By Gretchen Schuldt
The State Supreme Court should decide whether Wisconsin's case law on imposing life without parole sentences on juveniles complies with related decisions by the U.S. Supreme Court, a State Court of Appeals panel said.
The State Supreme Court also should rule on whether the two judges who pronounced life sentences on juveniles adequately considered the mitigating effect of the defendants' youth, in compliance with U.S. Supreme Court standards.
The issues raised in the two cases considered "are matters of considerable statewide importance and constitutional dimension," the three-judge District 3 Court of Appeals panel said. The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.
The panel certified the cases to the Supreme Court for consideration.
From left to right: Stark, Hruz, Seidl.
Criminal justice experts are rethinking life sentences for juveniles more is learned about brain development. The U.S. Supreme Court said in 2012 that juveniles convicted of murder cannot be given a mandatory sentence of life imprisonment without parole.
The Court later ruled later that a no-parole sentence may be unconstitutional even if the judge considers the defendant's age if the crime reflects "unfortunate but transient immaturity." The Court also banned all life sentences for youth except "where the child is so irreparably corrupt that rehabilitation is impossible."
Both cases in Wisconsin considered by the appeals panel are homicide cases. The first occurred in 1994, when Curtis Walker and an accomplice shot and killed a Milwaukee police officer. Walker was six weeks shy of his 18th birthday.
The judge sentenced Walker to life in prison with the possibility of parole in 75 years, or when Walker is 95.
Walker's legal team is arguing that the de-facto life sentence is excessive and disproportionate and is inconsistent with the U.S. Supreme Court's rulings.
The state, however, says that the U.S. Supreme Court's decisions do not apply when the sentencing court, as it did in this case, has discretion to set a parole date. The state also is arguing that the issue of de facto life sentences are not included in that court's decision.
In the second case, Omer Ninham, then 14, helped throw a 13-year-old boy off the fifth floor of a parking garage in 2000. He was sentenced to life without parole.
Ninham previously appealed, but the Wisconsin Supreme Court concluded that a life sentence without parole for a 14-year-old does not “categorically constitute cruel and unusual punishment," and that Ninham’s sentence was not unduly harsh and excessive. The U.S. Supreme Court refused to review the case.
Ninham, like Walker, is arguing the sentencing judge did not adequately consider his youth at the time of the crime. The state is arguing that the U.S. Supreme Court decision was concerned with mandatory life sentences, not those imposed at the discretion the presiding judge. The appeals court said it reached a similar conclusion in a decision in another case.
The appeals panel also said it does not have the authority to disregard the earlier Wisconsin decisions upholding life-without-parole sentences for juveniles. That is true, the panel said, "regardless of advances in the science of brain development or other relevant research."
Sentencing courts "would benefit greatly" from guidance on how much weight to give the factors identified in the US Supreme Court decisions and to what extent “the prospect for the juvenile’s rehabilitation takes precedence over other legitimate sentencing considerations, such as general deterrence," the appeals panel said.
By Margo Kirchner
A Racine County judge on Thursday dismissed all charges against Daniel G. Scheidell, who served 20 years in prison for sexual assault before a court finally allowed him to present evidence that strongly suggested the attack was committed by someone else.
Racine County Circuit Court Judge Mark Nielsen granted the state’s motion to dismiss, after Racine County Assistant District Attorney Dirk Jensen said the state could not meet its burden in a new trial.
One of Scheidell’s supporters in the gallery clapped as the judge dismissed the case.
Scheidell’s conviction was vacated in 2015, but Attorney General Brad Schimel’s Department of Justice unsuccessfully appealed that decision twice.
A jury convicted Scheidell in October 1995 of attempted first-degree sexual assault and armed robbery following a trial based heavily on testimony of the victim, J.D.
J.D. awoke in her apartment early one morning in May, 1995, to find a knife-wielding man straddling her waist. The perpetrator during the attempted assault wore a black knit ski mask and jacket over his head and never spoke. J.D. managed to retrieve a pistol from her nightstand and the man left.
She was certain he was her upstairs neighbor, Scheidell, based on the man’s “distinctive body and walk” and part of the face she saw while she struggled with him.
When police arrived, they found Scheidell coming down the stairs, looking like he just woke up. He gave a voluntary statement and allowed police to search his apartment, but found nothing incriminating. They searched the alley – nothing.
