By Gretchen Schuldt

A judge was correct in ordering a man to pay potentially tens of thousands of dollars in court surcharges for having child pornography images that were never included in criminal charges against him, the State Court of Appeals has ruled.

The District IV Court of Appeals panel, however, sent the case back to circuit court to determine whether all of the pictures involved were actually associated with the crime for which William C. MacDonald was convicted.

MacDonald pleaded guilty in Marquette County Circuit Court to one count of possessing child pornography. As part of the plea bargain, another nine counts, each based on an individual picture, were dismissed but read into the record.

Read-in charges, Appellate Judge Jennifer E. Nashold wrote for the three-judge panel, are agreed to by both the prosecution and defense. A judge can consider the read-in charges when imposing sentence, though they do not increase the maximum sentence the defendant faces. A judge can also order a defendant to make restitution for read-in charges. Finally, prosecutors cannot later bring formal charges for counts read in.

MacDonald's plea agreement said that "the State would be moving to dismiss and read in the rest of the charges...in addition to any uncharged image that was part of this investigation, so that the State will not be filing any additional charges for any other images, but we would be asking that they be read in as part of the sentencing in this matter."

Circuit Judge Bernard N. Bult sentenced MacDonald to four years in prison and three years of extended supervision. He also levied mandatory $500 surcharges for the photo that was the basis of the charge, nine photos for the counts that were read in at sentencing, and 90 additional images that did not serve as the basis for a charge. The total in surcharges was $50,000 for 100 images.

MacDonald, arguing that the surcharge should be limited to $500 for the one count on which he was convicted, requested in a post-trial motion that the surcharge be reduced, but another circuit judge, Mark T. Slate, refused. 

MacDonald appealed, but the appeal was put on hold while the state Supreme Court considered another case involving the child pornography surcharge. In that case, State v. Schmidt, the court ruled that the surcharge did apply to pictures included in read-in counts. 

MacDonald conceded the surcharge applied to the nine read-in counts, but continued to argue that the surcharge should not apply to counts that were not ever charged. The appeals panel disagreed.

"We conclude that Schmidt does not directly answer this question but that, consistent with its analysis, the surcharge applies to read-in images regardless of whether there is an accompanying charge, so long as those images are 'associated with the crime,' ” Nashold wrote.
State law, she said, does not limit read-in crimes to only those that were charged and dismissed.

Nashold was joined in the opinion by Appellate Judges Brian W. Blanchard and Michael R. Fitzpatrick.

In sentencing MacDonald, she said, Bult correctly noted that MacDonald's ability to pay the surcharge was not a factor. Bult imposed the surcharge on 100 images, though he believed there could be more pictures involved.

"Read-ins may be considered for restitution and sentencing purposes regardless of whether they are uncharged or charged and dismissed. Thus, we discern no basis in the statutes or case law for a sentencing court to treat uncharged and read-in images differently from charged and read-in images for purposes of applying the surcharge," Nashold wrote.  

The panel, however, remanded the case back to circuit court for a judge to determine whether the images that formed the basis of the surcharges actually were "associated" with the crime for which MacDonald was convicted.

State statute requires a judge to determine the "association" by a preponderance of evidence – a lower standard than that required for conviction – and without a jury. 

"Here, it does not appear that the sentencing court engaged in any fact-finding to determine the association, if any, between the 90 uncharged images and the image forming the basis of the count of conviction," Nashold wrote. 

By Gretchen Schuldt

​The COVID-19 pandemic has the Milwaukee State Public Defender's Office doing what it rarely did in the past – sending out email blasts asking private bar attorneys to represent indigent defendants in criminal cases.

Those types of emails are fairly common in rural counties, where lawyers are scarce and SPD offices struggle to find enough private lawyers to take cases.

In Milwaukee County, though, there are more lawyers overall and enough have been willing to step in when SPD staff attorneys bow out of a case for reasons such as conflicts of interest or caseload issues. 

"The pandemic, I'll have to say, has really had an impact," said Tom Reed, regional attorney manager for the SPD's Milwaukee Trial Office.

The cases are often serious felonies. In one email last month, SPD sought lawyers for 15 cases involving 12 defendants. Charges included intimidating a witness, stalking, child sexual assault, and armed robbery, among others. A few days later, SPD sent an email seeking one lawyer for one case – a homicide. 

The numbers vary, but Reed said there are now generally about 30 to 40 defendants in custody for at least a week or two without representation, a much higher number than in pre-COVID times.

