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By Alexandria Staubach The Wisconsin Court of Appeals recently held that the right to counsel attaches during Milwaukee County’s written probable cause process, meaning a defendant has the right to counsel for any subsequent critical stages of prosecution.  White Chief Judge Maxine White wrote for the three-judge District 1 panel in State v. Robinson, joined by Judges Sara Geenen and Pedro Colón.
When a person is arrested without a warrant in Milwaukee County, judges and court commissioners routinely find probable cause, order detention, and set bail using an all-paper review process. The paper probable cause process, named a “CR-215” process for the form used by judges and court commissioners to make the finding, details the officer’s basis for arrest. Based on the officer’s narrative, a judge or court commissioner checks a box to indicate whether they believe probable cause for arrest exists. Percy Robinson was arrested on Dec. 19, 2017, for bank robbery. Within 48 hours, a Milwaukee County circuit court commissioner reviewed a CR-215, found probable cause that Robinson committed the offense, and set bail at $35,000. On Dec. 22, law enforcement conducted an in-person lineup. The lineup included Robinson, and the bank teller identified him as the person who committed the robbery. No attorney was present on Robinson’s behalf. The State then issued a criminal complaint against Robinson for robbery of a financial institution. Robinson was convicted following a jury trial. He appealed, arguing, among other things, that he received ineffective assistance of counsel because his trial attorney failed to challenge the lineup identification, which occurred without counsel present after his right to counsel had attached. The court of appeals agreed about the right to counsel, concluding that “Milwaukee County’s CR-215 process signals a ‘commitment to prosecute,’” and that the Sixth Amendment right to counsel attaches during that process, creating a right to counsel for any later "critical stages" of prosecution. “The initiation of judicial criminal proceedings is far from a mere formalism,” White wrote. “(T)he CR-215 process shifted Robinson from a person under investigation to the accused in the criminal justice system. Therefore, it is reasonable that the shift arising out of the CR-215 process attaches Sixth Amendment guarantees.” The state argued that Robinson’s right to counsel had not attached during the CR-215 process because Robinson was not physically present when the CR-215 form was evaluated and signed by the circuit court, and the process consequently lacked necessary formalities. The court rejected the argument. “The lack of an in-person court hearing does not negate that the CR-215 process was the first formal proceeding against Robinson in this case,” White wrote. “An ‘accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused liberty to facilitate the prosecution.’ By that point it is too late to wonder whether he is accused within the meaning of the Sixth Amendment, and it makes no practical sense to deny it,” White wrote. The court then found that an “identification lineup occurring after the probable cause determination and bail setting, such as the CR-215 process, is a critical stage of the prosecution,” with a right to counsel. While Robinson’s appeal ultimately failed on other grounds, the court, citing U.S. Supreme Court law, recognized that when a conviction “’may rest on a courtroom identification’ that was ‘the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.’” Counsel’s presence, not participation, “’is relied upon to prevent unfairness and lessen the hazards of eyewitness identification at the lineup itself,’” wrote White, citing Wisconsin Supreme Court law. Going forward, an accused will have the right to counsel for any critical stage after a CR-215 finding. When and whether an accused’s right to counsel attached during the CR-215 process had been the subject of state and federal litigation since at least 2009. Federal courts in Wisconsin had held that a right to counsel attaches after the CR-215 process is complete, but no consistent answer had been developed by state courts. The Robinson court concluded that the law is now settled on the matter.
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By Margo Kirchner It’s late on a Friday evening in June and four string musicians wait at the ready for something they do not want to happen: a fatal shooting in Milwaukee. They sit on call at Central Methodist Church, prepared to leave for the scene of a shooting to play classical chamber music to comfort and heal the community. Founder, music director, and violist Dayvin Hallmon frequently checks his laptop for the list of 911 calls, looking for reports of a shooting or shots fired. The other musicians talk and check their phones. One plays the piano for an hour. A stack of board games is available, though not used that night. Hallmon takes a few moments to shout at three people headed behind the shed off the church’s parking lot, telling them they are trespassing and need to leave. Violinist Churchill Caruthers has played with the ensemble since it began in 2019. Cellist Autumn Maria Reed is a composer of instrumental music in multiple genres and also plays string bass. Violinist Fatima Gomez arrived last that evening, coming from a mariachi gig. The musicians are members of the Black String Triage Ensemble. Throughout the summer, the ensemble of volunteers designates certain weekend evenings to be on call to respond to shootings in Milwaukee. On-call time can last five or six hours, to midnight or beyond. Hallmon says the ensemble is the first and only one of its kind in the world. No other city has this. The group’s mission is to use music, especially music by Black and Latin composers and artists, to address pain, foster healing, promote love, call for justice, and guard against hopelessness. For now, the ensemble focuses on playing at scenes of fatal shootings and various rallies or protests, the latter for peacekeeping purposes. They’ve played at scenes of drug overdoses and car crashes, too. In response to fatal shootings, “to speak to the life circumstances that give rise to such a horrifying event, a concert at the scene is necessary to dissipate and repel those negative forces. By being present among the people and playing music at a time when it is needed the most, we can transform the public space into a place of recovery, healing and hope for the community,” reads the group’s website. “We don’t have to live destroyed and broken,” Hallmon told Wisconsin Justice Initiative in an interview. “If there isn’t a cultural mind shift, this (violence) is going to continue,” he said. “What’s amazing to me is how everybody is burdened” by shootings—it’s not just the person shot and the person pulling the trigger, he said. Sometimes “the circumstances are so outrageous that there can be no justification for it, and law enforcement has to reckon with that. It destroys everybody,” he said.
For peacekeeping, the intent is to inject music into a tense space to deter violence. Maybe if violence holds off, we can have a moment of reconciliation, Hallmon said. The night in June thankfully passed without the need for a concert. The quartet piled into two cars (a cello and music stands take up a bit of space) around midnight to drive to the location of a possible shooting, but they found no police presence there. The musicians act as a team, driving to a scene together from their on-call site. When asked what the Black String Triage Ensemble needs most, Hallmon immediately responded with “a van,” big enough to transport cellos, basses, and people. Many of the group’s musicians, including Hallmon, do not own or have access to a car. He could have a quartet or quintet on call, but no one there with a vehicle to get them to the scene of a shooting. The ensemble planned to play peacekeeping concerts during the Republican National Convention, but they pivoted that Tuesday night, July 16, to instead play a concert at King Park, where Columbus, Ohio, police shot and killed Samuel Sharpe Jr., an unhoused man, earlier in the day. That evening, eight musicians and a clergy member gathered at Village Church MKE in downtown Milwaukee and drove to King Park just after a memorial gathering ended. Violist Miguel Barrenechea; violinists Jane Han and Christopher Washington; cellist John Hodges; and chaplain Tom Gaulke joined Hallmon, Caruthers, Reed, and Gomez. A group of people still stood at the corner of W. Vliet and N. 14th streets, with vigil candles burning. Gomez emphasized that the ensemble should play for those remaining even if others had already left. The musicians set their music stands on the sidewalk and tuned their instruments in the dark while Gaulke talked with people in the park and on the street. He explained what the musicians were doing and answered questions, some posed by media members with lanyards showing RNC credentials. Hallman told WJI that it is very helpful to have a clergy member with them to talk with the crowd, as musicians need to focus on playing. The need for flexibility and on-site adjustments is clear. The musicians do not know the conditions at a scene when they arrive. Hallmon said “anything can go down. Just because law enforcement has secured the scene doesn’t necessarily mean the drama’s done. It’s still active and live.” The group needs to find the right location for playing—a place where they can be heard but not be in the way, Hallmon said. He wants the ensemble to be present without taking up space. “The music should take up the space, not you,” he said. Timing is important. The ensemble has arrived at a scene too early, even before the medical examiner. They found people too angry then, Hallmon said. Yet several hours after a shooting is likely too late. But “there’s a point when you can be there just kind of after folks have figured out what’s happened and are wrestling to find that spot of comfort, and speak in that moment,” Hallmon said. The group usually does not play right away, instead getting a feel for the particular scene and the people there. They play a selection of classical music, jazz, soul, spirituals, blues, and tango. The music is organized into two programs based on five stages of grief, plus a sixth stage of faith. The team talks about what music should be played at the scene. “As a crew of musicians, we feel the moment together,” Hallmon said. “It’s all of those little calculations.” The ensemble does not coordinate with law enforcement. They do not ask for permission to play. People at a scene sometimes have initially objected, but then have told the group that the music was a blessing and what they needed. There’s this thing about people being ready to hear,” Hallmon said. As the octet played at King Park on July 16, several individuals prayed around lit candles along the side of the street. A helicopter circled overhead several times. A man walking by remarked that he had not seen string instruments since high school or junior high.
