By Gretchen Schuldt An abortion protester's comments to a clinic employee about “bad things happening to you and your family” and that “you’re lucky if you make it home safe” constituted harassment and went beyond protected free speech, the state Court of Appeals ruled Tuesday. The District III appeals court panel upheld an injunction barring, until Sept. 9, 2024, Brian Aish from harassing nurse practitioner Nancy Kindschy and requiring him to avoid her residence or any premises she temporarily occupies, including the Blair Health Center. Kindschy worked at the clinic, which did not provide abortions. It provided Planned Parenthood family planning services. "Although Aish claims that he intended only to influence Kindschy to leave her employment, to shut down Planned Parenthood, and to proselytize, his comments and behavior were harassing to Kindschy, making his actions unprotected speech," Appellate Judge Gregory B. Gill wrote for the three-judge panel. He was joined in his opinion by Appellate Judges Lisa K. Stark and Thomas M. Hruz. "An individual’s ability to protest abortion, like any other subject, is not unlimited," Gill wrote in the decision upholding a ruling by Trempealeau County Circuit Judge Rian Radtke. Kindschy petitioned for the harassment injunction in March 2020, alleging that Aish's behavior made her fear for her safety. He had protested at clinics where Kindschy worked since 2014, and he grew confrontational in 2019. “You have time to repent," Aish told Kindschy one day that year, according to testimony, Gill said. Aish also told Kindschy that "You will be lucky if you don’t get killed by a drunk driver on your way home. Bad things are going to start happening to you and your family.” About a week later, Kindschy testified in circuit court, Aish approached her vehicle as she left the clinic and told her angrily that, “you have blood on your hands.” "Kindschy saw Aish receive a citation for trespassing, which Kindschy believed angered him even more," Gill wrote. "Kindschy was frightened of Aish’s aggressive and angry behavior." Aish also followed Kindschy to her car and told her that she would be "lucky" if she got home safely and that bad things were going to happen to her family. "A week later, Aish accused Kindschy of lying to the authorities about him and told her that she would be 'lucky' to make it home safely, which caused her 'great concern,' ” Gill said.
0 Comments
By Gretchen Schuldt A defense lawyer who failed to seek a child protective services report indicating that a child made a false accusation of sexual abuse was ineffective in representing a man later accused of assaulting the same girl, the state Court of Appeals has ruled. The lawyer, Gary Kryshak, was ineffective even though he testified that he was pursuing a different defense strategy, District IV Court of Appeals Judge Rachel A. Graham wrote for a three-judge appeals panel. "The CPS report contained information that was not only material but also could have significantly enhanced counsel’s chosen strategy," Graham wrote. She was joined in her opinion by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold. The panel reversed Shane A. Stroik's conviction and ordered a new trial. Kryshak also erred when he did not object to a prosecutor's inference that Stroik's strong sex drive made it more likely that he assaulted the five-year-old girl, referred to in the decision only as "Amy." Kryshak, however, adequately addressed the insinuation in his closing argument, Graham said. Amy's parents were separated and going through a contentious divorce at the time of the alleged assault by Stroik in 2016, according to the decision. Amy lived largely with her father and stayed with her mother and Stroik, who were in a relationship, every other weekend. Amy told her father that Stroik had touched here "meme," meaning vagina, and her father reported it to the family social worker. The girl was interviewed by a forensic interviewer and repeated her allegation. "At one point during the interview, when asked to describe Stroik, Amy indicated that he was bald," Graham wrote. "However, it is undisputed that Stroik was not bald." Amy also said that her paternal grandfather also had repeatedly assaulted her. The grandfather died earlier that year. When police interviewed Stroik and Amy's mother, both said Amy had made an earlier allegation of sexual assault against a cousin, but nothing came of the child protective services (CPS) investigation. Kryshak, Graham said, "was aware that there had been a CPS investigation into Amy’s statements about her cousin’s conduct. However, trial counsel did not look further into the matter related to the cousin and did not attempt to introduce evidence at trial about Amy’s prior allegation against her cousin." During his opening statement, the prosecutor "made several