By Gretchen Schuldt

​A Kenosha County judge overstepped when he ordered a shoplifter to give notice of her conviction to the management whenever she entered a place that sells goods to the public, a state Court of Appeals panel ruled this week.

"That condition is overly broad and also falls into the category of shaming, which the circuit court appeared to acknowledge at sentencing," the three-judge panel wrote in an unsigned decision, invalidating the condition ordered by Circuit Judge Bruce Schroeder.

"We are not persuaded that embarrassing or humiliating defendants with a state-imposed broad public notification requirement promotes their rehabilitation," the panel said.  The panel included Appellate Judges Lisa S. Neubauer,  Paul F. Reilly, and Jeffrey O. Davis.

Markea L. Brown, 28, pleaded guilty to felony shoplifting in connection with helping to steal $2,655 worth of items from a store at the Pleasant Prairie Outlet Mall.

Schroeder sentenced her to 15 months in prison followed by two years of extended supervision. He also ordered, as conditions of her supervision, that Brown have no contact with the mall and to make the notifications of her conviction.

Brown challenged both conditions on appeal; the panel upheld the first, but struck down the second.

Schroeder told Brown the notification requirement " is 'going to embarrass you, of course,' ” the panel said. "It continued, noting that society no longer puts people in the stocks 'to be embarrassed and humiliated … but [the court] feel[s] that embarrassment does have a valuable place in deterring criminality.' ” 

While Schroeder said he wanted to give merchants the opportunity to protect against theft,  "the State has provided no legal support for the imposition of a requirement that repeat offenders must self-identify as they go about day-to-day life to personally notify any and all individual potential victims of their criminal history," the panel said. "We do not see where such a requirement would start and stop."

Brown has a history of shoplifting, according to online court records.

Brown, if required to notify store management of her conviction, could be refused service, even by those selling essential goods, such as groceries, the panel said. 

"We understand that Brown has children, and as such the consequences of the condition could impact them as well," the panel said.

The condition would result "in an overly broad ban, with consequences...that are not reasonably related to rehabilitation or protection of society," the panel said.

"It is apparent that public shaming is the second condition’s primary effect; thus, we will require it vacated."

By Gretchen Schuldt

​Police did not need a warrant or probable cause to search a vehicle parked in an Appleton East High School parking lot that resulted in the discovery of two guns in the car, the state Court of Appeals ruled this week.

"The duty of school officials to keep students safe applies equally to threats posed by students or non-students," appellate Judge Mark A. Seidl wrote for the three-judge District III Court of Appeals panel. "We therefore conclude that standard applies equally to searches on school grounds of both students and non-students of the school where the search occurs."

Seidl was joined in his decision by appellate Judges Lisa K. Stark and Thomas M. Hruz.

The decision affirmed the conviction in Outagamie Circuit Court of Blong Vang, who was convicted of one count of conspiracy to commit child abuse – intentionally committing bodily harm. 

The incident started when two men were spotted in the commons area of the school by Jack Taschner, a school resource officer employed by the school and not by the police, according to the decision, Seidl said.

"The two individuals were wearing hats, which was in violation of the school dress code," Seidl wrote. "Taschner also thought their clothing indicated a gang affiliation."

The two – eventually identified as Travis and Daniel – told Taschner  that they were not students at the school.

"When Taschner contacted dispatch to check for warrants on the individuals, no information was returned on one of them, which led Taschner to believe one of them gave Taschner a false birthdate," Seidl wrote.

The two said they were driven to the school by their uncle to pick up a student named Lucy, "who was known by school officials to have a history of truancy, verbal altercations with other students, and physical fights," Seidl said.

The school's athletic director, Timothy Zachow, who by that time had joined the questioning, testified that one of the men told him they were there to beat up another student.

By Gretchen Schuldt

Police use of a jailhouse snitch after his target retained a lawyer amounted to an improper government interrogation, the State Court of Appeals ruled Tuesday.

"What occurred here was the intentional, surreptitious creation of an opportunity to confront (Richard Michael) Arrington without counsel present," Appeals Judge Mark A. Seidl wrote for the three-judge District III Court of Appeals panel.

In addition, Arrington's trial lawyer failed to provide effective counsel when he did not object to or try to suppress recordings of Arrington made by the informant, the panel said.

