By Margo Kirchner

​Criminal law rarely provides justice in cases of police brutality and violence because convictions are so difficult to obtain even with video evidence, according to a Villanova University law school associate dean.

 “It’s hard to win cases against police officers, and because plaintiffs usually lose, police are not deterred from their bad behavior,” said Teressa Ravenell, who also is a professor at Villanova’s Charles Widger School of Law.

Ravenell made her comments during the American Constitution Society’s recent briefing call on police violence and systematic racism in the U.S. legal system. ACS held the call in response to the killing of George Floyd and waves of protest across the country.

Ravenell said that federal law allows individuals to sue when their civil rights are violated by government actors, but that law has not prevented police violence either.

The law, Section 1983, has become “another example of systematic failure,” she remarked. The statute is “not inherently flawed,” but the U.S. Supreme Court’s interpretation of the statute has caused it to fail, she said. Problematic interpretation of Section 1983 includes the judge-made doctrine of qualified immunity, Ravenell said.

The qualified immunity doctrine protects public officials from civil liability unless their conduct violates a clearly established constitutional right about which a reasonable person would have known. The Supreme Court has written that the doctrine protects "all but the plainly incompetent or those who knowingly violate the law” and balances the need to hold public officials accountable when they act irresponsibly with the need to shield them from harassment, distraction, and liability when they perform their duties reasonably. 

In a 2018 dissent, however, Justice Sonia Sotomayor wrote that the doctrine “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

The doctrine has recently shielded officers from liability for stealing $225,000 while executing a search warrant, shooting a 10-year-old boy in his backyard while pursuing a suspect, and slamming to the ground a woman who turned to walk away from an officer toward her daughter, rendering the woman unconscious.

Ravenell set forth five large hurdles plaintiffs face under current law, which in her view result in continued racist law enforcement.

First, the Supreme Court’s Fourth Amendment cases give police officers too much power to stop, investigate, and arrest Black people. Police may legally stop someone if an officer has reasonable suspicion to think that criminal activity is afoot, and that standard can be met when a person acts evasively in a high-crime area. Ravenell called “high-crime area” a “fancy way” of saying poor, Black neighborhoods. As a result, Blacks are more likely to be stopped by police. Further,  Blacks are pulled over for traffic violations more than any other group, she said.

Second, the Court’s Fourth Amendment cases give police officers too much license to use force. The court has allowed officers to use deadly force when they reasonably believe a person poses an immediate threat of harm to the officer or others, and too often officers view unarmed Black men as threats, Ravenell said. Ravenell proposed that the qualified immunity standard should at the least be transformed from considering what a reasonable or average officer would do to what a well-trained officer would do in the situation.

Third, Ravenell said, under current law plaintiffs face too many causation problems because they must establish which specific officers harmed them. For instance, a protester shot by a rubber bullet must show which officer fired the shot. But that is impossible if officers will not testify against each other, she remarked.

Fourth, the qualified immunity defense protects officers in too many situations when the law was not clearly established at the time the officers acted. “Many people are writing about this right now,” she said, adding that “we need to eliminate the qualified immunity defense.”

Fifth, even when plaintiffs succeed, verdicts against officers fail to alter conduct because officers do not pay the verdicts against them; taxpayers do.

Ravenell closed by noting that the failure to fire violent officers also played a role in creating the current crisis. The officer who killed George Floyd had 18 prior complaints against him, she noted. Ravenell compared the vastly greater money spent on monitoring parolees with that spent on monitoring police.

“We need to ensure that police departments have the incentive and the means to terminate the recidivist officers,” plus a database to track them so they are not hired by other communities, she said.

Another call participant, Taja-Nia Henderson, a professor at Rutgers Law School and dean of the Rutgers Graduate School, discussed the historical predicates for police abuses today.

Henderson described how policing in the United States has always been linked to property interests and the control of black and brown bodies.

By Margo Kirchner

​Trial courts must issue specific factual findings on why a person is a danger to self or others before extending an involuntary commitment, the Wisconsin Supreme Court recently held.

