Updated Sept. 12, 2018 to include responses from the State Public Defender's Office and Wood County Circuit Judge Todd P. Wolf.

By Gretchen Schuldt

​Trequelle T. Vann-Marcouex, who turned 18 in April, was facing serious charges when he appeared before Wood County Circuit Judge Todd P. Wolf on Aug. 14 for a preliminary hearing.

Vann-Marcouex was facing a maximum of 65 years in prison for allegedly participating in an armed home invasion and robbery. Vann-Marcouex denied involvement in the crime. He had been in jail for at least 11 days, and he still did not have a lawyer.

He qualified for representation by the State Public Defender's Office (SPD), which provides lawyers for very low-income defendants. A lawyer from that office represented him during his initial appearance, where bail was set at $25,000, but no one had been appointed to handle his case after that.

“I have been calling the Public Defender’s Office every single day, and they make it – I get on the phone with them, and they’d laugh,” Vann-Marcouex said at the end of the preliminary hearing, according to a transcript of the proceeding. “When I called them yesterday and I asked them how is it I don’t have a public defender and I got my court in less than 24 hours, and she is, like, right. How is that an answer, right? How is that an answer?”

“Well, you have to deal with them on that,” Wolf responded. “I can only do the hearings that are before me.”

Wolf also did not appoint a lawyer for Vann-Marcouex, either, even though he should have done so.

"I don't understand how this is enough evidence," Vann-Marcouex said after Wolf bound him over for trial. 

"Okay," the judge responded. "That will be something you can discuss with your attorney."
​
Vann-Marcouex hanged himself in the jail that night. It was the fifth suicide in two years in the Wood County Jail.

SPD spokesman Randy Kraft said the office did not take Vann-Marcouex's case because of a direct conflict of interest and so had to appoint a private bar attorney to take the case.

"Agency staff made approximately 300 calls and emails to private attorneys certified to take SPD cases before an appointment was ultimately made on Aug. 14," Kraft said in an email. "The Order Appointing Counsel was filed with the court on the same day.

"In cases in our more rural counties, the difficulty in locating a private bar attorney is fairly typical," Kraft said. "What is less typical, however, is the court proceeding with a preliminary hearing without the benefit of an attorney.  Defendants benefit from having an attorney with them in court. Attorneys not only have the skills necessary to protect the rights of their clients, but they are also able to guide them through the criminal justice system."

The Sixth Amendment to the U.S. Constitution guarantees defendants in criminal cases the right to effective counsel. The Wisconsin Supreme Court has specifically ruled that defendants are entitled to counsel at preliminary hearings.

​But Vann-Marcouex, who had never been in serious trouble before, was unrepresented as a prosecutor described the state’s case against him. When he did try to talk, the judge cut him off.

It is impossible to draw a line directly from the young man's lack of representation to his suicide, but a lawyer could have helped Vann-Marcouex deal with the overwhelmingly stressful situation he faced, said Chad Lanning, president of the Wisconsin Association of Criminal Defense Lawyers.

A lawyer can put things in context and "give them that hope that all is not lost," he said. Law enforcement may presume defendants are guilty and treat them that way, or frighten them with worst-case predictions in attempts to scare them straight.

While court and law enforcement officials often emphasize the maximum penalties a defendant faces, a lawyer can give them a more realistic, less dire picture and explain legal defenses and a basic strategy of how they will unfold as the case moves forward.

Vann-Marcouex wanted a lawyer. He just didn't get one, a fact acknowledged by the prosecution.

"I did have a brief off-the-record conversation with Mr. Vann-Marcouex," Assistant District Attorney Leigh Neville-Neil said at the beginning of the preliminary hearing, according to the transcript. "He indicated he applied and qualified for a Public Defender. He has been calling them repeatedly and has not been assigned counsel yet, just so the Court's aware."

"Okay," Wolf responded. "That's my understanding, Mr. Vann-Marcouex, though, in fact, what the Court is required to do by law is to have this preliminary hearing done within 10 days when someone's in custody on a cash bond, such as yourself."

Wolf did not raise the possibility of a court-appointed attorney, nor did Neville-Neil, who is now on leave.