At trial, defense counsel sought to offer evidence of a different, similar sexual assault that occurred five weeks after the attack on J.D., when he was in custody. The second assault occurred about four blocks away from J.D.’s residence, and many of the facts of the crime, including mode of entry, weapon, mask, time of day, and build of the assailant, were similar.
The assailant in the second crime, however, got away and was not identified.
Scheidell’s trial judge denied admission of the evidence because there was not any evidence directly connecting a third person to the crime Scheidell was accused of committing.
The jury found him guilty in October 1995 and Scheidell appealed all the way up to the State Supreme Court. He lost there, with the court ruling that mistaken-identity evidence is not admissible when a defendant tries to show that some unknown person committed the crime.
Scheidell applied to the Wisconsin Innocence Project for help. In 2013, the Innocence Project obtained a DNA profile from the second sexual assault and matched the profile to a Wisconsin inmate serving time for a 1998 sexual assault.
Scheidell moved for a new trial to present evidence that a now known perpetrator committed the crime for which Scheidell had been convicted.
In June 2015, Racine County Circuit Court Judge John Jude granted the motion and vacated Scheidell’s conviction. Scheidell was released on bond shortly thereafter.
Although the state appealed, a three-judge Wisconsin Court of Appeals panel (including two conservative Gov. Scott Walker appointees) affirmed the grant of a new trial in the interest of justice.
“It is undoubtedly reasonable to conclude that this new evidence casts doubt upon whether justice was done in the original proceeding,” Appeals Judge Brian K. Hagedorn wrote in a concurring opinion. The Supreme Court denied the Schimel team’s request for review and sent the case back to Racine for a new trial.
Thursday, at a hearing set for argument on a motion to modify bond, Jensen, the assistant district attorney, moved for dismissal based on additional investigation.
Nielsen granted the motion and dismissed the case without prejudice, meaning the state could theoretically file it again. The judge gave defense attorney Patrick Cafferty until Oct. 2 to file a new motion with legal support for his position that the case should be dismissed with prejudice, meaning it cannot be filed again.
Scheidell sighed audibly several times when he approached his family and friends after the hearing.
Cafferty said that he is “thrilled for this gentleman” and attributed Scheidell’s release to the work of many lawyers.
Cafferty indicated that Scheidell’s original trial counsel, in particular Debra Patterson, worked hard to get the evidence of the second assault admitted:
“The work the lawyers did early on laid the foundation” and “they deserve the credit,” he said
Lifelong government monitoring of a convicted sex offender's location and movement is not a punishment because the main intent of such GPS tracking is to protect public safety, a state appeals court ruled last week.
"While the statutory scheme no doubt works some nontrivial punitive effects, these punitive effects do not override the primarily nonpunitive intent," District II Appeals Court Judge Brian J. Hagedorn wrote for the three judge panel. Joining Hagedorn in the opinion were Appeals Judges Paul F. Reilly and Lisa S. Neubauer.
Besides, he said, a person subject to lifetime monitoring because he or she is a threat to public safety can terminate the requirement simply by moving out of state. The opinion did not discuss public safety needs of those other states.
DeAnthony K. Muldrow sought to withdraw his guilty plea to third degree sexual assault and sexual assault of a child under 16 years of age because no one told him before his plea that his conviction would make him subject to lifelong monitoring. The appeals court, though, said the nonpunitive nature of having the government know his every move meant that the judge was not required to inform him of that particular "collateral consequence to his plea."
A person subject to monitoring must wear a 2.5- by 3.5- by 1.5-inch tracking device around his or her ankle at all times, Hagedorn wrote. Tampering with the device, which can cause discomfort and blistering, is a felony. It may not be removed, even for showering, bathing, or sleeping, and the wearer must plug it in every 24 hours for one hour while still wearing it. The tracker can bulge, or may be visible if his or her pants leg raises up.
"This may allow others to infer that the wearer is a sex offender, subjecting him or her to embarrassment, harassment, or even violence," Hagedorn wrote.
"But merely having substantial punitive effects does not automatically render a statute punitive ...," Hagedorn wrote. "The design and legal standards governing lifetime GPS monitoring all point to the obvious goal of protecting the public from dangerous child sex offenders."
The Wisconsin Supreme Court already found that mandatory sex offender registration was not punitive because its primary intent was to protect the public and assist law enforcement, Hagedorn said.