comments about Stroik’s 'sex drive,' ” Graham said. For example, "the prosecutor asserted that Stroik had a 'very high sex drive' and therefore, according to the prosecutor, 'the presumption of course is that [he touched Amy] for a sexual purpose.' ” The prosecutor also questioned Amy's mother about how frequently she and Stroik had sex. "Do you remember saying that it was more sex than you ever had before?" he asked at one point. He also asked her about Stroik's interest in pornography, although none of it involved child pornography. "Trial counsel did not object to any of this questioning," Graham said. When Amy testified, she was unclear about whether Stroik assaulted her. "When the prosecutor initially asked Amy if she knew 'why we’re here today,' she responded, 'No,' ” Graham wrote. "Amy went on to testify that she remembered 'going to talk to a lady [that is, the forensic investigator] about something that happened with Shane [Stroik],' but that she did not remember anything happening between her and Stroik." She offered other contradictory testimony as well, but was clear in testimony that her paternal grandfather assaulted her and she remembered those things. A jury found Stroik guilty of first-degree sexual assault, and Portage County Circuit Judge Robert Shannon sentenced him to five years and eight months in prison and six years of extended supervision, according to the state's online court records system. By Margo Kirchner The Wisconsin Court of Appeals said Tuesday the State Supreme Court should decide the fate of the victims’ rights constitutional amendment known as Marsy’s Law that voters approved last year. A District III Court of Appeals panel on Tuesday certified the appeal to the Wisconsin Supreme Court because Wisconsin Justice Initiative’s challenge to the amendment involves “significant questions,” the answers to which “will have a sweeping effect on our criminal justice institutions and those operating within them.” WJI, three individual voters, and Sen. Fred Risser successfully challenged the wording of the ballot question presented to voters for amendment approval. Dane County Circuit Judge Frank Remington ruled in November 2019 that the 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. He stayed his ruling pending appeal, which allowed the question to appear on the ballot. Marsy’s Law, WJI President Craig Johnson said Tuesday, “runs the risk of negatively affecting the constitutional rights of the accused in a way that the original proponents always denied was their intention. Yet that's the stark reality, and voters were never informed about this. The ballot question did not explain the issue fully and fairly, and left people to vote in the dark." Johnson also is an individual plaintiff in the case. The Supreme Court now must choose whether to decide the appeal itself (skipping the Court of Appeals) or tell District III to consider the matter first. The District III panel judges were Lisa K. Stark, Thomas M. Hruz, and Jennifer E. Nashold, who usually occupies a seat on the District IV appeals court. Tuesday’s 20-page explanation of the certification was issued without an identified author. The appeals court said that certification would speed up the important final decision. It would be in the best interests of those involved in the criminal justice system and Wisconsin voters generally “to have a timely and final decision on the sufficiency of the ballot question producing the amendment to our state constitution,” the court wrote. The appeal has been fully briefed before District III since early April 2021. Attorney General Josh Kaul appealed the trial court’s judgment on behalf of himself, the Wisconsin Elections Commission and its chair, and Secretary of State Douglas LaFollette. The defendants chose to venue the appeal in District III. Dennis Grzezinski, lawyer for the plaintiffs, noted the court of appeals’ summary of WJI’s arguments that the ballot question was misleading and legally insufficient, “which led the Circuit Court to rule that the proposed amendments to the Wisconsin Constitution were not validly ratified.” “We look forward to having the Wisconsin Supreme Court address these issues,” said Grzezinski. Appeals court's electronic monitoring ruling is in favor of youth but skips the big questions12/14/2021 By Gretchen Schuldt A judge who orally gave one disposition for a juvenile offender but issued a different disposition in writing must adhere to his oral order, the state Court of Appeals ruled Tuesday. The ruling means that Brandon, if still on court-ordered supervision, does not have to wear an ankle bracelet unless the state specifically requests it and the judge agrees. District III Appellate Judge Gregory B. Gill Jr. did not rule on a key issue raised in the case: Is electronic monitoring something the court must order or