By Gretchen Schuldt

​A police officer who walked briskly to catch up to a man who did not want to talk to him was in "hot pursuit" and so was entitled to enter the man's garage without a warrant, a State Court of Appeals judge ruled this week. 

A police officer went to Steven D. Palmersheim's home after a witness complained that Palmersheim was "all over the road" with his car and that Palmersheim publicly urinated after leaving his car, District II Court of Appeals Judge Mark D. Gundrum wrote.

Gundrum's ruling reversed Waukesha County Circuit Judge Michael J. Aprahamian, who found there was no hot pursuit and granted Palmersheim's motion to suppress evidence.

City of Waukesha Police Officer Richard Young watched Palmersheim walk from his vehicle toward the the garage attached to his house. The garage door was open.

The officer first politely said he wanted to talk to Palmersheim, Gundrum wrote. When Palmersheim did not stop, the officer yelled at him to do so.

Palmersheim turned and looked at the uniformed officer, then turned and continued into the garage.

"The officer 'briskly walked and hustled up to try to catch up' to Palmersheim," Gundrum wrote. 

Palmersheim hit the button to close the garage door, and the officer put his foot in a position to break the beam and the door to retract.

The officer asked Palmersheim to come out of the garage and he did so. He denied driving recklessly or urinating by the vehicle, but the officer saw a "stream" coming from beneath Palmersheim's vehicle that could have been urine.

Palmersheim was arrested for second offense operating while intoxicated and disorderly conduct.

"Upon cross-examination, the officer expressed that by 'briskly walking' toward Palmersheim to prevent him from entering his residence, he was 'chasing' Palmersheim in 'hot pursuit' for urinating in the street," Gundrum wrote. "The officer added that he 'certainly stepped up [his] pace to catch up' to Palmersheim although '[t]he distance wasn’t that far'.”

The officer had enough probable cause to arrest Palmersheim, Gundrum said.

​"Within the particular context of this case, where Palmersheim, as far as we can tell from the record, did not run from the officer but nonetheless continued to steadily advance closer to the escape of his abode, and even attempted to close the garage door, which obviously would have aided his escape, the officer’s pursuit of Palmersheim was 'immediate' and 'continuous' and amounted to a hot pursuit tailored to prevent Palmersheim’s escape under these circumstances," Gundrum wrote.

The definition of "hot pursuit" depends "on the particular circumstances of each case," Gundrum wrote. 

"In this case, there is no indication Palmersheim ran from the officer, so hot pursuit could be accomplished by the officer 'stepp[ing] up [his] pace' to 'briskly walk[ing] and hustl[ing] up' to try to catch Palmersheim," he said. "The officer then stopped the closing of the garage door as part of his pursuit. The manner in which the officer engaged in hot pursuit was appropriately measured to the manner Palmersheim used to try to evade the officer."

By Gretchen Schuldt

Outagamie County Circuit Judge Mark McGinnis went far beyond his legal authority when he sentenced a defendant last year to six months in jail for contempt of court, according to the State Court of Appeals.

The law provides for a maximum of  30 days in jail for the type of contempt invoked by McGinnis against Brian Mitchell, District III Appeals Judge Mark A. Seidl wrote in summarily dismissing the contempt finding.

McGinnis offered to purge the contempt finding if Mitchell, facing a human trafficking charge that later was dismissed, apologized orally and in writing, and paid a $5,000 fine.

But the law allows only a $500 fine, Seidl said.

McGinnis found Mitchell in contempt of court for rolling his eyes and moving papers around. He also later accused Mitchell of giving him a "fuck-you look."

Mitchell, then 27 and poor enough to have public defender representation, eventually served 42 days on the contempt charge.

McGinnis lifted the $5,000 fine after Carrie L. Plant, an attorney, obtained an order to appoint an attorney on the civil contempt charge if McGinnis refused to purge the fine, according to court records.

Mitchell appealed the entire contempt finding. The state did not put forward a response brief and instead filed a letter "in which it concedes the circuit court's contempt sanction constituted an unauthorized penalty," Seidl wrote.

Mitchell's appeal lawyer, Joseph N. Ehmann, in a court filing described his client as "an African-American man incarcerated far from home pre-trial because he could not post cash bond." 

Before the contempt finding, Ehmann wrote, Mitchell tried to explain that his top priority was a speedy trial.

"Judge McGinnis responded telling Mitchell he 'must not' understand his rights, was 'obviously very confused,' was making 'comments that don’t make sense.'" The judge also told Mitchell he better hope that he doesn't come before McGinnis for sentencing,  Ehmann wrote in his brief.

"Mr. Mitchell reacted with body language expressing frustration or exasperation, and according to Judge McGinnis, 'rolling his eyes,'” Ehmann said.

McGinnis did not make a clear record of what Mitchell did that constituted contempt, Ehmann said. The judge also failed to give McGinnis a chance to speak before imposing sanctions, as required by law, Ehmann wrote.