"This did not mean, however, that there were no punitive consequences," he wrote. "As the defendant argued, sex offender registration results 'in ostracism, humiliation, and retaliation.' "
The Supreme Court acknowledged that registration might result in punitive aspects such as vandalism, job loss, and harassment, but it did not accept that those possibilities overrode the primary goal of the law.
Similarly, "The intent and primary goal of lifetime GPS monitoring is clearly to protect the public and is nonpunitive in nature," Hagedorn said. "And while the statutory scheme no doubt works some nontrivial punitive effects, these punitive effects do not override the primarily nonpunitive intent."
The monitoring provision applies to those convicted of serious child sex crimes and allows the government to know whether offenders enter "exclusion zones," such as school grounds, where children congregate.
Offenders deemed a serious threat in Wisconsin can get out of lifetime GPS monitoring by moving to another state.
Hagedorn also said that offenders may apply to have the "lifetime" monitoring lifted after 20 years. An offender also may be freed from GPS monitoring by becoming permanently incapacitated or by moving out of state "where, presumably, the person is no longer a danger to Wisconsin citizens."
"The legislature has established a reasonable scheme to monitor those who pose a serious risk of harm to others," he wrote.
Adults can be slapped with felony charges for offenses committed at age 9, when they were too young to be considered delinquent, a Court of Appeals panel ruled Wednesday.
The ruling came in a Waukesha County case. The defendant, Shaun M. Sanders, allegedly kissed and fondled his sister's breasts when he was a young boy. The sister testified that the touching and kissing progressed to include oral sex when Sanders and she grew older .
The District 2 panel, in a decision written by Appeals Judge Mark D. Gundrum, ruled that state law does not prohibit children under 10 from being prosecuted for crimes, even though state law does not give juvenile courts jurisdiction over children alleged to be delinquent until they are 10.
Appeals Judge Brian K. Hagedorn joined in the opinion, and Appeals Judge Paul F. Reilly concurred in it. The decision affirmed rulings by Waukesha County Circuit Judges Jennifer Dorow and Lee S. Dreyfus, Jr.
In his opinion, Gundrum said the Legislature never adopted a law establishing that charging decisions should be determined by the defendant's age when the crime was committed "despite 50 years of holdings reiterating that the competency of a circuit court to address criminal acts of an individual is determined by the individual's age when a legal action is filed and not when he/she committed the acts,."
The appeals panel acknowledged that Sanders, if his alleged conduct has been discovered before he was 10, would have been treated as a child in need of protective services (CHIPS).
Sanders, now 22, denied the allegations against him. He told the jury that for about one month, when he was eight or nine, he would ask his sister to lift up her shirt and show him her breasts.
He eventually was acquitted by a jury of repeated sexual assault of a same child, a crime he was accused of committing from the age of nine to 12, but was convicted of repeated sexual assault of a child, incest with a child and enticing a child for sexual purposes crimes that occurred when he was 14 years old to 18 years old.
Sanders argued that his lawyer was ineffective for not trying to get the first count dismissed and that allowing the jury to hear the allegations contained in the first count was prejudicial to his case.
The court rejected Sanders ' assertion that the legislature set age limits for the juvenile and adult systems to protect children younger than 10 from the potential consequences of their actions.
"Our courts ... have explained that the legislative purpose of the age limits is to ensure persons who commit criminal acts are treated by our justice system in a manner appropriate to their age when the actions are addressed by the system and not their age when they committed the wrongful acts," Gundrum wrote.
In his concurrence, Reilly he said he was concerned that "at some stage a child does not have the capacity to commit a crime, i.e., siblings, aged two and three, sharing a bath and paying 'doctor' do not have the capacity to commit the crime of sexual assault of a child."
"The imprisonment of an adult for conduct the person engaged in when they were between the ages of one and nine years old strikes me as akin to punishing a puppy two days after the puppy had an accident in the house - the child/puppy has no idea why they were just struck and all they have learned is a fear of their master," he wrote.
However, he said, an appeals court previously ruled that it was OK to file a delinquency petition against a 12-year-old who committed a crime when he was still young enough to qualify as a CHIPS.
"If it is permissible for the state to pull a CHIPS category act into a delinquency petition, then there is no logical reason why the state cannot pull a CHIPS category act into a criminal complaint," he wrote.
