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By Alexandria Staubach The Wisconsin Court of Appeals recently held that the right to counsel attaches during Milwaukee County’s written probable cause process, meaning a defendant has the right to counsel for any subsequent critical stages of prosecution.  White Chief Judge Maxine White wrote for the three-judge District 1 panel in State v. Robinson, joined by Judges Sara Geenen and Pedro Colón.
When a person is arrested without a warrant in Milwaukee County, judges and court commissioners routinely find probable cause, order detention, and set bail using an all-paper review process. The paper probable cause process, named a “CR-215” process for the form used by judges and court commissioners to make the finding, details the officer’s basis for arrest. Based on the officer’s narrative, a judge or court commissioner checks a box to indicate whether they believe probable cause for arrest exists. Percy Robinson was arrested on Dec. 19, 2017, for bank robbery. Within 48 hours, a Milwaukee County circuit court commissioner reviewed a CR-215, found probable cause that Robinson committed the offense, and set bail at $35,000. On Dec. 22, law enforcement conducted an in-person lineup. The lineup included Robinson, and the bank teller identified him as the person who committed the robbery. No attorney was present on Robinson’s behalf. The State then issued a criminal complaint against Robinson for robbery of a financial institution. Robinson was convicted following a jury trial. He appealed, arguing, among other things, that he received ineffective assistance of counsel because his trial attorney failed to challenge the lineup identification, which occurred without counsel present after his right to counsel had attached. The court of appeals agreed about the right to counsel, concluding that “Milwaukee County’s CR-215 process signals a ‘commitment to prosecute,’” and that the Sixth Amendment right to counsel attaches during that process, creating a right to counsel for any later "critical stages" of prosecution. “The initiation of judicial criminal proceedings is far from a mere formalism,” White wrote. “(T)he CR-215 process shifted Robinson from a person under investigation to the accused in the criminal justice system. Therefore, it is reasonable that the shift arising out of the CR-215 process attaches Sixth Amendment guarantees.” The state argued that Robinson’s right to counsel had not attached during the CR-215 process because Robinson was not physically present when the CR-215 form was evaluated and signed by the circuit court, and the process consequently lacked necessary formalities. The court rejected the argument. “The lack of an in-person court hearing does not negate that the CR-215 process was the first formal proceeding against Robinson in this case,” White wrote. “An ‘accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused liberty to facilitate the prosecution.’ By that point it is too late to wonder whether he is accused within the meaning of the Sixth Amendment, and it makes no practical sense to deny it,” White wrote. The court then found that an “identification lineup occurring after the probable cause determination and bail setting, such as the CR-215 process, is a critical stage of the prosecution,” with a right to counsel. While Robinson’s appeal ultimately failed on other grounds, the court, citing U.S. Supreme Court law, recognized that when a conviction “’may rest on a courtroom identification’ that was ‘the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.’” Counsel’s presence, not participation, “’is relied upon to prevent unfairness and lessen the hazards of eyewitness identification at the lineup itself,’” wrote White, citing Wisconsin Supreme Court law. Going forward, an accused will have the right to counsel for any critical stage after a CR-215 finding. When and whether an accused’s right to counsel attached during the CR-215 process had been the subject of state and federal litigation since at least 2009. Federal courts in Wisconsin had held that a right to counsel attaches after the CR-215 process is complete, but no consistent answer had been developed by state courts. The Robinson court concluded that the law is now settled on the matter.
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By Alexandria Staubach Late last month District 1 of the Court of Appeals released a decision that will change the way district attorneys and those representing youth defendants in reverse-waiver proceedings receive discovery. The court held that “juvenile defendants are entitled to all evidence that the State intends to introduce at a [reverse-waiver] preliminary examination to establish probable cause of the alleged jurisdiction offense” and that “the state is required to produce this evidence at a reasonable time before the preliminary examination.” Moreover, said the court, “additional materials exclusively in the possession of the State may be discoverable provided that the juvenile defendant establishes a particularized need for the materials requested by showing that they are likely to be relevant to negate one element of the alleged jurisdictional offense.” Prior to the opinion, State v. Adams, youth defendants and their representatives had no right to discovery at the reverse-waiver stage of a case.  Geenen Judge Sara J Geenen wrote for the three-judge panel, joined by Chief Judge M. Joseph Donald and Judge Pedro A. Colón.
