By Gretchen Schuldt

​A Forest County deputy overstepped when he searched a vehicle because the driver turned the car around at night within a mile of where another person fled a traffic stop, a Court of Appeals judge ruled Tuesday.

"We cannot conclude that (Brady R.) Adams’ driving late at night, one-half hour or more after a suspect had fled the scene of a traffic stop within the vicinity of an active police search for that suspect, paired with Adams’ turning around on a street with a dead end, would lead a reasonable officer to suspect that Adams had committed, was committing, or was about to commit a crime, or any wrongdoing for that matter," District III Court of Appeals Judge Mark A. Seidl wrote in his opinion.

In reversing Forest County Circuit Judge Leon D. Stenz, Seidl threw out Adams' conviction for second offense drunk driving and sent the matter back to Circuit Court.

Sheriff's Deputy William Hujet testified in Circuit Court that he was looking for a person who fled a traffic stop when another deputy passed the word that a car was approaching. Adams was that car's driver.  Hujet began to follow him.

The Wisconsin Justice Initiative on Friday asked Attorney General Josh Kaul to conduct a review of the Department of Justice's investigation into the abuses inflicted on youths held at the Lincoln Hills/Copper Lake juvenile prisons.

"There are serious questions about the thoroughness of that investigation and whether DOJ ever intended to identify and prosecute abusers and those who authorized the excesses that occurred at the facilities," WJI Executive Director Gretchen Schuldt wrote to Kaul. "Will the state allow those people to continue in their careers as if nothing happened?"

WJI also recommended that Kaul seek outside assistance for the review.

"Unfortunately, through no fault of your own, DOJ's credibility is totally compromised when it comes to Lincoln Hills/Copper Lake," she wrote.

Read the full letter here.

Youths at the facilities were pepper-sprayed, chained to tables, and held for long stretches in solitary confinement. The state settled a class-action ACLU lawsuit by agreeing to end many of the practices, and is moving, very slowly, to close the facilities.

Former Attorney General Brad Schimel, now a Waukesha County circuit judge, said his agency was investigating potential wrongdoing by staff, but did very little to try to stop it. Schimel said the FBI took over the investigation, and it is unclear what, if anything, federal investigators did to further the probe.

By Gretchen Schuldt
​
Correctional officers and sergeants logged 1.8 million hours of overtime at adult facilities last year at a cost of almost $51 million, according to a new Department of Corrections report.

That amounts to 34,714 hours a week, or 3,001 hours more per week than the overtime worked by all DOC workers in 2015-16, according to a 2017-19 budget paper prepared by the Legislative Fiscal Bureau. Security staff worked an average of 28,235 hours per week overtime in 2015-16, according to the LFB.

Almost half of last year's overtime was attributable to employees plugging holes when positions were vacant, according to DOC. The new figures cover the year ending July 1.

Correctional officers and sergeants at Dodge Correctional Institution, a maximum-security prison for men, recorded a total of 212,734 overtime hours at a total cost of $6.2 million, tops in the adult system, according to the report. Some 67 percent of that was due to staff vacancies, the report said. 

​Overall, system wide, position vacancies required 844,195 hours of overtime at a cost of $24.6 million, according to the report.  That is 47 percent of the hours and cost of overtime.

Other reasons for overtime including sick leave, construction project detail, assisting inmates with medical visits, trips, and training, according to the report.

Gov. Tony Evers took office this week vowing to reduce prison populations. Some legislators want to build additional facilities, though the state cannot staff the ones they have.

In May, according to the Milwaukee Journal Sentinel, 920 jobs at state prisons were empty, a 12.5 percent vacancy rate. 

By Gretchen Schuldt

​Milwaukee County Circuit Judge Kristy Yang will move at the end of this month from presiding over misdemeanors to handling juvenile cases, Milwaukee County Chief Judge Maxine White ordered Friday.

Yang's tenure in misdemeanor court was marked by a large number of substitutions filed against her. For the year ended July 31, for example, 227 substitutions were filed against Yang, while just five were filed against Circuit Judge Jean Kies and 40 were filed against Circuit Judge Hannah Dugan, both of whom also served in misdemeanor court.

New judge Daniel Gabler, meanwhile, will spend just a few weeks in Children's Court before taking over Yang's misdemeanor calendar. His stint in Children's Court begins Monday and ends Jan. 28, when he takes over Yang's misdemeanor calendar.

Paul Dedinsky, a former Children's Court prosecutor, will return as a judge to that same court. 

Gabler and Dedinsky were appointed to the bench by Gov. Scott Walker.

Gabler, a former assistant district attorney,  ran unsuccessfully for judge as a tough-on-crime candidate in 2009. He won the primary, but lost support when he ran an ad accusing judges of being lazy and portrayed two election opponents – one a career prosecutor – as having records of defending accused criminals. 

