By Gretchen Schuldt
No, mowing the lawn does not require a call to Digger's Hotline three days before that first blade is cut, according to a State Court of Appeals decision.
Such a requirement would "lead to absurd results," District III Court of Appeals Judge Mark A. Seidl wrote for a three-member panel. He was joined by Appeals Judges Lisa K. Stark and Thomas M. Hruz.
The decision means that Polk County won't have to pay for the damage its workers did to two pieces of equipment owned by Lakeland Communications Group LLC while the workers were mowing along a highway right-of-way.
Under previous court rulings, counties are protected from liability for any mowing mishaps for which they are responsible.
Lakeland, in its effort to collect $1,791.21 in damages, alleged that the county was negligent because it did not contact Digger's Hotline at least three days before mowing, as state law requires for excavation work. The requirement gives utilities time to mark the locations of underground equipment so it is not damaged during excavation.
Lakeland argued that the county's mowing operation was excavation because vegetation on the ground was moved or removed.
Polk County Circuit Judge Jeffery L. Anderson, in rejecting Lakeland's small claims complaints, ruled that "excavation" did not mean mowing the grass or trimming the trees. It means actual moving of dirt and earth, he said.
The appeals panel agreed. The Legislature, in adopting the Digger's Hotline law, did not include the word "vegetation," which it easily could have done, Seidl wrote.
"Lakeland’s expansive interpretation would create ambiguity and impose wide-ranging consequences if adopted," he wrote.
If simply moving material that is on the ground constitutes excavation, as Lakeland contended, "then anyone planning to rake leaves or mow a lawn would be required to call Digger’s Hotline" Seidl said.
Such a requirement, as the Wisconsin Counties Association said in a friend of the court brief, “would result in a flood of inquiries” to Digger’s Hotline, impose "an additional utility tax on Wisconsin's citizens," and would force significant changes to public mowing operations, Seidl said.
By Gretchen Schuldt
A Milwaukee County judge must hold a hearing to determine whether a defense lawyer was ineffective because he told a jury he wasn't sure he believed his client, failed to impeach witnesses who provided inconsistent statements, and did not challenge key testimony that was clearly incorrect, a state appeals court said Tuesday.
The hearing was sought by Ronald Lee Gilbert, who was convicted of trafficking of a child, second-degree sexual assault of a child, and intentional child abuse.
Gilbert's lawyer, Robert L. Taylor, during his closing argument to the jury in Gilbert's trial, questioned the truthfulness of his client and witnesses against him.
"I’m not sure I believe any of them, to be quite frank," Taylor said. "A little bit here, a little bit there, but I’m not sure I believe any of them. ... Maybe they get this, but morality is what’s missing here. There’s no good guys."
Taylor also told the jury that in the United States "we would rather...let some scumbags go free because we can't find that person guilty if we don't have enough evidence."
While Taylor did not mention Gilbert by name, Appeals Judge Timothy G. Dugan wrote, "the jury could reasonably understand that trial counsel was referring to Gilbert."
Taylor was appointed by the State Public Defender’s Office to represent Gilbert. Such lawyers are paid $40 an hour, the lowest hourly rate in the nation and one that many say is not enough to convince experienced and quality lawyers to take public defender appointments. The State Supreme Court, however, has declined to increase it.
Gilbert didn't have a choice in accepting Taylor, whose license previously had been revoked for a variety of reasons, including felony convictions. Taylor was Gilbert's second lawyer. When Gilbert sought to replace his first attorney, Circuit Judge Rebecca Dallet allowed him to do so, but warned that he "would get one more attorney appointed and if he doesn't get along with the new attorney, he will represent himself," according to court records.
The state alleged in its criminal case that Gilbert had oral sex with a 14-year-old girl and sold her to his friend, Brandon Pratchet, for prostitution for $100 and a piece of stereo equipment.
The girl and Pratchet testified against Gilbert at trial. Pratchet had a plea deal with the prosecution that reduced from 98 years to 25 years the maximum prison term he would face, Dugan wrote. Prosecutors also agreed to inform Pratchet's sentencing judge about his cooperation.