Wolf declined to answer written questions from WJI. Wood County District Attorney Craig Lambert did not respond to written questions.

The lack of legal representation for defendants in criminal cases who cannot afford to hire a lawyer is creating a constitutional crisis in the state. The SPD appoints private bar attorneys to handle cases when it cannot do so because of excessive caseloads or potential conflicts of interest. The low pay the office can offer – $40 an hour, the lowest rate in the nation and not enough to cover the average lawyer's overhead costs – means more and more lawyers are turning down cases. The State Supreme Court earlier this year refused a request to increase the rate.

Judges are supposed to appoint lawyers at county expense at $70 per hour if no other lawyer is available. “If lawyers are unavailable or unwilling to represent indigent clients at the SPD rate of $40/hour, as is increasingly the case, then judges must appoint a lawyer under SCR 81.02, at county expense,” the State Supreme Court said in its order declining to increase the $40 rate.
 
Wolf instead explained that the state would outline its evidence to show probable cause that Vann-Marcouex committed the three crimes with which he was charged:  armed robbery, burglary, and child abuse (a 17-year-old was struck with a gun during the home robbery).

Prosecutors "have to introduce that type of evidence so I feel comfortable enough that the case can proceed with that probable cause finding, so I am going to go through and hear the evidence here today just to see if it meets that standard," he said, according to the transcript. "If it doesn't, the case would get dismissed. If it does, you are in no different position than you were in when you walked in here. ..."

Wolf continued: "You do have the right to ask questions of the officer, although if you had an attorney here, they would tell you not to do so because anything you say is being recorded here today on the record and could be used against you, and you clearly wouldn't want to give up your right for self-incrimination by making some statements that could be used against you. Do you understand that then, sir? Do you understand that."

"Yeah," Vann-Marcouex replied.

After Neville-Neil finished questioning an investigating officer, Wolf told Vann-Marcouex he could ask questions, "but again, realize anything you are saying is being taken down and could be used against you."

Later, the judge told Vann-Marcouex that he had a right to present evidence, but "I have to make a decision in the light most favorable to the state, and obviously you'd be giving up any right to self-incrimination if you did so. Do you wish to present any evidence?”

"I mean, I was watching my nephew that night," Vann-Marcouex said. "My sister isn't here right now, I don't see her, but, um –"

The judge cut him off. "You have to present evidence through testimony here, not make an argument, but no attorney would tell you to do that with each of the charges you are facing here because, again, I have to do it in the light most favorable to the State, all right?  Do you wish to present anything now or not?" Wolf said.

Vann-Marcouex shook his head.

That was his last court appearance.

It was the same day he got his lawyer.

That same night, jail staff found him in his cell, where he apparently tried to hang himself. He died a few days later. ​

Margo Kirchner contributed to this story.

By Margo Kirchner
​
The lawsuit brought by the estate of the man who died in the back seat of a squad car after repeatedly complaining that he could not breathe may face months of delay as the case bounces between the federal trial and appellate courts, thanks to an opinion last week by the Seventh Circuit Court of Appeals.

Derek Williams Jr. died in the back seat of a Milwaukee Police Department squad car on July 6, 2011. Officers failed to call for medical help for Williams until after he collapsed and stopped breathing. By then he could not be revived.

In July 2016, Williams’ estate and three children sued 10 officers for failing to attend to Williams’ medical needs while in custody and for wrongful death. The plaintiffs also sued the City of Milwaukee, claiming that its unwritten policies and practices caused Williams’ death.

U.S. District Judge J.P. Stadtmueller held in August 2017 that the case should go to trial. He rejected the officers’ summary judgment motion, which argued that the qualified immunity doctrine bars suit against them.

Under long-time U.S. Supreme Court case law, qualified immunity protects public officials from civil liability unless their conduct violated a clearly established constitutional right that a reasonable person would have known. The doctrine balances the need to hold public officials accountable when they act irresponsibly with the need to shield them from liability when they perform their duties reasonably.

