By Margo Kirchner
The recent challenge to Wisconsin’s "cocaine mom" statute that allows pregnant women to be locked up failed this week because the plaintiff moved out of state.
The U.S. Court of Appeals for the Seventh Circuit ordered Tamara Loertscher’s challenge dismissed because she no longer is subject to the Wisconsin law and therefore cannot challenge its constitutionality. Loertscher was jailed without a lawyer after she told hospital staff that before learning of her pregnancy she used marijuana and methamphetamines to deal with medically induced depression and fatigue.
Loertscher lived in Wisconsin when she filed her case in late 2014. She later moved out of state.
U.S. District Judge James Peterson found that the move did not impact Loertscher’s claims and held the "cocaine mom" law unconstitutional for failing to give women fair warning about what conduct is prohibited and failing to provide authorities any meaningful standard for enforcement. Peterson blocked the law, but the U.S. Supreme Court stayed that order while Wisconsin Attorney General Brad Schimel appealed to the Seventh Circuit.
The appeals court, in a decision written by Senior Circuit Judge Kenneth F. Ripple, vacated Peterson’s order, but not based on the merits of Loertscher’s challenge. Instead, the Seventh Circuit disagreed with Peterson about the impact of Loertscher’s move. The court pointed to a constitutional provision limiting federal courts to deciding “actual, ongoing controversies.” The existence of a controversy when a case is filed is not enough; the issue must remain live and the parties must retain a personal interest in the outcome throughout the case, even on appeal.
Because Loertscher moved out of state during the case she no longer needs protection from the law, said the court. And in cases seeking to block enforcement of a statute, “once the threat of the act sought to be enjoined dissipates, the suit must be dismissed as moot.”
Ripple was joined in his opinion by Circuit Judges Joel M. Flaum and Daniel A. Manion.
The panel noted the lack of any evidence showing that Loertscher moved due to the statute or fear of its application to her.
According to the court, Loertscher’s case did not fall into a limited exception to the mootness rule for cases that are “capable of repetition, yet evading review.” The exception applies in rare situations when (1) a challenged action is too short to be fully litigated prior to its cessation and (2) a reasonable expectation exists that the same complaining party will be subject to the action again. In Roe v. Wade the Supreme Court said that pregnancy is a classic justification for the exception.
But the Seventh Circuit found that Loertscher cannot satisfy the second part of the exception because her voluntary and permanent departure from Wisconsin “makes the possibility of her once again being subject to the statute a matter of pure speculation.” Loertscher has no reasonable expectation that she will find herself within Wisconsin’s borders when she is both pregnant and using drugs, the panel said.
The court likened Loertscher’s case to that of two doctors who challenged Michigan’s physician-assisted suicide ban. The Sixth Circuit Court of Appeals dismissed the doctors’ case as moot when one doctor retired and the other moved from Michigan to California.
Her voluntary departure from the state “makes the possibility of her once again being subject to the statute a matter of pure speculation.”
WJI reported details of Loertscher’s case and the "cocaine mom" law previously. After Loertscher acknowledged her past drug use to hospital staff, the hospital reported Loertscher to the Taylor County Department of Human Services, claiming that her behavior with drugs put her fetus in serious danger. Taylor County appointed a lawyer to represent Loertscher’s fetus (but not Loertscher) and began proceedings under the "cocaine mom" law to determine whether Loertscher’s fetus needed protection or services.
Loertscher refused to participate in a quickly scheduled temporary physical custody hearing unless she had legal representation. The court conducted the hearing without her and ordered that she submit to an assessment and possible treatment for drug abuse. When Loertscher refused to comply with the order, the court held her in contempt and in jail for 18 days, during which time Loertscher received no prenatal care even after asking to see a doctor.
Loertscher on her own contacted an attorney and secured appointment of a public defender. She obtained release only after agreeing to an alcohol and drug-abuse assessment and weekly drug testing at her own expense. All tests were negative and Loertscher delivered a healthy baby in January 2015.
While pregnant, Loertscher sued the state, alleging that the "cocaine mom" law is unconstitutional and cannot be enforced. Judge Peterson agreed on the merits, but his decision no longer has any effect after the Seventh Circuit’s decision on appeal.
Loertscher’s suit is the second unsuccessful attempt to overturn the law through litigation. A prior plaintiff also lost her case on procedural grounds.
By Gretchen Schuldt
Thirty-three years after he was wrongfully convicted of murder based on faulty bite mark evidence, Robert Lee Stinson 's lawsuit alleging that deliberate misconduct was instrumental in sending him to prison is finally close to trial.
His lawsuit was filed in November 2009, 8 1/2 years ago.
The U.S. Supreme Court last month refused to hear an appeal of Seventh Circuit Court of Appeals ruling denying the police and dentist defendants immunity in the suit.
Stinson, who ultimately spent 24 years in prison, was convicted in 1985 of the 1984 murder of Ione Cychosz in Milwaukee.
