By Gretchen Schuldt
Defendants in criminal cases are sitting in jail for a month or more without legal representation because private lawyers are unwilling to take the cases at the low $40-per-hour rate offered by the State Public Defender's Office, according to a Bayfield County circuit judge.
"I find it hard to conclude that allowing someone to be held in custody without legal representation for that long is something other than a constitutional crisis,” Circuit Judge John P. Anderson wrote in a letter to the Supreme Court.
Anderson wrote to support a proposal to increase to $100 per hour the amount the state pays to private attorneys appointed by the State Public Defender's Office to represent clients who can't afford a lawyer. The Public Defender's Office makes the appointment when it has too many cases or has a conflict.
Private attorneys performing the same type of indigent defense work in the federal system are paid $140 per hour.
If a defendant sit too long, Anderson wrote, he feels compelled to appoint a lawyer, at county expense, for more than $40 an hour.
"It is ... becoming an unfunded mandate imposed upon the counties, requiring that they shoulder the costs which are supposed to be covered by the state through the public defender’s office," he wrote.
Anderson compared the amount paid to the lawyers to other professionals frequently paid by the courts. Psychiatrists and psychologists are paid $983 per hour and $542 per hour, respectively, he said.
"I have had lawyers appointed by the public defender’s office, often with years of experience, sitting in court getting paid $40.00/hour cross-examining a psychiatrist getting paid $983.36/hour and both are being paid by tax dollars," he said. "I find it difficult to justify such disparity. “
The Supreme Court has scheduled a May 16 public hearing on the pay hike proposal. By the time the Court formally set the hearing and directed that it be advertised, however, the deadline for submitting comments had passed.
The Court’s order came on April 5; the comments deadline was April 4.
The Wisconsin Justice Initiative has asked the Court to extend the comment deadline.
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.
WI Supreme Court says reasonable person would feel free to leave cops after confessing violent crime
By Margo Kirchner
A suspect who confessed to a serious crime during a police interview at a police station was not in custody afterwards when he asked for a lawyer, the State Supreme Court ruled last week.
As a result, officers did not need to comply with the suspect’s request for counsel, the Court said in a 5-2 opinion written by Chief Justice Patience Roggensack.
Justice Ann Walsh Bradley, in a dissent, said the majority was “engaging in a work of fantasy” by suggesting that Daniel Bartelt could reasonably believe after his confession that he was free to leave the Slinger police station.
Bartelt argued to the Court that police improperly questioned him after he invoked his right to counsel. The Court found, however, that Bartelt was not in custody when he first said anything about an attorney.
The right to counsel does not attach until a suspect is “in custody,” which occurs when, under the totality of the circumstances, “a reasonable person would not feel free to terminate the interview and leave the scene,” according to the Court.
In July 2013, detectives from the Washington County Sheriff’s Department and Hartford Police Department investigated an armed assault in a Richfield park and a subsequent murder in Hartford. Detectives quickly identified Bartelt as a person of interest regarding the assault based on a vehicle seen at the crime scene and a composite sketch of the attacker. The murder victim was Bartelt’s former girlfriend.
A detective contacted Bartelt and asked to speak with him about an unspecified incident. Bartelt agreed to meet with Washington County Sheriff’s Department detectives at the Slinger Police Department. Bartelt believed the detectives wanted to talk about the murder.
Two detectives questioned Bartelt in an interview room containing a table and three chairs. One door to the room was open and the other was unlocked. The detectives did not search Bartelt. They told Bartelt that he was not in trouble, was not under arrest, and could leave at any time. They then asked questions about the attack in the park.
The interview lasted about 30 minutes. While questioning Bartelt, one of the detectives moved his chair from one side of the table to about two feet from Bartelt and accused Bartelt of lying. After more questioning, Bartelt admitted he had attacked the woman in the park.
A detective asked Bartelt to put the confession in writing and said there likely would be more questions. Bartelt then asked whether he should “speak to a lawyer or anything.” The detective said yes, that was an option, to which Bartelt responded, “I think I’d prefer that.”
At that point, the detectives suspended the interview, took Bartelt’s cell phone, and left the room. They returned a few minutes later, told Bartelt he was under arrest, handcuffed him, and sent him to the Washington County Jail.
The next day, in a Washington County Sheriff’s Department interview room, Hartford Police Department detectives questioned Bartelt about the murder. Although the detectives read Bartelt his Miranda rights before questioning him, no counsel was present notwithstanding Bartelt’s mention of a lawyer the day before.