The officers appealed to the U.S. Court of Appeals for the Seventh Circuit.  That court ruled last week that it could not decide the officers’ appeal because Stadtmueller failed to analyze qualified immunity for each officer individually; his decision addressed their actions as a group. The appeals court remanded for further review by Stadtmueller, setting up another opportunity for the officers to appeal if Stadtmueller again rules against them.

Friday’s appellate opinion was issued about 13 months after Stadtmueller’s initial ruling. Statistics available on the U.S. Courts’ website peg the median length of an appeal in the Seventh Circuit at eight months.

Senior U.S. District Judge Robert W. Gettleman of the Northern District of Illinois, sitting as a guest on the Seventh Circuit panel, authored the appellate opinion, joined by Seventh Circuit Judge Joel M. Flaum. Seventh Circuit Senior Judge Kenneth F. Ripple agreed that Stadtmueller did not properly consider each officer individually but dissented on other grounds.

Because of the summary-judgment stage of the case, all disputed facts were taken in the plaintiffs’ favor. Plaintiffs’ evidence showed that shortly after midnight on July 6, 2011, Williams was walking north on Holton Street in Milwaukee. He wore a mask and held a cell phone under his clothing, making him appear armed. Four officers in two squad cars noticed Williams as he approached a couple from behind and believed they were witnessing an attempted armed robbery. When one squad car stopped, Williams ran. An officer chased Williams on foot while both cars followed, and additional officers responded to the scene.

Williams was a 22-year-old African-American male in good physical shape. He ran 200 to 300 yards and jumped over a fence. After about eight minutes officers found him in a back yard; both Williams and the chasing officer were breathing heavily. After a brief struggle, two officers pulled Williams down onto his back and flipped him over to apply handcuffs, with one officer kneeling on Williams’ back. Williams said he could not breathe, at which point the officer lifted some of his weight off of Williams. A recorded radio call of an officer telling dispatch that Williams was in custody captured Williams complaining that he could not breathe.

Williams went limp as officers lifted him up. Williams was unresponsive, breathing heavily, and sweating, but the officers thought he was faking any distress. After they used a painful procedure to determine consciousness, Williams opened his eyes and told the officers that the two alleged victims were his friends and he was “just playing around” with them. Williams again complained about not being able to breathe. Neighbors heard his complaints and heard an officer tell Williams to “shut up.”

After five minutes the officers moved Williams to the front yard, where he went limp again and had to be dragged. Officers told him to stop “playing games” but Williams again said he could not breathe. A neighbor heard Williams say he could not breathe while officers cursed at him. Another neighbor called 911 but was told that paramedics would not be sent unless officers called for them.

The arresting officers placed Williams in the rear seat of a squad car but did not discuss Williams’ condition. Although the officer sitting in the driver’s seat turned on a back-seat video recorder, he failed to activate a feed to observe Williams on his computer screen. Nor did he turn to look at Williams.

Williams again said he could not breathe, that he was dying, and that he needed an ambulance, but the squad officer told Williams he was “breathing just fine” and “playing games.”

Nevertheless, the officer rolled down the window and turned on the air conditioner. A witness saw Williams rocking around in the back seat and heard him say he could not breathe. According to the Seventh Circuit, the recording of Williams in the back seat “shows him in obvious distress, eventually collapsing onto the door of the car.”

The squad officer was replaced with another, but the two did not discuss Williams’ breathing complaints and the video feed remained off. When the second squad officer turned to look at the back seat, Williams was slumped over. The officer checked Williams and found no pulse or breath, but he did not call for medical assistance. Instead, he unsuccessfully looked for help at another squad car and then radioed other officers. Finally, a responding officer called for medical help approximately 12 minutes after Williams was placed in the car and three minutes after he was found motionless.

An officer began CPR and paramedics took over, but Williams was declared dead at 1:41 a.m. The Milwaukee County Medical Examiner determined the cause of death as sickle-cell crisis triggered by Williams’ flight from and altercation with police, though another medical expert said the cause of death is indeterminable.

As noted by the Seventh Circuit in its opinion, qualified immunity does not protect a public official from suit when (1) the official violated a constitutional right and (2) that right was clearly established at the time of the challenged conduct.