can it be implemented by a juvenile justice worker as a "case management tool"? Brandon is a pseudonym to protect the juvenile's identity, Gill said in his opinion. Electronic monitoring of juveniles is widespread and controversial. Academics and advocates have expressed numerous concerns about the practice. As the University of California Berkeley School of Law’s Samuelson Law, Technology & Public Policy Clinic and the East Bay Community Law Center put it: Although generally perceived as a less punitive alternative to incarceration, electronic monitoring can be overly burdensome: it often entails home confinement, invasive surveillance, and high fees. As the report demonstrates, programs can impose dozens of strict and inflexible rules on participants. Financial burdens imposed by electronic monitoring programs disproportionately hurt low-income families. Personal privacy violations are also a concern. Brandon was on electronic monitoring because of a broken toilet tank cover and toilet paper dispenser. He was arrested in August 2020 after Antigo police received a complaint about damage at a local laundromat. The toilet tank cover was smashed and a toilet paper dispenser was ripped of the wall, resulting in total damages of $150 to $400. Surveillance footage showed Brandon walking into the restroom and leaving a short time later. The footage also showed the broken items on the floor a short time later. Brandon, when questioned by police, said the he punched the toilet paper dispenser because it was not working, Gill wrote. He said the toilet was not flushing properly, so he lifted the tank lid, and it slipped. He eventually admitted to one count of disorderly conduct; both his lawyer and the state recommended formal supervision. Langlade County Circuit Judge John B. Rhode explained during the disposition hearing that he could order electronic monitoring, among other things. Brandon was already on an ankle bracelet ordered during an earlier hearing, asked when he could have it removed. A juvenile justice worker said Brandon would have to show good behavior and then his treatment team would decide when to remove the monitoring. (Most of the records in the case are sealed because a juvenile was involved, so it cannot be determined how long Brandon was on electronic monitoring or when or if the monitoring ended before Tuesday's decision.) Brandon's lawyer requested the ankle bracelet be removed. "During argument, the State noted significant concerns about Brandon, including several hospitalizations for self-harming activities," Gill wrote. "The State further argued that Brandon was able to transition back to his home while being accountable to his supervision...through the use of electronic monitoring. With respect to the electronic monitoring, the State noted that it was not a punishment but, rather, a case management tool." Gill did not address how electronic monitoring would prevent Brandon from hurting himself. Brandon's mother expressed concerns about his behavior and the juvenile justice worker said Brandon did not come right home after school as his mother had instruction the week earlier and on another occasion, had left home without permission. The worker "stated that Brandon was not confined by the electronic monitoring because he was able to go to school, appointments, and places with his mother." The worker also said he "considered electronic monitoring a great management tool," Gill wrote. "Conversely, Brandon’s counsel argued that electronic monitoring was not a case management tool but instead a 'sanction to be given by the Court,' ” Gill wrote. Rhode put Brandon on supervision for a year and declined to order electronic monitoring. (Online court records indicate that Brandon's supervision may have lapsed last month.) "All I will say to both sides if the [S]tate wants me to order it they can schedule further proceedings and we’ll take that up," Rhode said from the bench. "If the defense wants me to order that it stop they can schedule further proceedings and order that it stop or if they think it’s being used inappropriately." When Rhode's written decision came down, however, it adopted the county's juvenile "rules of supervision," which includes a rule that states: “The youth shall participate in the electronic monitoring program as deemed appropriate by the assigned juvenile worker for any violation of supervision.” Brandon appealed, arguing first that the Rhode cannot delegate to the juvenile justice worker the authority for imposing electronic monitoring. He also argued that electronic monitoring was not an appropriate sanction because it was not included in the state statute establishing approved punishments. "We need not address these issues because we conclude that the court's written order was inconsistent with its oral pronouncement," Gill wrote. When