Gilbert was ultimately convicted and sentenced by Circuit Judge Dennis R. Cimpl sentenced Gilbert to 10 years in prison and five years of extended supervision.
Cooperator Pratchet was far more fortunate. Dallet sentenced him to three years probation one one count of soliciting a child for prostitution. Three other counts – keeping a place of prostitution, panderinging/pimping, and second degree sexual assault of a child, were dismissed but read in. Dallet stayed a sentence of four years in prison and three years extended supervision.
The officer's testimony was "inaccurate," Dugan wrote. "It is undisputed that cell phone mapping does not provide the location of a cell phone within feet."
Key to the case against Gilbert was a police officer's testimony about the location of Gilbert's cell phone at the time that Pratchet and the girl said Gilbert was at an Econo Lodge selling the girl. Gilbert said he was not there.
The officer, who was not an expert in cell phone technology, testified that Gilbert's cell phone data proved he was within 120 feet of the hotel at the time.
"However," Dugan wrote, "that testimony was inaccurate – the data did not indicate that Gilbert's cell phone was within 120 feet of the Econo Lodge....It is undisputed that cell phone mapping does not provide the location of a cell phone within feet."
The map the officer relied upon when testifying showed three 120-degree sectors, not 120-foot
sectors, Dugan wrote.
The prosecutor emphasized the erroneous cell phone location information during her closing argument. Taylor never challenged it – the critical error was not exposed at trial.
At a post-conviction hearing, rejecting testimony from an expert witness for the defense that it is "completely impossible" to use historical cell phone records to put a phone within 100 feet of a specific location, Circuit Judge Stephanie Rothstein ruled that Gilbert had not shown the cellular information was inaccurate. She did not rule on whether Taylor was ineffective, according the appeals decision and a defense brief filed in the case.
Besides failing to challenge the cell phone information, Taylor failed to either obtain or review discovery available to him, including the cellular information, Gilbert alleged in his post-trial motion. Rothstein rejected the argument without a hearing, but the appeals panel ordered one.
"The conflicting facts presented involve credibility determinations and were improperly resolved without a hearing," Dugan wrote. He was joined in his opinion by District 1 Court of Appeals Judges Joan F. Kessler and William W. Brash III.
Gilbert also deserves a hearing on whether Taylor was ineffective when he did not impeach the girl or Pratchet with prior inconsistent statements, the appeals panel said. Gilbert said the girl previously had backed up his version of events.
"We emphasize that we are not deciding that trial counsel was ineffective, only that Gilbert’s original and supplemental post-conviction motions were sufficient to require that the post-conviction court conduct an evidentiary hearing," Dugan said.
Taylor has an interesting history, records show. He was licensed in 1979, but his license was revoked in 1987 following his conviction for felony theft from two clients. Later, in 2003, it was retroactively revoked effective Dec. 14, 1992 for other violations, including a 1990 conviction in federal court for conspiracy to defraud by misapplying funds and embezzlement from a federal credit union, according to State Supreme Court records. He also represented three clients in 1985, when his license was suspended for failure to comply with continuing legal education requirements.
The State Supreme Court reinstated his license in 2006 over the objections of the Office of Lawyer Regulation.
By Gretchen Schuldt
Milwaukee police acted improperly when they questioned a driver they stopped for a broken headlight about whether he had a concealed carry permit and if he had any weapons in his car, an appeals court has ruled.
While the traffic stop was justifiable, there was nothing in driver John Patrick Wright's demeanor that supported any suspicion of criminal wrongdoing, Appeals Judge Joan F. Kessler wrote in her decision.
Kessler affirmed a ruling by Milwaukee County Circuit Judge Hannah Dugan.
Wright, who is African-American, was stopped by two officers while driving on the city's north side in July 2016.
"Wright was asked whether he had a concealed carry permit and whether he had any weapons in the car," Kessler wrote. "Wright answered that he recently took a CCW permit course and admitted that he had a firearm in the car."
One of the officers, Jesus Gloria, found a handgun in the glove compartment. Wright was arrested and charged with misdemeanor carrying a concealed weapon.