“Reverse waiver” refers to the court procedure by which an adult court that would otherwise have exclusive jurisdiction over an offense may transfer a case brought against a child 16 years old or younger to juvenile court. Adult criminal courts have exclusive jurisdiction over, among other cases, first-degree intentional homicide, second-degree intentional homicide, and first-degree reckless homicide. This means that cases involving these charges start as adult cases regardless of the defendant’s age. It is a two-step process that begins with a preliminary hearing or examination at which the state must prove it has probable cause to charge the youth defendant of the crime and an adult criminal court must find probable cause to believe that the youth defendant has committed the charged offense. Then, at a reverse-waiver hearing, the youth must prove that transfer to juvenile court will not depreciate the seriousness of the offense, they could not receive adequate treatment in the criminal justice system if convicted as an adult, and retaining jurisdiction in adult court is not necessary to deter the youth or others from committing the charged offense. The juvenile who is the subject of the court of appeals decision, Jayden Adams, 13, was charged with first-degree reckless homicide, giving the adult criminal court exclusive jurisdiction over his case. Historically, juvenile defendants have not been entitled to discovery prior to their preliminary hearings. Adams argued that he had a an “unqualified right to discovery prior to the preliminary examination” because “it is impossible for defendants to know all potential challenges to probable cause without access to discovery,” Geenen wrote. The state argued that no law granted Adams a right to discovery before the preliminary examination. The issue, as identified by the court, was how much latitude a juvenile defendant has to attack the crime charged and what evidence the state may have that is relevant to such an attack. The court, though, hesitated to permit the preliminary hearing to become a “mini trial” should discovery in fact be entitled. Geenen discussed at length a 2010 Supreme Court of Wisconsin decision that found “the place to offer evidence for the purpose of contradicting the offense is the preliminary examination.” Geenen also recognized the Supreme Court’s interpretation of the nature of the reverse-waiver hearing: in contrast to other preliminary hearings where the state must merely prove “some felony” has been committed, in the reverse-waiver case the state must prove probable cause exists for the specific offense charged. According to Geenen, the 2010 Supreme Court case did not identify what, if any, evidence in the state’s possession, should be given to juvenile defendants for them to contradict the offense charged at the preliminary hearing. However, because the state is required to prove the specific offense charged, “the defendant must be given some latitude in attacking the specific offense charged, if a successful attack would alter the crime charged or negate the exclusive original jurisdiction of the criminal court,” Geenen wrote. While the Adams decision gives youth defendants some access to discovery prior to the reverse-waiver process, that evidence is limited to the evidence the prosecutor plans to use and only additional materials for which the youth defendant establishes a particular need. A representative of the State Public Defender’s Office told WJI by email that more could be done by broadening the amount of discoverable evidence. The ruling “is a step in the right direction, but does not go far enough to ensure fundamental fairness,” SPD Youth Defense Practice Coordinator Eileen Fredericks said. “An obligation to turn over discovery prior to a preliminary hearing for reverse waiver does not prejudice the prosecution,” she said. “Preliminary hearings in these matters have huge implications for a child. In order for the court to make the best decision regarding reverse waiver, a youth defendant should have the opportunity to review and discuss all discovery with their attorney who is obligated to conduct an investigation and highlight mitigating information from that discovery,” Fredericks said. “Allowing the defense to have discovery bolsters due process protections of the youth defendant by ensuring that the judge has complete information regarding the case,” she said. Wisconsin Court of Appeals OKs resurrection of dismissed conviction in impaired-driving case6/26/2024 By Alexandria Staubach The Wisconsin Court of Appeals recently allowed the Rock County Circuit Court to resurrect a conviction previously dismissed under the “single-conviction provision” in Wisconsin law. The single-conviction provision permits prosecutors to pursue multiple counts that arise out of a single incident and fall into the three categories prohibiting operating a motor vehicle under the influence of an intoxicant or other drug. Under the provision, if a defendant is convicted of multiple impaired-driving offenses for the same incident, all but one is dismissed so a single conviction remains for purposes of sentencing and counting convictions. District IV of the Court of Appeals held that dismissal of a parallel count can be reversed if the offense chosen for the sentence is later thrown out on appeal. The dismissed count can be revived and then provide the basis for a new sentence.  Blanchard Judge Brian Blanchard wrote for the court, joined by Judges Rachel Graham and Jennifer Nashold.