As the Seventh Circuit opinion put it, "no eye witness testimony or fingerprints connected him to the murder. Two dentists testified as experts that Stinson's dentition matched the teeth marks on the victim's body, and a jury found Stinson guilty."
It took four years for the case to make its way through the appeals court.
DNA exonerated Stinson and he was released from prison in 2009.
A DNA sample in 2010 implicated a convicted felon, Moses Price, in the murder.
Stinson's lawyer, Heather L Donnell, laid out her client's case in a 2012 hearing before US district judge Charles N. Clevert. He has since retired.
"I believe that we have shown in discovery sufficient facts for a jury to infer that there was a conspiracy among these defendants to fabricate and manipulate the bite mark evidence to wrongly convict my client," she said.
The defendants in the suit are James Gauger, an officer who in investigated the case; Lowell T Johnson, and Raymond Rawson, dentists who examined and opined on the bite mark evidence.
Gauger's partner in the investigation, Tom Jackelen, was a defendant, but has died.
Donnell said the two detectives rushed to judgment in deciding Stinson was their man.
"In fact Detective Jackelen said to the to defendant Gallagher, 'we've got him.' This is two days after the murder during a canvas of the neighborhood where the crime occurred," she told Clevert.
The dentists eventually testified that Stinson's bite matched bite marks on the body, even though it did not, according to the suit.
Stinson’s trial lawyer tried to keep bite mark evidence out of the trial, but his request was denied,
The detectives also were suspicious about Stinson based on an earlier case involving a murder. No charges were ever filed in that case, but Gallagher wrote in a book that he believes Stinson and his friends murdered the man.
"The allegation here is that the bite mark evidence, these physical pieces of evidence, the overlays, the analysis, the report, was fabricated," Donnell said.
She acknowledged that a jury may see the inconsistencies and contradictions as a result of negligence or another unexplained cause.
By Gretchen Schuldt
The City of Milwaukee wants a federal court to dismiss a class action lawsuit over allegedly unconstitutional stop-and-frisk practices by the Milwaukee Police Department because former Police Chief Edward Flynn retired and because the city has promised to change its stop-and-frisk practices.
"Flynn no longer exercises supervisory authority over MPD officer and MPD operations," the city said in a court filing. Flynn also does not have the power to continue to have police officers "conduct a high volume of traffic and pedestrian stops," the city argued.
"It is clear from public statements made by Milwaukee’s leaders that the interim and the permanent police chief will not continue the law enforcement strategies implemented by Chief Flynn of which Plaintiffs complain," the city said. The city is represented in the suit by the City Attorney's Office and the law firm of von Briesen & Roper.
ACLU of Wisconsin, which brought the suit on behalf of stop-and-frisk targets, argued against the city's request.
"Chief Flynn’s retirement does not repeal the City’s unlawful stop-and-frisk program," the ACLU said.
The city is trying to shift the blame for its "racially motivated and unlawful policies" to Flynn "while ignoring the allegations against the other defendants - the city and its Fire and Police Commission, the ACLU said.
In addition, the organization said, the vague promises the city made to change stop-and-frisk practices are not enough to warrant the suit's dismissal.
The ACLU said none of the defendants have disavowed the program and there have been no modifications to written police documentation.
The ACLU's suit alleges that thousands of people were stopped even though police did not have reasonable suspicion of criminal activity, making the program unconstitutional. The suit also alleges the stops were based on racial profiling.
The Washington, D.C. law firm of Covington & Burling is assisting the ACLU in the case.
By Gretchen Schuldt
The State Supreme Court should decide whether Wisconsin's case law on imposing life without parole sentences on juveniles complies with related decisions by the U.S. Supreme Court, a State Court of Appeals panel said.
The State Supreme Court also should rule on whether the two judges who pronounced life sentences on juveniles adequately considered the mitigating effect of the defendants' youth, in compliance with U.S. Supreme Court standards.
The issues raised in the two cases considered "are matters of considerable statewide importance and constitutional dimension," the three-judge District 3 Court of Appeals panel said. The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.
The panel certified the cases to the Supreme Court for consideration.
From left to right: Stark, Hruz, Seidl.
Criminal justice experts are rethinking life sentences for juveniles more is learned about brain development. The U.S. Supreme Court said in 2012 that juveniles convicted of murder cannot be given a mandatory sentence of life imprisonment without parole.
The Court later ruled later that a no-parole sentence may be unconstitutional even if the judge considers the defendant's age if the crime reflects "unfortunate but transient immaturity." The Court also banned all life sentences for youth except "where the child is so irreparably corrupt that rehabilitation is impossible."
Both cases in Wisconsin considered by the appeals panel are homicide cases. The first occurred in 1994, when Curtis Walker and an accomplice shot and killed a Milwaukee police officer. Walker was six weeks shy of his 18th birthday.
The judge sentenced Walker to life in prison with the possibility of parole in 75 years, or when Walker is 95.