There are other factors to the lawyer shortage, but the pandemic looms large. When it hit, the courts essentially shut down and that had cascading impacts.

Judges, jailers, lawyers, and court officials worked to keep defendants out of the jail when they could because of concerns of COVID spread. More people charged with misdemeanors were told when to appear in court and released, rather than being booked through the jail., for example. The people held in jail were those accused of more serious crimes. There are about 150 people sitting in jail on homicide charges, Reed said.

The courts' shutdown meant backlogs built for SPD lawyers,  prosecutors, private bar attorneys, judges, and everyone else in the system. Milwaukee County Chief Judge Mary Triggiano estimates it will take 18 months to two years to clear the build-up of criminal cases.

Courts are reopening, slowly, and cases are moving forward. Private bar attorneys are needed to handle SPD cases, but those private lawyers also have to handle the cases they already have on their docket. Lawyers who were willing to work SPD cases before the pandemic simply can't handle them now

"People feel unwilling to overload their calendars," Reed said.

The pandemic also may have helped some lawyers approaching retirement age decide that it was the perfect time to pull the plug, Reed said.

In addition, "I think there were lawyers who weren't retirement age, but they did back off if they felt some vulnerabilities," he said.

Some might have had caregiving duties or their own health concerns, he said. 

The pandemic also may have made it financially more difficult for private lawyers to accept bar appointments, he said. They get $70 an hour for the work, and usually are not paid until a case is over, which can take some time.  If lawyers are under financial stress, they just might not be able to wait several months or longer for a paycheck.

The generational turnover also means there are fewer lawyers available who have the experience to ably defend a murder case or other very serious felony, Reed said. Yet it is people charged with those types of crimes who have been sitting in the jail and whose cases judges are now giving priority. 

The private bar pay has been criticized as too low, but Reed said he did not think that was a factor in the current situation.

Cases are moving now, though slowly. The SPD and private bar lawyers continue to work together, Reed said.

"Every day we're finding lawyers to take some of the cases," he said. 

"Our program relies on the strength of the private bar," he said.. "They have been good partners in seeking justice."

By Gretchen Schuldt

​It was a 4-3 squeaker in the State Supreme Court this week as it upheld Joe Biden's win over Donald Trump in the Wisconsin's presidential race.

The full document is chock-full of dissents and concurrences – the entire thing is 81 pages long and long, and yes, there is a bit of the snark we have come to expect from Justice Rebecca Grassl Bradley.

We are dissecting the decision, trying to make it a bit easier for non-lawyers to follow by arranging it in some sort of logical order, grouping excerpts from the main decision, written by Justice Brian Hagedorn, with excerpts from the relevant dissents and concurrences.

We also aiming for the major points, and don't plan to replicate every word in the decision.

Our introduction to the decision is from Hagedorn, who summarized it nicely in his majority opinion which was joined by Dallet, Walsh Bradley, and Justice Jill Karofsky.

The (Trump) Campaign focuses its objections on four different categories of ballots – each applying only to voters in Dane County and Milwaukee County. First, it seeks to strike all ballots cast by voters who claimed indefinitely confined status since March 25, 2020. Second, it argues that a form used for in-person absentee voting is not a "written application" and therefore all in-person absentee ballots should be struck. Third, it maintains that municipal officials improperly added witness information on absentee ballot certifications, and that these ballots are therefore invalid. Finally, the Campaign asserts that all ballots collected at "Democracy in the Park," two City of Madison events in late September and early October, were illegally cast.

A big theme for the justices was whether Trump's complaints were filed in a timely manner, and that theme ran through much of the justices' writings.

This was definitely the least contentious issue the justices dealt with.

State law allows voters to declare themselves indefinitely confined if they meet legal requirements. This gives them the ability to avoid the requirement to present a photo ID to get an absentee ballot. 

The Dane and Milwaukee County clerks in March, in Facebook posts, said any potential voter could declare indefinite confinement because of the pandemic and Gov. Tony Evers' "Safer-at-Home" which was in effect at the time. Within a week, though, the Supreme Court said the Dane/Milwaukee County advice was erroneous. and the county clerks modified their postings.

Here is what Hagedorn, delivering a bench slap to Team Trump, said in the majority opinion.

