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.
WI Supreme Court says reasonable person would feel free to leave cops after confessing violent crime
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 briefing and certification process in Foxconn cases occur on an expedited schedule. Previously, the legislature directed expedited schedules for cases involving termination of parental rights and consent to a minor’s abortion. The Foxconn legislation puts EITM-zone appeals on a similar fast track.
Certification does not mean the Supreme Court must take the case. The Supreme Court generally reviews cases that involve a significant question of constitutional law, new doctrine, a novel issue with statewide impact, a legal question likely to recur, a conflict between a lower-court decision and decisions of other courts, or the need for policy. Four of the seven justices must agree to the bypass.
The Foxconn legislation bumps any appeal concerning governmental decisions about an EITM zone to the Supreme Court for consideration of certification regardless of whether that case involves matters of statewide concern, unsettled law or policy, or lower-court conflicts. A Foxconn appeal of, say, a building inspector’s requirement, a municipal zoning decision, or an environmental agency determination may not have statewide significance.
Nevertheless, the Supreme Court now must spend time considering each certification, impacting the Court’s other work.
Certification is generally not a quick process. Each one requires a commissioner to draft a memorandum analyzing the facts and law involved in the appeal and recommending whether certification should be granted. The justices are expected to read each certification and memorandum, listen to an oral report by the commissioner, then decide whether to grant certification. During the 2016-2017 term, the Supreme Court received only six certifications from the courts of appeals and accepted only one. Presumably, EITM-zone litigation will significantly increase the number of certifications the Supreme Court will have to consider.
It’s too early to know whether the Court will actually grant more certifications. Will EITM-zone litigation cause the Supreme Court to accept fewer cases not related to Foxconn?
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:
By Margo Kirchner
A Racine County judge on Thursday dismissed all charges against Daniel G. Scheidell, who served 20 years in prison for sexual assault before a court finally allowed him to present evidence that strongly suggested the attack was committed by someone else.
Racine County Circuit Court Judge Mark Nielsen granted the state’s motion to dismiss, after Racine County Assistant District Attorney Dirk Jensen said the state could not meet its burden in a new trial.
One of Scheidell’s supporters in the gallery clapped as the judge dismissed the case.
Scheidell’s conviction was vacated in 2015, but Attorney General Brad Schimel’s Department of Justice unsuccessfully appealed that decision twice.
A jury convicted Scheidell in October 1995 of attempted first-degree sexual assault and armed robbery following a trial based heavily on testimony of the victim, J.D.
J.D. awoke in her apartment early one morning in May, 1995, to find a knife-wielding man straddling her waist. The perpetrator during the attempted assault wore a black knit ski mask and jacket over his head and never spoke. J.D. managed to retrieve a pistol from her nightstand and the man left.
She was certain he was her upstairs neighbor, Scheidell, based on the man’s “distinctive body and walk” and part of the face she saw while she struggled with him.
When police arrived, they found Scheidell coming down the stairs, looking like he just woke up. He gave a voluntary statement and allowed police to search his apartment, but found nothing incriminating. They searched the alley – nothing.
At trial, defense counsel sought to offer evidence of a different, similar sexual assault that occurred five weeks after the attack on J.D., when he was in custody. The second assault occurred about four blocks away from J.D.’s residence, and many of the facts of the crime, including mode of entry, weapon, mask, time of day, and build of the assailant, were similar.
The assailant in the second crime, however, got away and was not identified.
Scheidell’s trial judge denied admission of the evidence because there was not any evidence directly connecting a third person to the crime Scheidell was accused of committing.
The jury found him guilty in October 1995 and Scheidell appealed all the way up to the State Supreme Court. He lost there, with the court ruling that mistaken-identity evidence is not admissible when a defendant tries to show that some unknown person committed the crime.
Scheidell applied to the Wisconsin Innocence Project for help. In 2013, the Innocence Project obtained a DNA profile from the second sexual assault and matched the profile to a Wisconsin inmate serving time for a 1998 sexual assault.
Scheidell moved for a new trial to present evidence that a now known perpetrator committed the crime for which Scheidell had been convicted.
In June 2015, Racine County Circuit Court Judge John Jude granted the motion and vacated Scheidell’s conviction. Scheidell was released on bond shortly thereafter.
Although the state appealed, a three-judge Wisconsin Court of Appeals panel (including two conservative Gov. Scott Walker appointees) affirmed the grant of a new trial in the interest of justice.
“It is undoubtedly reasonable to conclude that this new evidence casts doubt upon whether justice was done in the original proceeding,” Appeals Judge Brian K. Hagedorn wrote in a concurring opinion. The Supreme Court denied the Schimel team’s request for review and sent the case back to Racine for a new trial.
Thursday, at a hearing set for argument on a motion to modify bond, Jensen, the assistant district attorney, moved for dismissal based on additional investigation.