Walker's legal team is arguing that the de-facto life sentence is excessive and disproportionate and is inconsistent with the U.S. Supreme Court's rulings.
The state, however, says that the U.S. Supreme Court's decisions do not apply when the sentencing court, as it did in this case, has discretion to set a parole date. The state also is arguing that the issue of de facto life sentences are not included in that court's decision.
In the second case, Omer Ninham, then 14, helped throw a 13-year-old boy off the fifth floor of a parking garage in 2000. He was sentenced to life without parole.
Ninham previously appealed, but the Wisconsin Supreme Court concluded that a life sentence without parole for a 14-year-old does not “categorically constitute cruel and unusual punishment," and that Ninham’s sentence was not unduly harsh and excessive. The U.S. Supreme Court refused to review the case.
Ninham, like Walker, is arguing the sentencing judge did not adequately consider his youth at the time of the crime. The state is arguing that the U.S. Supreme Court decision was concerned with mandatory life sentences, not those imposed at the discretion the presiding judge. The appeals court said it reached a similar conclusion in a decision in another case.
The appeals panel also said it does not have the authority to disregard the earlier Wisconsin decisions upholding life-without-parole sentences for juveniles. That is true, the panel said, "regardless of advances in the science of brain development or other relevant research."
Sentencing courts "would benefit greatly" from guidance on how much weight to give the factors identified in the US Supreme Court decisions and to what extent “the prospect for the juvenile’s rehabilitation takes precedence over other legitimate sentencing considerations, such as general deterrence," the appeals panel said.
By Gretchen Schuldt
A completely theoretical ability to use public records to identify and intimidate individuals is enough to deny the public access to those records, the State Supreme Court said this week in a ruling that is disastrous for the public records law.
The court, over a fiery dissent by Justice Ann Walsh Bradley, decided that records can be denied even without any evidence that harassment or coercion would occur or had occurred.
The 5-2 majority, in an opinion by Chief Justice Patience Roggensack, said it was fine to delay release of information about who voted in a union recertification election to avoid voter intimidation that was only an imaginary possibility. The union involved has no history of such activities, Bradley wrote.
The majority cited as justification, as dissenter Bradley described it, "one uninvestigated and unsubstantiated complaint from Racine County, involving a different union, in a different election, in a different year, that did not involve a public records request."
"For the third time in three years this court continues to undermine our public records law," Bradley wrote, joined by Justice Shirley Abrahamson. "Yet again, this court overturns a lower court decision favoring transparency of records to which the public is rightfully entitled."
The majority also ignored an earlier Court of Appeals ruling that the possibility of threats, harassment or reprisals cannot be given significant weight when the records custodian has not determined it is reasonably probable those things would occur.
While the ruling immediately applies only to the case brought by Madison Teachers, Inc. against James R. Scott, the chairman and records custodian for the Wisconsin Employment Relations Commission (WERC), the precedent and its new, extremely low bar for denying records likely will serve as a handy excuse for other governmental units to use when denying access to other types of records.
"For the third time in three years this court continues to undermine our public records law," Bradley wrote, joined by Justice Shirley Abrahamson. "Yet again, this court overturns a lower court decision favoring transparency of records to which the public is rightfully entitled."
In the Supreme Court's case, WERC denied Madison Teachers, Inc. access to information about who voted in a union recertification election until the voting, which occurred over 20 days, was over.
The union twice filed requests during the 20-day period for information about the voters, but WERC delayed complying. Madison Teachers filed suit, alleging violation of the public records law, and Dane County Circuit Judge Peter C. Anderson ruled in the union's favor.
Scott, of WERC, appealed directly to the Supreme Court with its permission, bypassing the Court of Appeals.
Roggensack, in her opinion, said the public's right to government records is not unrestricted.
"Preventing voter intimidation during elections conducted by phone and email, as occurred here, is challenging," she said. "Given MTI's repeated requests for the names of those who voted before the election concluded, it is entirely possible that those employees who had not yet voted would become subject to individualized pressure by MTI of a type that MTI could not exert when speaking to all members of the bargaining unit collectively."
Then she went on to cite the unsubstantiated allegations:
"Intimidation in the WERC certification election was a concern," Roggensack said. "Scott had received detailed and specific complaints of past coercion in other certification elections. Complaints included: a union representative directing an employee to a computer and coercing her to vote for recertification; another employee being repeatedly asked whether she had voted; and a third employee witnessing employees being similarly pressured to vote."
Scott was correct in determining that keeping elections free of voter intimidation and coercion outweighed the public interest in access to public records, she wrote.
Wrote Bradley in dissent: "Scott's first argument——that disclosure would violate the secrecy of the ballot——rings hollow. Although the substantive votes on a ballot are confidential, the identity of those who voted is not. Disclosing the names of those who have cast a ballot prior to the conclusion of an election does not violate the secrecy of the ballot."