Moreover, said the court, general concerns regarding a person’s mental state, inability to maintain employment, and inability to care for oneself are not sufficient for a finding of dangerousness. Justice Ann Walsh Bradley authored the court’s opinion in Langlade County v. D.J.W.

Chief Justice Patience Drake Roggensack dissented, saying she would have recommitted D.J.W. on grounds that Langlade County never even raised in Circuit Court or on appeal. Justice Rebecca Grassl Bradley also dissented, on different grounds.

In January 2017, a circuit court in Langlade County found D.J.W. mentally ill, dangerous, and in need of treatment. The court committed D.J.W. to custody for six months and ordered involuntary treatment and medication. In June 2017, Langlade County petitioned to recommit D.J.W. for a year.

The Circuit Court appointed Dr. John Coates to examine D.J.W. in connection with possible recommitment. Though Coates wrote a report following the examination, at the July 2017 recommitment hearing the County presented only Coates’ oral testimony. The report was not admitted as evidence.

Coates testified at the hearing that D.J.W. had schizophrenia, a history of hallucinations over three years, and an illogical thought process with “grandiose illusions.” Coates said D.J.W. reported seeing the devil and hearing voices in the months prior to the hearing and that D.J.W.’s illness was treatable with psychotropic medication.

When asked whether D.J.W. was a danger to himself or others, Coates opined that if D.J.W. were to end treatment he would likely exacerbate his illness and experience hallucinations. But, said Coates, “the greater risk is just his inability to properly care for himself and to properly socialize if he goes untreated.”

Coates noted that D.J.W. had been living with his parents, quit his job because he thought he was the Messiah, and obtained disability benefits. To the doctor, these facts suggested that D.J.W. could not independently care for himself and would be homeless if his parents did not provide shelter. Coates thought D.J.W.’s judgment was still impaired.

Coates testified that he did not know if D.J.W. was suicidal or homicidal. But, he said, acutely psychotic individuals’ actions are unpredictable and for D.J.W. suicidal and homicidal ideations were possible.

Coates reiterated that the “major danger” to D.J.W. was that if he stopped medications he would be delusional and hallucinating and unable to interact appropriately with others. Coates continued: “So the major danger is to himself. I don’t think he’s necessarily a violent man that’s going to go out and harm others.”
​
On cross-examination, when pressed about how D.J.W. quitting his job showed dangerousness, Coates responded that D.J.W. lost his employment and could not provide for his basic needs, had been found disabled, and would be homeless without his parents’ help.

By Margo Kirchner

​Incarcerated people cannot be forcibly medicated unless they are a danger to themselves or others – just being too incompetent to refuse the medication is not enough to justify its administration, says the Wisconsin Supreme Court.

The court recently held that a statute permitting administration of medication upon a finding of mere incompetence to refuse was unconstitutional.

Justice Annette Kingsland Ziegler wrote for the court, joined by Justices Ann Walsh Bradley, Daniel Kelly, and Rebecca Dallet.

In 2005, C.S. was convicted of mayhem and sentenced to 10 years of imprisonment plus extended supervision. C.S. suffers from schizophrenia, and during his incarceration in 2012 Winnebago County petitioned to involuntarily commit and medicate him.

Involuntary commitment is a separate matter from involuntary medication. Those who are involuntarily committed, whether in prison or not, have a general right to refuse unwanted medication and treatment.

The Winnebago County Circuit Court committed C.S. and ordered involuntary medication after finding that C.S. was incompetent to refuse it himself.

In prior litigation C.S. unsuccessfully challenged his involuntary commitment. The recent case instead challenged the involuntary medication orders.

Those orders were based on findings that C.S. was incapable of understanding his condition and could not make an informed choice about medication. At no point in the proceedings did the court determine that C.S. was dangerous.

C.S. argued that the statute allowing medication of an incarcerated person was unconstitutional because, unlike the law governing those not in prison, it did not require the judge to find that the person is a danger to himself or others.

