "I am glad to see this long road finally end for Mr. Marshall. He’ll soon walk out of prison a free man. But that result did not happen soon enough. Mr. Marshall has been fighting for his freedom for almost half his life."
Marshall, because his release was so abrupt and complete (no community supervision), likely will not be eligible for assistance from the Department of Corrections that other incarcerated people returning to the community might get, Pinix said. Nor is he likely eligible for the $25,000 maximum compensation the state provides to those wrongfully convicted.
"I am tremendously happy with the State’s choice to put an end to its prosecution," Pinix said. "Now Mr. Marshall deserves to somehow be compensated for the last twelve years of his life.”
U.S. District Judge William Griesbach in April ruled that police detectives' persistent questioning of Marshall even after he said he did not want to talk violated his rights. Marshall, who had cognitive deficiencies, was held by police in interrogation rooms from about 7:30 a.m. to about 10:30 p.m.
"Absent greater maturity and a much stronger educational background than Marshall had, it is difficult to imagine how he could have more clearly conveyed to the detectives that he did not want to talk to them...." Griesbach wrote. See WJI's previous story on the ruling here.
Marshall eventually told police he was present when Lavare Gould was fatally shot on June 16, 2008, but denied being the shooter.
Marshall pleaded guilty to second-degree reckless homicide with the use of a dangerous weapon, and possession of a dangerous weapon by a person under the age of 18. He was sentenced in May, 2010, to 20 years in prison and 10 years of extended supervision.
Marshall's trial lawyer, now-Circuit-Judge Jean Kies, argued that Marshall's statements should be suppressed, but lost. Marshall appealed his case twice, but the Court of Appeals ruled against him both times and the State Supreme Court twice declined to intervene, according to online court records.
"Seven Wisconsin judges denied him relief without fully analyzing the facts of how the police obtained his statement," Pinix said. "Justice had to wait for more than a decade until a federal judge actually read the transcripts and saw that police officers illegally refused to honor Mr. Marshall’s rights. "
By granting the writ of habeas corpus, Griesbach found that state court decisions in the case were “contrary to, or involved an unreasonable application of, clearly established Federal law."
The Milwaukee County District Attorney's Office, in a Circuit Court document seeking dismissal of the case, said the State Department of Justice and the DA's office jointly decided not to retry Marshall.
"Based upon a review of the facts developed during the investigation of the homicide of Lavare
Gould, the State has decided not to retry Ladarius Marshall for this homicide," Assistant District Attorney Paul Tiffin wrote.
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.
Thomsen: It was an unreasonable use of force. Correct?
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.
Defendants abandoned by counsel must figure out appeal rules on their own, State Supreme Court rules
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.
The Sterling Brown case: There may have been dead people in that Walgreens, cop says a year-plus later
By Gretchen Schuldt
Parts of depositions of police officers involved in the detention, takedown, tasing, and arrest of Milwaukee Buck s player Sterling Brown in January 2018 have been filed in Federal Court.
Brown was confronted by several officers after he parked illegally in a handicapped parking space at a Walgreens parking lot about 2 a.m. Jan. 26.
Brown has filed a lawsuit alleging the officers violated his constitutional rights. His attorney, Mark Thomsen, filed several deposition excerpts.
The City of Milwaukee and other defendants have denied violating Brown's rights.
WJI is publishing portions of the depositions. This first selection is from the deposition of Officer Joseph J. Grams, who first stopped Brown as Brown returned to his car from the store. Brown's date was in the car at the time.
Grams, in his May 2019 deposition, said his contact with Brown was effective because Brown did not get past him.
Grams: That was the intent; not to get -- not to let him get past me because he could have been a fleeing felon.
Thomsen: What do you mean he could have been "a fleeing felon"?
Thomsen: Tell me.
Grams: Well, my thought was that when he was coming out, was that, hey, we have a situation; could be an armed robbery. The car is, as we described before, positioned for a quick exit. It's the only car in the whole lot; positioned for a quick exit out of the parking lot; so a perfect armed robbery car. The car was running. There was a lookout in the car, and it's positioned to flee directly out the parking lot. So at that time until we investigated further, I couldn't let him pass into his car because there could have been dead people in the Walgreens until we verified that; so it worked. Stalled him until other squads could get there.