Excerpts from Justice Ann Walsh Bradley's dissent.
This time the majority undermines the presumption of open access to public records by imputing an unsupported and nefarious purpose to the records requests based on nonexistent facts.
In short, it is difficult to imagine a scenario where there is less evidence of potential harm in the record than here. One would expect the highest court of this state to rely on more than such unrelated and unsubstantiated allegations for its assertion that the risk of voter intimidation or coercion here was great enough to overcome the strong presumption of open access to public records. It does not.
The identity of the requester and the purpose of the request should not matter here. Nevertheless, if the majority is going to erroneously superimpose its own speculative motive upon the requester, it should at least mention existing facts of record that support a contrary conclusion. It fails to do so.
The annual elections for public employees to select representatives for purposes of collective bargaining were previously conducted in person. They are now conducted electronically and employees vote either by phone or computer. MTI asserts that what was formerly an open and observable government process is now closed. It contends that the only opportunity that the public has for oversight of WERC's election administration is through public records. MTI explains that the need for oversight is revealed by the facts of record.
However, the majority omits these facts.
When speculating about the intent behind these records requests, the majority also ignores the record evidence that MTI advised WERC that it "w[ould] not engage in voter coercion or any other illegal election practices during the upcoming election." MTI explained at oral arguments that it made these records requests to ensure WERC properly executed its election administration duties.
Scott undermined his purported concern about protecting the secrecy of the ballot by releasing the names of those who voted after the conclusion of the election. I agree with the circuit court that refusing to disclose the names of voters during the election but releasing that information after the election is "entirely contradictory" and "paradoxical." Accordingly, I afford Scott's purported concern about maintaining the secrecy of the ballot little weight in the balancing test.
The usual admonition is that if you do not have the facts, then argue the law. Conversely, if you do not have the law, then argue the facts. The majority has neither.
By Margo Kirchner
A federal judge chastised lawyers for acting “like fourth graders in a lunchroom,” but said labeling as “lunging” or “assault” a lawyer’s actions when he slammed a pen on a desk in front of a deposition witness went too far.
U.S. District Judge Pamela Pepper said she found it “shameful” that she and seven attorneys had to spend time in a hearing discussing attorney behavior.
The pen incident occurred in October, during the deposition of Corrections Officer Terina Cunningham in a lawsuit brought by Shadé Swayzer over the death of her newborn daughter, Laliah, in the Milwaukee County Jail in July 2016.
Swayzer and Laliah’s estate sue former Sheriff David Clarke, Milwaukee County, several jail employees, Armor Correctional Health Services, Inc. (the contractor providing medical services at the Jail), and several Armor doctors and nurses.
Swayzer’s lawyer, James J. Gende II, lost his temper and slammed his pen into the table in front of Cunningham and attorney Douglas S. Knott, who represents Cunningham and the county. Knott immediately halted Cunningham’s deposition and later sought a court order to prevent Gende’s participation in future depositions in the case.
Armor’s lawyer, Michael P. Russart, also moved to preclude Gende from conducting future depositions.
Knott said at a later hearing that Cunningham, the corrections officer, was shaken by Gende’s outburst and lunging. Knott argued that Gende’s conduct constituted assault and merited more than an admonishment.
Russart, for Armor, said he sought to protect his witnesses and argued that there was no “reset button” or “Mulligan” for Gende’s conduct.
Counsel for Gende, Terry E. Johnson, admitted that Gende showed a lapse in judgment but argued that barring Gende from future depositions was too severe a sanction for an incident lasting five seconds.
Pepper, in her ruling, said the lawyers’ filings in the case showed finger-pointing and snide comments in front of witnesses. Pepper said she saw an “ongoing toxic relationship” between Gende and Knott.
“Something needs to change” in their interactions, she said.
Gende, Pepper said, violated rules governing the treatment of deposition witnesses, which justified an end to additional questioning of Cunningham.
But Pepper found that barring Gende from conducting future depositions in the case would be a disproportionate sanction.
Instead, she indicated that all depositions should be videotaped. In addition, the lawyers must not argue in front of witnesses, and they are to call the court with any significant problems arising during a deposition.
She warned of greater sanctions should additional deposition problems occur and said she would monitor the attorneys’ civility. As she put it in her signed minutes of the hearing, she will, if necessary, “review every video to make certain that the lawyers were treating each other, and the witnesses, with the respect and civility the profession demands.”
In another matter related to the case, U.S. Magistrate Judge William E. Duffin this week agreed with former Sheriff David Clarke that Clarke’s 2016 personal calendar and whereabouts are not relevant to claims in the case. Duffin ruled that Clarke did not have to produce the calendar or identify his location on dates when five inmates died in custody.
By Margo Kirchner
An attorney’s angry gesture with a pen resulted in two more months of delay for a woman’s claim that neglect by Milwaukee County jailers led to the death of her newborn child.