Winnebago County argued in response that it had an interest in the care of mentally ill and incompetent inmates, which justified the statute.

By Margo Kirchner
​
With courthouse closures and postponements of jury trials and other proceedings for weeks and months, at what point does justice delayed become justice denied?

Legal experts brought together telephonically by the American Constitution Society recently discussed the issue in a briefing titled “Pandemic at the Courthouse.”

The experts described effects of coronavirus social-distancing measures on the justice system to date, warned of dangers to constitutional rights, and noted a few bright spots that may lead to system improvement.

The experts’ comments follow court orders around the country bumping jury trials for weeks or months; the U.S. Supreme Court’s postponement of April and May oral arguments; and the Ninth Circuit’s recent decision to suspend federal Speedy Trial Act requirements until April 2021.

Elaine Poon, managing attorney of the Legal Aid Justice Center in Charlottesville, Virginia, noted that on the civil side, courts continue to work on several types of cases, especially cases brought by victims of domestic abuse.
​
Nevertheless, Poon worries that with court slowdowns comes a decrease in protection of educational requirements for children with disabilities, fewer reviews of the status of children in foster care and conditions in immigration detention centers, and lack of attorney access to detainees. She is seeing juveniles in detention held in cells for too many hours each day due to social-distancing policies. And she worries about hearings being moved online when not everyone owns computers or phones.

By Margo Kirchner

​Sentences in criminal cases in excess of plea-bargained terms should cease, says a Wisconsin attorney in an article written for the University of Illinois Law Review.
 
Kenosha criminal defense lawyer Michael D. Cicchini labels as “deal jumping” the practice by which a judge accepts a defendant’s guilty plea yet hands down a sentence harsher than agreed upon by the defendant and prosecutor. Judges who so act are “deal jumpers,” which is the name of Cicchini’s article.
 
According to Cicchini, deal jumping is fundamentally unfair to defendants and harmful to the criminal justice system, as more than 95% of cases are resolved by plea bargains. Yet the practice is permitted in several states, including Wisconsin, which is Cicchini’s focus. 
 
Cicchini advocates for state legislative reform to eliminate deal jumping by requiring judges to either (1) approve or reject sentence concessions at the same time they approve or reject plea agreements, or (2) allow defendants to withdraw their pleas if the judge plans to exceed the agreed-upon sentence.
 
But if legislative change fails to occur, judges should act on their own to end deal jumping and defense attorneys should protect their clients from the practice. Cicchini provides defense lawyers with practical ideas to ensure that defendants receive the benefits of their plea bargains.
 
To illustrate a deal jump, Cicchini describes a situation in which a defendant charged with multiple counts agrees to plead guilty to one count in exchange for the prosecutor’s dismissal of the other counts (a charge concession) and recommendation of a fine instead of probation or incarceration (a sentence concession). Deal jumping involves sentence concessions.
 
In some states, says Cicchini, the judge would be required by law to either sentence this defendant to a fine or, if the judge plans to impose a penalty more severe, allow the defendant to withdraw the guilty plea.
 
However, in other states, such as Wisconsin, regardless of the plea agreement the judge may impose whatever punishment the judge wishes up to the maximum allowed by law, and the defendant has no recourse to withdraw the guilty plea.
 
Cicchini asserts that Wisconsin “freely permits the most egregious forms of deal jumping when it comes to the sentence.”

By Margo Kirchner​

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

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

By Margo Kirchner

​Overturning 14 years of case law, the Wisconsin Supreme Court recently expanded law enforcement’s right to use single-person showups rather than multi-person lineups when seeking identification of suspects.
 
The court ruled that a criminal defendant bears an initial burden of demonstrating that the procedure was impermissibly suggestive.
 
The court also criticized the use of social science in the law.
 
Social science, Chief Justice Patience Drake Roggensack wrote for the court, “has been used by courts as an excuse to justify disturbing decisions” such as Plessy v. Ferguson, which upheld racial segregation. At heart, though, she wrote, “[s]ocial science cannot change the original meaning of the Wisconsin Constitution.”
 