Seidl was joined in his opinion by Appeals Judges Lisa K. Stark and Thomas M.  Hruz.

Arrington was charged in 2016 in connection with the shooting death of Ricardo Gomez in Green Bay.

A witness, 17, testified that Arrington fired a gun after exchanging words with another man, Shorty. Shorty was standing near another Gomez and one of the bullets instead struck Gomez in the chest, killing him.

There was no dispute during the jury trial that Arrington fired shots toward the house where Gomez and Shorty stood, Seidl wrote. Arrington, though, argued he fired in self-defense and that he believed that Shorty was reaching for a gun to shoot him.

Another witness testified that it appeared "Shorty reached for his waist as though he was reaching for a weapon," according to a brief filed in the appeal. The 17-year-old said it looked like Shorty was reaching for something, according to the brief.

"Arrington also claimed that it looked as if Shorty accidentally shot Gomez..." Seidl wrote.

Arrington turned himself into police after learning they were looking for him.

Arrington was housed in the Brown County Jail with the informant, Miller. Miller already was working with Green Bay Police Detectives Michael Wanta and Bradley Linzmeier in an effort to get information from two other inmates about a different homicide not involving Arrington.

"Miller believed Arrington would tell him things about the pending charges against him," Seidl wrote. "Miller asked the detectives if he should record his conversations with Arrington, and the detectives told him that he could."

By Gretchen Schuldt

Sitting in a car parked in a hotel parking lot in a high-crime area does not provide enough probably cause for police to seize and search a vehicle, the State Court of Appeals has ruled.

The 2-1 decision by the District IV Court of Appeals panel turned in large part on whether the vehicle and its driver, Shondrell R. Evans, were legally seized by Town of Madison officers or whether Evans should have realized, with two squads mostly boxing him in and in the glare of police spotlights, that he was free to drive away.

And while Evans' attorney, Assistant State Public Defender Thomas B. Aquino, argued that Evans' race – he is African-American – likely made him more hesitant to back his car out between the squads, neither Appeals Judge JoAnne F. Kloppenburg, author of the majority opinion, nor Appeals Judge Michael R. Fitzpatrick, who dissented from a key finding, addressed the issue in a meaningful way.

The state, in its brief, did not even mention it.

The basics of the case are undisputed.

Town of Madison Police Officer Logan Brown, on patrol in March 2018, saw Evans and a woman leave a hotel about 2:30 a.m. Brown followed the two as they drove to the parking lot of a nearby apartment complex, park for about a minute, then return to the hotel parking lot.

Evans parked in a stall in the lot, next to a car parked on his passenger side. There was a concrete barrier in front of Evans' car. Evans and the women remained in Evans' car for several minutes.

Brown contacted Officer Andrew Hoffman, who was nearby. 

The two officers, in separate vehicles, approached Evans' car simultaneously. Brown parked a short distance away from Evans' vehicle, with the front of the squad facing the driver's side door of Evans' car. Hoffman also parked close to Evans' car. The squad was parked at about a 45-degree angle from the rear bumper of the passenger side of Evans' car. 

Both officers had their headlights and overhead spotlights trained on Evans' car. 

​Evans was not completely blocked in, according to the decision; he could have backed out and maneuvered around the squads to leave.

The officers got out of their cars and approached Evans' vehicle. They said they smelled marijuana.  The officers subsequently searched the car and found a gun. 

Evans was charged with felon in possession of a firearm. He argued in court that the seizure of the car was illegal and sought to suppress the gun, but Dane County Circuit Judge Susan Crawford denied the request. First, she said, Evans was not seized until the officers began questioning him. He could have, after all, backed out and left. She also said that even if Evans' car had been seized, it was reasonable for the officers to do that “based on the officer’s observations of the individuals coming and going at that hour from the hotel parking lot in a way that seemed unusual and not explainable in a high crime area.”

Evans eventually pleaded guilty and filed his appeal.

The appeals panel majority rejected both facets of Crawford's reasoning. The officers both seized Evans' vehicle and lacked the legal basis to do so, Kloppenburg said. She was joined in her opinion by Appeals Judge Brian W. Blanchard.