Plaintiffs claim that the defendant officers violated Williams’ Fourth Amendment right to receive reasonable medical care while in custody.
​
The officers conceded that calling an ambulance would not have compromised any police interest or been burdensome. Therefore, the Seventh Circuit stated in its opinion, to establish the constitutional violation the plaintiffs had to show only that the officers had notice of Williams’ medical need and that the medical need was serious. 

Stadtmueller found that plaintiffs presented such evidence. Further, Stadtmueller found that an arrestee’s right to objectively reasonable medical attention was clearly established by at least 2007.

The Seventh Circuit, however, said that Stadtmueller improperly grouped the actions of the officers together when he assessed the case.  According to the court, “each defendant-officer had a different degree of contact with Williams and had different assigned responsibilities with respect to the apprehension of Williams and investigation of the alleged armed robbery. Although the district court’s recitation of facts acknowledges the officers’ varying encounters with Williams, its qualified-immunity analysis lacks any individualized assessment.”

The court remanded, directing Stadtmueller to articulate his qualified immunity analysis officer by officer. Only then, said the Seventh Circuit, can it review the officers’ appeal.

Trial was previously scheduled for late August 2017 but postponed due to the appeal. The  claims against the city were not part of the appeal and remain pending for trial.

It is unclear how much delay this do-over will cause. District courts generally cannot act on a remand until receipt of a document called a “mandate,” which often issues a few weeks after an opinion. Stadtmueller could act quickly, without additional briefing, but if he rules that any individual defendant is not protected by qualified immunity, that defendant could appeal again.

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.

By Margo Kirchner

President Trump's next U.S. Supreme Court appointment likely would make Chief Justice John Roberts the ideological middle of the court,  according to the dean of the University of California, Berkeley, Law School.

Dean Erwin Chemerinsky noted that Justices Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer are all older than the average age at which past Supreme Court justices have retired.

Roberts becoming the "center" would show the Court's continued movement toward the conservative viewpoint, he said.
 
Chemerinsky, a well-known scholar on constitutional law, spoke as part of a panel hosted by the American Constitution Society. He discussed the progression of the median or swing justice from Justice Lewis Powell to Justice Sandra Day O’Connor to Justice Anthony Kennedy.
 
He said another Trump appointment would most likely have an effect on affirmative action laws, criminal penalties, and the exclusionary rule (which generally prohibits the admission of illegally obtained evidence).

In addition, he sees five votes to overrule Roe v. Wade should another Trump appointee make it to the Court.

​He also expects, however, that if Democrats take the Senate in November 2018 they would sit on any Trump Supreme Court nominee until after the 2020 elections, as pushback after President Barack Obama’s failed Merrick Garland nomination. Senate Republicans refused to vote on Garland's nomination for 10 months, until Obama's term expired.
 
Law professors Melissa Murray and Pamela Karlan joined Chemerinsky on the panel, moderated by Caroline Frederickson, president of the American Constitution Society.  Murray, a professor and faculty director of the Center on Reproductive Rights and Justice at Berkeley Law School, discussed a second Trump appointee’s potential effect on reproductive rights and the frequent chipping-away of Roe.  Karlan, a professor at Stanford Law School, speculated on the status of LGBTQ rights if another Trump nominee joins the Court.
 
Karlan noted the importance of getting the public to understand how court decisions affect their lives.

By Margo Kirchner

​A suspect who confessed to a serious crime during a police interview at a police station was not in custody afterwards when he asked for a lawyer, the State Supreme Court ruled last week.
 
As a result, officers did not need to comply with the suspect’s request for counsel, the Court said in a 5-2 opinion written by Chief Justice Patience Roggensack.
 
Justice Ann Walsh Bradley, in a dissent, said the majority was “engaging in a work of fantasy” by suggesting that Daniel Bartelt could reasonably believe after his confession that he was free to leave the Slinger police station.
 
Bartelt argued to the Court that police improperly questioned him after he invoked his right to counsel. The Court found, however, that Bartelt was not in custody when he first said anything about an attorney.
 