Show-ups have long been controversial. The U.S. Supreme Court, while declining to ban the practice outright, acknowledged in 1967 that “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned."
 
Since 2005, the Wisconsin Supreme Court had placed an initial burden on the prosecution to establish that the showup was necessary. If the state failed to show necessity, the showup evidence was excluded.
 
The Supreme Court adopted the necessity requirement in State v. Dubose, finding that the state constitution provided more protection than the U.S. Constitution did when it came to identifications. Under the U.S. Constitution, evidence of showups can be barred from trial as a violation of due process when a defendant shows that the identification procedure was unnecessarily suggestive and the prosecution fails to establish that the identification was nevertheless reliable.
 
To determine reliability, a court considers factors such as the witness’ opportunity to view the suspect at the time of the crime, the witness’ degree of attention, accuracy of the witness’ description of the suspect, the level of certainty demonstrated by the witness at the time of identification, and the passage of time between the crime and the identification.

This month’s Roberson case returned Wisconsin to the federal test by overruling Dubose.
 
Roggensack, in her decision, opined that Dubose was “unsound in principle as it was based on misunderstanding the United States Supreme Court’s decisions in regard to out-of-court identifications and on topical social science.” 

By Margo Kirchner

​​An expunged operating-while-intoxicated (OWI) conviction can be counted as a prior offense when a defendant is prosecuted for a subsequent OWI, the Supreme Court of Wisconsin held last week.
 
Wisconsin law permits expunction of a criminal record after successful completion of a sentence if the defendant was under age 25 at the time of the offense, the maximum term of imprisonment for the offense is six years or less, and the judge ordered expunction at sentencing after finding that society would not be harmed by that result.
 
Upon successful completion of an expunged sentence, the clerk of court seals the case and destroys the court records. Expunction is intended to benefit a young offender, providing a second chance or a fresh start, according to the Supreme Court.
 
In Wisconsin, a first OWI offense is deemed a civil, not criminal, charge. Repeat offenses are criminal matters, and penalties increase with the number of offenses.
 
In 2011, Justin Braunschweig was convicted of a first OWI offense in Jackson County Circuit Court, and the judge ordered expunction.
 
Five years later, Braunschweig was arrested for driving while intoxicated with a blood-alcohol content of 0.16.  The state relied on Braunschweig’s expunged 2011 conviction as a prior offense, charging Braunschweig with criminal misdemeanor, rather than civil, OWI and prohibited-alcohol-content (PAC) offenses.
 
Braunschweig argued that his expunged conviction could not be counted and that he should not have been charged criminally. He lost the argument in the trial court and at the Wisconsin Court of Appeals.
 
Had Braunschweig’s 2011 conviction not been expunged, it unquestionably would count, said the Supreme Court. The question before the Court was whether an expunged conviction counts.
 
The Court held that it does. Justice Annette Kingsland Ziegler wrote for the unanimous Court.

By Margo Kirchner

​A federal judge’s refusal to delay trial for two years so that “Coupon King” Thomas (Chris) Balsiger could be represented by a particular lawyer did not violate Balsiger’s right to counsel, a federal appeals court ruled last week.
 
The ruling means that the 10-year federal criminal case against Balsiger will not be retried.  The U.S. Court of Appeals for the Seventh Circuit affirmed the bulk of Balsiger’s conviction and sentence with the exception of a recalculated forfeiture amount.
 
Balsiger ran International Outsourcing Services, one of the nation’s largest product-coupon processors, in El Paso, Texas, and Bloomington, Indiana.
 
He and 10 others were indicted in 2007 on 25 counts of wire fraud, conspiracy to commit wire fraud, and conspiracy to obstruct justice. The fraud allegations involved coupon payments made by Wisconsin manufacturers Sargento Foods, Good Humor/Breyers Ice Cream, Kimberly-Clark, LeSaffre Yeast, and S.C. Johnson & Sons. The indictment alleged that the wire-fraud scheme caused $250 million in losses to manufacturers.
 