 Black String Triage Ensemble at the scene of the King Park shooting fatality, July 16, 2024. Photographs and video by Margo Kirchner. The idea of the Black String Triage Ensemble came to Hallmon while he was a Kenosha County Board supervisor walking around his district. Hallmon was elected to the Kenosha County Board at age 23 in 2008 and reelected several times, serving for 10 years. He represented District 7, Uptown Kenosha. Someone asked him what would happen “if a bunch of string players showed up after a crime scene and didn’t play Mozart” or “Orange Blossom Special,” he said. Hallmon ran for state office in 2012 but was unsuccessful. He moved to Milwaukee in 2018 and started Black String Triage Ensemble the next year. The ensemble is now part of a nonprofit, which includes the Black Diaspora Symphony Orchestra, a larger group of classical musicians of color joined by non-Black, non-Latinx musician colleagues (the latter group known as the Legion of the Soul). The orchestra’s repertoire emphasizes the work of Black and Latinx composers and focuses on the life experiences of people of color. The orchestra does not neglect standard repertoire, but “it’s just not the meat on the plate,” Hallmon said. “There’s enough stuff in symphonic music to tell everybody’s story.” Hallmon told WJI that before the Juneteenth concert he eagerly handed Milwaukee police officers his business card and invited them to come hear Joel Thompson’s “Seven Last Words of the Unarmed,” about the last words of seven Black men before they were shot by police. Other pieces at this year’s Juneteenth concert included Florence B. Price’s “Ethiopia’s Shadow in America,” Williams Grant Still’s “And They Lynched Him on a Tree,” and Black String Triage Ensemble musician Reed’s “Cries from OUR Soil.” (The multi-talented Reed’s composition “Brazilians” was performed by Brazil’s Orchestra Sinfonia Nacional in 2023, and her “Robin’s Eye View” was played by the Chicago Philharmonic this summer.) Each year the orchestra plays a memorial concert for missing and departed children. Other concerts have included issues of lynching and the victims of Jeffrey Dahmer. Hallmon has worked with teenagers at Riverside High School and children in programs at Milwaukee Public Schools and around the city. Elementary-age children have told him that they call their city “Killwaukee.” Hallmon believes policy reforms will not succeed in counteracting violence and recklessness. For instance, installing new traffic control barriers and curbs will not change the behavior of mischievous teenagers—it just gives them more to hit, Hallmon said. “There’s no policy in government or law to counteract” young boys stealing cars to impress girls. He sees potential in culturally relevant, trauma informed music and arts, though. Living in the inner city can create post-traumatic stress disorder, he said, and creative writing and music have worked to help veterans recover from the traumas of war. “Why can’t we apply that to the urban population?” he asked. He understands the benefits of sports, but sees a significant problem when kids in first grade say they want to be doctors or teachers but by third grade say they want to be in the NFL. Instead, being physically responsible for creating a sound, such as by placing a finger on a string and moving a bow, can “rewire your brain,” Hallmon said. Creating music can change not only the person listening, but also the musician, he said. In addition, he believes that five minutes of mindfulness via classical music played over the public address system in school each day could reduce behavioral issues. He thinks the Milwaukee Symphony Orchestra should partner with Milwaukee Public Schools and provide snippets of its recording catalog to make that happen. “Print this because it’s true,” he said. “Get it done.” Meanwhile, the ensemble and orchestra will continue to gather and to wait, hoping they will not be needed. When they are, they want their music to help move others toward healing, comfort, and conversations about violence and racism in Milwaukee. PBS created a short documentary about the Black String Triage Ensemble, available on the homepage of the group's website here. By Alexandria Staubach
On Wednesday a group of lawmakers and public sector employees met to discuss possible changes to the framework surrounding emergency detention and civil commitment of youth experiencing mental health crises. What was the Legislature's Study Committee on Emergency Detention and Civil Commitment of Minors looking to know? First, whether entities and individuals other than law enforcement should have authority to take minors into custody for emergency detention. Second, whether special emergency procedures should be developed to lower the bar for detention and commitment. The overwhelming advice from service providers was that expanding the scenarios under which children can be detained would do nothing to alleviate the underlying mental health crises that the state’s children face. Dr. Steven Dykstra of Milwaukee County’s Behavioral Health Division said expanding detention “would be a complicated journey and I don’t know that much would come out of it.” Dykstra instead encouraged the committee to recommit to expanding early intervention resources and tactics. Dystra discussed a teenage boy in Wauwatosa who was assaulting his mother. The boy’s father drove him to the police station; police in turn called Dykstra. Dykstra was able to get the youth to agree to commitment, avoiding detention and handcuffs. The boy was diagnosed with schizophrenia and responded well to medication. He went on to a modified school schedule and graduated high school. When he started at UW-Milwaukee, he met with administrators to develop a plan for his education and asked whether the school had police officers. Because of his previous crisis and because, according to Dykstra, he was not detained, he felt like he could go to the police if he had another episode. These types of interventions will result in the outcomes the committee is looking to achieve, Dykstra said. “We have lots of power to lock that kid up but very little power to address the underlying distress that drove [them] to that point,” he said. Dykstra highlighted a lack of communication between police, service providers, and families. “Systems that collect the data that demonstrate a mental health crisis … don’t communicate with one another. He said the system as currently conceived cannot connect the dots to identify when a child is on the verge of a mental health crisis, but medical professionals know that years spent in undiagnosed psychosis results in much worse outcomes. He cautioned that parents and children “don’t want to tell us about their symptoms because they’re afraid they’re going to get locked up.” Dr. Tony Thrasher, president of the Wisconsin Psychiatric Association, encouraged the committee to consider a specific modification to the laws governing commitment when schizophrenia is involved. “One situation in which we need to make it easier to hospitalize a young person [is in that] last stretch of time they are sliding toward mental psychosis,” Thrasher said. Specifically in the instance of schizophrenia, “if he’s not dangerous to anyone, I can’t make him go to the hospital, however we know that his long-term prognosis is heavily tied to dramatically different results with early intervention,” he said. “We’re very good at the defibrillation,” meaning emergency situations, said Thrasher, but “we’re missing the other 98% of how to get people well.” Sarah Henery, administrator of the Division of Milwaukee Child Protective Servies (CPS), said that not just in Wisconsin, but nationally, she has observed chronic issues, which are not acute, going unaddressed, highlighting that the state is essentially powerless in situations where a youth is not expressing an immediate desire to cause or inflict self-harm. Under current Wisconsin law, certain individuals may initiate 72-hour holds on a person who is mentally ill, developmentally disabled, or drug dependent, based on observed behavior that is dangerous to themselves or others. Juveniles may be subject to emergency detention if they are unable or unwilling to cooperate with voluntary treatment. Sen. Jesse James (R-Altoona) chairs the Legislative Council Study Committee on Emergency Detention and Civil Commitment of Minors, which examines the effectiveness of emergency detention and civil commitment laws and recommends legislation that may create more child-appropriate civil commitment procedures. Rep. Patrick Snyder (R-Schofield) is vice-chair. Other committee members include Sheila Carlson, Green Bay Police Department behavioral health officer; Jill Chaffee, vice-president of community based services for Lutheran Social Services; Maryam Faterioun, an addiction and substance abuse counselor in Waukesha; Judge Cody Horlacher of Waukesha County Circuit Court; Dr. Kristen Iniguez, a Marshfield physician who cares for children subject to abuse and neglect; Sen. LaTonya Johnson (D-Milwaukee); Sharon McIlquham, assistant corporation counsel for Eau Claire County; Rep. Shelia Stubs (D-Madison); and Katie York, deputy State Public Defender.  Shirley S. Abrahamson. Photograph courtesy of the authors of www.shirleyabranamson.org. By Amy Rabideau Silvers An obituary in The New York Times called her “an indefatigable jurist known for her activist voice and tart dissents.” The Milwaukee Journal Sentinel’s obituary called her someone who crashed through barriers for women, earning “a national reputation as a leader in liberal judicial thought.” Others called Shirley Abrahamson a mentor and a friend. Abrahamson was the first woman appointed to the Wisconsin Supreme Court, serving 43 years on the bench, including 19 years as chief justice. At retirement, she was the longest-serving state court justice in the country, and she certainly remains the longest serving in Wisconsin history. Appointed by Gov. Patrick Lucey* in 1976, she went on to win four 10-year terms. For many of those years, she was the only woman on the bench. By the time she retired in 2019, five of the seven justices were women, later to be joined by a sixth. “Among jurists I have encountered in the United States and abroad, Shirley Abrahamson is the very best,” declared Supreme Court Justice Ruth Bader Ginsburg, in a videotaped tribute as Abrahamson retired. “The most courageous and sage, the least self-regarding. “She has been ever mindful of the people—all of the people—the law exists, or should exist to serve,” Ginsburg said. “As a lawyer, law teacher and judge, she has inspired legions to follow in her way, to strive constantly to make the legal system genuinely equal and accessible to all.” An early dream Abrahamson was born Shirley Schlanger, the daughter of Manhattan grocers Leo and Ceil Schlanger. Her parents were immigrants from Poland, and as the family story goes, little Shirley was 4 when she decided that she wanted to be president. At 6, she changed her mind and decided to become a lawyer. She later told the story of wanting a library card after the family moved for a time to New Jersey, while she was in grade school. “My mother and I went to the public library, but I couldn’t get a card because my parents didn’t own property,” Abrahamson recalled. “You see, your family had to own property to get a library card.” Her father ended up taking off work to find the landlord and persuaded him to write a letter. The situation left her feeling “that my family was put into this second-class position. … My father was running a successful grocery business, paid his bills, and why I couldn’t get a library card. … It just didn’t make sense … and it didn’t seem fair.” Fair was something she felt everybody deserved. Facing other challenges She graduated from high school at 16. She next graduated from York University in Manhattan, magna cum laude, and married Seymour Abrahamson. Together they relocated to Indiana University in Bloomington. There she graduated first in her law school class in 1956. She received no job offers. “She was a woman and she was Jewish,” said Wisconsin Supreme Court Justice Ann Walsh Bradley, speaking in an interview with Wisconsin Justice Initiative. “The dean of the law school told her she wouldn’t get a job, but he’d try to get her a job as a law librarian.” Instead, Shirley and Seymour—he earned a doctorate in genetics—moved to Madison. There Abrahamson studied with J. Willard Hurst, a UW law school professor and pioneer in legal history, earning a doctorate in 1962. That same year she was hired at La Follette, Sinykin, Doyle & Anderson—the first woman hired by a private law firm in Madison. Within the year, she became a named partner. Abrahamson soon began teaching at the law school. In 1966, she was offered a professorship in tax law. She accepted on the condition that the other woman on the faculty, Assistant Professor Margo Melli, also receive tenure.  