The right to counsel does not attach until a suspect is “in custody,” which occurs when, under the totality of the circumstances, “a reasonable person would not feel free to terminate the interview and leave the scene,” according to the Court.

​In July 2013, detectives from the Washington County Sheriff’s Department and Hartford Police Department investigated an armed assault in a Richfield park and a subsequent murder in Hartford. Detectives quickly identified Bartelt as a person of interest regarding the assault based on a vehicle seen at the crime scene and a composite sketch of the attacker. The murder victim was Bartelt’s former girlfriend.
 
A detective contacted Bartelt and asked to speak with him about an unspecified incident. Bartelt agreed to meet with Washington County Sheriff’s Department detectives at the Slinger Police Department. Bartelt believed the detectives wanted to talk about the murder.
 
Two detectives questioned Bartelt in an interview room containing a table and three chairs. One door to the room was open and the other was unlocked. The detectives did not search Bartelt. They told Bartelt that he was not in trouble, was not under arrest, and could leave at any time. They then asked questions about the attack in the park.
 
The interview lasted about 30 minutes. While questioning Bartelt, one of the detectives moved his chair from one side of the table to about two feet from Bartelt and accused Bartelt of lying. After more questioning, Bartelt admitted he had attacked the woman in the park.
 
A detective asked Bartelt to put the confession in writing and said there likely would be more questions. Bartelt then asked whether he should “speak to a lawyer or anything.” The detective said yes, that was an option, to which Bartelt responded, “I think I’d prefer that.”
 
At that point, the detectives suspended the interview, took Bartelt’s cell phone, and left the room. They returned a few minutes later, told Bartelt he was under arrest, handcuffed him, and sent him to the Washington County Jail.
 
The next day, in a Washington County Sheriff’s Department interview room, Hartford Police Department detectives questioned Bartelt about the murder. Although the detectives read Bartelt his Miranda rights before questioning him, no counsel was present notwithstanding Bartelt’s mention of a lawyer the day before.

​Bartelt waived all of his Miranda rights and was questioned for about 90 minutes regarding his relationship with the murder victim and his whereabouts on the day she died. Based on statements Bartelt made during the second interview, detectives found physical evidence linking Bartelt to the murder.
 
In court, Bartelt moved to suppress his statements and any evidence derived from them. Following denial of the motion by Washington County Circuit Judge Todd Martens, a jury convicted Bartelt of first-degree intentional homicide and he was sentenced to life imprisonment without the possibility of release.
 
On appeal, Bartelt conceded that he was not in custody at the start of his first interview. But he pointed out that during the interview one detective moved his chair closer, the tone of the questioning changed, and he was increasingly treated as a target of the investigation. Bartelt argued that once he confessed to the attack in the park, a reasonable person in his circumstances would have believed he was not free to leave the police station, thus transforming the interview into a custodial interrogation and requiring the detectives to cease all questioning once he asked for any attorney. Therefore, he argued, detectives violated his Fifth Amendment rights when they questioned him the next day about the murder.
 
However, the Court concluded that although admission of guilt to a serious crime “is a factor to consider in a custody analysis,” given the totality of circumstances Bartelt’s confession to the attack did not transform his status into one of custody.
 
The Court noted in particular that even after Bartelt’s confession the detectives spoke in a conversational tone and did not restrain his freedom of movement. Thus, as Bartelt was not in custody, his request for a lawyer did not need to be honored.
 
Bradley, joined in dissent by Justice Shirley Abrahamson, criticized the court for ignoring reality:
 
“I committed a serious, violent felony.” If suspects uttered these words, would law enforcement let them walk out of the station? Would a reasonable person feel free to simply get up and leave? Engaging in a work of fantasy, the majority says yes. Mired to the grips of reality, I say no.
 
Legal decisions regarding the “free to leave” standard do not reflect how reasonable people actually think and act, Bradley said.
 
She then continued: “Our jurisprudence should reflect reality. It should be based on true inclinations and thought processes rather than pushing the mythical ‘reasonable person’ even further from the bounds of the real world. The majority accomplishes the latter.”
 