A Rock County jury found Carl Lee McAdory guilty of two eighth-offense driving-while-intoxicated charges arising out of the same incident: (1) operating a motor vehicle while under the influence of one or more controlled substances (“OWI”), and (2) operating a motor vehicle with a restricted controlled substance (“RSC”). The OWI offense required the state to prove that McAdory’s driving was actually impaired by drugs or alcohol, while the RSC charge was a strict liability offense, meaning the state merely had to prove McAdory had consumed drugs and was operating a motor vehicle, regardless of whether the drugs affected his driving. Though found guilty on both counts, under the single-conviction provision McAdory could be sentenced on only one. At sentencing, the state asked the court to dismiss the RSC charge and sentence McAdory on the OWI charge. Judge Karl Hanson did so. McAdory appealed his OWI conviction to District IV of the Court of Appeals and won. The appeals court reversed the OWI conviction for violation of McAdory’s right to due process. Hanson had permitted a modified jury instruction as to the OWI offense, which, coupled with arguments raised in opening and closing arguments by the prosecution, resulted in a “reasonable likelihood that the State was effectively relieved of its burden to prove that McAdory was ‘under the influence’ of cocaine and marijuana while driving,” wrote the court. The appeals court sent the case back to circuit court “for a new trial on the [OWI] offense.” The appeals court was not asked to and did not address the merits of the dismissed RSC charge. McAdory did not get a new trial on remand, however. Instead, the prosecutor asked Hanson to reopen the judgment, dismiss the OWI conviction, reinstate the RCS conviction, and sentence McAdory on the RSC charge. McAdory argued that the court lacked the authority to reinstate the dismissed count and that reconviction would violate protections against double jeopardy (the legal theory prohibiting multiple prosecutions for the same incident). Hanson agreed with the prosecutor, entering a new sentence and judgment on the RSC charge. McAdory again appealed. He argued that Hanson exceeded his authority when he ignored the appellate court’s order for a new trial, nothing in state law authorized reinstatement of the RCS charge, and the second RCS conviction (following dismissal of the first) violated double-jeopardy protections. (WJI wrote about McAdory’s appeal here shortly after it was filed.) The appeals court found that nothing in Wisconsin law prohibited reinstatement of the RSC count. Although the single-conviction provision does not explicitly address the procedures to be used to accomplish the result of a single conviction, a prior Court of Appeals opinion “interpreted the single-conviction provision to mean that ‘the defendant is to be sentenced on one of the charges, and the other charge is to be dismissed,’” Blanchard wrote. In McAdory’s case that was what the prosecutor requested at the first sentencing hearing and what the prosecutor requested on remand—sentencing on one count and dismissal of the other, Blanchard said. “(T)he only reasonable interpretation is that the single-conviction provision implicitly authorizes circuit courts, in the procedural posture here, to accomplish the intended goal of a single conviction in this way,” Blanchard wrote. “(I)t would be unreasonable to interpret the single-conviction provision to mean, as McAdory contends, that the court’s post-trial dismissal of the guilty verdict on the RCS count in order to satisfy the provision was necessarily permanent, regardless of subsequent events in the case.” Further, “in enacting the single-conviction provision the legislature is presumed to have been aware of the postconviction and appellate relief potentially available to defendants in criminal cases, specifically in the form of potential reversal of individual counts of conviction,” Blanchard wrote. Blanchard said the court’s decision comported with language from the Wisconsin Supreme Court that impaired-driving convictions “terminate with one conviction for all purposes,” because even through the second appeal McAdory’s case had not yet terminated. The court found no double jeopardy problem. Read the full opinion here.  By Alexandria Staubach The Wisconsin Court of Appeals recently rejected a new Fourth Amendment warrant exception for canine searches, but different facts could lead to a different result in the future. The state argued in the case that an “instinct exception” permits canine searches that naturally extend into a vehicle during a traffic stop if the canine conducts the search “instinctively,” meaning without an officer’s direction, assistance, or encouragement. The appeals court concluded that regardless of whether an instinct exception to the warrant requirement exists in Wisconsin, the state failed to establish a necessary element of any such exception—that the canine act unprompted. The appeals court remanded the case to Sawyer County Circuit Court with an order to grant Ashley Campbell’s motion to suppress.  