Wright filed a motion to suppress the evidence, arguing that questioning him about the CCW permit and whether he had a gun violated his Fourth Amendment rights.
"The State misses the point." – Appeals Judge Joan F. Kessler
"Wright argued that police lacked reasonable suspicion to question him about a CCW permit and weapons in the car, the questions were unrelated to the purpose of the traffic stop, and the police conduct transformed an initially lawful stop into an unreasonable seizure," Kessler wrote.
The second officer involved in the stop, Kristopher Sardina, testified during a motion on the hearing that Wright pulled over immediately when police indicated he should do so and that Wright did not make any furtive gestures. Sardina also testified that officers are trained to ask about weapons during traffic stops.
Kessler rejected the state's argument that the officers had a legitimate safety interest and so did not unlawfully extend the traffic stop. Previous courts have ruled that questioning during traffic stops can be expanded beyond the reason for the stop only if their are additional legitimate "suspicious factors." Those factors were lacking in Wright's case, she said.
"Nonetheless, the State contends that Sardina’s questions were lawful because they were negligibly burdensome and did not add much time to the traffic stop," Kessler wrote. "The State misses the point. Authority for Sardina’s seizure ended when he reasonably could have issued a citation for Wright’s traffic violation. ...Wright was questioned and subsequently arrested with absolutely no articulated reason for Sardina to be concerned for officer safety."
"Sardina’s testimony confirms nothing about the circumstances of the traffic stop or about Wright which justified inquiry about a firearm," she concluded.
By Gretchen Schuldt
A Kenosha woman first was viciously attacked by a dog and then tased and shot by police trying to subdue the animal, according to Court of Appeals records.
And, because it was the second time the dog, named Tank, bit someone, the victim of the attack cannot collect from the dog owners' insurer.
The Integrity Mutual Insurance Company's policy "unambiguously excludes coverage for injuries caused by a dog that has previously injured a person," Appeals Judge Paul F. Reilly wrote in a decision handed down this week. The decision upheld a ruling by Kenosha County Circuit Judge Anthony G. Milisauskas.
The basic facts are not disputed, according to documents filed in the case.
Kathryn (Kit) Baumann-Mader was in her kitchen on Aug. 19, 2015 when she heard yelling from outside. She ran to the side door and saw another woman, Sara Hanson, holding her thigh and screaming "He bit me!"
Tank ran into a neighbor's yard, where he was tackled by "Junior," the son of Tank's owners, Shawn M. Lievense and Annette S. Salazar, according to a brief filed by attorneys for Kit Baumann-mader and her husband, David Mader; and Hanson and her husband, Cole Hanson.
"As Junior was trying to restrain Tank, he, too, began crying and yelling, 'They’re going to kill my dog,' 'they’re going to euthanize him,' ” the brief said.
Kit consoled Junior and helped him restrain Tank, then went into her house and got a tow strap to use as a leash for the dog. She help hold Tank down until police arrived. Then she turned the dog over an officer.
As the officer tried to get the dog into a squad car, Tank got loose, according to the brief.
"Tank 'lock[ed] eyes' on Kit and lunged at her, knocking her backwards to the ground," the brief said. "Tank bit her on the back/side of her thigh, the back of her thigh, her inner thigh, and her crotch area. As Kit describes it, 'He just started - - kind of like just started munching all around the thigh.' ”
'He just started - - kind of like just started munching all around the thigh.' ”
The brief continues:
"Then things went from bad to worse for Kit. As she was trying to push Tank off of her, she felt a 'sudden shock of electricity' in her left foot. A police officer apparently tried to shock Tank, but one of the prongs of the Taser shot into Kit’s left foot instead. Kit then remembers 'hear[ing] a bunch of sounds that sounded like firecrackers going off.' She realized that the officers were shooting at Tank. And then the next thing she recalls is her left foot “really hurting” and Tank laying on his side by her feet. '
"As emergency responders were treating her thigh wounds, she heard one responder whisper to another, 'Is that a dog bite?' The other responder answered, 'No, I think it’s a bullet hole.' At that moment, Kit realized she, too, had been shot."