oral and written pronouncements conflict, he said, the oral pronouncement rules. State appeals court OKs restitution order for more than twice the value of the damaged property11/18/2021 By Gretchen Schuldt A Fond du Lac County judge did not err when he ordered a mentally ill man with $113 in monthly disposable income to pay $5,486 in restitution for repairs to a stolen truck worth less than half that amount, the State Court of Appeals has ruled. The 2-1 decision by the three-judge District II Court of Appeals panel upheld a ruling by Circuit Judge Robert J. Wirtz. Appellate Judge Shelley A. Grogan wrote the decision and was joined by Appellate Judge Lisa S. Neubauer. Appellate Judge Paul F. Reilly dissented. "The only issues are whether the circuit court erroneously exercised its discretion in setting the amount of restitution or in finding (Alex Scott) Stone had the ability to pay," Grogan wrote. State law, she said, allows a judge to order restitution for "reasonable repair cost." Wirch did that, she said. The defendant had mental health issues and disposable income of $113 per month. Reilly took issue with that analysis but outlined another basis of disagreement in a footnote. "It is my belief, however, that imposing a restitution order against a mentally disabled young man who could not work, who was under a...Ch. 51 (mental health) commitment order placing him in a group home with a third party handling his meager finances, who had a spinal infection, who was prone to hearing 'voices' and 'seeing things,' and who had a total of $3.75 of daily disposable income is not conducive to a defendant’s rehabilitative needs," he wrote. He acknowledged that Stone did not produce evidence that he had to use some of his $113 per month for transportation, medical costs, or other human needs and so did not meet his burden of proof that he did not have the ability to pay the restitution. Stone, who died while the appeal was pending, took the 1997 Chevy truck, which had 220,000 miles on it, from his friend Matt, who had taken it from the victim, identified in court records only as M.S., according to a brief filed in the case. Stone damaged the truck and was arrested after an officer saw sparks coming from the passenger side wheel. Stone, who at first was found incompetent to stand trial, eventually was convicted of operating a motor vehicle without the owner's consent. At the restitution hearing, M.S. did not present information about the value of the truck, but did offer an estimate to repair it: $5,486.37. Stone's lawyer presented Kelley's Blue Book information indicating that showed the truck, in very good condition, would be worth $2,394 in a private-party sale. The following exchange took place during the hearing, according to a defense brief. The state: If your – do you intend to repair the vehicle? M.S.: I’m probably just going to replace it. The state: Why is that? M.S.: Well, I can’t just go out and replace a pickup truck for twenty-three hundred, if that’s what they’re talking about, you know. The state: Would your preference be to repair the vehicle so that you can use it again, all things being equal? M.S.: I think there was way too much damage done to it to warrant sticking that in that vehicle. I would want to replace it. I have nothing to use on my farm. The state: Okay. And the reason you would not want to repair that vehicle is you think there’s too much damage to it? M.S.: Well, unless I stick the five thousand dollars in it to get it done correctly. Wirch, ordered Stone to make $5,486.37 in restitution for the repairs. He also ordered restitution for post-arrest towing costs, raising the total amount owed to $6,008.60. "The statute's plain language does not restrict the award to the actual value of the property even when the actual value may be less than the reasonable repair cost," Grogan wrote in confirming the restitution order. "Rather, the statute allows a circuit court to choose the 'reasonable repair' option in determining the restitution amount even if the repair cost exceeds the property's value." Grogan also rejected Stone's argument that it was illogical to order repair costs because M.S. intended to replace the truck, not repair it. "The victim’s testimony did not eliminate repairing the pick-up truck," Grogan wrote. "The victim still had the pick-up truck, and her last statement indicated that if she received the $5,000 in restitution, she could repair it." Grogan and Neubauer also found that Stone had the ability to pay. He testified that his monthly income was $773 and his monthly expenses were $600 for rent in a group home and food and $60 for his cell phone. That left $113 a month in extra income. Stone also testified that the only items he bought with his disposable income were soda and cigarettes, which he said were " 'not … really necessary,' " Grogan