A seizure occurs when, in view of all the circumstances surrounding the incident, a reasonable person would conclude that he or she was not free to leave. Evans argued that the positioning of the squad cars, combined with the officers' use of squad lights, "constituted a sufficient show of authority that a reasonable person in his position would not have felt free to leave."

Aquino, in his brief, suggested that Evans might be especially hesitant to back out because of his race.

By Gretchen Schuldt

​Defendants in criminal cases cannot be held indefinitely in jail before a preliminary hearing simply because them State Public Defender's Office cannot find a lawyer willing to represent them, the State Court of Appeals ruled Wednesday.

"Although the SPD’s search for counsel can constitute good cause to delay the preliminary hearing, going forward there must be a more robust consideration of relevant factors than is demonstrated by this record—including the necessity and feasibility of appointing counsel at county expense, especially in instances of prolonged delay," District III Court of Appeals Judge Thomas M. Hruz wrote for the three-judge panel.

He was joined in his opinion by Appeals Judges Lisa K. Stark and Mark J. Seidl.

The panel reversed a ruling by Marathon County Circuit Judge LaMont K. Jacobson, who denied a motion to dismiss by defendant Nhia Lee, who said the frequent delays of his preliminary hearing were errors by the circuit court. While the appeals judges ordered the case is dismissed, Marathon County can re-issue the charges.

The appeals panel also found that the court had the authority to appoint a lawyer for Lee at county expense, but was not required to do so.

State law requires that a preliminary hearing be held within 10 days of an defendant's initial appearance in felony cases where bail is more than $500. The time limit can be extended for cause or if both parties agree.

Lee, who was eligible for public defender representation, was held for 101 days without a lawyer and 113 days before his preliminary hearing.

Lee was in jailed on $25,000 bond on two felony drug charges and one count of identity theft. He was represented by an SPD-appointed lawyer for his September 2018 initial appearance.

After that, SPD could not find a lawyer to represent Lee. At the time, the state paid $40 per hour to private attorneys appointed by the agency to represent indigent clients when SPD lawyers could not do so themselves. That pay rate, the lowest in the nation at the time, did not cover lawyers' costs and led many to refuse SPD cases. The rate has since been raised to $70 per hour.

Lee made clear to during "review hearings" held by a court commissioner that he wanted a lawyer. Because SPD couldn't find one, the commissioner several times on his own motion found good cause to extend the time limit for holding the preliminary hearing.

After Lee complained that he had been held for a month without counsel, Hruz wrote, "The court commissioner responded: 'I wish I could tell you what the hold up is, there doesn’t seem to be any…certain length. I’ve seen people who have been in shorter get attorneys, so I’m not sure what the hold up is on your particular case.' ” 

By Gretchen Schuldt

The mere possibility that a man with a domestic violence record might start a relationship with a woman at work or be alone with women there is not a good enough reason to refuse to hire him in the first place, the State Court of Appeals ruled this week.

​State law prohibits employment discrimination based on a conviction record unless the conviction is for a crime with circumstances that that "substantially relate" to the job in question.

Derrick Palmer's criminal record demonstrated a tendency to "be physically abusive toward women in a live-in boyfriend/girlfriend relationship," Appeals Judge Mark Gundrum wrote for the for the three-judge District II Court of Appeals panel. The question, though, Gundrum said, was whether Cree, Inc., of Racine, showed that Palmer’s past domestic abuse is substantially related to the job he applied for. The company did not, the panel said.

Gundrum was joined in the decision by Appeals Judges Lisa S. Neubauer and Paul F. Reilly.

The decision reversed a ruling by Racine County Circuit Judge Michael Piontek. 

Palmer was convicted of in 2012 of strangulation/suffocation, fourth-degree sexual assault, battery, and criminal damage to property arising from a domestic altercation with a live-in girlfriend. He was sentenced to 30 months in prison and 30 months of community supervision.

In 2015, Cree, a lighting manufacturer, hired Palmer as an applications specialist, but the offer was contingent on a background check. The job would require Palmer to would work with customers and staff.

About 1,100 people worked at Cree's facility, including about 500 women.

Cree withdrew its employment offer after receiving the background check and learning of Palmer's criminal record. (Palmer also had a 2001 battery conviction related to another domestic incident, but Cree did not learn of that until later.)