A Court of Appeals panel on Thursday threw out a search that resulted in felony drug charges against a man, but let stand three counts of felony bail jumping issued when the man violated the conditions of his release on the drug charges.
Oddly enough, missing a drug test is, by itself, not a crime, but was elevated to that level only because it was a condition of release in the case that the appeals court dismissed.
The District IV panel, in an unsigned opinion, first ruled that a La Crosse police officer was not justified in his pat down of Timothy C. Eigner, a search that led to charges of possession methamphetamine and drug paraphernalia.
The panel was fairly harsh in some of its assessment of the state's case: "The proposition that anyone who rides a motorcycle in a group is likely to be a member of the Outlaws (motorcycle gang) and, therefore, armed and dangerous, is entitled to little or no weight," the decision said. The panel members were JoAnne F. Kloppenburg, Gary E. Sherman, and Brian W. Blanchard.
The panel also ruled, however, that Eigner's lawyer did not show La Crosse County Circuit Court Scott L. Horne was wrong when he ruled a prosecutor was not vindictive when she filed three felony bail-jumping charges against Eigner.
The prosecutor, Assistant District Attorney Emily Hynek, not happy that Eigner's lawyer was challenging the search, wrote in an email, "I'll probably charge the (felony bail jumping charges) too, just to make it worth my while if I have to write (the brief)."
The prosecutor later said she really was only interested in getting Eigner into drug treatment.
According to the decision:
La Crosse Police Officer Casey Rossman was on patrol about 1 a.m. when he saw three motorcyclists outside a bar, revving their engines and spinning their tires.
He followed the three and, at an intersection, one turned left and two turn right. One of the two right-turners continued down the road, and the second, Eigner, turned down a side road and stopped in a well-lit area. Eigner, dressed in a hooded sweatshirt and jeans, put down the kickstand and got off the motorcycle. He took out his wallet and removed a card. Rossman approached and the two, standing side by side, spoke briefly. Eigner handed Rossman the card. Rossman asked whether Eigner had weapons, and Eigner responded that he does not.
Rossman put his hand on Eigner's back to start a pat-down and, as he did so, asked Eigner if he minded. Eigner's reply is not clear on audio attached to the officer's video of the incident. The appeals court said Rossman already had started the search when he asked the question.
Eigner was compliant, polite, and non-threatening throughout the encounter, the court said.
"I'll probably charge the (felony bail jumping charges) too, just to make it worth my while if I have to write (the brief)." - La Crosse County Assistant District Attorney Emily Hynek
Rossman testified in Circuit Court that it was not "typical behavior" for a motorcyclist to dismount from the bike after a traffic stop and that Eigner's behavior in doing so was concerning.
"I don't know what their intentions are, there's no barrier between him and I, and it could put me in danger... I don't know if they're going to flee, I don't know if they're going to attack me, for safety reasons," Rossman said.
The court rejected that argument. "One does not have to be a motorcyclist to readily understand that fully complying with an officer during a traffic stop, including fishing for a driver's license and proof of insurance, might well require dismounting from the motorcycle, or at least make a prompt dismount a highly attractive option for many motorcyclists," the court said.
Rossman also testified about a training session he attended about the Outlaws. "He had learned that most if not all Outlaw gang members applied for concealed carry permits and were likely carrying weapons," the court said. "However, Rossman also testified that he had no reason to believe that Eigner was a member of the Outlaw gang."
The panel also said the state's argument about the lack of a barrier did nothing to prove that Eigner was dangerous. "There is no limit to the State's argument, which is in effect that any time an officer is face-to-face with someone the officer has encountered in an official capacity, where there is 'no barrier," there are reasonable grounds for a pat-down. That is not what the case law instructs us is reasonable under the Fourth Amendment," the court wrote.
"My goal in this entire case was to get Mr. Eigner the treatment that I thought he wanted." - Hynek
At the hearing on the motion to dismiss the bail jumping charges, the prosecutor said her intent in filing the charges was to get Eigner the help he needed for his drug addiction. She said she was "irked" that Eigner's original lawyer "was making money off putting off Mr. Eigner getting into treatment.
"I'm not mad that I have to do suppression hearings, I do them all the time, but my goal in this entire case was to get Mr. Eigner the treatment that I thought he wanted," she said. By filing the bail jumping charges, she could help assure Eigner would get help.