Attorney James J. Gende II, who represents plaintiff Shadé Swayzer, lunged toward a correctional officer during a deposition and slammed the end of a pen into a flow chart just inches from the county’s lawyer’s hand. (See video below.)
The county’s lawyer, Douglas S. Knott, accused Gende of “assault” and ended the deposition.
Swayzer’s suit against the county and its medical contractor, Armor Correctional Health Services Inc., alleges, among other things, they were negligent in providing medical care and violated the constitutional rights of both Swayzer and her deceased infant daughter, Laliah.
Knott and attorneys for Armor later filed motions for protective orders to prohibit Gende from conducting future depositions in the case. If granted, Swayzer’s representation in those depositions would shift to other lawyers on the team.
Gende apologized for losing his patience and said it had nothing to do with the witness, Correctional Officer Terina Cunningham, but did have something to do with Knott.
“I believe counsel has made it as difficult as possible over the last several examinations for me to complete my deposition of his clients,” he said.
Depositions of two Armor employees were scheduled for Oct. 20 and Nov. 2, but their lawyers, citing Gende’s conduct, refused to proceed with those depositions.
Michael Russart, an attorney for Armor, told Gende in a letter he was canceling his clients’ depositions to “protect [them] from harassment, embarrassment and potential injury.”
Russart said he would call the police if Gende appeared at Russart’s office for any depositions.
In a quickly scheduled Oct. 17 hearing, U.S. District Judge Pamela Pepper agreed that full briefing of the motions for protective orders and a further hearing were warranted. She prohibited the taking of any depositions in the meantime, noting her concern over Gende’s loss of composure at the Cunningham deposition.
Now all depositions are stayed until the Nov. 29 hearing.
Other discovery disputes also appear to be delaying progress in the case. Swayzer’s attorneys are seeking orders compelling Armor and former Sheriff David Clarke to provide responses to written questions and to produce requested documents.
Armor says it answered many of the requests and is working to supplement its responses. It said its responses were delayed by Hurricane Irma in Florida and the need for additional time to produce electronic discovery and suggested that the motion to compel its responses was actually meant to divert the court’s attention from Gende’s conduct.
Clarke says he responded to several of the discovery requests on Oct. 27, but refuses to provide additional information regarding his personal calendar and whereabouts from July 6 to 14, 2016. Clarke contends that such information is confidential and irrelevant to the case.
Pepper referred the disputes about Armor’s and Clarke’s responses to U.S. Magistrate Judge William E. Duffin for resolution. But she retained the motions about Gende’s conduct at the deposition.
Pepper recently held that Armor must turn over its internal investigation reports regarding Swayzer’s and Laliah’s medical care at the jail. Armor argued that if such information is disclosed it has no incentive to perform investigations in the future.
Pepper found that Armor’s professional obligations and economic interest in keeping its contract with the county provide incentive enough and that the need for truth about the defendants’ policies and practices at the jail outweighs confidentiality concerns.
Swayzer alleges in her suit that she was eight months pregnant when she was taken into custody in July 2016 for an alleged probation violation and placed into a maximum-security cell at the County Jail run by the Milwaukee County Sheriff’s Department and then-Sheriff Clarke.
Swayzer was more than eight months pregnant at the time, and a hospital exam just prior to her arrival at the jail showed the pregnancy to be healthy and on track. Days later, alone in her cell, Swayzer gave birth to daughter Laliah. Laliah survived just a few hours, dying in the cell in which she was born.
Swayzer and Laliah’s estate sued Clarke, Milwaukee County, several jail employees, Armor, and some of Armor’s doctors and nurses. Swayzer asserts that when she arrived at the jail on July 6, 2016, a doctor and nurse documented her mental and physical health needs and directed that Swayzer be housed in the special needs unit.
Nevertheless, though Swayzer initially resided in the special needs unit for two days, a lieutenant at the jail moved her to maximum security because she had been involved in various incidents while incarcerated on previous occasions, according to the suit. No jail or medical personnel took action to keep Swayzer in the special needs unit, the suit alleges.
Swayzer claims that from July 8 through July 13 she remained in maximum security and received no medical care. A doctor was scheduled to see Swayzer on July 13, but failed to do so.
Pepper recently held that Armor must turn over its internal investigation reports regarding Swayzer’s and Laliah’s medical care at the jail. Armor argued that if such information is disclosed it has no incentive to perform investigations at the jail in the future.
According to the suit, a guard doing rounds the evening of July 13 saw Swayzer in an unusual position, but failed to investigate. The next morning Swayzer informed that guard that she was in labor, her water had broken, and she was experiencing contractions. The guard did nothing about Swayzer’s reports. Another inmate heard Swayzer crying for help in the early morning hours of July 14, the suit says.
Swayzer delivered Laliah at about 5 a.m. without medical assistance. Swayzer wrapped Laliah in a blanket with her face exposed. The two remained in the cell alone without medical help for over an hour.