Palmer filed a discrimination complaint with the Wisconsin Department of Workforce Development, and the complaint eventually made its way to the Labor and Industry Review Commission.

​LIRC found for Palmer. In its decision, the agency said that the "fact that there are female employees in the plant with whom the complainant could potentially become involved in a personal relationship that might end badly is a scenario requiring a high degree of speculation and conjecture, and one that goes well beyond any reasonable concern about job-related conduct. Moreover, the ability to meet females and form personal relationships with them is not a circumstance unique to the job at issue, but describes virtually any employment situation in which female workers might be present...." 

Cree appealed to Racine County Circuit Court, where Piontek ruled in its favor, and Palmer and LIRC appealed from there.

The appeals panel said that "Cree presented no evidence suggesting Palmer has ever been violent in a circumstance other than a live-in boyfriend/girlfriend relationship or even suggesting he has ever had such a relationship that in any way stemmed from or was related to his employment." 

Cree also presented to LIRC "no evidence suggesting Palmer would be supervising, mentoring or even working closely with female employees," Gundrum said. The panel agreed with LIRC  about the speculative nature of some of Cree's argument and that "mere contact" with others at Cree is not substantially related to Palmer's domestic violence.

Cree's position, Gundrum said, seems "more focused on the general sense that Palmer is not fit to be unconfined from prison and participating in the community at all due to his prior crimes, even though he has long since finished serving the confinement portion of his sentence."

The legislature could have exempted certain crimes, such as those for which Palmer was convicted, from the non-discrimination statute if that is what it wanted to do, Gundrum said. 

"It could have easily done that, but chose not to," he wrote.

​Attorney General Josh Kaul appealed the judgment on behalf of himself, the Wisconsin Elections Commission and its chair, and Secretary of State Douglas LaFollette. The appeal will be heard by the District III appeals court. The state is allowed to choose the appeals court district as long as it is not the district that includes the court that issued the original decision.
District III is located in Wausau and consists of judges Lisa K. Stark , Thomas M. Hruz, and Mark A. Seidl.

In the trial court, WJI and the individual plaintiffs argued that the ballot question failed to warn voters that they were striking the state constitution’s only reference to a defendant’s fair trial, eliminating a defendant’s right to exclude an alleged victim from the courtroom if necessary for a fair trial, and altering defendants’ rights set forth in other sections of the Wisconsin Constitution and state statutes.

Remington agreed, writing that the question at hand was “about the integrity of the process of amending the State Constitution by ballot. Voters deserve to know what they are voting on.” 
Plaintiffs also argued that the ballot question directly misled voters, telling them that the amendment would protect a victim’s and an accused’s rights “with equal force,” while the amendment’s text actually permitted a victim to receive greater protections “no less vigorous” than the accused receives. Again, Remington agreed.

Finally, plaintiffs argued that the amendment contained more than one subject, requiring multiple ballot questions. Remington agreed again, holding that under the Wisconsin Constitution two questions were required: one for expanding victims’ rights and one for narrowing rights of the accused.

Remington did not comment on the public policy of Marsy’s Law. Instead, he focused on process, stating that “Wisconsin voters deserve no less than to be asked the right question(s). Wisconsin voters cannot and should not be misled or deceived if the outcome of the ballot question is to have full force and effect of law.”

Marsy’s Law is the personal cause of billionaire and now convicted drug felon Henry Nicholas III. He and his organizations have advocated for passage of substantially similar amendments in at least 20 states. The national Marsy’s Law for All website states that after achieving successful constitutional amendments at the state level the organization aims to be “ultimately successful at the national level” as well.
​
Marsy’s Law for Wisconsin, LLC spent over $1.5 million from January 2017 through June 2019 lobbying the Legislature to approve the amendment and ballot question so the matter could be sent to voters.

By Gretchen Schuldt

​Firms that contract with medical providers to handle medical records requests cannot overcharge patients for those records, the State Court of Appeals ruled last week.

The contract firms must follow the same rules that apply to direct medical providers when giving providing the records, the District I Court of Appeals panel said in reviving a class-action lawsuit.

"To allow a third-party to circumvent the statutory limitation on health care providers simply because it does not provide actual health care services would…yield absurd results," Appeals Judge M. Joseph Donald wrote. He was joined in the decision by Appeals Judges William W. Brash III and Timothy G. Dugan.