Gill District III Judge Gregory B. Gill wrote for the court, joined by Judges Lisa K. Stark and Thomas M. Hruz. Campbell pleaded no contest to possession of marijuana after Judge John M. Yackel denied her motion to suppress the marijuana found during a warrantless search of her vehicle. Yackel accepted the state’s argument for the instinct exception, which had not otherwise been adopted in the state of Wisconsin. Trooper Mitchell Kraetke initiated a traffic stop of Campbell’s vehicle after noticing that the vehicle did not have a front license plate and the passenger was not wearing a seat belt. As Kraetke stopped the vehicle, he called for Sergeant Al-Moghrabi to arrive with his canine to assist. After initially talking with Campbell and her passenger, Kraetke conducted a record check and discovered that Campbell’s license was suspended for failure to pay a forfeiture. Her passenger’s license was revoked due to a prior conviction for operating a motor vehicle while intoxicated. Al-Moghrabi arrived, talked briefly with Kraetke and then approached Campbell’s vehicle. He asked Campbell and her passenger if there was any illegal contraband in the vehicle, and both responded there was not. Al-Moghrabi then ordered both individuals out of the vehicle. Campbell did not close her driver’s side door when she exited, and it remained open. Kraetke then met with Campbell and her passenger behind the vehicle to discuss the traffic infractions. Meanwhile, Al-Moghrabi retrieved his canine from his squad car and walked the dog to the hood of Campbell’s vehicle, allowing the dog to “scan” it. “Scanning,” meant that al-Moghrabi allowed the canine to sniff independently instead of identifying certain areas of the vehicle for the dog to check. The canine’s leash had slack. Dashboard camera video from the trial court showed that Al-Moghrabi walked from the hood of Campbell’s vehicle, around the open driver’s side door, and up to the door’s entrance. Al-Moghrabi then stopped and allowed the canine to enter the vehicle. Al-Moghrabi was not pulling the leash or attempting to get the canine to exit the vehicle at any point. Al-Moghrabi testified that the dog began “sniffing intently at” a purse on the floor of the vehicle. According to Al-Moghrabi intent sniffing indicates an alert. The dog exited the vehicle and Al-Moghrabi repeated the steps. He walked the canine up to the door’s opening, stopped, and allowed the canine to enter the vehicle. Al-Moghrabi testified that on the canine’s second entry, it again began “sniffing intently” at the purse. Al-Moghrabi returned the dog to his squad car then searched the purse, finding marijuana inside. “(R)egardless of whether an ‘instinct exception’ to the Fourth Amendment’s warrant requirement exists when a canine ‘searches’ a vehicle, the exception does not apply under the facts in this case to excuse the State’s obligation to obtain a warrant prior to searching Campbell’s vehicle,” wrote Gill. “Here, the canine did not instinctively enter Campbell’s vehicle because the officer had full control of the canine and implicitly encouraged it to enter through the driver’s side door. We therefore conclude that even if the instinct exception were to be recognized in Wisconsin, the exception would not apply to the canine’s searches in this case,” Gill wrote. Jurisdictions recognizing the instinct exception have split on whether reasonable suspicion that narcotics be present is required prior to the dog’s unprompted alert. The state argued in Campbell’s case that no independent basis for reasonable suspicion that narcotics are present is required.  By Alexandria Staubach
The Wisconsin Court of Appeals on Monday ordered that JusticePoint’s services for Milwaukee Municipal Court remain in place while litigation between the organization and the City of Milwaukee proceeds. As WJI previously reported, JusticePoint’s contract to provide Milwaukee Court Alternatives Program (MCAP) services was terminated by two of the three Milwaukee Municipal Court judges without much explanation, under a “convenience” clause. The city notified JusticePoint of the termination in May, giving the organization until mid-July to finish its work. The court did not name any successor provider for the MCAP services and has said it will seek bids at some future date. That means that without JusticePoint, municipal court defendants will lose the assistance the organization provides for completing community service requirements, handling inability to pay forfeitures, or finding various social services. JusticePoint sued the city on July 10, moving for a temporary restraining order (TRO) and preliminary and permanent injunctions to keep its contract and the program alive. JusticePoint argued that termination of its contract violated the Wisconsin Fair Dealership Law (WFDL). Milwaukee County Circuit Judge Hannah Dugan granted JusticePoint a TRO on July 10 to prevent expiration of the contract. But on Oct. 5, Judge J.D. Watts denied a preliminary injunction and dismissed JusticePoint’s case. Watts issued a 30-day stay of his decision to allow an appeal, but he refused to issue a stay that extended any longer. JusticePoint then sought continuation of the TRO by the appeals court. Justice Point will now continue to provide services to Milwaukee Municipal Court pending a decision on the appeal. The issues on appeal will require the court to evaluate whether the WFDL applies to the city’s relationship with JusticePoint. Under the WFDL, a dealership exists when a person or entity “is granted the right to sell or distribute goods or services,” and when a “community of interest” exists between the parties. JusticePoint’s argument is that it distributes city services to individuals using the MCAP and that it has invested in the program. Monday’s decision by Court of Appeals Judge M. Joseph Donald focused on the procedural aspects of granting a stay of Watts' order and evaluated three factors: 1) likelihood of success on appeal; 2) irreparable