Just before 6 a.m., the same guard saw Swayzer lying in an odd manner, blood on the mattress, and bunched-up blankets, according to the suit. Despite those observations, the guard continued her rounds and then conferred with another guard about Swayzer. Neither guard called in a medical emergency until one of them returned to the control room, the suit says.
When medical staff responded to the emergency call, a guard initially denied them access to Swayzer’s cell because he was waiting for backup. When medical staff finally got to Laliah and removed her from the cell she did not appear to be breathing. Resuscitation attempts began around 6:20 a.m., but failed, and Laliah was declared dead at 6:55 a.m.
Meanwhile, guards awaited the arrival of additional jail staff before allowing Swayzer to be transported to the hospital, according to the suit.
Swayzer and Laliah’s estate allege that all defendants were deliberately indifferent to Swayzer’s and Laliah’s serious medical needs in violation of the U.S. Constitution. They claim that Milwaukee County, Clarke, and other supervisory personnel at the jail failed to train and adequately supervise staff and maintained policies that resulted in the injuries to Swayzer and Laliah. And they claim that Clarke and the jail defendants are liable under Wisconsin law for negligence and Laliah’s wrongful death.
In response to Swayzer’s discovery requests, the County admits that Clarke issued no corrective action or discipline regarding the circumstances of Swayzer’s delivery and Laliah’s death.
By Margo Kirchner
A Racine County judge on Thursday dismissed all charges against Daniel G. Scheidell, who served 20 years in prison for sexual assault before a court finally allowed him to present evidence that strongly suggested the attack was committed by someone else.
Racine County Circuit Court Judge Mark Nielsen granted the state’s motion to dismiss, after Racine County Assistant District Attorney Dirk Jensen said the state could not meet its burden in a new trial.
One of Scheidell’s supporters in the gallery clapped as the judge dismissed the case.
Scheidell’s conviction was vacated in 2015, but Attorney General Brad Schimel’s Department of Justice unsuccessfully appealed that decision twice.
A jury convicted Scheidell in October 1995 of attempted first-degree sexual assault and armed robbery following a trial based heavily on testimony of the victim, J.D.
J.D. awoke in her apartment early one morning in May, 1995, to find a knife-wielding man straddling her waist. The perpetrator during the attempted assault wore a black knit ski mask and jacket over his head and never spoke. J.D. managed to retrieve a pistol from her nightstand and the man left.
She was certain he was her upstairs neighbor, Scheidell, based on the man’s “distinctive body and walk” and part of the face she saw while she struggled with him.
When police arrived, they found Scheidell coming down the stairs, looking like he just woke up. He gave a voluntary statement and allowed police to search his apartment, but found nothing incriminating. They searched the alley – nothing.
At trial, defense counsel sought to offer evidence of a different, similar sexual assault that occurred five weeks after the attack on J.D., when he was in custody. The second assault occurred about four blocks away from J.D.’s residence, and many of the facts of the crime, including mode of entry, weapon, mask, time of day, and build of the assailant, were similar.
The assailant in the second crime, however, got away and was not identified.
Scheidell’s trial judge denied admission of the evidence because there was not any evidence directly connecting a third person to the crime Scheidell was accused of committing.
The jury found him guilty in October 1995 and Scheidell appealed all the way up to the State Supreme Court. He lost there, with the court ruling that mistaken-identity evidence is not admissible when a defendant tries to show that some unknown person committed the crime.
Scheidell applied to the Wisconsin Innocence Project for help. In 2013, the Innocence Project obtained a DNA profile from the second sexual assault and matched the profile to a Wisconsin inmate serving time for a 1998 sexual assault.
Scheidell moved for a new trial to present evidence that a now known perpetrator committed the crime for which Scheidell had been convicted.
In June 2015, Racine County Circuit Court Judge John Jude granted the motion and vacated Scheidell’s conviction. Scheidell was released on bond shortly thereafter.
Although the state appealed, a three-judge Wisconsin Court of Appeals panel (including two conservative Gov. Scott Walker appointees) affirmed the grant of a new trial in the interest of justice.
“It is undoubtedly reasonable to conclude that this new evidence casts doubt upon whether justice was done in the original proceeding,” Appeals Judge Brian K. Hagedorn wrote in a concurring opinion. The Supreme Court denied the Schimel team’s request for review and sent the case back to Racine for a new trial.
Thursday, at a hearing set for argument on a motion to modify bond, Jensen, the assistant district attorney, moved for dismissal based on additional investigation.
Nielsen granted the motion and dismissed the case without prejudice, meaning the state could theoretically file it again. The judge gave defense attorney Patrick Cafferty until Oct. 2 to file a new motion with legal support for his position that the case should be dismissed with prejudice, meaning it cannot be filed again.
Scheidell sighed audibly several times when he approached his family and friends after the hearing.
Cafferty said that he is “thrilled for this gentleman” and attributed Scheidell’s release to the work of many lawyers.