State law limits how much medical providers can charge patients for their own medical records. Generally, for paper records, the charges top out at $1 per page; for microfiche or microfilm, the charge is $1.50 per page. 

Andrea Townsend filed a class action complaint in 2018 alleging that ChartSwap, which contracted with a radiology practice to handle medical records requests, overcharged for those records. Townsend said that her attorneys, at her request, sought her records after she was in a traffic accident. ChartSwap responded with a bill for $35.87 and provided the records after Townsend's lawyers paid it.

Townsend alleged in the suit that ChartSwap violated the medical records pricing statute; ChartSwap responded that the statute did not apply because the firm, based in Texas, was not a medical provider but was merely an agent. 

Milwaukee County Circuit Judge Paul R. Van Grunsven, relying on an earlier Federal Court decision interpreting Wisconsin law, ruled in ChartSwap's favor. That Federal Court decision said that state law "does not impose liability on entities that are not health care providers even when they act as agents of health care providers," Donald said.

But, he wrote, "the district court’s decision is not binding upon us."
More importantly, Donald said, the decision "undermines the purpose of (the law) which is to protect patients from being charged excessive fees for access to information in the custody and control of health care providers."

A different state law also puts the same obligations upon an agent of a principal that are put on the principal, Donald said.
"The goal of patient protection would be eviscerated if health care providers could simply contract with parties who were permitted to charge fees of their own liking," he said.

The panel returned the matter to Circuit Court for further action.

By Gretchen Schuldt

Alleged crime victims can intervene in at least some criminal court cases if the victims disagree with defendants' motions and want to formally oppose them, the State Court of Appeals said in a decision released Thursday.

Previously, a criminal case was between the state and the defendant, but voters in April approved a victims' rights amendment to the state constitution that granted alleged victims new rights. Those include the right "to be heard in any proceeding during which a right of the victim is implicated...."

The amendment also gives the alleged victims the right "to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused" and eliminates the only mention of a defendant's right to a fair trial.

Thursday's ruling means that criminal defense lawyers may have to fight for their clients both against prosecutors and against interventions by alleged victims.  Prosecutors, if they disagree with an alleged victim's position, may be put in a similar position.

The District IV Court of Appeals panel also said the amendment applies to cases in which the crime occurred before the "Marsy's Law" amendment was ratified  in April.

Full disclosure: WJI, three individual voters, and Sen. Fred Risser are suing to overturn the amendment, approved by voters in April. The plaintiffs argue that the ballot question failed to fully and fairly inform the public of the essential components of the amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject. A decision in the case is pending.

Thursday's ruling reversed a decision by Waupaca County Circuit Judge Raymond S. Huber, who said the victim in the case, identified in the decision only as "T.A.J."  and "T.," did not have a right to intervene in a battle over whether Huber should privately review T.'s medical records to determine whether they should become part of the court case.

The appeals panel, in a decision written by Appeals Judge Michael R. Fitzpatrick, said it was "manifest" T. has the right to be heard in a circuit court proceeding that implicates his rights or privileges.

Fitzpatrick was joined in his decision by Appeals Judges Brian W. Blanchard and JoAnne F. Kloppenburg.

The defendant in the case, Alan S. Johnson, was charged with multiple crimes stemming from his alleged sexual assault of T. As part of his defense, Johnson asked to review T.'s records.

The state did not oppose Johnson's request, but T. hired a lawyer and sought to intervene, arguing that T. had standing to oppose Johnson's motion and that Johnson's argument was not strong enough win the in-camera record review.

Huber, relying on previous case law, ruled that T. did not have standing. T. appealed; the state supported the appeal. 

The appeals panel found that Marsy's Law overrides the case law precedent. The court also found that the amendment is retroactive, although Marsy's Law does not contain language to that effect.

​"We agree with the State that...provisions (of the amendment), read together, express the intent that the 2020 constitutional amendment applies to pending motions in cases initiated prior to passage of the amendment," Fitzpatrick wrote.

Johnson also argued that allowing T. to oppose the records review motion essentially made him part of the prosecution team, but the panel said the matter "does not implicate hallmarks of substantive criminal law."