Nielsen granted the motion and dismissed the case without prejudice, meaning the state could theoretically file it again. The judge gave defense attorney Patrick Cafferty until Oct. 2 to file a new motion with legal support for his position that the case should be dismissed with prejudice, meaning it cannot be filed again.
Scheidell sighed audibly several times when he approached his family and friends after the hearing.
Cafferty said that he is “thrilled for this gentleman” and attributed Scheidell’s release to the work of many lawyers.
Cafferty indicated that Scheidell’s original trial counsel, in particular Debra Patterson, worked hard to get the evidence of the second assault admitted:
“The work the lawyers did early on laid the foundation” and “they deserve the credit,” he said
By Margo Kirchner
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.
Will the Seventh Circuit become "Trump's Tribunal"?
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.
By Margo Kirchner
Pregnant women in Wisconsin remain at risk of being thrown in jail and forced into treatment despite a federal judge’s determination that the state’s “cocaine mom” statute is unconstitutional.
U.S. District Judge James D. Peterson last spring declared the law impermissibly vague and blocked its enforcement statewide. State Attorney General Brad Schimel immediately appealed, however, and the law remains in effect while the litigation continues.
Here’s what happened to two women under the law.
In May 2013, Alicia Beltran, then 28, learned she was pregnant. A few weeks later, she sought prenatal care at a clinic in Washington County. She informed a physician’s assistant that she previously abused Percoset, which contains an opioid, but recently finished a course of Suboxone to treat her addiction. The physician’s assistant recommended that Beltran take a second course of Suboxone and, when Beltran refused (believing she already kicked her Percoset use), the clinic reported her to a Washington County social worker.
In July 2013, five law-enforcement officers arrested Beltran at her home, handcuffed her, and took her to a doctor for evaluation. The doctor declared Beltran and her pregnancy to be healthy and said he did not consider inpatient drug treatment to be necessary. Nevertheless, the officers drove Beltran to the county jail.
An assistant district attorney filed an action against Beltran under the cocaine-mom law and an attorney was appointed for Beltran’s fetus. Beltran was taken in handcuffs and shackles to a courtroom, where she requested an attorney. The commissioner said none would be provided until the next hearing. Beltran was ordered to a treatment facility, where she tested negative for all drugs. The court held Beltran at the facility for over two months, scheduling a jury trial for late October. Beltran went to federal court to challenge her detention; the ADA, in response, dismissed the cocaine-mom action against Beltran and had her released.
In 2014, Tamara Loertscher, then 29, was unemployed and could no longer afford medication for her hypothyroidism. Without the medication she suffered depression and fatigue and began using marijuana and methamphetamine a few times a week.
When Loertscher in August 2014 suspected she was pregnant, she went to a hospital to confirm it. She acknowledged her drug use to hospital personnel but told them she planned to stop using drugs to have a healthy baby. She checked into the hospital for care and received the thyroid medication she needed. But the hospital reported Loertscher to the Taylor County Department of Human Services, saying her behavior with drugs and alcohol put her fetus in serious danger.
Taylor County appointed a lawyer to represent Loertscher’s fetus. Loertscher, however, was not entitled an appointed lawyer yet. While in the hospital, Loertscher had to appear by phone, with little notice, in a temporary physical custody hearing. Loertscher said she did not wish to speak without legal representation and refused to participate. The court commissioner considered this a waiver of appearance, continued without Loertscher, and ordered her held at the hospital and then transferred to an inpatient drug treatment facility.
Loertscher, though, checked herself out of the hospital.
After another hearing, at which Loertscher represented herself, the court found her in contempt and ordered her to report to either the inpatient treatment facility or jail. Loertscher spent 18 days in jail, during which time she received no prenatal care and experienced pain and cramping. She was not permitted to see an obstetrician. When Loertscher refused to take the redundant pregnancy test required by the jail doctor, she was placed in solitary confinement.
Loertscher on her own found a list of Taylor County public defense attorneys and contacted one;, a public defender was appointed. Loertscher was released after she signed a consent decree that required an alcohol and drug-abuse assessment and weekly drug testing at her own expense. All tests were negative. Loertscher delivered a healthy baby.
The cocaine mom law (also known as Act 292) allows medical staff or county social workers to report and detain a pregnant woman if they think she “habitually lacks self-control” regarding alcohol or drugs “to a severe degree” with a “substantial risk” of an effect on or danger for her fertilized egg, embryo or fetus.
Authorities can take a woman into initial custody if they think she meets this standard, but she refuses to accept abuse treatment. If a court agrees, it can order the woman to treatment against her will and keep her in custody indefinitely. Loertscher self-medicated, but stopped upon learning she was pregnant; Beltran previously used drugs but was clean at the time she was ordered to a treatment facility. Both women planned no further drug use during pregnancy and therefore refused abuse treatment.
In Loertscher’s case, Judge Peterson found that the statute’s language, especially in light of current medical knowledge, fails to give fair warning about what conduct is prohibited and fails to provide authorities any meaningful standard for enforcement. But Judge Peterson’s April ban on enforcement of the cocaine-mom law was short-lived. Schimel and his department immediately appealed and sought a stay of Peterson’s order.