injury in the absence of stay; and 3) the existence of substantial harm to other interested parties. In examining these factors, Donald found that “JusticePoint showed more than a possibility it would prevail”; the stay was otherwise appropriate, as full-time staff could be lost and reputational harm to the program could result if the program is ultimately continued; and substantial harm could result to defendants who receive JusticePoint's MCAP services with no clear alternative to those services in place. Donald said his order will “maintain the status quo” pending a decision that will resolve the appeal. By Gretchen Schuldt The inclusion of the simple, humble comma won out-of-state consumers and the state itself an important victory from the state Court of Appeals last week when the court ruled that a law prohibiting fraudulent representations applied to ads and information shown to people outside of Wisconsin. The statute, §100.18(1), lays out who cannot do certain things and what they cannot do when trying to get members of the public to buy goods or services. Specifically, the statute says individuals and firms may not "publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in this state..." ads or information that include false representations. The verbs in the statute focus on the advertiser's conduct, not the consumer's, Appellate Judge M. Joseph Donald wrote for the panel. "After a comma, the statute provides that these actions may not take place 'in this state,' " he said. "The statute does not proscribe where the recipient or consumer must be or reside. Thus, based on the plain language of the statute, we conclude that the state can enforce against Wisconsin businesses that reach consumers outside of the state." "There is a comma that separates the phrase 'before the public' and 'in this state.' If 'in this state' modified 'before the public,' then there would be no need for a comma," he wrote.  The mighty comma. The opinion, joined by Appellate Judges William W. Brash III and Maxine A. White, overturned a ruling by Milwaukee County Circuit Judge William Sosnay. The panel ordered a new trial.
The case arose out of allegedly deceptive advertising practices by Midwest Auto Recycling and a number of related entities, referred to collectively in the opinion as "Midwest." The firm relied heavily on the internet for its sales, Donald wrote. "To expand the business, Midwest Auto Recycling created various websites and companies...to advertise and sell the auto parts to people and businesses throughout the United States." Those companies are also named as respondents in the case and include Remanns LLC; Quality Used Engines, LLC; Engine Recycler, LLC; Quality Used Transmissions, LLC; Engine Shopper, LLC; Engine & Transmission World, LLC; Belden Mfg, LLC; APLS Acquisition, LLC; SW Engines, LLC; SW Transmissions, LLC; and U Need Engines, LLC. Several unnamed managers of those entities also were named. The state received hundreds of complaints about the business and sued Midwest in 2017, alleging that the company had committed fraudulent misrepresentations in marketing and selling; fraudulent misrepresentations regarding where their business was located; and unfair billing practices. As litigation advanced, the state said it wanted to call three out-of-state customers as witnesses to testify "regarding how the engines they received did not match up with the representations that had been made," Donald wrote. Sosnay ruled that evidence about “incidents that occurred outside Wisconsin, meaning dealing with residents of other states, is not admissible.” He also ruled the state would have to show that any Wisconsin resident who was a customer of Midwest would have had a monetary loss. Just one in-state customer testified, along with some people associated with Midwest. The jury found that four Midwest websites misrepresented the business locations but also found that advertisements to Wisconsin consumers were not untrue, deceptive, or misleading, and that representations in sales quotes were not untrue, deceptive, or misleading in relevant respects. In rejecting Sosnay's interpretation of the law, Donald wrote for the panel: "As the state asserts, all Wisconsin businesses must do to comply with the law is refrain from making misrepresentations in their advertising. If Midwest has to follow the law for in-state residents, there should be no issue following the law for out-of-state residents given that both view the same websites. ... The circuit court erred when it prohibited the state from introducing evidence that Midwest made misrepresentations reaching consumers outside Wisconsin" The appellate panel also found that the state did not have to show pecuniary loss. The state brought the suit under a statute that does not request such a showing, Donald wrote. By Gretchen Schuldt