Abrahamson in court (likely early to mid-1960s). Photograph created by Edwin Stein, courtesy of the Wisconsin Historical Society, image WJI 149705. A master at mentoring Along the way, she offered encouragement to countless others. Angela Bartell, now retired as a Dane County Circuit Court judge, remembers going to the UW Law School to meet with Abrahamson before enrolling in 1968. “She was one of two women professors—Margo Melli was the other,” Bartell told WJI. “My husband graduated from law school in 1968 and there were only four or five women in his class. And so I met with the two women on the faculty and said, ‘How did you do this?’ and they were both very encouraging.” The few women students found support with each other—and in the one women’s restroom in the old section of the law building, complete with a fainting-style couch. “You knew you could likely find women there,” she said. “It was a shelter—that’s really the only word for it—from the battle that was going on outside.” Women found an even bigger challenge at graduation, especially if they wanted to join a private practice. Bartell experienced that firsthand in 1971. “There was the question of whether clients would be comfortable with a woman lawyer. Would women lawyers be a viable economic resource? Were women tough enough to fight in an adversarial system? This is sounding quite quaint,” she said, with a laugh. “I had only one offer, though I graduated first in my class,” Bartell said. “So the profession was not open. I ended up joining the law firm where Shirley was a named partner, so I had a woman colleague. “It became a ritual for law firms to take the new woman and introduce her to Shirley Abrahamson,” she said. “It was a long and bumpy road, and Shirley was this high-performing, welcoming mentor to all, and that was for decades. She was such a pioneer.” Abrahamson was a founder of the Legal Association for Women, which began in 1974, for women in law in the Dane County area. “She was a mentor to women all over the state,” said former Justice Janine Geske, who joined her as the second woman on the Supreme Court in 1993. “Male attorneys would bring their daughters to meet her.”  Abrahamson at her 1976 swearing-in ceremony. Photograph by WiscNews, courtesy of authors of www.shirleyabrahamson.org. Queen of court outreach Abrahamson championed judicial outreach, helping to create programs that included the award-winning Court with Class program. Tens of thousands of students have visited the State Capitol to hear oral arguments and meet with a justice. Abrahamson also believed that the courts could go to the people, promoting the Justice on Wheels effort. That, too, continues. “Pick a county—from Kenosha to Superior, Door County to Rock County—and we go there and have legal arguments and meet with people in the community,” Bradley said. Then there’s the Tootsie the Goldfish lesson, in which kids get to “think like a judge.” “She was the queen of outreach for the courts,” Bradley said. Geske agreed. “She was always thinking of ways to connect people to the courts,” Geske said. That included traveling to speak to any group interested in the legal system. Her friends quipped that no distance was too great and no group too small to talk about the courts. “Before we were close friends, she called and asked if I would go speak because she was snowed in at JFK,” said Geske, who agreed to fill in. “There were maybe 12 people there.” Once while traveling in northern Wisconsin, she ended up in a boat with musky fishermen. “She caught the winning musky,” Geske said. “And she had it stuffed and hung on the wall of her chambers.”  Abrahamson presiding over a Justice on Wheels hearing. Photograph courtesy of the Wisconsin Supreme Court and authors of www.shirleyabrahamson.com.  Play the Toosie the Goldfish game by clicking on this graphic. Creating change and connections In other noteworthy efforts, Abrahamson served on the citizens’ committee studying how to reorganize the state courts in the 1970s. That resulted in the creation of the Court of Appeals. Study committee meetings were being held throughout the state, with one scheduled at the Madison Club. There was only one problem with that plan. “The club had no women members,” Bartell said. “And no women were allowed at the bar level. Shirley Abrahamson was not going to be allowed to attend the meeting. She took that up like a tigress. The committee pulled out of that location and they met elsewhere. “She fought not only so many battles herself but she served as a shield for other women coming up behind her,” said Bartell. Abrahamson was involved in writing Madison’s equal-opportunity law and served as director of the local American Civil Liberties Union chapter from 1967 to 1974. And, later as a justice, she partnered with tribal leaders, including the Wisconsin Tribal Judges Association, to hold the first conference for tribal and state court officials. “She had the first state courts conference ever in the nation,” Bradley said. “I remember sitting at a table with someone from a tribe in Alaska. People came from that far.” Time on Wisconsin Supreme Court During her long years on the court, Abrahamson participated in more than 3,500 cases, authoring 535 majority opinions, 493 dissenting opinions, and 326 concurring opinions. She did not mince words in her dissents. In a 1992 case, State v. Mitchell, the court ruled that an increased penalty in a hate crime case was unconstitutional. The U.S. Supreme Court later reversed that decision. Wrote Abrahamson: “Bigots are free to think and express themselves as they wish, except that they may not engage in criminal conduct in furtherance of their beliefs. The state’s interest in punishing bias-related criminal conduct related only to the protection of equal rights and the prevention of crime, not to the suppression of free expression.” A 2015 case involved whether Gov. Scott Walker had illegally coordinated with conservative groups during a recall effort. A divided Supreme Court decision ended the investigation. “Lest the length, convoluted analysis and overblown rhetoric of the majority opinion obscure its effect, let me state clearly,” she said in her dissent. “The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment.” Some of her writing was for in-house reading only. “We used to circulate proposed decisions among the justices and conference those opinions,” Geske said of their shared time on the state Supreme Court. “Shirley would issue three-page, single-spaced memos on an opinion. I learned to appreciate what she was doing. She wanted my opinion to be as clear as possible, and her memos helped me write a better decision. She was the smartest and hardest working person I ever met.” Abrahamson began serving as chief justice in 1996, when she became the most senior member of the court. That changed in 2015, with a constitutional amendment to allow justices to select their own chief justice. Conservative justices quickly picked Justice Patience Roggensack. Abrahamson sued in federal court—lost and then appealed—before deciding the case would take too long. Instead, she vowed to remain “independent, impartial and nonpartisan, and help the court system improve.” She retired in 2019, a year after being diagnosed with cancer. She died of pancreatic cancer in 2020. Abrahamson was 87. And beyond Wisconsin Abrahamson earned a reputation throughout the country and internationally, especially well known for what has been called new federalism. “She was among a handful, not even a full handful, of judges and justices in the country really leading the charge of revitalizing state constitutions, and she was at the head of that,” Bradley said in an interview with the Milwaukee Journal Sentinel after Abrahamson’s death. Abrahamson concluded a 1982 law review article on new federalism by invoking the words of an 1855 decision (Attorney General ex rel. Bashford v. Barstow 4 Wis. 567, 758 (1855)) by the Wisconsin Supreme Court: “The people then made this constitution, and adopted it as their primary law. The people of other states made for themselves respectively, constitutions which are construed by their own appropriate functionaries. Let them construe theirs—let us construe, and stand by ours.” “The idea,” Bradley told WJI, “is that state constitutions may provide individual rights in excess of those given by the federal Constitution. Not fewer rights but more.” Abrahamson was considered for appointment to the U.S. Supreme Court as early as 1979 by President Jimmy Carter to fill a possible vacancy by Justice William J. Brennan Jr. (Brennan continued serving until 1990.) In 1993, Abrahamson was on the short list to replace Justice Byron R. White. President Bill Clinton instead chose Ginsburg. Setting the bar on ethics Abrahamson did more than talk about judicial ethics and independence. Judges, she believed, needed to be absolutely beyond reproach. “As a judge, you are not supposed to endorse partisan candidates,” Geske said. Abrahamson did not endorse any candidates or accept any gifts. “She had a hard-and-fast rule,” Geske said. “I could not buy her a cup of coffee. Ann (Walsh Bradley) and I would take her out for her birthday, and she would pay the check. No one could question her ethics.” Should any question of ethics arise, “I would think, ‘What would Shirley do?’” she said. Geske said Abrahamson would have been deeply concerned about questions involving judicial integrity, including the recent decision regarding presidential immunity. “She’d be going nuts at what’s going on right now, especially with the U.S. Supreme Court, at the partisanship and the bias,” Geske said. “That would have really bothered her.” Continuing a legacy Friends and colleagues believe that Shirley Abrahamson’s legacy has the power to inspire others to care about the judicial system. Toward that goal, they began the Chief Justice Shirley S. Abrahamson Legacy Committee. Projects include annual awards for law students committed to “social justice, an independent judiciary, and equal rights for all.” The reading room at the Wisconsin Historical Society has been dedicated in her honor. There’s a website about her with everything from a timeline and family photos to resources regarding her opinions. Committee members are exploring the possibility of a documentary about her life and influence. Should anyone think that Shirley Abrahamson was all serious business, just remember that Toostie the Goldfish is still teaching kids to think like a judge. “Shirley was fun,” Bradley said of her friend. “She had an absolute commitment to maintaining and restoring public trust in the judiciary,” said Bradley. “She believed in justice and equal justice for all.” Whatever the topic, Chief Justice Shirley Abrahamson had a way with words. Here are a few quotes, taken from the website dedicated to her legacy. More quotes may be found at www.shirleyabrahamson.org/quotes/.