Though both Peterson and the Seventh Circuit Court of Appeals refused to stay the order, the state was undeterred and sought relief in the U.S. Supreme Court. On July 7 the Supreme Court stayed Peterson’s injunction while the appeal is pending. The parties filed appellate briefs over the summer, but no date for oral argument is set; a decision could come months or even a year after argument. Meanwhile, pregnant women in Wisconsin remain subject to a law that may very well be unconstitutional.
The long-term future of Peterson’s injunction is uncertain. Federal courts decide only live, ongoing disputes. The state’s first argument on appeal is that Loertscher no longer has a live dispute---not because her pregnancy ended (a legal doctrine permits continuation of a case involving pregnancy if the issue is capable of repetition) but because she moved out of state before Peterson issued his order.
On appeal, the state argues that Loertscher no longer has any stake in enforcement of the law: she “makes no plausible argument that, having moved out of Wisconsin, she will be subject to Act 292 in the future.” According to the state, “the fact that the present dispute involves a pregnancy-related law does not dictate a different result---this case is moot not because of the short duration of pregnancy, but because Plaintiff has moved out of Wisconsin” and fails to show that she intends to move back.
If the Seventh Circuit agrees with the state, Loertscher’s case will be dismissed as moot, the cocaine-mom law will remain on the books, and pregnant women who once used drugs but no longer do will remain at risk.
Ten medical and public health organizations, meanwhile, filed a friend-of-the-court brief in the Seventh Circuit saying Peterson was right to declare the law unconstitutionally vague. The organizations represent hundreds of thousands of healthcare providers nationwide and include the American Medical Association, the Wisconsin Medical Society, the American College of Obstetricians and Gynecologists, and the American Academy of Pediatrics.
They argue that research contradicts the state’s assumption that prenatal exposure to controlled substances causes inevitable harm. The organizations say Peterson “rightly concluded that ‘no one knows at what level drug or alcohol use will pose a risk to the unborn child’”; thus, an expectant mother cannot know when she would be subject to the law. After repeatedly taking a pain killer before learning of pregnancy? After smoking marijuana once a week for a month or two? After having a single glass of wine?
The organizations argue that the law deters women from being honest with medical personnel or seeking essential prenatal care in the first place. Moreover, the law puts pregnant woman and her fetus on opposite sides of a legal dispute, but their health cannot be separated from each other.
The National Coalition for a Civil Right to Counsel, in a second friend-of-the-court brief, sided with Loertscher in challenging the lack of legal representation at critical proceedings. Sexual predators and mentally ill individuals receive appointed counsel at all significant stages of confinement proceedings. Fetuses are appointed attorneys at the very start of cocaine-mom proceedings. Yet pregnant women, even if poor, are not appointed lawyers for the initial temporary-custody and plea hearings, which can result in forced treatment and involuntary confinement.
Loertscher’s and Beltran’s cocaine mom proceedings show that even when a woman requests counsel at these hearings her request may be ignored. Counsel may be appointed for a later fact-finding hearing, but only if the woman contests the case at the earlier hearings. Before any right to counsel arises, the woman must decide on her own how to plead, to demand a jury, and to demand that the fact-finding hearing be held within 30 days.
Loertscher and Beltran appear to be the only two women to have challenged the cocaine mom law in the 20 years since passage. Shortly after Beltran filed her federal case, authorities released her and dropped all abuse charges.
Beltran filed a type of case used to seek release. Because she obtained that release U.S. District Judge Charles N. Clevert, Jr. dismissed the case as moot while calling what happened to Beltran “extremely disturbing” and suggesting that the result may have been different in a civil rights case. Loertscher’s challenge uses civil-rights and declaratory action laws, which could allow the case to continue after her release or delivery of her baby.
etween 2005 and 2014, said Peterson in his decision, 3,326 reports of alleged unborn-child abuse were pursued by caseworkers. Some 467 of those reports were substantiated with some evidence. The briefs in Loertscher’s appeal suggest why challenges to the law are rare.
First is the law’s coercive nature. When a woman refuses to receive treatment “voluntarily,” she faces a temporary hold in custody and a formal petition for confinement and treatment. Such a choice may coerce women to simply submit to unwanted treatment.
Second, the woman proceeds though preliminary stages without the assistance of counsel, while her fetus has counsel and is pitted against the mother. Then, by the time the woman may find a lawyer on her own or be appointed counsel, she is closer to delivery and possibly unwilling to get involved in stressful litigation.
Third, cocaine mom proceedings are not public. They occur in juvenile court, where files are sealed. The briefs in Loertscher’s appeal note only one additional publicly known case, which made the Racine paper in 2005. No public record means no public outcry and no awareness by attorneys who could advise the women affected.
If Loertscher’s case is dismissed because she moved out of state, perhaps another pregnant woman will step forward to challenge the cocaine mom law.
But how about repeal?
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