Eigner's lawyer argued that the prosecutor's argument was "less compelling" than the originial email and that, if the prosecutor really was interested only in drug treatment, additional charges would only be needed if the state lost the suppression motion. Instead, the charges came when the motion was pending.
The court disagreed: "Eigner fails to explain why we should not rely on the circuit court's finding that the prosecutor filed the new charges for the reasons she explained, which did not have a retaliatory purpose."
Walking and talking to a woman about 6 a.m. in an area known for prostitution is not enough to justify a police seizure of the man involved in the discussion, a State Court of Appeals panel ruled Thursday.
The panel overturned the felon in possession of a firearm conviction of Samuel K. Dixon, sent the case back to Milwaukee County Circuit Judge Thomas J. McAdams and ordered him to suppress the gun evidence found when after the illegal stop.
The District 4 panel said there was no reason to believe that Samuel K. Dixon and the woman were engaged in any prostitution-related activity when a police officer pulled his unmarked squad car partially onto the sidewalk so that one of the car’s front tires was about two feet from the Dixon, and then immediately turned the car’s red and blue lights.
The appeals panel included Judges Paul Lundsten, Gary E. Sherman and Brian W. Blanchard.
“There was nothing to suggest that the officer recognized Dixon or the woman as being involved in prostitution previously,” the panel said in an unsigned opinion. “(There was) nothing to suggest that they matched the description of anyone involved in prostitution; nothing to suggest that the woman beckoned to Dixon or talked to any other man; nothing to suggest that the woman’s age or appearance was what police thought was typical for prostitutes in the area; and nothing to suggest that the two had exchanged money, drugs, or any other item.”
The incident occurred near W. Lisbon Ave. and N. 29th St. in Milwaukee.
The officer testified, according to the decision, that Dixon was “clean-cut and well-dressed” and described the woman only as a “thicker black woman.” The two were “just hang[ing] out on the corner”; “[j]ust walk[ing] back and forth … [p]robably a good 3, 4 times”; “just walking and just talking”; “engaging in conversation and just walking and talking and like circular motions”; “chitchatting”; and “smiling.”
Dixon and the woman did not attempt to flee when the squad pulled up. The officer got out of the car; he testified he saw Dixon move his hands toward his rear pockets. The officer ordered Dixon to stop moving his hands, which Dixon did not do. The officer then ordered Dixon to turn around and raise his hands, which Dixon did.
Dixon had a gun and he was ultimately charged with being a felon in possession of a firearm. In 2009, Dixon pleaded guilty to two counts of armed robbery.
McAdams, the circuit judge, rejected Dixon’s contention that he was unconstitutionally seized, but the appeals panel disagreed. The panel accepted Dixon’s argument that no reasonable person would feel free to leave when an officer pulled his squad that close and activated the lights. The state did not develop an argument to refute Dixon, but instead concentrated on his failure to obey the order to stop moving his hands. The panel, though, said Dixon did submit to police.
“Specifically, Dixon stayed in place when the officer pulled his squad car up partially onto the sidewalk two feet from Dixon and activated the squad car’s red and blue lights,” the appeals decision said. “As noted, the officer testified that Dixon ‘just stood there.’ Dixon’s subsequent reaching toward his back pocket in apparent disobedience of the officer’s order not to reach would have justified a protective frisk or further investigation, but those subsequent events do not negate the seizure that already occurred.”
The panel also rejected the state’s contention that the officer had enough reasonable suspicion to make the stop.
“In this respect, Dixon’s case brings to mind others in which courts concluded that reasonable suspicion was lacking when the facts consisted of little to nothing more than innocuous behaviors taking place in ‘high crime’ areas,” the panel said.
Racine County Circuit Judge Michael J. Piontek knows now the he should make sure his private research is accurate before he uses it to sanctimoniously and publicly cudgel a defendant in open court.
Piontek’s reliance on his own shoddy research when sentencing defendant Patricia A. Enriquez means she is entitled to be resentenced, a Court of Appeals panel ruled.
By a different judge.
The District 2 appeals panel noted in a footnote that the judicial conduct code says “ ‘[a] judge may not initiate, permit, engage in or consider ex parte communications concerning a pending or impending action or proceeding’ except under certain circumstances that do not apply here.”
Piontek was relying on the unverified information when he called Enriquez “probably the biggest liar” that had ever come before him, and then refused to let her respond, according to the opinion.
“I don’t want any comment from you anymore,” he said.