wrote. Stone, who did not work due to his disability, also said he might pick up a part-time job at McDonald's or "something like that" in the future, she said. "Although $113 may strike some as a small amount of disposable income, it was extra money for Stone after all his monthly bills were paid," Grogan wrote. "Accordingly, the circuit court’s decision on ability to pay was not an erroneous exercise of discretion." Reilly, in his dissent, rejected the idea that a repair estimate is always a proper basis for restitution. M.S. testified, Reilly wrote, that she would replace the truck rather than repair it because the truck wasn't worth putting a repair investment of $5,486.37. "The victim correctly recognizes that given the evidence produced at the restitution hearing, she should simply go out and buy a similar truck in 'good condition' at a price of $2,394...." he wrote. "By taking a piece of property worth $2,394 and increasing its value to over $5,000, the victim is made more than whole. The victim receives a windfall. "We do not use restitution to punish a defendant, and we do not use restitution to enrich a victim," he said. "We use restitution to return the victim to the position he or she was in before being victimized." By Gretchen Schuldt A judge was correct in ordering a man to pay potentially tens of thousands of dollars in court surcharges for having child pornography images that were never included in criminal charges against him, the State Court of Appeals has ruled. The District IV Court of Appeals panel, however, sent the case back to circuit court to determine whether all of the pictures involved were actually associated with the crime for which William C. MacDonald was convicted. MacDonald pleaded guilty in Marquette County Circuit Court to one count of possessing child pornography. As part of the plea bargain, another nine counts, each based on an individual picture, were dismissed but read into the record. Read-in charges, Appellate Judge Jennifer E. Nashold wrote for the three-judge panel, are agreed to by both the prosecution and defense. A judge can consider the read-in charges when imposing sentence, though they do not increase the maximum sentence the defendant faces. A judge can also order a defendant to make restitution for read-in charges. Finally, prosecutors cannot later bring formal charges for counts read in. MacDonald's plea agreement said that "the State would be moving to dismiss and read in the rest of the charges...in addition to any uncharged image that was part of this investigation, so that the State will not be filing any additional charges for any other images, but we would be asking that they be read in as part of the sentencing in this matter." Circuit Judge Bernard N. Bult sentenced MacDonald to four years in prison and three years of extended supervision. He also levied mandatory $500 surcharges for the photo that was the basis of the charge, nine photos for the counts that were read in at sentencing, and 90 additional images that did not serve as the basis for a charge. The total in surcharges was $50,000 for 100 images. MacDonald, arguing that the surcharge should be limited to $500 for the one count on which he was convicted, requested in a post-trial motion that the surcharge be reduced, but another circuit judge, Mark T. Slate, refused. MacDonald appealed, but the appeal was put on hold while the state Supreme Court considered another case involving the child pornography surcharge. In that case, State v. Schmidt, the court ruled that the surcharge did apply to pictures included in read-in counts. MacDonald conceded the surcharge applied to the nine read-in counts, but continued to argue that the surcharge should not apply to counts that were not ever charged. The appeals panel disagreed. "We conclude that Schmidt does not directly answer this question but that, consistent with its analysis, the surcharge applies to read-in images regardless of whether there is an accompanying charge, so long as those images are 'associated with the crime,' ” Nashold wrote. State law, she said, does not limit read-in crimes to only those that were charged and dismissed. Nashold was joined in the opinion by Appellate Judges Brian W. Blanchard and Michael R. Fitzpatrick. In sentencing MacDonald, she said, Bult correctly noted that MacDonald's ability to pay the surcharge was not a factor. Bult imposed the surcharge on 100 images, though he believed there could be more pictures involved. "Read-ins may be considered for restitution and sentencing purposes regardless of whether they are uncharged or charged and dismissed. Thus, we discern no basis in the statutes or case law for a sentencing court to treat uncharged and read-in images differently from charged and read-in images for purposes of applying the surcharge," Nashold wrote. The