The (Trump) Campaign does not challenge the ballots of individual voters. Rather, the Campaign argues that all voters claiming indefinitely confined status since the date of the erroneous Facebook advice should have their votes invalidated, whether they are actually indefinitely confined or not. Although the number of individuals claiming indefinitely confined status has increased throughout the state, the Campaign asks us to apply this blanket invalidation of indefinitely confined voters only to ballots cast in Dane and Milwaukee Counties, a total exceeding 28,000 votes. The Campaign's request to strike indefinitely confined voters in Dane and Milwaukee Counties as a class without regard to whether any individual voter was in fact indefinitely confined has no basis in reason or law; it is wholly without merit.

Roggensack, in a dissent joined by Grassl Bradley and Ziegler, was the only other justice to directly address the issue, and she did so only briefly. 

In the pending matter, we do not have sufficient information about the 28,395 absentee voters who claimed this status in Milwaukee and Dane counties to determine whether they lawfully asserted that they were indefinitely confined prior to receiving an absentee ballot. Therefore, I go no further in addressing this contention.                                        Next: Timeliness

By Gretchen Schuldt

​President Donald Trump's campaign has agreed to drop the lawsuit it filed against a small Wisconsin television station over an advertisement the station aired.

"The parties intend this Stipulation for Dismissal and Release to foreclose the assertion by the Plaintiff and its candidate in any court or forum of any claims made or that could have been made against the Defendant and Intervenor Defendant in connection with advertising arising out of the 2020 election," the agreement between Trump's campaign and WJFW says.

The agreement also includes Priorities USA, which ran the ad. Priorities USA intervened in the suit after it was filed.

“Like all of his other misguided legal actions, Donald Trump only knows how to lie, cheat, and sue his way out of accountability for his actions,” Priorities USA Chairman Guy Cecil said about the dismissal agreement. "Priorities stood strong against the Trump campaign’s onslaught of baseless legal actions and we have successfully rebuffed Donald Trump’s effort to censor the truth about his failed leadership. I have confidence that the courts will continue to reject Donald Trump’s other foolish litigation pursuits in the weeks to come.”

The station, WJFW-TV, of Rhinelander, had sought dismissal of the suit, arguing that Trump's defeat in his re-election bid mandated an end to the litigation.

The suit alleged that a political ad the station aired showing Trump downplaying the threat of COVID-19 contained false and defamatory content. The ad was played by stations across the state, but those stations were not sued. (Politifact did label it false – details here.)

The station was represented by the law firms of Ballad Spahr and Godfrey & Kahn. Priorities USA was represented by Perkins Coie. The Trump campaign was represented by Husch Blackwell.

By Gretchen Schuldt

​The small Rhinelander television station sued by the Trump campaign committee over a television ad is seeking dismissal of the suit, arguing President Trump's defeat in his re-election bid mandates an end to the litigation.

"This case began when President Donald Trump repeatedly used the word “hoax” to discuss the COVID-19 pandemic, and it ends with him repeatedly using the word “hoax” to describe his defeat at the ballot box," WJFW-TV said in its new motion. "With the election now decided against him, the Trump Campaign’s work has ended, and so should this defamation lawsuit."

The Seventh Circuit Court of Appeals already has held that "redressability is lacking where, as here, an alleged injury amounts to defeat at the ballot box, because federal courts simply cannot remedy such alleged harm," the station said.

The Trump campaign in April sued the WJFW, alleging that a political ad the station aired showing Trump downplaying the threat of COVID-19 contained false and defamatory content. The ad, aired by Democratic super PAC Priorities USA, was played by stations across the state. (Politifact did label it false – details here.)

The station and its lawyers, from the Washington, D.C. law firm of Ballad Spahr and the Madison firm of Godfrey & Kahn, previously sought to have the complaint dismissed on the grounds that it did not state a legitimate claim. The station still believes that, but Trump's loss provides "a new and independent basis to dismiss the complaint," the station said.

"President Trump has lost his bid for reelection, and this Court can neither set those results aside nor recast the election results," the station argued. "Moreover, the money damages that the Committee seeks also would not 'likely remedy' their alleged injury. The Supreme Court has made it clear that the 'psychic satisfaction' of winning a lawsuit alone – the only possible motive for the Trump Campaign Committee to continue with this litigation – 'is not an acceptable...remedy.'”

The Trump campaign has not yet filed its response to the new motion. The campaign is represented by the Husch Blackwell law firm. Trump himself is not a party to the suit.

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.

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.

                                                                                       ***