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.

By Margo Kirchner

​​Defense attorneys are failing their clients if they neglect to understand, investigate, and present evidence of childhood trauma in criminal cases, says a legal and neuroscience expert.
 
Deborah W. Denno, a professor and founding director of the Neuroscience and Law Center at Fordham University School of Law, spoke last week at Marquette University Law School. 
 
Denno obtained her law degree and a Ph.D. in sociology from the University of Pennsylvania and has taught at Fordham Law, the London School of Economics, Columbia Law School, and Princeton University.
 
She visited Marquette Law to give the annual Barrock Lecture on Criminal Law, presenting her research and conclusions about the use of childhood-trauma evidence in adult criminal cases.
 
Denno studied criminal cases reported nationwide, investigating how defense attorneys introduced and how courts assessed the mitigating and aggravating impacts of neuroscience evidence.  Neuroscience is the branch of life science focusing on the brain and nervous system.
 
Denno researched written court decisions reported in the online legal databases Westlaw and Lexis from 1992 to 2012. She found 800 criminal cases involving neuroscience evidence. She reviewed those and then narrowed her focus to the 266 cases involving childhood trauma.
 
Denno acknowledged that written opinions reported in Westlaw and Lexis are predominantly from appellate courts, so her research similarly involved mostly appellate court decisions. Further, almost all of the 266 cases she reviewed in depth were homicide cases, and most involved the death penalty.

She looked particularly at the types of childhood trauma defendants had suffered, conditions caused by or related to the trauma, how evidence of the trauma or conditions was presented to courts, and the courts’ responses. From the 266 cases she identified 20 types of trauma, which she grouped as either family, developmental, or external trauma. On average, each defendant in the 266 cases had suffered five different types.

By Margo Kirchner​

A federal appeals court last week vacated a $10 million award to employees of Pewaukee’s Waterstone Mortgage Corporation for wage and hour violations because the claimants arbitrated as a group.
 
The Seventh Circuit Court of Appeals, citing the U.S. Supreme Court decision in another Wisconsin-based case involving Epic Systems, of Verona, held that a Waterstone employee’s employment agreement limiting arbitration to a single claimant does not violate the National Labor Relations Act’s protections.
 
Pamela Herrington sued Waterstone in U.S. District Court in Madison, asserting that the company failed to pay her minimum wages and overtime as required by the Fair Labor Standards Act (FLSA).  Under FLSA, claims may be brought as collective actions, meaning that other employees may opt in to the lawsuit.  Herrington filed her case as a collective action and 174 other Waterstone employees eventually joined her case.
 
Herrington’s employment agreement, however, contained an arbitration clause covering employment disputes.  The clause said Herrington’s arbitration could not be joined with or include any claims by others against Waterstone.
 
U.S. District Judge Barbara B. Crabb agreed with Herrington’s argument that any waiver of the right to join the claims of others was invalid under the National Labor Relations Act (NLRA), which protects the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
 
Crabb’s decision aligned with applicable law at the time. The National Labor Relations Board had determined that the right to engage in concerted activities for mutual aid or protection included the right to pursue collective or class claims. The Seventh Circuit later reached the same conclusion in a case involving Epic Systems.
 
As a result, Crabb struck the portion of the arbitration clause that waived collective or class action. She then sent the case to arbitration with instructions that Herrington be allowed to join other employees in her arbitration proceedings.  The arbitrator allowed other employees to opt in and, after further proceedings, awarded the claimants over $10 million in damages and fees.
 
Crabb then enforced the award through a court judgment, and Waterstone appealed to the Seventh Circuit.
 
While Waterstone’s appeal was pending, the U.S. Supreme Court overruled the Seventh Circuit’s decision in the Epic Systems case and held that an arbitration clause limiting arbitration to a single claimant does not violate the NLRA’s protection of concerted activities.
 
The Supreme Court’s decision meant the waiver in Herrington’s employment agreement was lawful and Crabb was wrong to strike it, the Seventh Circuit said in the Herrington case.
 
Herrington also argued the arbitration clause still allows for collective or class arbitration despite the waiver.
 
U.S. Circuit Judge Amy Coney Barrett, in the decision, called the argument “weak” and suggested it was “implausible,” but remanded the case to Crabb for a determination. Barrett was joined in her decision by U.S. Circuit Judges Amy J. St. Eve and William J. Bauer.
 
If Crabb agrees with Herrington, Crabb could confirm the $10 million award. If Crabb finds that Herrington’s arbitration is limited to her claims alone, the case could be sent back to arbitration for new proceedings.

By Margo Kirchner

​Negligent – even reckless – horseback-riding facilities in Wisconsin are immune from liability for harm they cause customers, the U.S. Court of Appeals for the Seventh Circuit confirmed last week.

The decision addressed two cases.  In the first case, Holiday Stables employees sent Judy Dilley out on a horse without instructions or a helmet, even though Dilley had told a staffer she lacked prior horseback-riding experience. The employees also failed to adjust her stirrups.
​
On the trail, Dilley told the guide riding in front of her that she did not have hold of the reins of her horse, Blue. The guide told her not to worry because Blue, who often carried small children, knew where to go.

After about 20 minutes, Blue attempted to pass the guide’s horse, which kicked at Blue. Blue reared, throwing Dilley to the ground.

Dilley suffered a head injury, fractured ribs and vertebra, and punctured lung.

In the second case, Abigail Brown sued over multiple leg fractures sustained during a riding lesson. Brown took her own horse, Golden Gift, to Country View Equestrian Center in Monroe for the lesson. During the lesson Country View’s instructor allowed a second rider and horse to enter the arena, knowing that the second horse was high spirited. The second horse sped off, bucking and colliding with Golden Gift, tossing Brown from her horse.

Both women were from out of state and so sued in federal court. They lost there and appealed.
The court interpreted the state’s equine-immunity law that, with some exceptions, protects trail operators and riding instructors from paying a rider for injuries.

U.S. Circuit Judge Diane Sykes wrote for the Seventh Circuit panel, joined by Circuit Judges Joel Flaum and David Hamilton.

Under the statute, a person or facility renting out horses or receiving pay for riding lessons is generally immune from civil liability if a participant is injured due to “an inherent risk” of the equine activity.

​"Inherent risk" means “a danger or condition that is an integral part of equine activities” and includes collisions between animals, the unpredictability of a horse’s behavior or reactions to its surroundings, and the potential of a person participating in the activity to act negligently.

Dilley argued that because negligence of a trail operator is avoidable, it is not an “integral part” of horseback riding and thus immunity does not arise. The Seventh Circuit rejected her argument based on the statute’s text.

The court also rejected Dilley’s alternative argument that her case fit a couple exceptions to immunity. One exception permits recovery of damages when a trail operator provides a horse “and fails to make a reasonable effort to determine the ability of the person to engage safely in an equine activity or to safely manage the particular equine provided.”

Dilley argued that the exception applies when the operator “fails to . . . safely manage” a horse, while Holiday argued that the exception applies only when an operator fails to assess “the ability of the person . . . to safely manage” the horse.

With no Wisconsin Supreme Court interpretation of the language on the books, the Seventh Circuit predicted how the state’s high court would rule. Declaring the task “not difficult,” the Seventh Circuit agreed with Holiday’s interpretation.

The exception does not affect immunity for the trail operator’s negligent management of a horse, said the court.