Seidl, in dismissing the contempt finding, said the unauthorized penalty meted out by McGinnis was enough to do so. 

The state did not respond to Mitchell's argument that the excessive penalty demanded dismissal, nor did it argue that the excessive sanction could be reduced to something allowed by law, Seidl said.

"We interpret the State's silence on this point as a concession of reversible error, and we have no obligation to develop arguments to the contrary," he wrote.

By Gretchen Schuldt
​
Outagamie Circuit Judge Mark McGinnis last year kept a defendant jailed for 42 days for contempt of court for rolling his eyes, shuffling papers and giving McGinnis, in the judge's own words, a "fuck-you look." 

The contempt finding against Brian Mitchell was eventually overturned by a state appeals judge. Mitchell's lawyer on appeal, Joseph Ehmann, said Mitchell merely was reacting in frustration to comments McGinnis made.

A Court of Appeals panel last month overturned a prison sentence  McGinnis handed down in a different case. The appeals panel ruled McGinnis showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison.  

McGinnis did something similar but not identical in the Mitchell case. He told Mitchell during a pre-trial hearing that he better keep in mind that McGinnis would be the one to eventually  sentence him.

McGinnis originally sentenced Mitchell to six months for the contempt but offered to purge the finding if Mitchell apologized in writing and orally in court and paid a $5,000 fine. Mitchell was poor enough to be represented by the State Public Defender's Office.

McGinnis let Mitchell out after 42 days. The human trafficking charge against Mitchell was dismissed less than a month later.

The action leading up to the jailing played out during two days of hearings. Below is an excerpt from the transcript from the first day. 

During this June 6, 2017 hearing, Mitchell is accompanied by attorney Daniel Muza, who has just withdrawn from the case and no longer represents Mitchell. The defendant is without a lawyer.

This section begins after McGinnis cautions that Mitchell's request for a speedy trial means that there are factors that his lawyer might not have enough time to prepare.
​
Mitchell:  I highly understand.

McGinnis: I'm not done talking yet.… There is a likelihood, a good likelihood, that that case will need to be rescheduled and pushed to a later date. Do you understand that?

Mitchell: yes. I – – I will feel that's a conflict.

McGinnis: I'm not sure what that means.

Mitchell: I would like it at the earliest convenient on the calendar dates, my jury trial. I want to, I intend, will exercise my right to exercise a speedy trial. If my attorney can't cooperate with that, it's a conflict of my interest.

McGinnis: How come it's a conflict of your interests? ... And if you're attorney is on vacation, for example, on that date – –

Mitchell: I understand that.

McGinnis: You must not.

Mitchell: I can sign a stipulation with my attorney. I mean, saying that I understand that it will probably put them in less effective -- It wouldn’t put me in the best defense, but that’s just my decision. Me and my attorney could probably come to some type of an agreement on that.

McGinnis: You’re obviously very confused. That’s probably one of the reasons Mr. Muza is withdrawing.

Mitchell: No. I -- I asked him to.

McGinnis: It wasn’t a question for you. Okay. So you use terms that don’t make sense, which is okay. Then when we try to explain things to you, you appear or you seem to want to know everything; and then you seem to make more comments that don’t make sense. So I’m not interested in trying to really have a conversation with you where you and I both agree.

Mitchell: Me neither. Me neither.

By Gretchen Schuldt
​
An Outagamie Circuit Court judge showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison,  a State Court of Appeals panel ruled Tuesday.

The ruling does not reflect on the four-year sentence Circuit Judge Mark J. McGinnis ultimately handed to Emerson D. Lamb, Appeals Judge Thomas M. Hruz wrote for the District III panel.

"However justified Lamb’s prison sentence may have been, we cannot ignore the constitutional requirement that Lamb be sentenced by an impartial tribunal," Hruz wrote. "Our adherence to this fundamental precept of due process compels us to reverse Lamb’s conviction."

The court ordered that Lamb be sentenced again by a different judge. 

Hruz was joined in his opinion by Appeals Judges Lisa K. Stark and Mark A. Seidl.

Lamb originally was charged with two counts of felony bail jumping, one count of battery by a prisoner, and one count of disorderly conduct. He was charged as a repeater in each instance. 

He eventually pleaded guilty to one count of battery by a prisoner as a repeater, and the other counts were read in. The judge ordered a pre-sentence investigation, and Lamb was released on bond.

He failed, however, to keep his appointment with the PSI writer and expressed a desire to withdraw his plea. 

During a hearing, Lamb said he was wrongly charged with two counts of bail jumping and called the district attorney a "criminal," then left the courthouse, Hruz wrote. McGinnis issued a bench warrant for Lamb's arrest. He was eventually taken into custody.

At his sentencing hearing, Lamb said he no longer wished to withdraw his plea and to skip the PSI because prosecutors agreed to recommend a sentence of probation.

''I feel like I could potentially benefit from, you know, maybe being on probation," Lamb said. "Also, there’s the possibility of leaving today, so I just --"

"Not really," McGinnis said. "Okay. Just thought I’d tell you that so you don’t have any false hopes. I mean, there’s a possibility, but it’s probably not going to happen. Do you understand that? Yes?"