Bradley further charged the majority with omitting relevant facts from its analysis, such as how Bartelt would have had to walk around one of the detectives to leave the room; how the detective’s movement of the chair blocked Bartelt’s exit, put the detective within arm’s reach, and changed the atmosphere in the room; and how the tone of questioning had turned coarse by the time of Bartelt’s confession, enhancing coercive pressure.
 
She noted that although the “free to leave” test requires assessment of objective facts rather than subjective views of those involved, one of the detectives testified that once Bartelt confessed, the detective believed Bartelt was not free to leave. “If even the interrogating detective testified that a suspect was not free to leave, would a reasonable suspect in such a position really think he could just get up and walk out?” Bradley wrote. “Only in a fantasy world would a suspect act in this manner.“

Margo Kirchner & Gretchen Schuldt
​​
A judge must allow for expunctions of criminal records at sentencing or not at all, the State Supreme Court has ruled.
 
Post-sentencing requests by a defendant to expunge are too late.
 
By statute, a Wisconsin court may order “at the time of sentencing” that a sentence be expunged upon its successful completion if the maximum period of imprisonment for the offense is 6 years or less and the defendant was under 25 years old at the time the offense occurred.
 
A bill that would allow for post-sentencing expunction requests is pending in the Assembly. The Senate version passed on a 30-2 vote, with State Senators Mark Miller (D-Monona) and Fred Risser (D-Madison) opposed.
 
The bill would allow qualified offenders to apply for expunction after they successfully complete their sentences.
 
“It is difficult for the court to know at sentencing whether the standards for expungement have been met, that is, whether the defendant will benefit and society will not be harmed,” Rock County Circuit Judge James Daley said in testimony prepared for a public hearing on the bill. “It makes far more sense to have this decision made later, after defendants have had an opportunity to demonstrate they have pulled their lives together and can be contributing members of society.”
 
The State Public Defender’s Office and the Association of State Prosecutors also testified in favor of the bill.
 
In the case before the Supreme Court, Diamond Arberry pled no contest to retail theft and attempted retail theft of merchandise. The Fond du Lac County Circuit Court judge sentenced her to one year of initial confinement and two years of extended supervision for one offense and two years of probation for the other.
 
Arberry met the threshold requirements for expunction of those sentences, but during the sentencing hearing neither Arberry nor the judge raised the issue.
 
Several months after sentencing, Arberry moved for an amended judgment finding her eligible for expunction after she completed the sentence. The trial court judge denied the motion, and the Wisconsin Court of Appeals affirmed.
 
The Supreme Court, in its decision, concluded that a post-sentencing motion seeking expunction is procedurally barred by statute and precedent.  The Court held that “at the time of sentencing” means only the time when sentence is imposed and does not include post-sentencing motions.
 
Further, the Supreme Court rejected Arberry’s argument that the sentencing court must raise and consider expunction on its own if a defendant is eligible.  Instead, said the Court, “it is the defendant’s burden to raise the issue of expunction.”

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

The new Foxconn law changes the rules for how Wisconsin courts work in cases involving government decisions about the firm and its site, giving Foxconn quicker access and more access to appellate courts than other firms and individuals in the state have.

And Foxconn’s ability to push to the head of the line means that other Wisconsin citizens seeking justice in the courts face potentially lengthy delays.

Under the new law, Foxconn gets multiple appeals of unfavorable trial court rulings in a single case. It doesn’t work that way for others. With a few exceptions, litigants in trial courts must await final judgment before appealing the case. 

Not so for those litigating governmental decisions concerning Foxconn or its site, called an “electronics and information technology manufacturing” (EITM) zone.  Those litigants can immediately appeal any trial court order relating to the governmental decision, so one case may generate multiple appeals (and delays) if the trial court issues multiple orders. The Wisconsin Court of Appeals must accept a mid-case appeal from EITM-zone litigation; in other cases, the appeals court can reject such an appeal.

If Foxconn doesn’t like how a circuit court rules, it gets to jump right to the highest court in the state for its appeals.  The vast majority of non-Foxconn appellants head first to the Wisconsin Court of Appeals.  Only after that court issues its decision does the losing party petition the Supreme Court of Wisconsin to review the case. 