Baumann-Mader was taken to the hospital where she had 29 staples put in her thigh and groin area.
Her foot was repaired with two plates and 14 screws. She was discharged after a week in the hospital, but required in-home care for a time. The scars remain.
Tank's history gave the insurance company a legitimate out, Reilly wrote for the District 2 appeals court panel that also included Appeals Judges Lisa S. Neubauer and Brian K. Hagedorn.
Tank, an English bulldog, bit someone in February 2015. The bite, which a police report said was unprovoked, required medical attention. It was not reported to the insurer.
The insurance policy makes clear, Reilly wrote, that damages caused by a second biting incident by the same dog are not covered.
"Integrity’s policy is not contrary to public policy; Kit and Sara’s injuries were caused by Tank, and the exclusion extends to injuries also allegedly caused by the police as the officer’s actions were not an independent cause," he wrote.
By Gretchen Schuldt
Turning a car around at a wayside late at night does not provide police with enough reasonable suspicion enough to justify a search of the vehicle, a Court of Appeals judge affirmed last week.
District 2 Appeals Judge Brian K. Hagedorn upheld Fond du Lac County Circuit Judge Robert J. Wirtz's ruling tossing a search that resulted in an arrest for possession of marijuana.
The county argued that Isaac A. Dahlke's actions when he entered a wayside about 12:30 a.m. and turned around near a boat launch "constituted reasonable suspicion that illegal activity was afoot," Hagedorn wrote in his decision.
Deputy Lucas Olson testified that the park was used for illicit activity, "especially during that timeframe." He did not, however, see any illegal activity.
But, wrote Hagedorn, "The county has no constitutional authority to stop someone simply for driving when and where bad things often happen. While this may cause a reasonable law enforcement officer to have an inkling something is up, it does not rise to the level of providing a reason to suspect that the individual has committed, was committing, or is about to commit a crime. While it might be a reasonable hunch, without more, it is still just a hunch."
The county also argued that Dahlke was on county park property when he entered the wayside. The park is closed after 10 p.m. by ordinance, the county argued, so the officer had a reasonable suspicion that Dahlke was violating the ordinance.
Hagedorn also rejected that argument. County ordinances do not clearly establish the boundaries of the park or whether the wayside is included. In addition, and the wayside, between Lake Winnebago and U.S. Highway 45, is marked for drivers approaching from either direction.
"An ordinary driver accepting the highway sign’s invitation to pull in to the wayside for an evening nap on a long journey would appear to have no idea they are breaking the law...." Hagedorn wrote.
By Gretchen Schuldt
The State Supreme Court should decide whether Wisconsin's case law on imposing life without parole sentences on juveniles complies with related decisions by the U.S. Supreme Court, a State Court of Appeals panel said.
The State Supreme Court also should rule on whether the two judges who pronounced life sentences on juveniles adequately considered the mitigating effect of the defendants' youth, in compliance with U.S. Supreme Court standards.
The issues raised in the two cases considered "are matters of considerable statewide importance and constitutional dimension," the three-judge District 3 Court of Appeals panel said. The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.
The panel certified the cases to the Supreme Court for consideration.
From left to right: Stark, Hruz, Seidl.
Criminal justice experts are rethinking life sentences for juveniles more is learned about brain development. The U.S. Supreme Court said in 2012 that juveniles convicted of murder cannot be given a mandatory sentence of life imprisonment without parole.
The Court later ruled later that a no-parole sentence may be unconstitutional even if the judge considers the defendant's age if the crime reflects "unfortunate but transient immaturity." The Court also banned all life sentences for youth except "where the child is so irreparably corrupt that rehabilitation is impossible."
Both cases in Wisconsin considered by the appeals panel are homicide cases. The first occurred in 1994, when Curtis Walker and an accomplice shot and killed a Milwaukee police officer. Walker was six weeks shy of his 18th birthday.
The judge sentenced Walker to life in prison with the possibility of parole in 75 years, or when Walker is 95.
Walker's legal team is arguing that the de-facto life sentence is excessive and disproportionate and is inconsistent with the U.S. Supreme Court's rulings.