The state must pay for a Kenosha county-built or designated residential facility for people on supervised release from civil commitments, the state Court of Appeals ruled last week. The three-judge panel found the state made "a critical and pervasive error" in its brief by mischaracterizing Circuit Judge Bruce E. Schroeder's order "as requiring the State to 'buy or build a residence to house sex offenders.'” The District II appellate judges were Mark D. Gundrum, Shelley A. Grogan, and Maria S. Lazar. "The court’s orders did no such things," their unsigned opinion said. "They clearly identified Kenosha County as the entity responsible for all facets of the construction or placement of the contemplated structure .... The state's obligation under the orders was merely to pay whatever expenses the county incurred in construction or placement." Schroeder issued his order in December 2021, after the county was unable to find appropriate housing for two men – Dale H. Peshek and Levin LeDoux – found to be suitable candidates for supervised release from their civil commitments as sexually violent persons. The order was straightforward: IT IS HEREBY ORDERED that the County of Kenosha is to construct or place a structure on the grounds of the Kenosha County Detention Center sufficient to meet their requirements under § 980.08(4)(dm), Wis. Stats., to identify an appropriate residential option. IT IS FURTHER ORDERED that all expenses related to the construction or placement shall be borne by the State of Wisconsin and the County is to report back to the Court within 120 days of the date of this order as to the status of the construction or placement. The state argued on appeal that it was protected through sovereign immunity, the idea that the state can decide when it can be sued for damages. "The State’s sovereign immunity arguments cannot withstand scrutiny," the panel wrote. The issue is not about money damages; it is about the state's statutory responsibility to treat sex offenders, the judges said. "(I)t should come as no surprise to the State that such a commitment carries with it financial obligations which it may not dodge under the guise of sovereign immunity," the panel said. In addition, the judges said, the case does not involve a lawsuit against the state; instead, it is a part of the two men's commitment proceedings. The appeals court also rejected the state's argument that a 2017 change in the commitment law shifted the responsibility for identifying residential placement to counties. While that is correct, "the State fails to explain why this legislative change to the manner of locating a residence for persons found eligible for supervised release matters to the narrow funding question at issue in this appeal. ...DHS must pay for any programs or facilities necessary to place a person on supervised release." The state's contention that there is inadequate funding to pay for the housing also was rejected by the panel. The state Supreme Court previously has ruled that "circuit courts could order the creation of facilities necessary for supervised release — adding that the necessary facilities could be ordered 'regardless of cost,'" the panel said. "We fail to see why those budgetary complications should control here," it said. It took 321 days to finish an initial appearance: appeals court orders dismissal of charges5/19/2023 By Gretchen Schuldt
Brown County must dismiss felony charges against a man who sat in jail while completion of his initial court appearance dragged on for 321 days because the State Public Defender's office could not find a lawyer to represent him, the state Court of Appeals ruled last week. Christopher S. Butler's preliminary hearing was held 21 days later even though state law requires it to be held within 10 days after the initial appearance. When adjourning an initial appearance "solely to locate counsel for a defendant ... circuit courts and court commissioners must make factual findings on the record considering the justification for the adjournment, the possible prejudice to the defendant, and, where applicable, public interest," Appellate Judge Gregory B. Gill Jr. wrote for the three-member District III Court of Appeals panel. "The record before us lacks any evidence of such considerations." He was joined in his decision by Appellate Judges Thomas M. Hruz and Lisa K. Stark. The charges can be dismissed without prejudice, meaning they can be refiled. Butler was arrested by Green Bay police after they received a report that he molested two young girls. He was arrested and placed on a probation hold. He was charged on Oct. 23, 2019, with three felonies, all as repeaters: two counts of repeated sexual assault of the same child and one count of exposing genitals to a child. Butler's initial appearance began that day. A court commissioner, identified in online court records as Paul E. Burke, set bail at $75,000 and said he would schedule a continuation of the hearing. "At the time, the Brown County Circuit Court’s policy was to adjourn a defendant’s initial appearance until counsel was appointed to represent the defendant," Gill wrote. Butler remained behind bars. He had six adjourned initial appearances from Oct. 23, 2019, to April 20, 2020. "At each hearing, an SPD attorney appeared with Butler, and he or she informed a court commissioner that the SPD was still attempting to find an attorney to represent Butler," Gill wrote. The State Public Defender's office appoints private bar attorneys to handle cases of indigent defendants when SPD staff attorneys can't handle the cases themselves, due to things like workload issues or conflicts of interest. SPD pays the private lawyers $70 per hour, well below the going rate for lawyers. The Legislature's Joint Finance Committee has recommended increasing the pay to $100 per hour. In February, 2020, Butler had a probation revocation hearing and an administrative judge found in his favor. His probation was not revoked. The parole hold was lifted, but Butler could not make bond and remained in jail. In March, 2020, Butler filed a speedy trial demand on his own behalf. He argued that the court lost personal jurisdiction (a court's power over a party to a case) because his preliminary hearing was not held in