Cafferty indicated that Scheidell’s original trial counsel, in particular Debra Patterson, worked hard to get the evidence of the second assault admitted:
“The work the lawyers did early on laid the foundation” and “they deserve the credit,” he said
By Margo Kirchner
Pregnant women in Wisconsin remain at risk of being thrown in jail and forced into treatment despite a federal judge’s determination that the state’s “cocaine mom” statute is unconstitutional.
U.S. District Judge James D. Peterson last spring declared the law impermissibly vague and blocked its enforcement statewide. State Attorney General Brad Schimel immediately appealed, however, and the law remains in effect while the litigation continues.
Here’s what happened to two women under the law.
In May 2013, Alicia Beltran, then 28, learned she was pregnant. A few weeks later, she sought prenatal care at a clinic in Washington County. She informed a physician’s assistant that she previously abused Percoset, which contains an opioid, but recently finished a course of Suboxone to treat her addiction. The physician’s assistant recommended that Beltran take a second course of Suboxone and, when Beltran refused (believing she already kicked her Percoset use), the clinic reported her to a Washington County social worker.
In July 2013, five law-enforcement officers arrested Beltran at her home, handcuffed her, and took her to a doctor for evaluation. The doctor declared Beltran and her pregnancy to be healthy and said he did not consider inpatient drug treatment to be necessary. Nevertheless, the officers drove Beltran to the county jail.
An assistant district attorney filed an action against Beltran under the cocaine-mom law and an attorney was appointed for Beltran’s fetus. Beltran was taken in handcuffs and shackles to a courtroom, where she requested an attorney. The commissioner said none would be provided until the next hearing. Beltran was ordered to a treatment facility, where she tested negative for all drugs. The court held Beltran at the facility for over two months, scheduling a jury trial for late October. Beltran went to federal court to challenge her detention; the ADA, in response, dismissed the cocaine-mom action against Beltran and had her released.
In 2014, Tamara Loertscher, then 29, was unemployed and could no longer afford medication for her hypothyroidism. Without the medication she suffered depression and fatigue and began using marijuana and methamphetamine a few times a week.
When Loertscher in August 2014 suspected she was pregnant, she went to a hospital to confirm it. She acknowledged her drug use to hospital personnel but told them she planned to stop using drugs to have a healthy baby. She checked into the hospital for care and received the thyroid medication she needed. But the hospital reported Loertscher to the Taylor County Department of Human Services, saying her behavior with drugs and alcohol put her fetus in serious danger.
Taylor County appointed a lawyer to represent Loertscher’s fetus. Loertscher, however, was not entitled an appointed lawyer yet. While in the hospital, Loertscher had to appear by phone, with little notice, in a temporary physical custody hearing. Loertscher said she did not wish to speak without legal representation and refused to participate. The court commissioner considered this a waiver of appearance, continued without Loertscher, and ordered her held at the hospital and then transferred to an inpatient drug treatment facility.
Loertscher, though, checked herself out of the hospital.
After another hearing, at which Loertscher represented herself, the court found her in contempt and ordered her to report to either the inpatient treatment facility or jail. Loertscher spent 18 days in jail, during which time she received no prenatal care and experienced pain and cramping. She was not permitted to see an obstetrician. When Loertscher refused to take the redundant pregnancy test required by the jail doctor, she was placed in solitary confinement.
Loertscher on her own found a list of Taylor County public defense attorneys and contacted one;, a public defender was appointed. Loertscher was released after she signed a consent decree that required an alcohol and drug-abuse assessment and weekly drug testing at her own expense. All tests were negative. Loertscher delivered a healthy baby.
The cocaine mom law (also known as Act 292) allows medical staff or county social workers to report and detain a pregnant woman if they think she “habitually lacks self-control” regarding alcohol or drugs “to a severe degree” with a “substantial risk” of an effect on or danger for her fertilized egg, embryo or fetus.
Authorities can take a woman into initial custody if they think she meets this standard, but she refuses to accept abuse treatment. If a court agrees, it can order the woman to treatment against her will and keep her in custody indefinitely. Loertscher self-medicated, but stopped upon learning she was pregnant; Beltran previously used drugs but was clean at the time she was ordered to a treatment facility. Both women planned no further drug use during pregnancy and therefore refused abuse treatment.
In Loertscher’s case, Judge Peterson found that the statute’s language, especially in light of current medical knowledge, fails to give fair warning about what conduct is prohibited and fails to provide authorities any meaningful standard for enforcement. But Judge Peterson’s April ban on enforcement of the cocaine-mom law was short-lived. Schimel and his department immediately appealed and sought a stay of Peterson’s order.
Though both Peterson and the Seventh Circuit Court of Appeals refused to stay the order, the state was undeterred and sought relief in the U.S. Supreme Court. On July 7 the Supreme Court stayed Peterson’s injunction while the appeal is pending. The parties filed appellate briefs over the summer, but no date for oral argument is set; a decision could come months or even a year after argument. Meanwhile, pregnant women in Wisconsin remain subject to a law that may very well be unconstitutional.