The state, however, says that the U.S. Supreme Court's decisions do not apply when the sentencing court, as it did in this case, has discretion to set a parole date. The state also is arguing that the issue of de facto life sentences are not included in that court's decision.
In the second case, Omer Ninham, then 14, helped throw a 13-year-old boy off the fifth floor of a parking garage in 2000. He was sentenced to life without parole.
Ninham previously appealed, but the Wisconsin Supreme Court concluded that a life sentence without parole for a 14-year-old does not “categorically constitute cruel and unusual punishment," and that Ninham’s sentence was not unduly harsh and excessive. The U.S. Supreme Court refused to review the case.
Ninham, like Walker, is arguing the sentencing judge did not adequately consider his youth at the time of the crime. The state is arguing that the U.S. Supreme Court decision was concerned with mandatory life sentences, not those imposed at the discretion the presiding judge. The appeals court said it reached a similar conclusion in a decision in another case.
The appeals panel also said it does not have the authority to disregard the earlier Wisconsin decisions upholding life-without-parole sentences for juveniles. That is true, the panel said, "regardless of advances in the science of brain development or other relevant research."
Sentencing courts "would benefit greatly" from guidance on how much weight to give the factors identified in the US Supreme Court decisions and to what extent “the prospect for the juvenile’s rehabilitation takes precedence over other legitimate sentencing considerations, such as general deterrence," the appeals panel said.
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
Lifelong government monitoring of a convicted sex offender's location and movement is not a punishment because the main intent of such GPS tracking is to protect public safety, a state appeals court ruled last week.
"While the statutory scheme no doubt works some nontrivial punitive effects, these punitive effects do not override the primarily nonpunitive intent," District II Appeals Court Judge Brian J. Hagedorn wrote for the three judge panel. Joining Hagedorn in the opinion were Appeals Judges Paul F. Reilly and Lisa S. Neubauer.
Besides, he said, a person subject to lifetime monitoring because he or she is a threat to public safety can terminate the requirement simply by moving out of state. The opinion did not discuss public safety needs of those other states.
DeAnthony K. Muldrow sought to withdraw his guilty plea to third degree sexual assault and sexual assault of a child under 16 years of age because no one told him before his plea that his conviction would make him subject to lifelong monitoring. The appeals court, though, said the nonpunitive nature of having the government know his every move meant that the judge was not required to inform him of that particular "collateral consequence to his plea."
A person subject to monitoring must wear a 2.5- by 3.5- by 1.5-inch tracking device around his or her ankle at all times, Hagedorn wrote. Tampering with the device, which can cause discomfort and blistering, is a felony. It may not be removed, even for showering, bathing, or sleeping, and the wearer must plug it in every 24 hours for one hour while still wearing it. The tracker can bulge, or may be visible if his or her pants leg raises up.
"This may allow others to infer that the wearer is a sex offender, subjecting him or her to embarrassment, harassment, or even violence," Hagedorn wrote.
"But merely having substantial punitive effects does not automatically render a statute punitive ...," Hagedorn wrote. "The design and legal standards governing lifetime GPS monitoring all point to the obvious goal of protecting the public from dangerous child sex offenders."
The Wisconsin Supreme Court already found that mandatory sex offender registration was not punitive because its primary intent was to protect the public and assist law enforcement, Hagedorn said.
"This did not mean, however, that there were no punitive consequences," he wrote. "As the defendant argued, sex offender registration results 'in ostracism, humiliation, and retaliation.' "
The Supreme Court acknowledged that registration might result in punitive aspects such as vandalism, job loss, and harassment, but it did not accept that those possibilities overrode the primary goal of the law.
Similarly, "The intent and primary goal of lifetime GPS monitoring is clearly to protect the public and is nonpunitive in nature," Hagedorn said. "And while the statutory scheme no doubt works some nontrivial punitive effects, these punitive effects do not override the primarily nonpunitive intent."
The monitoring provision applies to those convicted of serious child sex crimes and allows the government to know whether offenders enter "exclusion zones," such as school grounds, where children congregate.
Offenders deemed a serious threat in Wisconsin can get out of lifetime GPS monitoring by moving to another state.