panel, however, remanded the case back to circuit court for a judge to determine whether the images that formed the basis of the surcharges actually were "associated" with the crime for which MacDonald was convicted. State statute requires a judge to determine the "association" by a preponderance of evidence – a lower standard than that required for conviction – and without a jury. "Here, it does not appear that the sentencing court engaged in any fact-finding to determine the association, if any, between the 90 uncharged images and the image forming the basis of the count of conviction," Nashold wrote. By Gretchen Schuldt The Milwaukee County Sheriff's Department must turn over an old internal investigation file involving former Deputy Joel Streicher, who killed Milwaukee activist Ceasar Stinson after running a red light, the State Court of Appeals ruled Tuesday. Stinson's "estate asserts that the public has a strong interest in 'knowing when law enforcement officers have a history of violating an individual’s constitutional rights, and how the department handled the investigation of this constitutional violation,' " District I Court of Appeals Judge M. Joseph Donald wrote. "We agree." Donald was joined in his opinion by Appellate Judges Maxine A. White and William W. Brash III. The ruling reversed a decision by Milwaukee County Circuit Judge David C. Swanson, who said the records should not be released. Swanson, in balancing the public interest in disclosure against the public's interest in keeping the records confidential, said he “doesn’t see a strong public interest in disclosure,” Donald wrote. The appeals panel said the records need further redactions before they are released. Streicher, in a Sheriff's Department SUV, ran a red light on Jan. 25, 2020, and hit the vehicle Stinson, 47, was driving. Streicher was charged that May with homicide by negligent operation of a vehicle, pleaded guilty and, in a sentencing widely derided in the community, ordered by Circuit Judge Michelle Havas to serve six months in jail with work-release privileges and two years' probation. Havas later ordered Streicher to serve actual jail time after Stinson's widow, Chipo Samvura, complained that Streicher was serving his time at home with ankle bracelet. A few days after Streicher killed Stinson, who worked as a lobbyist for Milwaukee Public Schools, WISN-TV reporter Nick Bohr sought Streicher’s disciplinary records from the Sheriff's Department. Sheriff's Captain Jason Hodel reviewed the records and decided they should be released. Hodel notified Streicher of the decision, and told Streicher that personal information, such as his home address and email, had been redacted. Streicher and the Milwaukee Deputy Sheriffs' Association filed a lawsuit to block the release of the records. Afterwards, Samvura and Stinson's estate filed their own open records request and intervened in the TV station's case. In his ruling, Swanson found that internal affairs files were not exempt from release under the Open Records Law. The court, however blocked the release of the file related to an internal investigation of an improper home search in which Streicher was involved. "The circuit court began by observing that the internal affairs investigation was 13 years old, 'quite dated at this point,' and focused on 'an improper search of a residence,' which took place after police had seized 44 pounds of marijuana from a car," Donald said. "The court indicated that it was concerned about the references in the file related to the prosecutor’s case planning and that disclosing the file might 'endanger individuals who were involved in [the drug] investigation either as targets or as informers or both.' Thus, the court found that 'the balancing test weighs in favor of an injunction.' ” When the Stinson estate representative noted that names could be redacted from the report, Swanson said the names had been redacted from the file he reviewed, but it still was clear who was discussed. "The court stated that 'very significant' redactions would need to be made and 'they haven’t been made at this point,' ” Donald said. "The court also reiterated that its other concern was the references to the prosecutor’s case planning, which would also need to be redacted." In reversing Swanson, the appeals panel said the public had a strong interest in incidents where public officials were derelict in their duty. "Thus, here, where the police improperly entered a person’s home in the course of their investigation, the public has a compelling interest in accessing the documents relevant to the misconduct and the extent to which it was investigated," Donald wrote. Further redactions are needed before the report is released, he wrote, but "this does not justify the denial of the release of the entire file." "Streicher and MDSA point to the