Lamb said he understood.

McGinnis continued, "I don’t want you waiving your rights thinking something that might happen that maybe isn’t going to happen. So now that you know that it probably isn’t going to happen that you’re going to get out today, do you still want to proceed with sentencing and not argue on your request to vacate the pleas or to withdraw the pleas and to waive your right to have a PSI?" 

Lamb said he did.

By Gretchen Schuldt
​
A man sentenced to five years in prison two decades ago should be allowed to withdraw his guilty plea after showing convincing evidence that a serial killer was actually responsible for a murder police accused him of participating in, an appeals court panel ruled Tuesday.

The real killer very likely was Walter Ellis, known as the Milwaukee North Side Strangler, who was responsible for a string of rapes and killings in the city.

The panel overturned a decision by Milwaukee County Circuit Judge M. Joseph Donald, threw out the conviction of Sammy Joseph Hadaway, and sent the case back to Circuit Court.

Donald was the judge who heard and rejected Hadaway's post-conviction motion to withdraw his plea. The appeals court, in a decision written by Appeals Judge Timothy G. Dugan, ruled that had trial judge Diane Sykes known all the facts of the case revealed after the case was over, she would not have accepted the plea.

Hadaway was convicted of attempted robbery after reaching a plea agreement. 

Hadaway, now 34, has severe cognitive and intellectual disabilities, cerebral palsy and seizure disorders. He was arrested in October 1995 in connection with the death of Jessica Payne. 

Payne, a runaway prostitute, was found beneath a mattress in the back yard of a north side Milwaukee house, according to Dugan's decision, joined by Appeals Judges Joan F. Kessler and William W. Brash III.

"Her throat had been slashed, her bra had been torn, and her pants had been pulled down to her ankles. The evidence suggested that she had been sexually assaulted," Dugan wrote.

Police collected physical evidence from the scene, including vaginal swabs that revealed semen. Tests of the swabs proved inconclusive.

A month later, a jailhouse snitch told police that Richard Gwin had implicated himself in the murder of a white woman.

Gwin, Dugan wrote, told police that  he drove the victim, Hadaway, and a man named Chaunte Ott, to an abandoned building. The three got out of the car and Hadaway and Ott came back a short time later, without Payne.

Gwin said he asked where the girl was, and Hadaway responded, “she didn’t have no money so [Ott] cut her throat.” 

Gwin later recanted his confession. His sister said Gwin tld her that police put "severe pressure" on him during the investigation, the decision said.

Hadaway's interrogation by police continued over several days. At first Hadaway denied knowing any white girls at all and said he never met Payne. 

Hadaway was formally arrested in October 1995. He later said that when police interviewed him, they "regularly threatened" that he would be raped in prison, Dugan wrote. 

Hadaway later said "the police played 'nice cop/bad cop' and yelled at him and scared him, and told him that 'he would do eighty years' if he did not implicate Ott," Dugan wrote. "The police promised Hadaway that if he implicated Ott, he would serve five years in prison instead of eighty years. The police also shared the details of the murder with Hadaway, and showed him Gwin’s statements."

Police also told Hadaway what to say, Dugan wrote.

"After two days of interrogation, Hadaway gave a confession regarding Ott and his involvement with Payne," he wrote. He said he and Ott attempted to rob Payne, then Ott sexually assaulted Payne and killed her."

The detectives who interviewed Hadaway did not record notes in their memo books, Dugan wrote.

"Instead, they took notes during witness interviews—including their interviews of Gwin and Hadaway—on steno pads, and then destroyed the notes," Dugan wrote. "Further, no record was ever made of the first one and one-half hours of the detectives’ October 27, 1995 interrogation of Hadaway."

Ott was arrested, tried and convicted of first-degree murder, despite a complete lack of physical evidence linking him or any individual to the crime.

In a plea deal, Hadaway pleaded guilty to attempted robbery and served five years in prison.

The Wisconsin Innocence Project took on the case in 2002 and requested retesting of the swabs taken from Payne. The new tests excluded all three men – Gwin, Hadaway, and Ott – as the source of the semen found at the murder scene. The semen, in fact, did not match any profile known at the time.

Later, in 2007, the state matched the sample to semen collected during two other murder investigations, also on the city's north side. Ott could not have committed those murders – he was locked up at the time. 

That same year, Ott filed a motion for a new trial based on the DNA evidence in the Payne case. He was denied and appealed. He cited several new pieces of evidence including recantations by Hadaway and Gwin of their earlier statements. Both attributed the recanted statements to  police pressure.

Ott's conviction was eventually reversed by the Court of Appeals and the state dismissed all charges against him. A state board found “clear and convincing evidence” that Ott was innocent of the crime.

Ott eventually sued the City of Milwaukee and several officers for violating his rights. He received $6.5 million under a settlement.

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. 

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.

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.

"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.' ”