Not so for litigants in an EITM-zone case.  Instead, the Court of Appeals must certify an EITM-zone appeal to the Supreme Court, meaning that the case may bypass the Court of Appeals.  Contrary to its exercise of discretion in other cases, the Court of Appeals has no choice regarding certification, regardless of whether that court believes certification is justified. 

Moreover, the Foxconn legislation mandates that the Supreme Court “give preference” to a certification regarding an EITM-zone appeal. In other words, the Supreme Court must place any Foxconn EITM-zone case ahead of other appeals, including those concerning important civil and criminal matters.

​Once Foxconn starts filing appeals, no matter how inconsequential, the court’s work on issues of statewide importance will get pushed to the side.

Based on this term’s calendar, here are the types of cases that could sit when Foxconn skips ahead in line:
​

• Issue – Whether contractors are immune from liability for injuries or death occurring on recreational land.   Property owner Conference Point hired Creekside Tree Service to trim trees on land that included a public right-of-way path around Geneva Lake.  Creekside set up cones and its employees tried to halt tree work until pedestrians passed.  Nevertheless, as Jane Westmas walked on the path near the trimming work, a tree limb fell and killed her.  Her husband and son sued Creekside, which argues to the Supreme Court that it should escape liability under a statute providing a land owner with immunity regarding death or injury of a person engaged in recreational activity on the property. 
  
  
• Issue – Whether the “implied consent” law that applies to all drivers on Wisconsin roads allows police to draw blood from an unconscious motorist without a warrant.  A police officer received information that Gerald Mitchell appeared drunk and was driving a gray minivan.  The officer found Mitchell walking near the van.  Mitchell appeared intoxicated and blew a .24 on a preliminary breath test, so the officer arrested him.  On the way to the hospital for a blood test, Mitchell became incapacitated and would not wake up or respond to stimulation.  The officer admitted in court that he could have applied for a warrant but did not, and no emergency circumstances existed.  Wisconsin law provides that any person who drives on public roads in the state is deemed to consent to breath, blood or urine tests to determine the presence of alcohol and presumes that an unconscious person did not withdraw consent.  The case has statewide impact regarding whether drawing blood from an unconscious motorist violates the United States Constitution’s protection against unreasonable searches and seizures
  
  
• Issue – Whether constitutional free-speech rights prohibit prosecution for statements made within the privacy of the home.  Ginger Breitzman was convicted of disorderly conduct for berating her son with profanities after her son burned popcorn in the microwave.  The son had been talking with a friend and hid his phone in his pocket, allowing the friend to hear Breitzman’s tirade.  Breitzman argued that though her speech was offensive, it was in her own home and could not have caused a disturbance in the community.  A decision could have statewide application regarding what constitutes disorderly conduct and the scope of free-speech rights within the home. 
  
  
• Issue – The interplay between the concealed-carry statute and the weapon safe-transport statute.  When police stopped Brian Grandberry he admitted having a loaded gun in his glove compartment.  Grandberry did not have a concealed-carry permit but argued that he did not violate the law because he was following the safe-transport statute, which controls the lawful placement of weapons in vehicles. 
  
  
• Issue – Whether an adult can be charged with a crime for conduct occurring when he was under 10 years old.  As an adult, Shaun Sanders was charged with fondling his younger sister’s breasts.  The fondling occurred when Sanders was between nine and 12 years old.  He argues that he should not be held criminally responsible for the conduct occurring when he was nine, as 10 is the earliest age for a juvenile delinquency charge.  The case could have statewide impact regarding the legal treatment of criminal conduct by children.  
  
  
• Issue – Whether the Wisconsin Employment Relations Commission must disclose names of those voting in a municipal employees’ union recertification election while the election is ongoing or can withhold those names until after the election period closes.  During a 20-day school-district union recertification election in 2015, Madison Teachers, Inc. filed a public record request for the names of those who had voted up to that date.  James Scott, chairman of the Commission, withheld the names until after the election period closed.  On appeal, Attorney General Brad Schimel contends on Scott’s behalf that public policy against voter intimidation outweighed public policy in favor of disclosing public records.  The case should have statewide impact due to the yearly recurrence of public-employee unions’ recertification elections and Scott’s alleged withholding of names upon public-records requests during at least one subsequent election.  