*Note: This story was updated on Aug. 22, 2024, to correct the name of the governor who appointed Abrahamson. We apologize for the error. (Thank you careful readers!)  This project is supported by grants from   By Alexandria Staubach Milwaukee County Circuit Court has a new mental health docket, which its creators hope will streamline the civil and criminal aspects of cases where competency is at issue.  Sanders Judge Mark A. Sanders will preside over the new docket, which started accepting cases this month.
The docket is designed to address a significant backlog of cases that deal with competency and to incorporate and possibly expand the capacity of the current mental health treatment court. Legal competency is the ability of someone who has been charged with a crime to appreciate the charges and consequences and to participate in their defense. The new court got its start through the Milwaukee Community Justice Council (CJC), which comprises Milwaukee-area criminal justice agencies and local governments working collaboratively to “ensure a fair, efficient, and effective justice system that enhance(s) public safety and quality of life in our community,” according to its website. WJI recently discussed the new court with Chief Judge Carl Ashley, who chairs the CJC; Milwaukee County Chief Deputy District Attorney Kent Lovern, who co-chairs the CJC’s Mental Health Committee (and is running unopposed for district attorney in November’s election); and Tom Reed, vice-chair of the CJC and regional attorney manager of the Wisconsin State Public Defender’s Office. “It is not possible to overemphasize that the mental health docket is a reflection of deep concern at every level that individuals with mental health issues end up with the police and in jails, in situations that are not equipped to deal with these issues,” said Reed. “We envision phases,” said Ashley. He told WJI that he hoped the new docket will grow to further address the significant needs of those charged with criminal offenses and simultaneously dealing with mental disease. The COVID-19 pandemic resulted in a significant backlog of cases, said Ashley. He told WJI, he believed the court could improve outcomes and efficiencies, especially in competency cases. Ashley, Reed, and Lovern all told WJI that mental health is a significant issue in court efficiency. Each noted the desire for individuals with significant mental health issues to achieve just outcomes, while acknowledging that arriving at those outcomes requires significant time and resources from the court. Apart from improving efficiency for individuals that have been charged, the new docket will have a “corollary benefit,” said Lovern. He said the new docket will let other courts move at an improved pace. Ashley, who others indicate led the effort in engineering the new docket, said the court will initially deal only with cases in which competency, not guilty by reason of mental defect, or restoration to competency is an issue. Sexual assault and homicide cases will be excluded from the new docket; those cases will remain in other specific courts. The new docket is distinct from the mental health treatment court. The circuit court has had a mental health treatment court for more than 10 years, deemed “the longest pilot project ever” by Lovern. The current mental health treatment court program is small and voluntary. “It’s really not the fit for every case” Lovern told WJI. It is designed to connect participants with mental health treatment, community services, and “appropriate dispositions” to criminal charges relative to the seriousness of the participant’s mental illness and severity of the offense, Lovern said. Reed said the treatment court is designed to deal with individuals who display a significant mental illness and could benefit and improve with long-term intensive work and supervision. The new docket is also designed to help the whole court system run more efficiently, said Ashley. If an individual is found not competent, it may be that they can be restored through treatment either out of custody (conditional release) or in custody at Mendota, a state-run mental health facility. In cases where competency is an issue the court must first establish a lack of competency by hearing, which often requires the testimony of medical professionals, and then act upon that fact. One objective for the new court is to give the civil system, plus service providers and medical professionals, a dedicated court to deal with, Ashley said. “There are significant delays in just the competency path; some of those delays have to do with the state hospital not having enough beds,” Reed told WJI. However, “other problems arise,” too. “Every criminal court has to deal with competency, and the result is ‘yes,’ time tied up in hospitalization, but a lot of time is also tied up in the process,” he said. “If felony courts can move faster to other cases, it can free up other court time,” said Lovern. Reed highlighted that a single docket for competency cases may result in a single team of people—court providers, district attorneys and public defenders—who are better positioned to think upstream, “to understand the familiar faces, see who is cycling through and trapped in unproductive cycles.” “We have to get in there, then see what we can do,” said Ashley. By Alexandria Staubach Late last month District 1 of the Court of Appeals released a decision that will change the way district attorneys and those representing youth defendants in reverse-waiver proceedings receive discovery. The court held that “juvenile defendants are entitled to all evidence that the State intends to introduce at a [reverse-waiver] preliminary examination to establish probable cause of the alleged jurisdiction offense” and that “the state is required to produce this evidence at a reasonable time before the preliminary examination.” Moreover, said the court, “additional materials exclusively in the possession of the State may be discoverable provided that the juvenile defendant establishes a particularized need for the materials requested by showing that they are likely to be relevant to negate one element of the alleged jurisdictional offense.” Prior to the opinion, State v. Adams, youth defendants and their representatives had no right to discovery at the reverse-waiver stage of a case.  Geenen Judge Sara J Geenen wrote for the three-judge panel, joined by Chief Judge M. Joseph Donald and Judge Pedro A. Colón.