Hagedorn also said that offenders may apply to have the "lifetime" monitoring lifted after 20 years. An offender also may be freed from GPS monitoring by becoming permanently incapacitated or by moving out of state "where, presumably, the person is no longer a danger to Wisconsin citizens."
"The legislature has established a reasonable scheme to monitor those who pose a serious risk of harm to others," he wrote.
Adults can be slapped with felony charges for offenses committed at age 9, when they were too young to be considered delinquent, a Court of Appeals panel ruled Wednesday.
The ruling came in a Waukesha County case. The defendant, Shaun M. Sanders, allegedly kissed and fondled his sister's breasts when he was a young boy. The sister testified that the touching and kissing progressed to include oral sex when Sanders and she grew older .
The District 2 panel, in a decision written by Appeals Judge Mark D. Gundrum, ruled that state law does not prohibit children under 10 from being prosecuted for crimes, even though state law does not give juvenile courts jurisdiction over children alleged to be delinquent until they are 10.
Appeals Judge Brian K. Hagedorn joined in the opinion, and Appeals Judge Paul F. Reilly concurred in it. The decision affirmed rulings by Waukesha County Circuit Judges Jennifer Dorow and Lee S. Dreyfus, Jr.
In his opinion, Gundrum said the Legislature never adopted a law establishing that charging decisions should be determined by the defendant's age when the crime was committed "despite 50 years of holdings reiterating that the competency of a circuit court to address criminal acts of an individual is determined by the individual's age when a legal action is filed and not when he/she committed the acts,."
The appeals panel acknowledged that Sanders, if his alleged conduct has been discovered before he was 10, would have been treated as a child in need of protective services (CHIPS).
Sanders, now 22, denied the allegations against him. He told the jury that for about one month, when he was eight or nine, he would ask his sister to lift up her shirt and show him her breasts.
He eventually was acquitted by a jury of repeated sexual assault of a same child, a crime he was accused of committing from the age of nine to 12, but was convicted of repeated sexual assault of a child, incest with a child and enticing a child for sexual purposes crimes that occurred when he was 14 years old to 18 years old.
Sanders argued that his lawyer was ineffective for not trying to get the first count dismissed and that allowing the jury to hear the allegations contained in the first count was prejudicial to his case.
The court rejected Sanders ' assertion that the legislature set age limits for the juvenile and adult systems to protect children younger than 10 from the potential consequences of their actions.
"Our courts ... have explained that the legislative purpose of the age limits is to ensure persons who commit criminal acts are treated by our justice system in a manner appropriate to their age when the actions are addressed by the system and not their age when they committed the wrongful acts," Gundrum wrote.
In his concurrence, Reilly he said he was concerned that "at some stage a child does not have the capacity to commit a crime, i.e., siblings, aged two and three, sharing a bath and paying 'doctor' do not have the capacity to commit the crime of sexual assault of a child."
"The imprisonment of an adult for conduct the person engaged in when they were between the ages of one and nine years old strikes me as akin to punishing a puppy two days after the puppy had an accident in the house - the child/puppy has no idea why they were just struck and all they have learned is a fear of their master," he wrote.
However, he said, an appeals court previously ruled that it was OK to file a delinquency petition against a 12-year-old who committed a crime when he was still young enough to qualify as a CHIPS.
"If it is permissible for the state to pull a CHIPS category act into a delinquency petition, then there is no logical reason why the state cannot pull a CHIPS category act into a criminal complaint," he wrote.
A Court of Appeals panel on Thursday threw out a search that resulted in felony drug charges against a man, but let stand three counts of felony bail jumping issued when the man violated the conditions of his release on the drug charges.
Oddly enough, missing a drug test is, by itself, not a crime, but was elevated to that level only because it was a condition of release in the case that the appeals court dismissed.
The District IV panel, in an unsigned opinion, first ruled that a La Crosse police officer was not justified in his pat down of Timothy C. Eigner, a search that led to charges of possession methamphetamine and drug paraphernalia.
