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.
"And a Black man such as Evans would also have to be concerned that a police officer’s biases, subconscious or otherwise, would make the officer quick to pull the trigger." – Assistant State Public Defender Thomas B. Aquino
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.
Appeals court bars extended pre-trial detention based on only on lack of public defender availability
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.
By Margo Kirchner
The state this week appealed the decision invalidating the Wisconsin Constitution amendment known as “Marsy’s Law.”
Dane County Circuit Court Judge Frank D. Remington declared last month that the April ballot question asking whether the amendment should be adopted 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.
Wisconsin Justice Initiative, three individual voters, and Sen. Fred Risser successfully challenged the ballot question and amendment in the trial court and obtained a permanent injunction against the amendment’s implementation. Remington, though, stayed the injunction pending appeal.
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."
By Gretchen Schuldt
Even the most minor violations of Department of Corrections' community supervision rules make people ineligible for expungement of their criminal records, the State Court of Appeals ruled Thursday.
Judges making expungement decisions have no discretion in the matter, the court said.
State law allows courts to expunge conviction records for misdemeanors and certain felonies committed by a person under the age of 25 if that person successfully completes his or her sentence.
Advocates have been pushing for years to make expungement available to more people. This ruling likely will do just the opposite.
"This decision demonstrates once again the need for reform of Wisconsin's expunction law to clarify the process and allow deserving people to avoid the crippling effect of a criminal conviction to follow them for the rest of their lives," Craig Johnson, WJI president, said Friday.
"The decision is one more step in the wrong direction and ought to be corrected by the Legislature as soon as we reconvene," said State Rep. Evan Goyke (D-Milwaukee), an expunction reform advocate in the Legislature. "It is one more example, of the many and growing, of why Wisconsin needs a thorough reform and modernization to our expungement law."
"The first rule of supervision, which applies to every person on probation, parole or extended supervision is, 'Avoid all conduct which is in violation of federal or state statute, municipal or county ordinances, tribal law or which is not in the best interest of the public welfare or your rehabilitation,'" said David Liners, state director of WISDOM and a justice reform advocate. "I do not know anyone who has not broken that rule. Rule 17, 'Report as directed for scheduled and unscheduled appointments,' would seem impossible to anyone who is not clairvoyant and knows to report for a meeting that has not been scheduled."
"The rules themselves remind me of Jim Crow 'literacy tests,' designed to be impossible to pass," he said. "By setting this standard, the court is doing to expungement what Jim Crow laws did to voting"
The Court of Appeals decision reversed a ruling by Green County Circuit Judge James R. Beer, who granted Jordan A. Lickes' request to expunge three of four convictions related to a sexual encounter he had with a 16-year-old girl in 2012, when he was 19.
"Lickes contends that a bright-line rule prohibiting expungement upon proof of a violation of even the most minor DOC rule would run contrary to the legislative purpose of the expungement statute, which is to provide a break to young offenders who demonstrate the ability to comply with the law,” District IV Court of Appeals Judge Jennifer E. Nashold wrote for the three-judge panel.
The panel rejected that interpretation.
"Because we interpret 'conditions of probation' in the expungement statute to include DOC rules, and because the record indisputably shows that Lickes violated DOC probation rules, the circuit court was without discretion to expunge Lickes’ criminal record," she wrote. "Said otherwise, the Legislature could have left this decision to the circuit court’s discretion but, instead, it has established clear objective standards that leave no room for the court’s exercise of discretion at that stage of the process."
The state's expungement law makes no specific reference to DOC rules, but the phrase "conditions of probation" has been interpreted in other cases to refer to court- and DOC-imposed conditions, so the same definition should apply for expungement, she wrote.
Nashold was joined in her ruling by Appeals Judges Brian W. Blanchard and Michael R. Fitzpatrick.
While the DOC rules infraction ruling will likely affect the most people, it was not the only issue in the case.
Lickes was charged with fourth-degree sexual assault, sexual intercourse with a child age 16 or older, disorderly conduct, and exposing his genitals or pubic area. The first three charges were misdemeanors; the fourth was a felony.
He pleaded guilty to the sex with a child charge and no contest to the others, according to the decision.
Beer sentenced him to probation and 90 days in jail with Huber privileges.
"By setting this standard, the court is doing to expungement what Jim Crow laws did to voting." – David Liners, state director of WISDOM
"The court then set a number of 'terms and conditions of probation,' including that Lickes 'enter into, participate [in] and successfully complete' sex offender treatment for two of the misdemeanors and the felony, Nashold said. If he did that, those counts could be expunged.
Lickes later admitted violating his conditions of probation, Nashold said. His probation agent said Lickes had unapproved sexual conduct, was terminated from a sex offender program, and provided false information to his probation agent.
Lickes agreed to spend 45 days in jail, with Huber privileges for work and treatment, as an alternative to revocation.
Lickes' probation on two of the misdemeanors ended in 2016 and he applied for expungement. His probation agent indicated in September that Lickes had successfully completed probation, but had not completed all the court's requirements. Lickes still was in sex offender treatment and was expected to finish in January 2017, the same month his felony probation was to end.
In July 2018, the probation agent filed another form, this time related to the felony, indicating Lickes had completed all his requirements.
The state opposed Lickes' request for expungement based on his probation violations, but Beer eventually granted it for the two misdemeanors and the felony.
The appeals panel, Besides finding that a probation violations made a person ineligible for expungement, found that Lickes did not meet his court-ordered probation requirements because he did not complete his sex offender treatment by the time his misdemeanor probation lapsed; he completed it after that, but before his felony probation lapsed.