“Reverse waiver” refers to the court procedure by which an adult court that would otherwise have exclusive jurisdiction over an offense may transfer a case brought against a child 16 years old or younger to juvenile court. Adult criminal courts have exclusive jurisdiction over, among other cases, first-degree intentional homicide, second-degree intentional homicide, and first-degree reckless homicide. This means that cases involving these charges start as adult cases regardless of the defendant’s age. It is a two-step process that begins with a preliminary hearing or examination at which the state must prove it has probable cause to charge the youth defendant of the crime and an adult criminal court must find probable cause to believe that the youth defendant has committed the charged offense. Then, at a reverse-waiver hearing, the youth must prove that transfer to juvenile court will not depreciate the seriousness of the offense, they could not receive adequate treatment in the criminal justice system if convicted as an adult, and retaining jurisdiction in adult court is not necessary to deter the youth or others from committing the charged offense. The juvenile who is the subject of the court of appeals decision, Jayden Adams, 13, was charged with first-degree reckless homicide, giving the adult criminal court exclusive jurisdiction over his case. Historically, juvenile defendants have not been entitled to discovery prior to their preliminary hearings. Adams argued that he had a an “unqualified right to discovery prior to the preliminary examination” because “it is impossible for defendants to know all potential challenges to probable cause without access to discovery,” Geenen wrote. The state argued that no law granted Adams a right to discovery before the preliminary examination. The issue, as identified by the court, was how much latitude a juvenile defendant has to attack the crime charged and what evidence the state may have that is relevant to such an attack. The court, though, hesitated to permit the preliminary hearing to become a “mini trial” should discovery in fact be entitled. Geenen discussed at length a 2010 Supreme Court of Wisconsin decision that found “the place to offer evidence for the purpose of contradicting the offense is the preliminary examination.” Geenen also recognized the Supreme Court’s interpretation of the nature of the reverse-waiver hearing: in contrast to other preliminary hearings where the state must merely prove “some felony” has been committed, in the reverse-waiver case the state must prove probable cause exists for the specific offense charged. According to Geenen, the 2010 Supreme Court case did not identify what, if any, evidence in the state’s possession, should be given to juvenile defendants for them to contradict the offense charged at the preliminary hearing. However, because the state is required to prove the specific offense charged, “the defendant must be given some latitude in attacking the specific offense charged, if a successful attack would alter the crime charged or negate the exclusive original jurisdiction of the criminal court,” Geenen wrote. While the Adams decision gives youth defendants some access to discovery prior to the reverse-waiver process, that evidence is limited to the evidence the prosecutor plans to use and only additional materials for which the youth defendant establishes a particular need. A representative of the State Public Defender’s Office told WJI by email that more could be done by broadening the amount of discoverable evidence. The ruling “is a step in the right direction, but does not go far enough to ensure fundamental fairness,” SPD Youth Defense Practice Coordinator Eileen Fredericks said. “An obligation to turn over discovery prior to a preliminary hearing for reverse waiver does not prejudice the prosecution,” she said. “Preliminary hearings in these matters have huge implications for a child. In order for the court to make the best decision regarding reverse waiver, a youth defendant should have the opportunity to review and discuss all discovery with their attorney who is obligated to conduct an investigation and highlight mitigating information from that discovery,” Fredericks said. “Allowing the defense to have discovery bolsters due process protections of the youth defendant by ensuring that the judge has complete information regarding the case,” she said. "Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is.  Name: Jenna Gill
Appointed to: Lafayette County Circuit Court Appointment date: June 14, 2024, to term ending July 31, 2025 Education: Law School – William Mitchell College, St. Paul, Minnesota Undergraduate – University of Wisconsin-Madison High School – Darlington High, Darlington, Wisconsin Recent legal employment: January 2017-present – District attorney, Lafayette County January 2012-December 2016 – Attorney, Russell Law Offices, Darlington, Wisconsin Bar admissions: State Bar of Wisconsin U.S. District Court for the Western District of Wisconsin General character of practice: Currently as the District Attorney, I prosecute a variety of crimes that come into our office, including ordinance and traffic violations, misdemeanors and felony matters. As the solo attorney in my office until a part-time prosecutor was added, I handled every case myself averaging over 300 cases per year. Prior to being the District Attorney, I handled family law cases, including divorces and child custody matters, small claims actions representing both individuals and financial institutions, civil matters for both individuals and financial institutions, real estate transactions, and business and estate planning. Describe typical clients: I currently represent the State of Wisconsin carrying a felony and misdemeanor caseload. As a private attorney, I represented primarily Lafayette County residents, along with businesses and financial institutions. Number of cases tried to verdict: 13 jury trials, dozens of court trials List up to three significant trials, appeals, or other legal matters in which you participated as a judge or lawyer in the past seven years: One specific trial that stands out as significant involved two sexual assault victims that reported decades later. The first victim to report came forward after being assaulted by her brother as a child, through age 16, with her brother being several years older than she was. She endured extreme emotional trauma because of the assaults after her reports to family went ignored and were covered up by her parents. It wasn't until her parents passed away and she was forced to confront her brother about the estate proceedings that she inadvertently reported it to law enforcement when dealing with other matters. The impact the assaults had on her life were unique. She moved out of her childhood home to essentially never return and became an accomplished working woman, but never married or dated to significance because of her past and distrust for other people. While conducting her interviews, law enforcement learned there was a possibility that her brother also assaulted his own daughter years later in the early 1990s. The defendant's daughter was hesitant to disclose the assaults because she struggled with drug addiction and was involved in the criminal justice on her own. At the time, the daughter had just recently graduated from our treatment court program and was doing well in life. I tried the case in Lafayette County before the Honorable Faun M. Phillipson in August 2023 with the defendant being represented by Attorney Andrea Winder. The charges only involved the defendant's daughter because of the statute of limitations on charges relating to his sister. However, his sister was able to testify and tell her story through an "Other Acts Motion" I filed, which was granted by the court. The jury found the defendant guilty despite the victim's own criminal history. It was significant because of the age of the case, but also the different impacts the assaults had on each individual victim and the fact that one victim was also a defendant I was familiar with. The case was a great example to show the community that the criminal justice system is meant to protect victims in every capacity and that no bias should exist when prosecuting cases based on who the victim is or what choices they have made in life. The case stems far beyond sexual assaults. All three of the children to this defendant have been involved in the criminal justice system, impacted by the drug epidemic. Each one separately had an opportunity to complete treatment court programs, two successfully doing so, but all three children are currently incarcerated within the Wisconsin State Prison, along with their father. However, the case provided an overarching look at how a defendant's upbringing impacts them through adult life and emphasized the need to protect children in our communities and provide intervention to them at an early age. Experience in adversary proceedings before administrative bodies: N/A Describe your non-litigation experience (e.g., arbitration, mediation). While in private practice, I practiced in several areas of transactional law, including real estate, estate planning, and business planning, which are general non-litigation. In addition, we occasionally utilized mediation services for settlements of various types of cases. Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: N/A Previous runs for public office: Lafayette County district attorney, elected, serving 2017-present All judicial or non-partisan candidates endorsed in the last ten years: (None listed) Professional or civic and charitable organizations: Lafayette County Bar Association, member, 2012-present Lafayette County CJCC, co-chair, 2017-present Significant pro bono legal work or volunteer service: In private practice, our office engaged in various legal work pro bono for individuals within the community. Since taking office as the District Attorney, I have not performed any pro bono legal work. Quotes: Why I want to be a judge: Having already held a role of public service, I recognize the importance of holding a position of this authority. I believe that I am the best candidate to serve the people of our county, because I have earned the trust of the community, as an individual, but also as the District Attorney. I want to ensure that our county continues down the path that Judge Jorgenson left in his passing, one where the public feels confident in the judge’s ability to serve the people how they wish to be served by upholding the law. My experience in almost every area of law applicable in our community has given me the experience needed to handle the variety of matters presented before the court on a daily and weekly basis. I have established relationships with the legal community and key stakeholders within the community to continue to develop the court system to meet the needs of Lafayette County. Ultimately, I want to serve Lafayette County as Judge because I feel compelled to maintain integrity in the system and believe I hold the knowledge of what it will take to do so in an effective and efficient manner. Without someone truly invested in the community they serve, where they live, where their children or grandchildren attend school, where they volunteer, where they attend community events and parades, where they go to Friday night fish fry, and where they go to church, the integrity of the system instantly depletes. The system loses its sense of “community” when the investment in said community doesn’t exist. The people become “people” instead of neighbors, colleagues, friends, acquaintances, business owners of your local stores, and community members. For the last seven plus years, I have worked hard to develop programs that impact our court system and by serving as the Judge, I will be able to continue to provide insight to ensure those programs see the progress necessary to make an impact on the community as a whole. While I did not go to law school specifically to be a judge, I did go with the desire to help people. I’ve now spent my legal career practicing in different areas, assisting the public in many different ways, and I believe I can be the most helpful to the people, our county, by serving as their next Judge as an invested member of the community. Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin. It is rare that a case decided by the higher courts are only positive or negative to the people of Wisconsin. Rather, and unfortunate, there are always people on each side of a decision for various reasons. There are many significant cases that impact a large amount of the population but in current practice, applicable to my profession as a district attorney, the implementation of Marsy’s Law has significantly impacted victims in the State of Wisconsin. In Wisconsin Justice Initiative, Inc. v. Wisconsin Elections Commission, the Wisconsin Supreme Court upheld Marsy’s Law, which was voted to incorporate into the Wisconsin Constitution in 2020. While the analysis of the case was based upon a challenge to the wording of the ballot question, the overall outcome was the implementation of Marsy’s Law, which has greatly impacted my office and the victims involved in all types of crimes. In my experience as a prosecutor, victims are often met with frustration in navigating the criminal justice system. While this amendment was meant to be a positive impact for victims of crimes and it has certainly allowed victims to make headway, in practice, the implementation is slow and the concept is still underdeveloped. However, the positive takeaway from all sides is that victims have more of a voice, or at least the opportunity to be heard and be involved in the process. Two or three judges whom I admire and why: Judge Duane Jorgenson: Despite Judge Jorgenson no longer being with us, his untimely passing offered an opportunity to truly reflect on the admirations many had of him. While I often pointed out his positive attributes to others and how fortunate we all were to appear before him on a daily basis, his funeral brought Judge Jorgenson’s compassion to the forefront. He ruled from the bench with compassion and empathy in a way that stood out from others. He was a very kind person and it showed in each and every interaction he had. It took a lot to get him upset because of his extraordinary patience. There was never a scornful admonishment that may have been appropriate, but a message filled with hope. Judge Jorgenson taught me as a prosecutor to never be discouraged by the outcome of a case, whether by a jury determination or a judge’s sentence that wasn’t quite what I had recommended to the court. Rather, he reminded me of the importance of my role, which was to present the case to the court or jury. My job wasn’t to find people guilty or send people to prison, it was to get the facts before the appropriate decision maker, the jury of their peers or the judge elected by the people who trusted him in our county. Either way, it was about trusting the process and trusting that the same community that elected me as DA and him as Judge would in one way or another, be the ones deciding the ultimate outcome of each case. He was insightful in his words and made an impact by making people reflect upon what was spoken to them. Judge Faun Phillipson: I have the fortunate opportunity to appear before Judge Phillipson on a regular basis. During her short term thus far, she has been able to quickly find her way in the Judge world. Being the first female judge to take the bench in Green County, I quickly gained an admiration for her ability to resonate with people. Similar to myself, Judge Phillipson has a strong desire to serve the community she was born and raised in. She knows the people in the community and their values. She has a rapport with defendants that is unmatched, always speaking at their level, never down to them, appreciating the different levels of intelligence. She truly treats everyone with the highest level of respect, but in way that they understand her. Judge Phillipson has truly immersed herself in the profession and takes great pride in getting to know the people that stand before her. Listening to her speak with each individual, she has an almost magical ability to reason with them and illuminate the true concern she has for each of them. After every hearing, I am always left admiring her sense of reason and level-headed nature. The proper role of a judge: The Judge, especially in a small rural county, shall be unbiased and nonpartisan while upholding the laws of the State of Wisconsin. Not only does this mean being knowledgeable about the law, but also being willing to learn the law when necessary. A proper judge has the ability to be authoritative to effectively make difficult decisions all while having the ability to be compassionate and empathetic for the persons standing before them. While a judge must interpret the law in each case and guide the procedure in the matters, it is essential the parties are treated fairly and that a fair outcome is reached through discretion. Throughout my legal career, I have had the opportunity to be before dozens of judges and they are not all created equal, each with their own set of strengths and weaknesses. I have always found the most impactful judges to be the ones that were relatable with the individuals before them. Above all, a judge must be an effective communicator, a skill that is sometimes lacking despite the extreme intelligence they possess. The right, or wrong, personality can completely change the course of the court system and the effect of the outcomes of the individuals involved. To truly leave an impact, a positive one, a judge must be personable. Ultimately, a judge must maintain the utmost integrity in running their courtroom. As a leader in the legal community, the proper role of a judge is to be that of a role model, which includes being efficient, timely, fair, open-minded, cordial, educated, dedicated, and trusted.  By Alexandria Staubach For someone convicted of a criminal offense, even under the best circumstances—good financial resources, a job, decent credit—it can be very difficult to find housing. The basic need of housing is a primary condition of supervision for many, but access to housing can be hard to come by. In part 1 of this series, WJI reported on the professional licensing problems of Stuart Parker Arthur, a Wisconsin resident who was twice incarcerated for convictions in Missouri. Arthur told WJI that after his release from custody in Missouri, he came back to Wisconsin and began to look for a place to live. It was a condition of his supervision. Everywhere he applied inquired about his criminal history, he said. If he wasn’t denied outright, he was subsequently informed there was nothing available for him, he said. Not checking the boxes on applications asking about convictions was “not really an option,” Arthur told WJI. “You’re on probation and there’s this whole piece where you’re supposed to be doing the right thing, to be honest.” Arthur said he also knew Missouri gave free access to court records and a simple search for him would show his criminal history. Arthur moved in with his mother and began thinking about buying his own home. He “didn’t see another way,” he said. Mortgage lender Sue Foley (the lender who eventually became his boss) told WJI that she worked with Arthur for more than a year to get him to circumstances that would allow him to qualify for a mortgage. Arthur told WJI he ultimately purchased a home with help from his mother. Purchasing a home is not a viable option, though, for most people returning to Wisconsin communities after conviction and incarceration. Many reentering individuals do not even have family to provide a place to stay or otherwise help. According to “Who’s Coming Home?” a study conducted during 2019 and 2020 by Project Return in collaboration with Data You Can Use, about 2,475 people return annually to the Milwaukee area following incarceration. More than half are under age 35. Roughly 42% will have some need related to finding or maintaining a place to live. Those with shorter terms of incarceration show the greatest need for housing assistance: in 2019, 60% of people returning home had been incarcerated for two years or less, and half of that number had stable-housing needs. According to the report, “the importance of finding a stable residence cannot be overestimated," and evidence suggests that the ability find secure housing during the first year of release reduces the probability of return to prison. Conversely, those who enter a homeless shelter in the first year after release face a higher risk of re-incarceration. WJI spoke with Conor Williams, an economic policy analyst for Community Advocates who is familiar with the report and the issue. Williams facilitates the Milwaukee Reentry Council, a subcommittee of the Milwaukee Community Justice Council, which works to improve reentry outcomes and to reduce incarceration. Williams told WJI, “if we provide decent and affordable housing, (reintegration) becomes more manageable.” And, while Milwaukee has “reduced chronic homelessness over the last seven to eight years, we haven’t extended that to the reentry community.” Williams and the Milwaukee Reentry Council are trying to bridge this gap by introducing a third party to the tenant/landlord relationship. Williams pointed to nonprofit organizations such as Project Return or the Alma Center mediating with a landlord on behalf of a tenant who has been previously incarcerated. Williams said that practice “needs to be built out in a more systematic way.” Williams is a strong proponent of applying the “housing first” model to reentry. "Housing first" is a homeless assistance approach that prioritizes permanent residence without preconditions for the unhoused. Milwaukee County adopted a housing first model in 2015. According to the county’s website, the approach has saved taxpayers $30 million since. In it first five years the program reduced overall homelessness by 46% and “unsheltered street homelessness” by 92%. Williams said that it costs roughly $45,000 a year to incarcerate someone, but resources are not made “available in a wise way to make people successful in reentry.” He highlighted the “reactive system” we have instead, addressing housing issues only after something has gone wrong. A Minnesota study by nonprofits working in reentry between 2010 and 2017 concluded that 11 of 15 categories of criminal offenses (including marijuana possession, alcohol-related offenses, minor drug-related offenses, minor public-order offenses, and reckless driving) had no significant effect on housing outcomes. The study found that four categories (fraud, assault, property offenses, and major drug-related offenses) “may have a statistically significant effect” but that even in those cases the risk to landlords of a negative outcome was increased by only three to nine percentage points. According to the study, data supports “a nuanced approached to screening based on criminal history” rather than a blanket ban by landlords on persons with prior convictions. A blanket ban “unnecessarily limits access to housing,” the report said. Williams suggests the book Homeward: Life in the Year After Prison by Bruce Western for those wishing to explore the topic further. Conor Williams will be the speaker at WJI's upcoming August Salon. Save the date and time: Aug. 28 at noon. Location in Milwaukee TBD. By Alexandria Staubach Earlier this month, Dane County Circuit Judge Jacob Frost declared part of Act 10—the 2011 statute that gutted collective bargaining rights—unconstitutional, finding that the law’s application to some public safety groups but not others had no rational explanation and therefore violates equal protection rights.  Frost found the provisions of the act related to collective bargaining modification void. (The full order is here.)