Context: Gram's lawsuit alleges that "Approximately ten seconds after first approaching Mr. Brown, and before Mr. Brown had any reasonable opportunity to respond to Defendant Grams’ demands, Defendant Grams unlawfully shoved Mr. Brown" and "less than thirty seconds after Defendant Grams first approached Mr. Brown, Defendant Grams phoned dispatch and requested backup. While Defendant Grams called in his request for backup, Mr. Brown waited quietly. After contacting dispatch, Defendant Grams returned to Mr. Brown again, telling him to 'back up!' in a loud voice. Mr. Brown asked Defendant Grams, 'for what?' Defendant Grams deceptively accused Mr. Brown of obstructing, and then told Mr. Brown 'I’ll do what I want, alright? I own this right here.' Mr. Brown replied, 'You don’t own me, though.' "
Later, while Brown was on the ground, "Grams used his right foot to stomp on Mr. Brown’s leg. Then after the Taser was shot into Mr. Brown’s back, Defendant Grams proceeded to stomp on Mr. Brown’s leg with both feet."
After Brown was tackled, tased, and cuffed, the complaint says, "Grams commented to Defendant Krueger, '[i]f the guy hadn’t been such a dick it would have been ‘hey, have a nice day!’ you know? But then I thought, okay he’s being an ass, he’s trying to hide something.'”
Thomsen: When did you first tell any human being that you said it could have been dead people in the Walgreens?
Grams: What's that?
Thomsen: When is the first time you told anybody that there could have been dead people in the Walgreens?
Grams: I think just now.· I don't remember – at the scene, you mean?· I don't think there was anybody I told that to.· I don't recall that anyway.
(After the incident, officers involved in it were directed to take remedial training, where they reviewed body camera footage and discussed flaws in the way they handled the situation.)
Thomsen: Let's be very clear.· At the remedial training, what did they tell you about your pushing Mr. Brown? ...
Grams: Okay. Yeah, it should have been more forceful because in that training – I mean, I tried to keep it from escalating; so I just pushed him with my fingers. That training shows that you strike the person straight up in the chest very forcefully to actually move them back. I didn't do that. I wanted to do try and keep it as low-key as possible; so that's what I should have done, and I didn't do it. I didn't strike him like that, which I should have by the book.
Thomsen: Who told you that at the remedial training, that you should have shoved him?
Grams: Well, I don't know if anybody -- I don't know if anybody told me that, but that's what the DAT book says.
Thomsen: My question, sir, was, what did they tell you at the remedial training about your contact with Mr. Brown?
Grams: I'm not sure if they addressed that or how they addressed it.
Thomsen: Lieutenant Stein writes, in quotes, Police Officer Grams displayed resistive and dismissive behavior throughout the remedial regarding the ProComm concepts Police Officer Anderson laid out. What were you dismissing about what Officer Anderson pointed out?
Grams: I don't think I was dismissive about it. I just didn't agree with him.
Thomsen: What didn't you agree with?
Grams: That – he was saying I should have stepped back and let him get in the car, and I didn't agree with that; so that's his opinion.
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.
Maclin's lawyer, Joshua D. Uller argued the feds' practices resulted in racial bias and demonstrated selective prosecution; the U.S. Attorney's Office said it was concentrating resources in Milwaukee because of higher crime there.
U.S. District Judge Pamela Pepper sided with the feds. Uller simply did not present evidence that federal authorities were racially motivated by their charging decisions, she said.
Ultimately, then, armed drug dealers in Milwaukee may face harsher penalties because of where they live or were arrested. It's not about race; it's about location.
But criminal complaints filed in state court and cited by Uller show there are great discrepancies in how cannabis/gun cases get treated, even in Milwaukee County.
An officer falsified a document, lied about it, then got a day in jail and a new job in law enforcement
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.
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