Bartelt waived all of his Miranda rights and was questioned for about 90 minutes regarding his relationship with the murder victim and his whereabouts on the day she died. Based on statements Bartelt made during the second interview, detectives found physical evidence linking Bartelt to the murder.
In court, Bartelt moved to suppress his statements and any evidence derived from them. Following denial of the motion by Washington County Circuit Judge Todd Martens, a jury convicted Bartelt of first-degree intentional homicide and he was sentenced to life imprisonment without the possibility of release.
On appeal, Bartelt conceded that he was not in custody at the start of his first interview. But he pointed out that during the interview one detective moved his chair closer, the tone of the questioning changed, and he was increasingly treated as a target of the investigation. Bartelt argued that once he confessed to the attack in the park, a reasonable person in his circumstances would have believed he was not free to leave the police station, thus transforming the interview into a custodial interrogation and requiring the detectives to cease all questioning once he asked for any attorney. Therefore, he argued, detectives violated his Fifth Amendment rights when they questioned him the next day about the murder.
However, the Court concluded that although admission of guilt to a serious crime “is a factor to consider in a custody analysis,” given the totality of circumstances Bartelt’s confession to the attack did not transform his status into one of custody.
The Court noted in particular that even after Bartelt’s confession the detectives spoke in a conversational tone and did not restrain his freedom of movement. Thus, as Bartelt was not in custody, his request for a lawyer did not need to be honored.
Bradley, joined in dissent by Justice Shirley Abrahamson, criticized the court for ignoring reality:
“I committed a serious, violent felony.” If suspects uttered these words, would law enforcement let them walk out of the station? Would a reasonable person feel free to simply get up and leave? Engaging in a work of fantasy, the majority says yes. Mired to the grips of reality, I say no.
Legal decisions regarding the “free to leave” standard do not reflect how reasonable people actually think and act, Bradley said.
She then continued: “Our jurisprudence should reflect reality. It should be based on true inclinations and thought processes rather than pushing the mythical ‘reasonable person’ even further from the bounds of the real world. The majority accomplishes the latter.”
Bradley further charged the majority with omitting relevant facts from its analysis, such as how Bartelt would have had to walk around one of the detectives to leave the room; how the detective’s movement of the chair blocked Bartelt’s exit, put the detective within arm’s reach, and changed the atmosphere in the room; and how the tone of questioning had turned coarse by the time of Bartelt’s confession, enhancing coercive pressure.
She noted that although the “free to leave” test requires assessment of objective facts rather than subjective views of those involved, one of the detectives testified that once Bartelt confessed, the detective believed Bartelt was not free to leave. “If even the interrogating detective testified that a suspect was not free to leave, would a reasonable suspect in such a position really think he could just get up and walk out?” Bradley wrote. “Only in a fantasy world would a suspect act in this manner.“
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
Milwaukee County could face liability on constitutional claims related to Sheriff David Clarke's participation in a federal detention program the State Supreme Court last week shrouded in secrecy.
A federal judge in Oregon already has ruled that a request from Immigration and Customs Enforcement is not reasonable cause to incarcerate a person. While not binding on Wisconsin, the Oregon decision clearly lays out the danger in accommodating detention that include little or no evidence of criminal activity.
The Wisconsin Supreme Court ruled, 4-2, last week in favor of Clarke's contention that he can keep secret records related to inmates who remain incarcerated beyond their normal release point at the request of Immigration and Customs Enforcement.
The extra-long incarceration is limited to 48 hours, but Saturdays, Sundays, and holidays don't count, according to the Oregon Federal Court decision in Miaria Miranda Olivares v Clackamas County. That means the actual extra incarceration could be much longer than 48 hours in many instances. (See decision at the end of this post.)
Asked if the ruling meant the state now has a secret detention program, attorney Peter Earle responded, "I think so."
"This would not be an alarming case at the level I'm alarmed if these were normal times," he said, referring to recent ICE roundups of immigrants..
Earl represented Voces de la Frontera, an immigrants rights group that sought access to ICE forms called I-247s that ask local law enforcement to honor the extra-long detention for specified inmates ICE believes may be in the country illegally.
A constitutional claim like the one in Oregon is possible, Earle said, if defendants caught up in the program can be identified. There is a concern, he said, that people will just get lost in the system.
Earle said the inmates held under the federal program are accused of state and local offenses, not federal crimes. The federal government also does not compensate the county for the costs it incurs holding the inmates for ICE.