Enriquez surely had her problems. She was a nurse who provided non-narcotic drugs to a police informant and, as a result, pleaded guilty to two counts of delivering controlled substances.
But Enriquez also had an 18-year nursing career, a master’s degree, had served four years in the Army Reserve, and had no prior criminal convictions. She suffered from diabetes and multiple sclerosis, and had endured two neck fractures, one as a girl and one more recently, wrote Appeals Judge Lisa S. Neubauer for the panel.
“I know that I used poor judgment,” Enriquez told Piontek during her sentencing hearing. “And I no longer will be in nursing. I am retiring. And for this I am very regretful and very remorseful.”
Piontek then presented the results of his internet detective work, which he claimed “showed that Enriquez’s license to practice nursing in Texas had been revoked in 2000 because she had misappropriated morphine from the hospital where she had worked and that she had never possessed a license in Illinois,” Neubauer wrote.
Piontek lit into Enriquez, according to the July Appeals Court decision.
“You know, you’re taking morphine, either not giving it to the patients, administrating it to yourself, selling it. I don’t know what exactly it is. But I do know that it’s true that your license was revoked because you took Morphine that was destined for patients or destined for discarding. And you used it or sold it or a combination of both.”
“If you’re going to lie to the Court and present patently false information to me in order for me to fashion a sentence, and I was born but it wasn’t yesterday, and I find out about it, there is a—there is a consequence to that…. …. Your character is, I would classify as miserable concerning honesty…. The aggravating circumstances are your dishonesty to the Court, to the Court’s agencies including the author of the presentence report.
Except that Enriquez’s license wasn’t revoked in Texas and she was a licensed nurse in Illinois for 28 years. She submitted information from the Illinois Department of Financial and Professional Regulation verifying her licensure in that state and submitted documentation from the Texas Board of Nursing showing that she had voluntarily surrendered her nursing license. Also included was a document charging her with seventeen counts of violating Texas law, but she said there was nothing showing she sold morphine. (Enriquez claimed that she did not correctly document some morphine withdrawals, but the records also indicated she tested positive for the drug, according to the decision.)|
Piontek, relying in part on the inaccurate information he dug up on his own, hammered her with a sentence of five years behind bars and six years of extended supervision. The prosecution had sought a much lighter sentence -- 18 months in prison and 18 months extended supervision on one of the count and three years probation on the other count.
As Neubauer noted in her footnote, comments in Wisconsin’s Supreme Court Rules “state that “[a] judge must not independently investigate facts in a case and must consider only the evidence presented. As our supreme court has said, “[a] judge must not go out and gather evidence in a pending case. To do so is error…. Indeed, one of the many problems with an independent investigation is the potential for error and, as was the case here, the inability of the parties to factually and legally address the judge’s information other than in an ad hoc manner, leading to further error.”
The Wisconsin Bankers Association -- a campaign contributor to two State Supreme Court justices in their most recent races – is asking the court to rule in its member’s favor in a case the court has not even accepted yet.
The association wants the court to find that a man who signed away his right to take disputes with the bank to a jury – ever – must stick to the agreement even though the bank representative would not let the man consult a lawyer before signing the document, did not give him time to review the document, and threatened to pull a loan if he did not sign, threatening the viability of a real estate project and the $30,000 the man already had sunk into it.
Then, after the man sued, the bank waited three years after the start of litigation to invoke the jury waiver and insist on a court trial.
Speaking of sunk money – the Wisconsin Bankers Association (WBA) gave Supreme Court Chief Justice Patience D. Roggensack a $1,000 campaign contribution in 2013. Justice Michael G. Gableman got a $250 campaign contribution from the association 2008.
WBA filed a “friend of the court” brief urging the court to reject a lower court’s decision finding that the waiver was obtained through fraud and extortion. The appeals court overturned Milwaukee County Circuit Judge Jeffrey A. Conen’s finding that the waiver was A-OK.
“The WBA believes that the jury waiver at issue here is valid and enforceable under the circumstances of this loan,” the association said in its brief, filed in support of a petition asking the Supreme Court to hear the case. It is unusual for friend of the court brief to be filed with the Supreme Court this early in a case, according to lawyers asked about the matter.
State Financial Bank was acquired by Associated Banc-Corp. in 2006.