a timely manner. "The motion was never formally held or ruled on by a court commissioner or the circuit court," Gill said. A lawyer accepted an SPD appointment to handle the case, but five days later withdrew, saying she did not know whether she could meet Butler's speedy trial demand. The commissioner warned Butler that it could take a long time to find a lawyer for him. There were more adjourned initial appearances. Butler's bail dropped to $50,000 in May, 2020, but he remained in jail. He filed another pro se motion arguing his constitutional rights were being violated. The prosecution filed a letter with the court that June expressing concern about how long Butler's case was on hold. There had been 12 court appearances in eight months, the state said. In July, Brown County Circuit Judge Beau G. Liegeois held a hearing and said he would " 'troubleshoot getting an attorney appointed faster,' " Gill wrote. "The court then set another adjourned initial appearance for later that month." At that hearing, before a court commissioner, Butler asked how long it would take to find a lawyer. "The court commissioner (Chad Resar, per online records) responded, '[T]he only thing we can do is just see what will happen, if anyone is willing to appoint you an attorney,' " Gill said. More hearings were held on July 16, July 23, and July 30. A lawyer finally was appointed on Aug. 13, 2020. Butler's initial appearance was completed Sept. 8 – 321 days after he was charged. A preliminary hearing was held Sept. 29, and a court commissioner bound Butler over for trial. Butler pleaded not guilty and filed a motion to dismiss because the state failed to hold a preliminary hearing within 10 days of his initial appearance, as required by law. Liegeois denied the motion; Butler appealed. The state argued on appeal that Butler forfeited his personal jurisdiction challenges because he did not object after his initial appearance was completed, at his preliminary hearing, or when he was arraigned. The appeals panel rejected that contention. "Butler’s objections to personal jurisdiction, which occurred prior to the initial appearance being completed, were more than sufficient to give 'both parties and the circuit court notice of the issue and a fair opportunity to address the objection,' " Gill wrote. A court does have inherent authority to adjourn initial appearances, as they do preliminary hearings, but must consider the justification for the relief, the possible prejudice to the defendant, and public interest, he said. "Particularly troubling is that, at the time of Butler’s pretrial detention, the blanket policy of the Brown County Circuit Court was to continuously adjourn initial appearances until counsel was located," Gill wrote. In addition, he said, "the court did not consider appointing an attorney at county expense, which 'might prove more compelling to private attorneys,' as they would not have to go through the SPD’s qualification process and would receive greater compensation." Neither the judge nor the court commissioners considered the total delay in Butler's case, he said. "Additionally, it is clear from the record that the circuit court or court commissioners failed to consider 'the possible prejudice' to Butler when deciding to continuously adjourn his initial appearance," Gill wrote. "For example, the court did not consider the potential prejudice to Butler from 'further evidence gathering by police while incarcerated and the possibility that the delay could compromise the defense or result in lost evidence.' " The state erroneously argued that Butler "terminated" his first appointed lawyer, the panel said. That lawyer withdrew because she could not meet the speedy trial deadline and provide competent counsel. Butler did not invite the error, Gill said. "To hold otherwise would require Butler to choose between two constitutional rights: the right to a speedy trial and the right to representation by counsel," he said. The state also was wrong in its argument that any rights violations were harmless errors because Butler was on probation hold and then was bound over for trial, he wrote. "We disagree that the violations in this case did not affect Butler’s substantial rights," he said. "The purpose behind conducting a timely initial appearance and a timely preliminary hearing would be frustrated if the state was allowed to simply argue that probable cause existed based upon a finding made months or years later – in this case, 342 days – without any protection to the accused beforehand." By Gretchen Schuldt
The Milwaukee County Sheriff's Department's policy of routinely deleting interrogation recordings after 60 days is unreasonable and "demonstrates bad faith through official animus," the state Court of Appeals said this week. The three-judge panel for the District I appellate court affirmed Milwaukee County Circuit Judge Danielle L. Shelton's ruling suppressing Robert Lee Banks' confession to cocaine possession. The panel included Appellate Judges William W. Brash III, M. Joseph Donald, and Maxine A. White. "Although we may hope that all cases flow smoothly through the justice system in time for a law enforcement officer to retrieve a recording in under sixty days, this evidence retention policy is unreasonably short," the panel said in an unsigned opinion. Banks was the passenger in a car stopped by a sheriff's deputy for improperly passing a car on the right. Neither Banks nor the driver had a valid driver's license, so the deputy decided the vehicle should be towed. During a consensual