In Oregon, Miranda-Olivares was arrested for violating a domestic violence restraining order and booked into the the Clackamas County Jail on March 14, 2012, according to the decision by U.S. Magistrate Judge Janice M. Stewart.
"The County maintains a custom or practice in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention." - U.S. Magistrate Judge Janice M. Stewart
The jail the next morning received the federal request to hold Miranda-Olivares.
Miranda-Olivares was charged with two counts of contempt of court and a judge set bail at $5,000. Under normal circumstances, she could post $500 cash and be freed. In this case, though, there was that ICE detainer.
Jail officials, over the next two weeks, told Miranda-Olivares' sister repeatedly that Miranda-Olivares would not be released even if the bail was posted because of that document.
Miranda-Olivares eventually pleaded guilty to one charge and was sentenced to 48 hours in jail, with credit for time served. She was held for an extra 19 hours, however, because of the ICE detainer.
In her decision, Judge Stewart noted that complying with an ICE detainer request is voluntary, not mandatory.
"Miranda-Olivares was not charged with a federal crime and was not subject to a warrant for arrest or order of removal or deportation by ICE," Stewart wrote. "The County admits that Miranda-Olivares was held past the time she could have posted bail and after her state charges were resolved based exclusively on the ICE detainer."
ICE, however, did not show probably cause to hold Miranda-Olivares, Stewart said.
"It stated only that an investigation 'has been initiated' to determine whether she was subject to removal from the United States," she wrote.
"There is no genuine dispute of material fact that the County maintains a custom or practice in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention," Stewart wrote.
The county, Stewart said, "violated Miranda-Olivares’s Fourth Amendment rights by detaining her without probable cause both after she was eligible for pre-trial release upon posting bail and after her release from state charges."
Almost three-quarters of money raised last year by Supreme Court Justice Annette Ziegler's campaign came through donations of $1,000 or more, campaign records show.
Ziegler raised $373,106 last year and had $288,920 on hand at the end of 2016, according to her January finance report.
Ziegler is unopposed in the April 4 election.
Ziegler received 86 donations of $1,000 or more in 2016. Those large donations totaled $267,800, or almost three-quarters of the amount her campaign raised, record show. Twelve donors kicked in $10,000 or more.
Ziegler accepted $1,000 from the Wisconsin Bankers Association PAC, according to the January report. The Association is one of the corporate lobbying groups that signed a letter to Gov. Scott Walker urging him to grant pay raises to Ziegler and other judges in the state.
The charts below show only individual donations of $1,000 or more. Multiple donations totaling $1,000 or more are not included. The Realtors Political Action Committee, the political arm of the Wisconsin Realtors Association, for instance, made three $500 donations to Ziegler's campaign on June 23, for a total of $1,500. Those donations are not shown. The Realtors Association also signed on to the letter asking Walker to give raises to judges.
Auto dealer Michael Darrow's June 15 $1,000 contribution was a conduit contribution, meaning individual donors bundled their contributions.
Big-money donors to Ziegler's uncontested campaign included Daniel McKeithan, executive officer and director of Tamarack Petroleum Co. ($20,000); billionaire Diane Hendricks, chairman of ABC Supply Co. ($10,000); conservative mega-donor Richard Uihlein, CEO of Uline, Inc. ($10,000); businessman John Burke ($10,000); James Schloemer, chairman and CEO of Continental Properties Inc. ($10,000); and fast food restaurant owner Steve Kilian, president of Kilian Management Services ($10,000).
State Supreme Court Justice Michael Gableman, a financial beneficiary of the gun lobby, participated in Friday's case, Wisconsin Carry Inc. v. City of Madison.
Wisconsin Carry, a pro-gun organization, seeks to overturn a Madison transit commission's rule that prohibits guns on buses. A Dane County Circuit judge and a Court of Appeals panel found that the state's concealed carry pre-emption law applied only to resolutions and ordinances adopted by the common council, not to a rule implemented by an agency.
Gableman is indebted to the gun lobby, He took $1,500 from the Wisconsin Concealed Carry Movement political action committee and $1,000 from the NRA Political Victory Fund before his last election.
The Supreme Court justices decided, on a 4-3 vote in 2009, that accepting lots of money from someone with an interest in the outcome of a case doesn't mean the accepting justice is biased in that case.
Attorney General Brad Schimel, who filed a brief favoring bus gun-toters, accepted $1,000 from the NRA Victory Fund in 2014. Schimel was under no legal obligation to file the brief.
The consent of the governed?
Not always needed, wrote Daniel Kelly, Gov. Walker's newest appointee to the Supreme Court.