The man, Taft Parsons, whose day job was running his own single-person structural engineering firm, signed a loan document waiving his right to a jury trial in any dispute involving the bank, ever, whether or not the dispute was related to the loan involved. Parsons signed the document after loan officer Aaron Moeser said the bank would withdraw a $774,000 loan offer if Parsons refused to sign.
Taft and his wife, Carol Parsons, sought the loan to support conversion of some rundown properties in their neighborhood into townhouses. They discussed their plans with a contractor, Central City Construction (CCC), and asked its vice president, Joseph Bowles, whether CCC would be the general contractor in the project, according to the Court of Appeals decision in the case.
Eventually, the Parsons signed agreements for two loans offered through Moeser. The first was a $40,000 home equity loan; the second was a $774,000 construction loan. They already had a $30,000 loan from the bank for pre-construction costs.
For months, CCC did not perform agreed-upon work. After about seven months, Bowles and Moeser gave the Parsons a packet of documents to sign, the Court of Appeals said.
According to the Parsons’ lawsuit, the Appeals Court said, “the Parsons were not allowed any time to review the documents or consult with an attorney before signing, and...Moeser threatened to withdraw the construction loan if Taft did not promptly sign the documents.”
(Moeser later was convicted in federal court of a felony in an unrelated bank case.)
The packet contained almost 30 pages of documents, including a promissory note that had a jury waiver printed at the bottom of the last page, in all capital letters. The waiver called for Parsons and the bank to give up the right to have a jury resolve disputes rooted in “any relationship between the borrower and the lender.”
Taft Parsons signed the document. If he had not, according to court documents, he would have lost the $30,000 he already had borrowed from the bank and put into the project.
CCC continued to collect money directly from the bank, over Taft Parsons’ objections, despite no work getting done on the project. Eventually, the project went belly up.
State Financial Bank foreclosed on the Parsons’ home, which secured the bank loans, and the foreclosure action continued after Associated acquired State. Taft Parsons filed for bankruptcy, but managed to save his home.
The Parsons sued in 2011, alleging, among other things, that bank negligently hired, supervised, and trained Moeser.
The Parsons demanded a jury trial and paid the jury fee. Litigation went on for three years, with the bank fully participating. Then, six months before the case was to go to trial, Associated argued the Parsons did not have a right to a jury trial.
Writing for the three-judge appeals panel, Appeals Judge Joan F. Kessler said the bank missed its statutory deadline to seek a court trial and that Conen “ignored the fact” that Parsons mostly likely already had incurred costs preparing for a jury trial.
In addition, Kessler wrote, “it is abundantly clear that the Parsons have provided facts to support their allegations that the jury waiver clause was fraudulently obtained by the bank.” The waiver was unconscionable, she said.
WBA, in its friend of the court brief, disagreed.
“Here, Borrower was a sophisticated , educated, experienced business owner taking on a complex project, in a state where there are plenty of lenders, and he had the right to walk away from the loan if he did not like the terms or the timing,” WBA said.
The association did not address Associated’s delay in trying to enforce the waiver.
Miranda still counts sometimes!
An appeals court panel on Tuesday threw out the sexual assault adjudication of an intellectually challenged teenage boy because the armed detective who questioned him alone in a closed conference room did not read the youth his Miranda rights or tell him he had the right to have an adult present.
At the time of his questioning, the boy, referred to as James in the decision by District 3 Appeals Judge Mark A. Seidl, resided by court order at Tomorrow's Children, a residential facility for children with special needs. James was not allowed to leave the grounds of the complex. When he was questioned in 2013, James was 16, but his math and English skills were at a fourth- or fifth-grade level, Seidl wrote. James' IQ previously was measured at 68.
"The totality of the circumstances suggested James was not free to terminate the law enforcement encounter, and (Waupaca County Sheriff's Detective John) Mocadlo—the adult authority figure who was directing the encounter—did nothing to dispel that notion," Seidl wrote in remanding the case. "To conclude a teenager in James’s circumstances would have felt free to get up and walk away would ignore the reality of the situation."
Mocadlo questioned James at Tomorrow's Children about the sexual assault of another resident at 40 days earlier. (Yes, one may question why it took the Sheriff's Department 40 days to investigate a crime.) The detective was in plain clothes, but was wearing a badge and carrying a gun, both of them visible.
Mocadlo did not tell James that he did not have to participate in the interview or that he had the right to have his parents or another adult present.