Equal protection arguments arise under federal and state constitutions when similar people are treated differently. Act 10 significantly diminished collective bargaining rights for everyone but select government employees deemed “protective occupation participants.” This classification included government workers like police but excluded some similar groups like the Capitol police. Whether the statute violates equal protection hinges on whether the state had a “rational basis” for determining who fell into the protective occupation classification, Frost said. Act 10 did not provide a definition for “protective occupation participants.” Instead, it relied on another Wisconsin statute that defined “protective occupation participants” who receive state benefits. Under that statute, there are 22 groups in the protective occupation classification. The groups “cover a variety of categories of work—law enforcement, fire fighters, and, oddly, motor vehicle inspectors,” Frost noted. The Legislature chose only seven of those 22 groups for protection in Act 10. Frost found that the Legislature failed to explain why just those seven groups of workers would essentially be exempt from the restrictions on collective bargaining implemented under Act 10. “No explanation presented to or thought of by the Court can explain why those 7 groups are in but the other public safety type groups are put in the general employee category,” Frost said. “(T)his is the purpose of rational basis review—to ensure there is an explanation that makes rational sense as to why a group is treated differently and who is in the group,” he wrote. “(T)he Legislature did not define the bounds of who is in the public safety group with words or explanation. It only did so by naming the specific employees put into the public safety group. Because the Court cannot come up with any policy that explains why these 7 groups of employees are included but other similar employees are excluded, the classification lacks a rational basis,” Frost said. Frost said the Legislature “absolutely has authority to define the public safety group and set the bounds of who is included as long as there is a rationale for it and the bounds apply fairly to all who fall within them.” A group of labor organizations filed the equal protection lawsuit in Dane County in November 2023. The defendants—state agencies and officials who oversee Act 10 enforcement—and the intervening Legislature asked Frost to dismiss the case on the grounds that the issues raised were decided in two prior cases, which deemed the law constitutional; implications for the state’s budget and the amount of time elapsed since Act 10’s enactment prejudice the state; and the law does not violate equal protection. Federal courts and the Wisconsin Supreme Court have previously found the law constitutional, but Frost said those cases and arguments were different. A case filed in federal court in 2013 by a (mostly) different group of labor organizations sought to invalidate Act 10 for violating the equal protection clause of the U.S. Constitution. Frost found that the plaintiffs before him challenged Act 10 under the Wisconsin Constitution. “(T)hough the state and federal arguments surely have similarities they are not the same,” he said. Frost concluded that the prior federal case was not binding on Wisconsin courts because “Wisconsin’s Supreme Court has developed a 5 factor test to apply to certain equal protection challenges,” which the federal appeals court “never discussed or applied.” In 2014, labor organizations again unsuccessfully challenged Act 10, but in state court. They argued that Act 10 violated equal protection under the Wisconsin Constitution because it treats employees who chose union representation differently from those who chose not to be represented by a union. Frost wrote that “this is entirely different” from the question of whether Act 10’s protective occupation classification violates equal protection. Frost disposed of the prejudice argument by saying that the Legislature had failed to demonstrate any prejudice other than the ordinary inconvenience and disruption of litigation. “Those costs also would exist no matter when the law[suit] was brought,” he wrote. “(S)imilarly, if Act 10 were overturned, the effect on budgets would have occurred right after the law’s passing the same as it does now.” The defendants are likely to appeal Frost’s decision once it has been fully litigated, and it is likely to be another case that ends up before the Wisconsin Supreme Court. Recently, a host of cases in the Supreme Court have sought to overturn Wisconsin law on controversial topics—from the 2023 case that led to redistricting, to this month’s decision by the Wisconsin Supreme Court that absentee ballot boxes are allowed, to a case on whether the state constitution protects a right to abortion. "Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is.  Name: Adam Y. Gerol
Appointed to: Ozaukee County Circuit Court Appointment date: May 24, 2024, to term ending July 31, 2025 Education: Law School – Drake Law School, Des Moines, Iowa Undergraduate – The University of Iowa, Iowa City, Iowa High School – The Prairie School, Wind Point, Wisconsin Recent legal employment: July 2009-present – District attorney, Ozaukee County September 2008-July 2009 – Assistant district attorney, Milwaukee County July 2008-September 2008 – Assistant attorney general, Wisconsin Department of Justice, Criminal Litigation Division September 1992-July 2008 – Assistant district attorney, Ozaukee County Bar and administrative memberships: State Bar of Wisconsin U. S. District Court for the Eastern District of Wisconsin U.S. District Court for the Western District of Wisconsin Illinois State Bar Association (lapsed) U.S. Court of Appeals for the Seventh Circuit General character of practice: I advise law enforcement on investigations, and assist with law enforcement training. I review and charge criminal cases, litigate these matters through trial to disposition, and sometimes through the appeal. I am also the department head of my office for purposes of budgeting, staff supervision, and government relations. As an assistant district attorney in Milwaukee County I was assigned to the Drug Unit and the Gun Unit in the Violent Crimes Division where we handled everything from Felon in Possession to Attempt Homicide. Staffing in Ozaukee County allows for little specialization. However I have always prosecuted the bulk of sensitive crimes in Ozaukee County, and as the district attorney I personally review and prosecute the most serious of allegations .… Describe typical clients: Prosecutors don't have clients in the traditional sense. We act in the name of the State of Wisconsin, and law enforcement agencies are our witnesses. We have statutory and constitutional obligations to the victims of crimes, but they are also, technically, not our clients. As the district attorney I still assign myself the bulk of all the sensitive crimes Number of cases tried to verdict: Approximately 250 jury trials List up to three significant trials, appeals, or other legal matters in which you participated as a judge or lawyer in the past seven years: I was the prosecutor in State v. Banas, Ozaukee County Case No. 2018CF000333. My participation began with the investigation commencing in 2007, where ultimately, more than 20 women reported being surreptitiously drugged after socializing with a local man. While all the women reported similar experiences, none had come forward within the time frame where traditional forensic testing could help identify the substances used or even what conduct may have occurred. Ultimately, a victim in 2014 did report within a time frame where we were able to use forensic hair analysis as pioneered by a leading world expert on drug-facilitated crimes, Dr. Pascal Kintz of Strasbourg, France. The case was tried before The Honorable Todd Martens, a Washington County judge. Motion practice was extensive, and the three day trial began on February 24, 2020. The opposing counsel was Brent Nistler. This case demonstrated the difficulties in applying the statute designed to address this type of behavior, Wis. Stats Sec. 941.32, Administering Dangerous or Stupefying Drug. There was extensive public attention to this matter from the earliest days of the investigation through trial. I was the prosecutor in State v. Kerschbaum, Ozaukee County Case No. 2020CF000156. Opposing counsel was Attorney Jerome Buting. Only the second phase of a bifurcated case was tried, and that was to the bench. The Honorable Sandy Williams was the judge. This was a sensitive crime prosecution, together with related counts of Child Pornography. The behavior was among the most disturbing I’ve ever encountered. This case involved applying existing state and federal law on the question of Miranda and police interrogation of a special needs suspect. However, the critical issue was the role of the defendant's (redacted) and how it might apply to questions of intent and mental responsibility. A related question was the relevance of expert testimony on the question of a knowing and voluntary Miranda waiver. This defendant suffered from significant limitations, and this case demonstrated the sometimes awkward fit between existing law and the state of medical science when addressing questions of cognition and intent. I was the prosecutor in State v. Difrances, Ozaukee County Case No. 2019CF000143, where the defendant was convicted of Incest with a Child, contrary to Wis. Stat Sec. 948.06. I litigated all material aspects of this case from its inception in June 2019 through trial and through the post-conviction motions that concluded on April 8, 2023. The two day jury trial began on June 29, 2021 before the Honorable Paul Malloy. Opposing counsel was Jason Baltz. This case touched on almost every reason why the Shiffra/Green procedure harmed victims. Here, it resulted in substantial delays but also demonstrated other aspects of how that process was flawed. When asked for a treatment history, this child didn't know who she might have treated with when she was very young. This was also the first case where I encouraged the victim to seek her own representation because Marsy’s Law creates tension between a prosecutor's interest in complying with a discovery order and the victim's right to have her records remain private. This victim was represented by Attorney Nancy Noet of the Crime Victims’ Rights Project, associated with Legal Action of Wisconsin, Inc. This case is also an example of another related privacy concern with incest victims. When we charge the crime of Incest, the identity of – and the trauma experienced by – the victim essentially becomes public. In these cases, I would ordinarily choose just to charge a sexual assault for this reason, leaving out the Incest count entirely. That option wasn't available here. Experience in adversary proceedings before administrative bodies: I have no recent experience. More than 30 years ago I represented a client involved in a banking regulation matter. We were able to resolve the matter with the Wisconsin Department of Justice without any further litigation. In private practice I represented a client who was a witness in a matter with the Department of Regulation and Licensing related to a fraud committed by a real estate agent. As a defense attorney I represented a number of people who had been charged with operating while intoxicated at their administrative hearings regarding their drivers licenses. Describe your non-litigation experience (e.g., arbitration, mediation). In the early years of my practice I worked on corporate formation, creation of employee benefit plans, and the occasional tax problem. A number of years ago I formed a non-profit corporation, negotiated a land transfer, and obtained charitable status for a local dog park. As a volunteer with Habitat for Humanity, I assisted with land use questions, grants, and corporate compliance. I offer advice from time to time to my wife's employer, the Milwaukee Center for Children and Youth. Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: I've served as treasurer for Jim Konowalski who was running for the county board approximately 10 years ago. I was the Courthouse Representative with the Ozaukee County Republican Party, and was active with them from 2009 until 2022. I know that I have dropped literature or helped with yard signs with campaigns in the distant past, but I can't accurately specify them. I know that I was very active with the campaigns of Sandy Williams (district attorney and judge), Tom Wolfram (Judge) and Steve Cain (Judge). Previous runs for public office: Ozaukee County District Attorney, appointed in 2009 and elected in 2012, 2016 and 2020 All judicial or non-partisan candidates endorsed in the last ten years: I never maintained a list of endorsements that I’ve made. I tried to be accurate with this question by checking my email accounts and researching internet history for cached versions of relevant campaign websites. With that caveat, I believe this list is complete. I would add that it’s likely that I endorsed Brian Hagedorn for the Supreme Court. I don’t believe I ever endorsed Daniel Kelly. Jennifer Dorow, Wisconsin Supreme Court, 2023 Maria Lazar, Court of Appeals, 2022 Shelly Grogan, Court of Appeals, 2021 Steve Cain, Circuit Court Judge, 2019 Annette Ziegler, Wisconsin Supreme Court, 2016 Brian Hagedorn, Wisconsin Court of Appeals, 2017 Michael Screnock, Wisconsin Supreme Court, 2017 Professional or civic and charitable organizations: Wisconsin District Attorneys Association, roles including president, 1994-present Rotary International, 2008-2021 Habitat for Humanity, board member, 2008-2014 Ozaukee County Jail Advisory Board, 2009-present Wisconsin Bar Association, district governor, 2016-2018 Joint Legislative Councils, various committees and dates Significant pro bono legal work or volunteer service: While in private practice I helped numerous people with various concerns without charging a fee. Since becoming a prosecutor, Wis Stat. Sec. 978.06 places restrictions on the ability of a prosecutor to perform other legal services. That said, I helped create the current incarnation of the Grafton dog park in the early 1990s and helped when they had problems with their regulatory filings. I also provided informal assistance when I volunteered with Habitat for Humanity, assisting with grants and contracts. Quotes: Why I want to be a judge: I have had a fulfilling career in litigation, which has given me an excellent legal education. However, it has also made me aware of many flaws in our court system. One that demands resolution is the cycle of never-ending status conferences in court calendars. These frustrate litigants immensely, leading many to settle their cases arbitrarily. These calendars ultimately leave judges with less time to focus on the crucial aspects of cases. This inevitably has a corrosive effect on the whole judicial process. My first goal is to change this dynamic. As an advocate, I've built where I could. Ozaukee County has an efficient district attorney's office that studies its cases, excels at providing complete discovery to litigants, and works hard to obtain fair outcomes. Thousands of cases, hundreds of trials, and dozens of appeals have built a strong foundation in the letter of the law. My resume reflects how I've also tried to serve the broader legal system. Our justice system isn’t just about laws. It's about people. I've never lost sight of the human side of my cases. Every case represents a significant turmoil in someone's life, and few people choose to become embroiled in the legal system. They find themselves trapped within a court system that is daunting, confusing, and often appears capricious. They're forced to rely on the advice of strangers. Their relationship with their attorney is frequently marked by caution and occasionally suspicion. Almost everyone is afraid. My understanding of the legal system extends beyond my professional experiences. It's deeply personal, shaped by the victims I encounter, the clients I've represented, and my family's experiences with the law. All of this has reinforced my belief in the importance of empathy, patience, and communication in the justice system. People deserve a court system that will treat them fairly, respectfully, and honestly. This is my commitment. The key is to understand the people in our courtrooms. Judges must have the ability and the desire to engage with people in a way that allows them to leave the courtroom understanding what has occurred. There is nothing more critical to the integrity of the entire justice system. In every case, there will be litigants who will not agree with the outcome. However, when a judge follows the law and explains how it applies to the facts that have been proven, the fairness of that outcome – no matter how unwelcome it might be – will resonate. As a judge, I want to accomplish all of these things and am dedicated to making this a reality. I am deeply rooted in this community and committed to using my skills and knowledge to ensure a fair, honest, and trusted court system. For the past 35 years, I have had the privilege of observing many great judges across southeastern Wisconsin, and I am eager to apply those lessons in this courthouse that is so important to me. Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin. State v. Johnson, 2023 WI 39, 407 Wis.2d 195, 990 N.W.2d 174 was the most significant triumph for victim rights in Wisconsin in the last 25 years. The modern world has made great strides in destigmatizing mental health concerns. We encourage every sexual assault victim to seek therapy immediately. But since 1993, in State v. Shiffra,175 Wis.2d 600, 499 N.W.2d 719 (Ct. App. 1993), our courts have provided a legal strategy to force victims to either surrender their privacy interests in their counseling records or watch the prosecution get dismissed. Shiffra motions became the standard of practice in every sexual assault case, with defendants commonly asking trial courts to inspect victims' private counseling records for exculpatory information. In the Shiffra sexual assault prosecution, the defendant claimed that the victim's history of psychiatric issues could have affected her ability to perceive and convey truthful information. The Court of Appeals held that the victim’s psychiatric history and the records from any doctors, hospitals, or counselors that may have treated her could be obtained if the defendant made a preliminary showing that such documents might be relevant and helpful at trial. They created a standard, and if the trial court made the requisite finding and the victim did not consent to release the treatment records for an in-camera inspection, the remedy would be suppressing the victim's testimony. I've prosecuted the most sensitive crimes in Ozaukee County for the last 30 years, and I know just how upset victims become when told that the defendant is trying to access their counseling records. The fact that only the judge will do the initial review does not comfort them. Johnson rejected this entire scheme. In a logical and reasoned fashion, Johnson set aside an ill-crafted mechanism that had the natural effect of retraumatizing sexual assault victims. "… in the past thirty years, because of Shiffra, countless sexual assault victims who reported their victimization have been on the horns of a dilemma, forced to choose between either disclosing their mental health records or not testifying in the trials of their perpetrators. Neither option was tenable, leaving victims with no choice but to have their suffering compounded by the system meant to administer justice." Johnson, ¶80. Johnson explained the “special justification” to reverse Shiffra and why the doctrine of stare decisis supported this outcome. The Supreme Court explained why the Shiffra line of cases was wrongly decided, unworkable, and inapplicable in light of the constitutional amendments enshrining victim's rights. Johnson recognized how Shiffra had ignored statutory protections, ran roughshod on the sensitivities of people who had been grievously harmed, and "allowed perpetrators to harass victims into silence." Johnson was a vindication of the rights of victims and a rejection of outmoded thinking about the presumed behavior of people who had been sexually assaulted. Two or three judges whom I admire and why: Perhaps drawing from his experience as a small-town lawyer and judge, Justice Jon Wilcox crafted ‘useable’ opinions that were direct and straightforward. He was committed to ensuring that the law was easily understood to all who needed to apply it. A prime example of this can be seen in his concurrence in Carney-Hayes v. NW Wis. Home Care, 2005 WI 118, 284 Wis.2d 56, 699 N.W.2d 524: "I write separately to set forth some clear rules regarding the analysis to be employed in applying the expert privilege, in hopes of providing guidance to litigants and judges dealing with this seemingly difficult area of the law." Carney-Hayes, ¶ 63. Justice Wilcox believed in judicial restraint, stare decisis, and the judiciary's limited role. This was particularly stressed when approaching matters of public policy – something Justice Wilcox emphasized should be left for the legislature. That’s not to say that he would always agree with what the legislature had done, once writing: "… I write separately, however, to address the serious concerns raised by the broad language in Wis. Stat. § 974.07(6) ... and I strongly urge the legislature to take a hard look at the practical consequences of this subsection. …" State v. Moran, 2005 WI 115, ¶ 59, 284 Wis.2d 24, 700 N.W.2d 884. Justice Wilcox never recited a principle just to say it. When dissenting, there was never anything ad hominem in his words. Even his most strident objections could be read as a fair exchange of opinion, leaving for the reader – or perhaps later courts – to further consider who was correct. Judge Joseph McCormack of Ozaukee County was the finest judge I have ever practiced before. He was never concerned with impressing others or demonstrating the breadth of his intellect. He only made his presence known at trial if a ruling was necessary. During his tenure, some of the most complicated cases in Ozaukee County were tried in his court. Whether it was a products liability case involving a 'big 3' automaker, a horrible medical malpractice claim, or an aggravated felony, he would immediately seize the essential thread of a subject. He always looked for the established standards that should apply to any question. Perhaps gained from his years as a social worker, Judge McCormack had a unique ability to connect with the people before him quickly. No litigant, victim, or defendant ever left his courtroom wondering what had occurred or with a lingering doubt that the outcome was anything other than well-considered. Judge McCormack was the first presiding judge in Ozaukee County to reach out to other justice system partners to improve local practices. I will always credit him for consolidating criminal calendars so prosecutors and public defenders could organize their time. He mentored young lawyers and was always willing to offer advice to those who showed interest. He was highly respected and known for his genuine concern for others. The proper role of a judge: Every society throughout history has expressed its thoughts on the proper role of a judge. 2,500 years ago, Socrates said, "Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially." All of these remain true today. The best judges have the same qualities: They listen, they grasp the issues presented, they apply the law fairly, and they are respectful to the litigants. Today, the best judges are also mindful of the public’s perception of the court. Society must have confidence in their justice system. A judge must always consider that their behavior and demeanor affect the public's opinion of the judiciary. Everyone in the courtroom must perceive the judge as unbiased, unaffected by any familiarity with the litigants or by personal feelings toward the subject matter. A judge should go to great lengths to demonstrate that they approach the record objectively, guided solely by statutes and common law. Any deviation from this principle fosters contempt for the judicial system because it allows people to remain skeptical of the outcome. The law is a sacred thing, bequeathed to us by thoughtful, wise individuals who refined a system of resolving disputes. Every judge should acknowledge that precedent holds a superior understanding of the law than anything they might choose to invent. Respect for stare decisis is the most compelling of judicial virtues and a guiding principle for a trial court judge. A judge's calendar should prioritize the prompt resolution of cases rather than fostering a system that might pressure litigants into settling for the sake of convenience or cost. Fair compromises uphold the interests of justice, but when a case is settled for the wrong reasons, it breeds resentment. Someone will feel let down or perceive the justice system as manipulable, inevitably eroding respect for the legal system. When a judge's calendar offers a genuine opportunity for a case to be tried promptly, and where litigants know there will be no 'penalty' for doing so, few will leave the courtroom feeling that the outcome was forced upon them. A judge can't force anyone to resolve anything, and stern messaging by frustrated judges is soon forgotten. There’s nothing to be gained from status conferences where little will occur except for scheduling yet another date. Consequently, the client will be billed for another hour's work, which could have been put to better use. A judge should default to trusting the lawyers to advance their own cases. Before a jury trial, a judge should encourage litigants to discuss the expected testimony so that rulings can be anticipated. In a trial, a judge should avoid becoming an active participant whenever possible because that behavior is too easily misunderstood. In the eyes of jurors, the judge should appear to be the most neutral party in the courtroom. |
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