God's laws trumped everybody else's.
"There is a law pre-existing governments that does not depend on any man's volitional action or decision," Kelly wrote, channeling John Quincy Adams, in the 1991 inaugural issue of the Regent University Law Review. "This law has a determinate content, separating right from wrong, and defining justice, and most importantly...this law is binding upon man-it does not require his agreement or consent." (Emphasis added.)
Kelly, the founding editor of the the law review, was a little vague about what all was included in the "determinate content," citing only the most obvious crime.
"Both God and nature stand in witness that murder is wrong," he wrote.
But ordinary mortals can make some choices, Kelly argued.
"Neither Scripture nor nature, however, directly addresses whether import tariffs should be imposed, what the personal income tax rate ought to be, or how appeals should be prosecuted in the federal court system. In matters such as these, we are left to our discretion and mutual agreement," he wrote.
Regent University was formerly was known as Christian Broadcasting Network University, was founded by televangelist Pat Robertson, and was considered a mediocrity under both names.
Here is a bit more of Kelly's introductory piece to the first issue of the law review.
The overarching mission of the Regent University Law Review is the same as that of Regent University, that is, to bring glory to God and to His Son, Jesus Christ, through the Holy Spirit...
We believe that God's law has something to say about every area of law. To the inevitable objection that the law of nature and nature's God could not possibly have anticipated such topics as corporate taxation, antitrust suits, or the constitutional incorporation doctrine, I answer: Every legal question must rest on some foundational premise, and that premise must stand the test of measurement against the law of nature and nature's God. Jesus illustrated the importance of foundations with relation to our faith...
Kelly wrote about the unchanging nature of scientific laws and compared it the laws of society. He cited that great thinker, Calvin Coolidge who observed that "[m]en do not make laws. They do but discover them. Laws must be justified by something more than the will of the majority. They must rest on the eternal foundation of righteousness."
In another section of his essay, Kelly wrote,
The law revealed in Scripture, with which the law of nature is in all points consistent, both having the same Author, is our ultimate recourse for truth....We are, and must be, subject to the principles contained in Scripture. Just as we do not choose to submit to the general theory of relativity, so is consent unnecessary with regard to the general principles of Scripture, though when considered carefully, reason will show that it is only logical that we are subject to them.
And he concludes by quoting James 1:22:
Do not merely listen to the word, and so deceive yourselves. Do what it says. Anyone who listens to the word but does not do what it says is like a man who looks at his face in the mirror and, after looking at himself, goes away and immediately forgets what he looks like. But the man who looks intently into the perfect law that gives freedom, and continues to do this, not forgetting what he has heard, but doing it-he will be blessed in what he does.
The discussion among Supreme Court members during a recent Open Rules Conference was about tribal courts and circuit courts. Justice Rebecca G. Bradley noted that justices previously had expressed concern about the ability of poor people to access courts.
And then Justice Michael J. Gableman said, "...We expect, of course, that the unrepresented litigant will be knowledgeable of the law. It’s a fiction, but it’s a fiction we’ve decided as a society to subscribe to because otherwise our system couldn’t function.”
Justice, apparently, is a nice outcome, but totally optional.
The Wisconsin Supreme Court, in a case that is sure to diminish whatever respect the public still holds for it, decided yesterday that a law is just fine if it looks fair on the page, but is not fair as it actually works in the real world.
Justice Michael J. Gableman's opinion in the 5-2 decision (Justices Shirley S. Abrahamson and Ann Walsh Bradley dissented) is comical, but not funny. At issue was a law prohibiting local governments from enforcing residency rules for public employees. The question was whether Milwaukee -- which faces more harm through the loss of residency requirements than other communities do -- could keep its residency rule through "home rule," which allows local governments to make its own rules on matters of local concern.
No, said Justice Michael Gableman, writing for the majority. As long as a law looks like it treats local governments across the state equally -- even though it does not -- the state can adopt legislation superseding home rule. The mere appearance of fairness is enough.
Reality need not count, according to Gableman, "as long as the statute, on its face, uniformly affects cities or villages throughout the State."
Gableman's decision defies logic. Imagine the Legislature adopted a law that all two-legged creatures must have their wings cut off. That looks fair on its face, but in real life, people would have a lot less to worry about than birds.
Or imagine the Legislature adopted a law that all Wisconsin residents be stripped of their common sense. That looks fair on its face, and might do great harm to a great many Wisconsin residents, but Justice Gableman would have nothing to worry about at all.
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