"The circuit court’s probation condition requiring Lickes to 'complete' sex offender treatment for (the misdemeanor) counts...cannot reasonably be construed to mean that Lickes was permitted to complete the treatment after his probationary period ended for those counts," Nashold wrote. "Because Lickes did not complete sex offender treatment within the two-year probationary period for (those) counts...he did not satisfy a court-ordered condition of probation."
By Gretchen Schuldt
Lying to a judge about having ovarian cancer is enough to warrant losing a court battle over parental rights, a State Court of Appeals judge ruled this week.
"All the evidence demonstrates that S.S. conducted an intentional, continuous campaign to perpetrate a fraud upon the court, manipulate the parties in this case, lie to her legal counsel, and create fraudulent medical records.," District II Court of Appeals Judge Paul F. Reilly wrote.
The ruling upheld Waukesha County Circuit Judge Lloyd Carter's decision to enter a default judgment against S.S., as she was referred to in court records.
S.S.'s child, A.W. was removed from her mother in 2016, after S.S. overdosed in her daughter's presence. She overdosed again in January 2017, illegally obtained narcotics in the summer of 2017, and was incarcerated for about three months that winter due to a heroin relapse while she was on probation.
Waukesha County filed a termination of parental rights petition in April 2018, alleging that S.S. had failed to assume parental responsibility and that A.W. still was in need of protection. S.S. contested the petition.
In June 2019, S.S.'s lawyer filed a motion to adjourn a scheduled jury trial on the petition.
The petition said that S.S. was "'experiencing some extreme physical distress'” and explained that S.S. was suffering “''increased pain, bleeding to a point that required frequent changes of sanitary products to avoid bleeding through clothing, exhaustion and an inability to function which have led to missing multiple appointments to prepare for trial,'” Reilly wrote.
During a hearing on the matter, S.S. provided written documentation stating that she had ovarian cancer. The letter, purportedly from an emergency room nurse, said that S.S. was to be excused for four to six weeks due to the disease and related surgery. Carter granted the delay.
In July, the social worker assigned to the case filed a memo stating that S.S. refused to sign a release allowing her condition to be verified. S.S. said during a court hearing that she had privacy concerns and was protected by federal law.
Carter found the court had an interest in confirming the truthfulness of her representations and ordered her to sign the release.
Staff at Waukesha Memorial Hospital "denied writing the medical excuse that S.S. presented to the court, denied diagnosing S.S. with ovarian cancer, and indicated that they had no record of S.S. being diagnosed or treated for ovarian cancer at their clinic," Reilly wrote.
S.S.'s lawyer later expressed concern that her client was "making use of me to defraud the court," Reilly said.
S.S. never denied the allegations that she faked the medical records and lied about it.
The county Department of Health and Human Services sought a default judgment and a finding that there were grounds to terminate S.S.'s parental rights.
Carter granted the request. S.S.'s "conduct is the epitome of bad faith and egregious conduct…." he said. "What (S.S.) did here was a calculated, planned effort on her part to make a false representation to her attorney knowing that her attorney would communicate that information to the Court, then follow it through with further fabrication and falsification."
The court later found, at a separate hearing, that it was in A.W.'s best interests to terminate S.S.'s parental rights.
S.S. appealed, arguing that the law does not give the court the right to terminate her parental rights because Carter did not specifically find that she violated a court order.
"As the circuit court acknowledged, S.S. presented no evidence in the record to suggest that perhaps a misunderstanding occurred....." Reilly wrote. "The purpose of S.S.’s actions appears to be to manipulate the court’s calendar and avoid the jury trial on the grounds phase of the TPR proceeding."
The actions of S.S. were "egregious and constitute bad faith....Under the circumstances and given the court’s inherent authority to sanction parties for litigation misconduct, we see no error, he said.
By Gretchen Schuldt
Two officers who repeatedly told a suspect that he failed a detector test but failed to tell him the results of that test could not be used in court were key to creating the coercion that invalidated the man’s eventual confession, a State Court of Appeals panel has ruled.
"In particular, we caution law enforcement officers that if they plan to rely on polygraph results in order to elicit a defendant’s confession, they need to inform the defendant that those results are inadmissible in court," Appeals Judge Lisa K. Stark wrote for the divided District III Court of Appeals panel.
The State Supreme Court has questioned the reliability and accuracy of the tests, she said.
The ruling upheld a decision by Washburn Circuit Judge John P. Anderson to suppress the confession.
Stark's decision was joined by Appeals Judge Mark A. Seidl; Appeals Judge Thomas J. Hruz dissented.
"I conclude the conduct of the two officers imposed only minimal psychological pressures upon (defendant Adam W. Vice) and was within the boundaries of what due process tolerates for police questioning," Hruz wrote. "Certainly, overt coercion is absent....As for 'other improper police conduct,' I see nothing of the sort."
Vice, then 25, was first interviewed in December 2014 by Washburn County Sheriff's Investigator William Fisher after a four-year-old girl said Vice indecently touched her two months earlier.
Vice asked if there was anything he could do to clear his name and Fisher suggested taking a lie detector test.
Fisher drove Vice to Eau Claire, where the polygraph test was administered by Eau Claire Police Detective Ryan Lambeseder. Lambeseder read Vice his Miranda rights, including the warning that any statement he made could be used against him, and Vice consented in writing to the polygraph.
The exam itself took about one hour and 45 minutes, Stark wrote. Afterward, Fisher and Lambeseder questioned Vice in an interview room. Vice was not handcuffed.
"Lambeseder asked Vice how he thought he did on the polygraph examination," Stark wrote. "Vice responded, 'I don’t know. I know for a fact that I’m telling the truth when I was telling the truth.'”
Lambeseder told Vice, who was in special education classes and high school and had minimal previous contact with police, that he had not passed the examination that it was “very clear” Vice was not telling the truth.
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