circuit court’s finding that Streicher’s role in the improper search was 'minor,' ” Donald wrote. "However, this should not be a shield by which the government can prevent disclosure....The public has a strong interest in being informed about its public officials and whether those officials have engaged in misconduct....These interests cannot be outweighed simply by the fact that an official played a minor role in an improper search." By Gretchen Schuldt An appeals court judge on Tuesday ordered a new hearing on whether a juvenile accused of shooting eight people at Mayfair mall in November should be waived into adult court. The ruling by District I Court of Appeals Judge Timothy G. Dugan reversed Milwaukee County Circuit Judge Brittany Grayson's finding that the case should remain in juvenile court. The court record Grayson established "does not reflect that the court set forth a reasonable basis for its conclusions," Dugan wrote. The juvenile, identified as Xander in Dugan's decision, was charged in a November delinquency petition with eight counts of first-degree reckless injury with use of a dangerous weapon and one count of possession of a dangerous weapon by a person under 18. The state Division of Division of Youth and Family Services recommended the boy, then 15, remain in juvenile court and Xander's psychologist also testified on his behalf. Grayson found that the state did not show that services available through the juvenile system would not adequately protect Xander and the public, according to the Milwaukee Journal Sentinel. The Mayfair shooting occurred while Xander was serving a sentence from an earlier incident, where he ran from a car pulled over by police. Officers later found cannabis in a backpack the boy threw away while fleeing. Xander had several violations of his community supervision, Dugan said. Xander allegedly shot the Mayfair victims after he and a friend, Eric Garcia, got in an argument there with some people they knew. Xander allegedly shot three people from the group, four bystanders, and Garcia. He was arrested a few days later with the gun in his possession, Dugan wrote. During a later investigation, "police discovered text messages between Xander, his parents, and his sister, in which they devised a plan to help Xander flee to Florida via airplane and stay with his adult sister," he wrote. Grayson, during the waiver hearing, "admitted and then relied on hearsay statements from Xander contained in the psychologist’s testimony and, in effect, allowed Xander to present an alternative version of events that contradicted the facts set forth in the delinquency petition," he said. The psychologist testified that Xander “came across as anxious” based on the information that Xander gave to the psychologist. The psychologist also said that Xander was suffering from post-traumatic stress disorder on the day of the shooting, a diagnosis based on Xander's statement that the people in the group had shot at him and a friend a month earlier. "The psychologist testified that Xander told him that he 'felt threatened' that day at the mall and that Xander said that 'when he shot – his eyes – he closed his eyes and shot,'" Dugan wrote. "He then testified that 'what it tells me is that he – he was simply reacting…. [H]e wasn’t trying to – trying to hit someone…. [H]e was just reacting.'” That testimony directly contradicted eyewitness accounts submitted by the state. Those witnesses said Xander appeared to target the group and fired at one person in particular as she tried to flee. Xander did not challenge the description of the alleged crimes as outlined in the delinquency petition, Dugan said. "Allowing a contradictory version of events through the testimony of the psychologist would be absurd," he said. Grayson also erred, Dugan said, when she "described the unique and dangerous nature of this shooting of eight people, including innocent bystanders, in a crowded mall but then merely stated that the juvenile court handles serious cases like this 'all the time' and stated that the public interest is best served by allowing this case to proceed in juvenile court without further explanation." "As the juvenile court recognized, it is a miracle that no one died and that there were not more people injured when Xander opened fire (or, as the State described, 'empt[ied] the entire clip') in a crowded public place..." he wrote. Grayson did not adequately explain why keeping the case in juvenile court was not contrary to the public's best interest, Dugan said. She also failed to state on the record how the juvenile code would protect the public, given the seriousness of the crime and Xander's record of failing to comply with the rules of his previous supervision. 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. |
Donate
Help WJI advocate for justice in Wisconsin
|