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 Gretchen Schuldt

​Milwaukee County Circuit Judge Kristy Yang will move at the end of this month from presiding over misdemeanors to handling juvenile cases, Milwaukee County Chief Judge Maxine White ordered Friday.

Yang's tenure in misdemeanor court was marked by a large number of substitutions filed against her. For the year ended July 31, for example, 227 substitutions were filed against Yang, while just five were filed against Circuit Judge Jean Kies and 40 were filed against Circuit Judge Hannah Dugan, both of whom also served in misdemeanor court.

New judge Daniel Gabler, meanwhile, will spend just a few weeks in Children's Court before taking over Yang's misdemeanor calendar. His stint in Children's Court begins Monday and ends Jan. 28, when he takes over Yang's misdemeanor calendar.

Paul Dedinsky, a former Children's Court prosecutor, will return as a judge to that same court. 

Gabler and Dedinsky were appointed to the bench by Gov. Scott Walker.

Gabler, a former assistant district attorney,  ran unsuccessfully for judge as a tough-on-crime candidate in 2009. He won the primary, but lost support when he ran an ad accusing judges of being lazy and portrayed two election opponents – one a career prosecutor – as having records of defending accused criminals. 

He also ran into trouble when he failed to show up for court on a case, leading to the dismissal of felony drug charges against the defendant. Gabler said he was busy with another case, but others said he may have been involved in a non work-related matter. There were two other court cases where Gabler-related errors got the DA's office in hot water, according to the MIlwaukee Journal Sentinel. 

Gabler lost the general election to J.D. Watts. 

Walker appointed Gabler to head the Parole Commission in 2017. Under Gabler's leadership, the commission was best known for its stinginess in granting parole. In 2017, for example, 181 inmates were released on parole, according to the Department of Corrections.

Dedinsky has worked since May 2017 as chief legal counsel for the State Department of Agriculture, Trade and Consumer Protection. He was a Milwaukee County assistant district attorney for 20 years prior to that, a job that included serving as the Milwaukee Public Schools restorative justice coordinator from 2008 to 2014.

White's order Friday follows an earlier shuffling announced in November.

By Gretchen Schuldt

​District Attorney John Chisholm says he will push for a statewide initiative that would increase state aid to counties that successfully reduce the number of people they are sending to state prisons.

He also said that the high turnover rate among attorneys and support staff in his office "is the single biggest administrative challenge I face."

On the prison alternative initiative, Chisholm, the Milwaukee County prosecutor, said that other states, such as Minnesota and Oregon, "have engaged in this work and have seen dramatic improvements in their criminal justice systems."

Minnesota had about 10,000 prison inmates as of July 1, 2018; Oregon had about 15,000; and Wisconsin had about 24,000, according to figures from each of those states.

The initiative, if it is to work, would require more equitable state revenue sharing and commitments from counties to develop alternatives to incarceration, Chisholm said. 

Under the plan, the state would absorb the cost of a certain number of new inmates from each county.

"If they (the counties) send more than their share, then they have to pay the costs associated with it," he said. A state-county cost share already exists in the juvenile corrections area. 

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

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 Gretchen Schuldt

While State Sen. Leah Vukmir expressed outrage that John Doe investigators cataloged some of her personal emails and Attorney General Brad Schimel said he did not understand why they would do that, the Doe investigators were just following good protocol, according to publications on digital investigations.

"If the case ever comes to trial, the investigator presenting the case must be able to prove ... the data was not modified during acquisition or analysis (chain of custody)," forensic analyst Michael Graves wrote in The Anatomy of a Digital Investigation.

Vukrmir (R-Brookfield), a candidate for U.S.  Senate, said in a statement that “The upsetting news that my privacy was violated as personal emails between my daughter and I were obtained, read and kept by those who ran the John Doe investigation is absolutely appalling. This criminal behavior is inexcusable, and the individuals involved in this belong in prison."

Vukmir's emails were seized during the John Doe investigation into Gov. Scott Walker's campaign, according to  Schimel's report, which indicated investigators had a warrant.

By Margo Kirchner
​
The automatic aftereffects of a criminal conviction – exclusive of the sentence – can hit someone like “a ton of bricks,”  according to Gabriel “Jack” Chin, a law professor at the University of California-Davis.

Chin delivered the Marquette University Law School’s annual Barrock Lecture on Criminal Law last week.

Chin noted that about 60% of felons are sentenced to probation instead of prison, not warranting severe punishment as part of the sentence. But the collateral consequences of a felony conviction hit hard across the board. Collateral consequences differ from state to state but, according to Chin, can include:

• loss of the right to vote;
• exclusion from jury service;
• loss of right to possess a firearm;
• deportation (for noncitizens);
• exclusion from military service and other public employment;
• disqualification from jobs that require security clearance
• impeachment as a witness in court;
• disqualification from obtaining a barber’s license;
• impacts on child custody;
• loss of public housing for an entire family;
• loss of pension benefits; and even
• disqualification from coaching a child’s sports team.

In Chin’s view, the less significant the crime, the more significant and troubling these collateral consequences.  He used as an example New York’s class B felony for selling $10 of crack, which can result in probation, yet brings with it the host of severe aftereffects. (Wisconsin’s second offense marijuana possession felony law punishes even more trivial wrongdoing with similarly harsh consequences.)

Significantly, such collateral consequences last a lifetime, except for the rare pardon or expungement. 

And the number of consequences a person faces can grow, as new ones can be imposed on old convictions. A felon’s move to another state can mean additional restrictions.

Modern courts generally view collateral consequences as civil regulatory measures rather than as punishment. As a result, except as to deportation, neither defense counsel nor a judge accepting a plea deal is required to inform a defendant of any of the myriad collateral consequences the conviction will bring.