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.
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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: 
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“The work the lawyers did early on laid the foundation” and “they deserve the credit,” he said

By Margo Kirchner
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Even if he serves just one term, President Donald Trump may influence the U.S. Court of Appeals for the Seventh Circuit more than any of his four immediate predecessors. Trump has a remarkable opportunity to fill from four to nine of the court’s 11 seats.

The Seventh Circuit sits in Chicago and decides appeals from federal trial courts in Wisconsin, Illinois, and Indiana. The court has 11 full-time, active judge positions plus several “senior judges” who may take a reduced caseload in semi-retirement. The judges generally sit in three-judge panels. 

The President picks nominees for appointment to the court; they take the bench if confirmed by the Senate.

Federal judges may take senior status or retire under the Rule of 80---at age 65 if they have served at least 15 years on the bench, age 66 with 14 years, and so on.   When a judge chooses senior status or full retirement (or, in unfortunate circumstances, dies), the President gets to name a successor.

With the surprise retirement of Circuit Judge Richard Posner a couple weeks ago, four spots on the Seventh Circuit are available for Trump to fill.  Circuit Judge Ann Claire Williams took senior status in June 2017.  Circuit Judge John Daniel Tinder took senior status in early 2015.  And the seat of Circuit Judge Terence T. Evans has famously been vacant since January 2010.

When Trump took office in January, he acquired over 100 judicial vacancies, exceeding the vacancies inherited by Presidents Barack Obama (54) and George W. Bush (81). The Republican Senate’s delay in moving nominees forward during the latter years of the Obama presidency accounts for many of the vacancies, and the situation gives Trump an opportunity for long-lasting impact. 

Trump is moving quickly to fill the vacancies and recently picked up his pace. On Sept. 11, Trump proposed his tenth slate of nominees for federal courts around the country.  In total, Trump has nominated 53 individuals for judgeships, and 34 of those nominations came since mid-July. The Senate already confirmed six of the nominees.

Trump’s nominations to date cover the Evans and Tinder spots. The two remaining Seventh Circuit spots, allocated to Illinois, may require negotiation with that state’s two Democratic senators, but Trump has three years left in his term to get nominees for those positions through the Senate. If he fills all four seats, some three-member panels of the Seventh Circuit may consist completely of Trump appointees.

And these four seats are not the end of Trump’s possible reach. Five of the seven active Seventh Circuit judges are eligible for senior status or full retirement. Only Circuit Judges David Hamilton and Diane Sykes are younger than 65, and all of the judges over age 65 meet the service requirement and can retire. 

Chief Judge Diane Wood and Circuit Judge Frank Easterbrook are still under 70. But Circuit Judge Michael Kanne is 78, Circuit Judge Ilana Diamond Rovner is 79, and Circuit Judge Joel Flaum is 80. The average age of the Seventh Circuit active judges is 70 years old (though Senior Judge William Bauer makes that seem young---he continues hearing appeals at age 91). In contrast, the average age of the judges of the Eighth Circuit, which covers appeals in Minnesota and six other states to Wisconsin’s west, is 64.

If even two of the five eligible judges take senior status, retire, or die in the next two years and Trump has time to get a nominee through the Senate by the end of 2020, Trump appointees could constitute a majority of the court even if Trump serves only one term. The likelihood of a Trump-packed court greatly increases if Trump wins a second term---will Judge Flaum still want to serve as an active judge at age 85?

In comparison, during their eight years in office President Obama filled one Seventh Circuit seat (Judge Hamilton), President George W. Bush filled two seats (Judges Tinder and Sykes), and President William Clinton filled three (Judges Wood, Williams, and Evans). President George H.W. Bush appointed one Seventh Circuit judge (Judge Rovner) during his four-year term. The last president with an opportunity like Trump’s was Ronald Reagan; he appointed eight judges to the court during his eight years in office. ​