The long-term future of Peterson’s injunction is uncertain. Federal courts decide only live, ongoing disputes. The state’s first argument on appeal is that Loertscher no longer has a live dispute---not because her pregnancy ended (a legal doctrine permits continuation of a case involving pregnancy if the issue is capable of repetition) but because she moved out of state before Peterson issued his order.
On appeal, the state argues that Loertscher no longer has any stake in enforcement of the law: she “makes no plausible argument that, having moved out of Wisconsin, she will be subject to Act 292 in the future.” According to the state, “the fact that the present dispute involves a pregnancy-related law does not dictate a different result---this case is moot not because of the short duration of pregnancy, but because Plaintiff has moved out of Wisconsin” and fails to show that she intends to move back.
If the Seventh Circuit agrees with the state, Loertscher’s case will be dismissed as moot, the cocaine-mom law will remain on the books, and pregnant women who once used drugs but no longer do will remain at risk.
Ten medical and public health organizations, meanwhile, filed a friend-of-the-court brief in the Seventh Circuit saying Peterson was right to declare the law unconstitutionally vague. The organizations represent hundreds of thousands of healthcare providers nationwide and include the American Medical Association, the Wisconsin Medical Society, the American College of Obstetricians and Gynecologists, and the American Academy of Pediatrics.
They argue that research contradicts the state’s assumption that prenatal exposure to controlled substances causes inevitable harm. The organizations say Peterson “rightly concluded that ‘no one knows at what level drug or alcohol use will pose a risk to the unborn child’”; thus, an expectant mother cannot know when she would be subject to the law. After repeatedly taking a pain killer before learning of pregnancy? After smoking marijuana once a week for a month or two? After having a single glass of wine?
The organizations argue that the law deters women from being honest with medical personnel or seeking essential prenatal care in the first place. Moreover, the law puts pregnant woman and her fetus on opposite sides of a legal dispute, but their health cannot be separated from each other.
The National Coalition for a Civil Right to Counsel, in a second friend-of-the-court brief, sided with Loertscher in challenging the lack of legal representation at critical proceedings. Sexual predators and mentally ill individuals receive appointed counsel at all significant stages of confinement proceedings. Fetuses are appointed attorneys at the very start of cocaine-mom proceedings. Yet pregnant women, even if poor, are not appointed lawyers for the initial temporary-custody and plea hearings, which can result in forced treatment and involuntary confinement.
Loertscher’s and Beltran’s cocaine mom proceedings show that even when a woman requests counsel at these hearings her request may be ignored. Counsel may be appointed for a later fact-finding hearing, but only if the woman contests the case at the earlier hearings. Before any right to counsel arises, the woman must decide on her own how to plead, to demand a jury, and to demand that the fact-finding hearing be held within 30 days.
Loertscher and Beltran appear to be the only two women to have challenged the cocaine mom law in the 20 years since passage. Shortly after Beltran filed her federal case, authorities released her and dropped all abuse charges.
Beltran filed a type of case used to seek release. Because she obtained that release U.S. District Judge Charles N. Clevert, Jr. dismissed the case as moot while calling what happened to Beltran “extremely disturbing” and suggesting that the result may have been different in a civil rights case. Loertscher’s challenge uses civil-rights and declaratory action laws, which could allow the case to continue after her release or delivery of her baby.
etween 2005 and 2014, said Peterson in his decision, 3,326 reports of alleged unborn-child abuse were pursued by caseworkers. Some 467 of those reports were substantiated with some evidence. The briefs in Loertscher’s appeal suggest why challenges to the law are rare.
First is the law’s coercive nature. When a woman refuses to receive treatment “voluntarily,” she faces a temporary hold in custody and a formal petition for confinement and treatment. Such a choice may coerce women to simply submit to unwanted treatment.
Second, the woman proceeds though preliminary stages without the assistance of counsel, while her fetus has counsel and is pitted against the mother. Then, by the time the woman may find a lawyer on her own or be appointed counsel, she is closer to delivery and possibly unwilling to get involved in stressful litigation.
Third, cocaine mom proceedings are not public. They occur in juvenile court, where files are sealed. The briefs in Loertscher’s appeal note only one additional publicly known case, which made the Racine paper in 2005. No public record means no public outcry and no awareness by attorneys who could advise the women affected.
If Loertscher’s case is dismissed because she moved out of state, perhaps another pregnant woman will step forward to challenge the cocaine mom law.
But how about repeal?
The state has decided not to appeal U.S. District Judge James D. Peterson's order that it stop abusing youths at the Lincoln Hills and Copper Lake juvenile prisons.
Peterson this week ordered drastic cutbacks in the the schools' use of pepper spray, solitary confinement and mechanical restraints on youths entrusted to the state's care. Peterson's full order is below.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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