Mocadlo took James to a basement conference room "and closed the door behind them," Seidl wrote. "Mocadlo never told James that he had the right to get up and walk out the door or that he was free to leave. However, James was not physically restrained or handcuffed."
The detective did not give Miranda warnings, but told James that if he did not want to answer a question, to say so and they would "move on."
Eventually, Mocadlo told James he was there to investigate an incident that had occurred between James and another boy and James described his sexual contact with the resident. The staff already had talked to him about it, James said.
James asked St. Croix County Circuit Judge Edward Vlack III to suppress the statement, but Vlack declined.
"A reasonable person in James’s position would not have felt free to terminate the interrogation and leave the scene," Seidl wrote. "The overall context of James’s experience was that he was already involuntarily present at the facility, placed there by court order....While we do not equate James’s placement to jail, from the perspective of someone in James’s position, he was restricted to the facility grounds by governmental authority and was under constant supervision. Presumably, there would be negative consequences for failure to follow staff instructions."
A divided Appeals Court panel ruled last month that handcuffed a man and placed him face down on his kitchen floor by a heavily armed SWAT team was not "in custody" and did not have to be read his Miranda rights before being questioned a bit later by armed officers.
The SWAT team left and the handcuffs were removed from the man, Brian Kilgore, before the questioning occurred, but he was not free to leave his house at the time and was ordered to stay in the living room when he tried to leave, according to the panel.
"A seizure, as compared to custody, is limited in duration and scope, and does not have the same element of coercion," District 2 Court of Appeals Judge Lisa S. Neubauer wrote, upholding the ruling by Sheboygan County Circuit Judge Terence T. Bourke that Kilgore was not in custody when he was questioned.
Kilgore eventually was convicted of second-degree sexual assault for drugging and raping a woman in a home he shared with another man. The search warrant authorized police to both search the home and get DNA samples from both Kilgore and his roommate to compare to DNA found on the victim.
Neubauer was joined in her opinion by Appeals Judge Mark D. Gundrum. Appeals Judge Paul F. Reilly, while concurring that the search warrant was valid, dissented from the finding that Kilgore was not in custody.
"I look at the objective facts from the record and see the scene of a 'police dominated atmosphere' in which a reasonable person would not have felt at liberty to terminate the interrogation and leave," he wrote in his partial dissent.
Neubauer said police questions focused first on Kilgore's roommate, who Sheboygan Police Detective Tamara Remington said during a suppression hearing was the main suspect in the case.
Remington also testified that Kilgore's interrogation took "a very long time." During it, he was very talkative and "seemed all too eager to implicate (the roommate) as best he could," Neubauer wrote. In addition, the questioning occurred in Kilgore's own home and not in the "inherently coercive" surroundings typical of an in-custody-interrogation, the judge said.
Kilgore was not allowed to leave, but he was not in custody.
While Kilgore was not free to leave, police did not tell him that, Neubauer wrote. In addition, Kilgore could leave "when the officers were done, i.e., he was not under arrest, but rather, temporarily detained," she said.
Reilly, in his partial dissent, noted that the search warrant included Kilgore as a suspect and that during the suppression hearing, Remington "changed her tune" from Kilgore being a suspect to Kilgore being a potential witness.
"In my opinion, it is illogical for the majority to agree that probably cause existed that Kilgore had drugged and raped (the victim)...while at the same time accepting Remington's revisionist testimony that Kilgore was never a suspect, only a 'potential witness,'" he wrote.
The warrant was executed by Remington and 11 other officers, including a SWAT team, he said. After the SWAT team left, at least five armed officers remained. Police never told Kilgore whether he was or was not under arrest, that any cooperation he gave was voluntary, or that he was free to leave, Reilly said.
"I place emphasis on the on the fact that Kilgore was thrown to the floor with M4 rifles pointed at his head and shackles placed on his arms, that at least five armed officers remained in the house after the SWAT team vacated, on Remington's admission that Kilgore was not free to leave during her interrogation, that Remington was not going to take the buccal swab of Kilgore until she finished her interrogation as she knew that as soon as the buccal swab was taken that Kilgore would be free to leave, and that when Kilgore tried to leave the living room he was ordered to stay where he was," Reilly wrote.
"The totality of the circumstances demonstrate that the police aggressively engaged in executing a search warrant in Kilgore's home and dominated the scene for the entire time that Kilgore was questioned," he said.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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