The panel was fairly harsh in some of its assessment of the state's case: "The proposition that anyone who rides a motorcycle in a group is likely to be a member of the Outlaws (motorcycle gang) and, therefore, armed and dangerous, is entitled to little or no weight," the decision said. The panel members were JoAnne F. Kloppenburg, Gary E. Sherman, and Brian W. Blanchard.
The panel also ruled, however, that Eigner's lawyer did not show La Crosse County Circuit Court Scott L. Horne was wrong when he ruled a prosecutor was not vindictive when she filed three felony bail-jumping charges against Eigner.
The prosecutor, Assistant District Attorney Emily Hynek, not happy that Eigner's lawyer was challenging the search, wrote in an email, "I'll probably charge the (felony bail jumping charges) too, just to make it worth my while if I have to write (the brief)."
The prosecutor later said she really was only interested in getting Eigner into drug treatment.
According to the decision:
La Crosse Police Officer Casey Rossman was on patrol about 1 a.m. when he saw three motorcyclists outside a bar, revving their engines and spinning their tires.
He followed the three and, at an intersection, one turned left and two turn right. One of the two right-turners continued down the road, and the second, Eigner, turned down a side road and stopped in a well-lit area. Eigner, dressed in a hooded sweatshirt and jeans, put down the kickstand and got off the motorcycle. He took out his wallet and removed a card. Rossman approached and the two, standing side by side, spoke briefly. Eigner handed Rossman the card. Rossman asked whether Eigner had weapons, and Eigner responded that he does not.
Rossman put his hand on Eigner's back to start a pat-down and, as he did so, asked Eigner if he minded. Eigner's reply is not clear on audio attached to the officer's video of the incident. The appeals court said Rossman already had started the search when he asked the question.
Eigner was compliant, polite, and non-threatening throughout the encounter, the court said.
"I'll probably charge the (felony bail jumping charges) too, just to make it worth my while if I have to write (the brief)." - La Crosse County Assistant District Attorney Emily Hynek
Rossman testified in Circuit Court that it was not "typical behavior" for a motorcyclist to dismount from the bike after a traffic stop and that Eigner's behavior in doing so was concerning.
"I don't know what their intentions are, there's no barrier between him and I, and it could put me in danger... I don't know if they're going to flee, I don't know if they're going to attack me, for safety reasons," Rossman said.
The court rejected that argument. "One does not have to be a motorcyclist to readily understand that fully complying with an officer during a traffic stop, including fishing for a driver's license and proof of insurance, might well require dismounting from the motorcycle, or at least make a prompt dismount a highly attractive option for many motorcyclists," the court said.
Rossman also testified about a training session he attended about the Outlaws. "He had learned that most if not all Outlaw gang members applied for concealed carry permits and were likely carrying weapons," the court said. "However, Rossman also testified that he had no reason to believe that Eigner was a member of the Outlaw gang."
The panel also said the state's argument about the lack of a barrier did nothing to prove that Eigner was dangerous. "There is no limit to the State's argument, which is in effect that any time an officer is face-to-face with someone the officer has encountered in an official capacity, where there is 'no barrier," there are reasonable grounds for a pat-down. That is not what the case law instructs us is reasonable under the Fourth Amendment," the court wrote.
"My goal in this entire case was to get Mr. Eigner the treatment that I thought he wanted." - Hynek
At the hearing on the motion to dismiss the bail jumping charges, the prosecutor said her intent in filing the charges was to get Eigner the help he needed for his drug addiction. She said she was "irked" that Eigner's original lawyer "was making money off putting off Mr. Eigner getting into treatment.
"I'm not mad that I have to do suppression hearings, I do them all the time, but my goal in this entire case was to get Mr. Eigner the treatment that I thought he wanted," she said. By filing the bail jumping charges, she could help assure Eigner would get help.
Eigner's lawyer argued that the prosecutor's argument was "less compelling" than the originial email and that, if the prosecutor really was interested only in drug treatment, additional charges would only be needed if the state lost the suppression motion. Instead, the charges came when the motion was pending.
The court disagreed: "Eigner fails to explain why we should not rely on the circuit court's finding that the prosecutor filed the new charges for the reasons she explained, which did not have a retaliatory purpose."
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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