Marsy's Law, the panel noted, mandates that victims' rights be "protected by law in a manner no less vigorous than the protections afforded to the accused."

​Left unanswered by Thursday's decision is whether the state is obligated to provide a lawyer to represent indigent victims, as it does for indigent defendants.

By Gretchen Schuldt

​It was not improper for a judge to comment during a sentencing hearing on the changes he saw in people when they possess guns, the State Court of Appeals has ruled.

The unsigned opinion by a District I Court of Appeals panel upholds a post-conviction ruling by Milwaukee County Circuit Judge Carolina Stark denying Octavia W. Dodson's request for resentencing for second-degree intentional homicide.

Dodson alleged that then-Circuit Judge M. Joseph Donald considered an improper factor – legal gun ownership – during the sentencing. 

Donald now is a judge on the State Court of Appeals.

Dodson argued that Donald believed him to be "a threat to society and had a ‘distorted view of the world’ because he was a lawful gun owner.”

The appeals panel disagreed.

"When viewed in context...the trial court’s comments about Dodson’s unlawful use of his firearm were not improper," the judges said. "The trial court never stated, explicitly or implicitly, that it was basing its sentence on the fact that Dodson chose to exercise his right, as the holder of a concealed carry permit, to carry a concealed weapon."

The panel included Judges William W. Brash III, Brian W. Blanchard, and Timothy G. Dugan.

Dodson did not have a criminal record before he shot Deshun T. Freeman to death after being rear-ended in his car on March 25,  2016.

After the he was rear-ended, Dodson saw the other car involved, a Buick, back up. Dodson drew a semi-automatic handgun from its holster and the Buick left the scene. Dodson drove after it so he could, he said, get a license plate number.

As he drove, he switched out the gun's 10-round magazine for an extended  17-rounder, according to the decision.

Dodson eventually saw a car he thought was the one that hit him. Both cars parked on the side of the street. Dodson said a man got out of the Buick and ran toward him. Dodson later said he thought the man was pulling something out of his pockets or from under his shirt. Dodson, now standing outside his car, shot him – evidence indicated Dodson fired six times – then drove to his girlfriend's house, according to the decision. They talked, and Dodson drove to his father's house, calling 911 on the way.

Police were unable to confirm that the car driven by Freeman was involved in the accident.

Dodson pleaded guilty to second-degree intentional homicide and Donald sentenced him to 14 years in prison and six years of extended supervision, longer than the term recommended in a pre-sentence report, which was five to nine years in prison followed by a five-to-six-year term of extended supervision.

"In reviewing this case, I have to say I am completely baffled as to why this happened," Donald said during the sentencing hearing. "And I don’t think that there is any rational way of trying to explain it. I can tell you this, Mr. Dodson, that in my experience as a judge, I have seen over time how individuals when they are possessing a firearm, how that in some way changes them." 

He continued: "It changes how they view the world. It changes how they react and respond to people. I know that this is only speculation on my part, but I do strongly feel that the day that you applied for that concealed carry permit and went out and purchased that firearm, and that extended magazine, (whatever) your rational beliefs for possessing it, whether you felt the need to somehow arm yourself and protect yourself from essentially the crime that is going on in this community, I think on that day set in motion this circumstance."

Later, Donald added it was "clear to me that you were operating under some misguided belief, some distorted view of the world that somehow Deshun Freeman was a threat to you when in reality it was nothing further from the truth.” 

Dodson appealed, seeking resentencing. 

Dodson contended Donald blamed him "not merely for the homicide, but for what the court viewed as putting himself on a path toward violence by lawfully obtaining a gun and a license to carry it. This assumption violated Mr. Dodson’s Second Amendment right to possess the firearm.”

Dodson also alleged that Donald made assumptions about gun owners and attributed negative beliefs he had about gun owners to Dodson.

The panel, in upholding Donald and Stark, wrote, "We are not persuaded that the trial court’s comments suggested that the trial court was punishing Dodson for exercising his Second Amendment rights. Here, the trial court’s comments indicate that it, like the parties, was trying to make sense of what appeared to be a senseless homicide committed by someone without a criminal history. The trial court noted that in its experience as a judge, people can change as a result of owning guns. Such an observation was not improper."