search of the car, the deputy found a 9mm handgun. Both Banks and the driver were convicted felons and the deputy arrested them. During the subsequent personal search, the deputy found 2.53 grams of cocaine on Banks. The deputy also found more drugs in the car. Banks was read his rights and, during a recorded interview, admitted to possessing the cocaine found on him. Banks was charged with possession of cocaine as a second or subsequent offense. Banks sought the video recording during discovery and the deputy eventually "informed the state that the videos were unavailable," the panel said. The deputy said he was unaware that the video would be deleted in 60 days unless he exported it. Banks sought dismissal of the case based on the destruction of evidence. He alleged the written summary of the interview was inaccurate and incomplete and the destruction of the video meant he could not use it to dispute the Sheriff's Department's version of events. The state opposed the motion, arguing the there was nothing to show the deputy knew of anything in the video that could potentially help Banks and deliberately tried to hide it. "The State asserted there was no bad faith, and at worst, it was negligent to not preserve the video recordings," the panel said. Shelton "concluded that while Banks had not shown 'that law enforcement deliberately attempted to suppress' the video recordings, there was a 'concession by the state of a policy that allows for the automatic purging of this type of evidence [which was] a clear display of official animus toward a defendant’s due process rights,' ” the panel said. Shelton granted Banks’ motion to exclude the deputy's testimony about the interrogation interview. The panel in affirming the decision, found the recordings were potentially exculpatory. While Banks did not show an intent by the state to deprive Banks of helpful evidence, state law requires preservation of adult felony custodial interviews, the panel said. "The statute does not contain a preservation requirement, but it would be illogical to compel the state to record custodial interviews without providing a means for defendants and the state to access that information," the judges said. In addition, they said, the recording requirement leads to the reasonable inference that "the interviews themselves would be accessible during criminal investigations and prosecutions" and a policy that inhibits that access "defeats that purpose."  Grogan By Gretchen Schuldt
The Court of Appeals this week reversed a judge's decision in a case in which the state and the defense, in a relatively rare occurrence, agreed that the judge messed up. Winnebago Circuit Judge Daniel J. Bissett denied Peter John Long's motion to reopen a case after Long argued that his lawyer told him that the default judgment he accepted for refusing to take sobriety tests would result in a three-year suspension of his driver's license. Instead, it resulted in a lifetime license revocation. "The state believes Long is entitled to an evidentiary hearing on his motion because he pled sufficient facts which, if true, entitle him to relief," District II Court of Appeals Judge Shelley A. Grogan wrote in her decision. "This court agrees and reverses and remands for an evidentiary hearing." Long was arrested for Operating While Intoxicated – 10th offense after police saw his motorcycle on a curb and found Long sleeping in a ditch about 300 yards away. Long refused to perform field sobriety tests or take a chemical test, according to the decision. The OWI case against Long was dismissed after a preliminary hearing because a court commissioner found that the state did not provide sufficient evidence to establish probable cause, Grogan wrote. The case against him for refusing the tests, however, went on. "According to Long’s motion, his attorney advised him that he could simply ‘default’ (not show up) and that the only consequence would be a three-year revocation of his driver’s license," Grogan wrote. The Department of Transportation, however, notified Long after the default judgment was entered that his license would be revoked permanently. Long, representing himself, sought to reopen the judgment, writing that his acceptance of the default was “due to incorrect advice and mistake by paid counsel.” Bissett refused the request, saying there was "no basis stated" to reopen the case. Long tried again, filing another motion with greater detail. Bissett again denied it, this time by stamping it "denied." Long filed for reconsideration; Bissett denied that request without explanation. "Long alleged facts that, if true, warrant relief, and therefore the circuit court should have held a hearing on his motion," Grogan wrote. The state, in its appellate brief, agreed. Lifetime driver's license revocation was a collateral consequence of a refusal finding, Winnebago County Assistant District Attorney Adam J. Levin wrote. When a defendant is misadvised of even collateral consequences of a conviction, "Wisconsin courts have permitted defendants to withdraw pleas that were based on a misunderstanding of the consequences," he said. Besides alleging that his lawyer provided incorrect information about the consequences of refusing the tests, Long argued that that the underlying OWI was dismissed for lack of probable cause, Grogan said. "He believes that as a result, he has a meritorious defense to the refusal citation," she wrote. "Based on these facts, Long is entitled to a hearing on his motion." |
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