Pretrial proceedings dragged on for years. During that time, in July 2014, Balsiger’s lawyer, Joseph Sib Abraham, passed away.
 
U.S. District Judge Charles N. Clevert, Jr. was notified in August 2014, and a lawyer who worked with Abraham said Balsiger expected to hire new counsel within 30 days.  Yet by early December 2014 no new attorney had appeared in the case and Balsiger claimed he could not then hire a new attorney due to financial difficulties.
 
Clevert set trial for October 2015.
 
At a status conference in early January 2015 Balsiger told Clevert he planned to hire El Paso attorney Richard Esper, and asked for a deadline of April 1, 2015, to hire Esper. Balsiger said he did not have sufficient funds and could not sell his home because of a filing the government made against the property.
 
Clevert soon learned that Esper could not be ready for trial until 2017 at the earliest. The judge also found that Balsiger could afford to hire a lawyer and ordered him to hire someone by Feb. 17, 2015.
 
The court found that Balsiger was not working diligently to hire counsel and warned that failure to hire an attorney would be considered a waiver of the right to counsel.

By Margo Kirchner

Robert W. Huber Jr. spent 18 years too many in prison or on probation because of bureaucratic blunders and refusal to listen to his protests.
 
Now a federal appeals court has cleared the way for his civil rights lawsuit to proceed.
 
Huber is seeking damages for violations of his constitutional rights. U.S. District Judge J.P. Stadtmueller granted summary judgment to the defendants, holding that Wisconsin’s six-year statute of limitations barred most of Huber’s claims and that no reasonable jury could find in Huber’s favor on any remaining ones.
 
Huber appealed. On Monday, the Seventh Circuit Court of Appeals reversed, reinstated Huber’s claims, and remanded the case for further proceedings. The appellate court denied Huber’s request to reassign the case to a different district judge, however.
 
Huber pleaded guilty in 1988 in Milwaukee County Circuit Court to fraudulently using another man’s credit card for charges totaling $800. His sentence, originally a four-year probation term, turned into a 25-year odyssey of probation and prison.
 
First, an additional three years of probation were tacked on because Huber failed to pay restitution.
 
“With that extension, his sentence should have ended on November 3, 1995,” U.S. Circuit Judge Diane P. Wood wrote for the three-judge panel of the Seventh District Court of Appeals. “But it did not.”
 
Wood was joined in her opinion by U.S. Circuit Judges Joel M. Flaum and Frank H. Easterbrook.
 
First, in May 1993 and while still on paper, Huber stopped showing up for appointments with his probation agent. He was arrested in November 1994, but the state did not move to revoke his probation or to extend it. His agent even wrote that his discharge date was “11-3-95.” Later, in her last entry before Huber’s discharge date, the agent wrote, “no changes – all ok.”
 
“November 3 came and went without any action; no release, no modification of Huber’s probation, no formal extension,” Wood wrote. “Two weeks later, without any reference to her repeated notes acknowledging the November 3, 1995 release date, (Probation Agent Gloria) Anderson issued an apprehension request for Huber.”
 
Huber argued for years that his probation term expired on the November 3, 1995 date. But, he alleges, various probation officers and Wisconsin Department of Corrections (DOC) officials did little or nothing to investigate whether his probation was illegally extended. Not until October 2013 did officials determine that Huber was right.
 
Huber was arrested in January 1996, not terribly long after Anderson issued her apprehension request.
 
Anderson and her supervisor, Elizabeth Hartman, then told him that his probation had been suspended from May 1993 to November 1994 and he still had time to serve. They had him sign a form requesting reinstatement of his probation. Huber alleges that the form was blank at the time and changed later to make it appear that he admitted to absconding from probation.
 
Huber’s probation was extended to July 1998.
 
Another absconding led to more extensions, until in October 2000 Huber’s probation was revoked, resulting in a 10-year prison sentence for an $800 credit card fraud conviction that originally netted him four years of probation.