He also ran into trouble when he failed to show up for court on a case, leading to the dismissal of felony drug charges against the defendant. Gabler said he was busy with another case, but others said he may have been involved in a non work-related matter. There were two other court cases where Gabler-related errors got the DA's office in hot water, according to the MIlwaukee Journal Sentinel. 

Gabler lost the general election to J.D. Watts. 

Walker appointed Gabler to head the Parole Commission in 2017. Under Gabler's leadership, the commission was best known for its stinginess in granting parole. In 2017, for example, 181 inmates were released on parole, according to the Department of Corrections.

Dedinsky has worked since May 2017 as chief legal counsel for the State Department of Agriculture, Trade and Consumer Protection. He was a Milwaukee County assistant district attorney for 20 years prior to that, a job that included serving as the Milwaukee Public Schools restorative justice coordinator from 2008 to 2014.

White's order Friday follows an earlier shuffling announced in November.

By Gretchen Schuldt

​District Attorney John Chisholm says he will push for a statewide initiative that would increase state aid to counties that successfully reduce the number of people they are sending to state prisons.

He also said that the high turnover rate among attorneys and support staff in his office "is the single biggest administrative challenge I face."

On the prison alternative initiative, Chisholm, the Milwaukee County prosecutor, said that other states, such as Minnesota and Oregon, "have engaged in this work and have seen dramatic improvements in their criminal justice systems."

Minnesota had about 10,000 prison inmates as of July 1, 2018; Oregon had about 15,000; and Wisconsin had about 24,000, according to figures from each of those states.

The initiative, if it is to work, would require more equitable state revenue sharing and commitments from counties to develop alternatives to incarceration, Chisholm said. 

Under the plan, the state would absorb the cost of a certain number of new inmates from each county.

"If they (the counties) send more than their share, then they have to pay the costs associated with it," he said. A state-county cost share already exists in the juvenile corrections area. 

By Gretchen Schuldt

​District Attorney John Chisholm said this week that he favors marijuana legalization if there are adequate implementation and regulatory structures in place.

"Let's come up with the best legal framework for allowing people to possess marijuana much as they do alcohol and tobacco," he said during an interview. 

If he can find the funding, Chisholm said, he would like to hold a one-day symposium in Milwaukee to explore how other states handled legalization implementation, the challenges they faced, and what they learned from their experiences.

Thirty-three states and the District of Columbia have legalized cannabis to some extent. 

Wisconsin still is a full prohibition state. Second offense possession of marijuana of any amount still is a felony in the state.

Voters in 18 November referendums around the state indicated they favor cannabis legalization. Milwaukee County voters in every municipality favored legalization of recreational marijuana for adults. 

Chisholm says he favors full legalization over an incremental approach. The state should ensure, before legalization takes effect, that the infrastructure is in place to ensure successful implementation and that cannabis tax revenue is distributed as intended. 

Downsides to legalization, he said, could include impaired driving, and negative impacts on school performance and health, he said.

"We just have to be cognizant of that," he said.

In the meantime, he said, his office will continue to use alternatives to prosecution, including diversion efforts and defaulting to municipal tickets instead of criminal prosecutions, to reduce the number of marijuana cases flowing through the court system.

He said he would prosecute some cases, though, "until the law is changed." 

As a prosecutor, he said, he has significant discretion, but "it's got to be based on a rational basis." 

He can't decide simply to not enforce the law, he said.

"I'm not a super legislator," he said.

By Margo Kirchner

​​An expunged operating-while-intoxicated (OWI) conviction can be counted as a prior offense when a defendant is prosecuted for a subsequent OWI, the Supreme Court of Wisconsin held last week.
 
Wisconsin law permits expunction of a criminal record after successful completion of a sentence if the defendant was under age 25 at the time of the offense, the maximum term of imprisonment for the offense is six years or less, and the judge ordered expunction at sentencing after finding that society would not be harmed by that result.
 
Upon successful completion of an expunged sentence, the clerk of court seals the case and destroys the court records. Expunction is intended to benefit a young offender, providing a second chance or a fresh start, according to the Supreme Court.
 
In Wisconsin, a first OWI offense is deemed a civil, not criminal, charge. Repeat offenses are criminal matters, and penalties increase with the number of offenses.
 
In 2011, Justin Braunschweig was convicted of a first OWI offense in Jackson County Circuit Court, and the judge ordered expunction.
 
Five years later, Braunschweig was arrested for driving while intoxicated with a blood-alcohol content of 0.16.  The state relied on Braunschweig’s expunged 2011 conviction as a prior offense, charging Braunschweig with criminal misdemeanor, rather than civil, OWI and prohibited-alcohol-content (PAC) offenses.
 
Braunschweig argued that his expunged conviction could not be counted and that he should not have been charged criminally. He lost the argument in the trial court and at the Wisconsin Court of Appeals.
 
Had Braunschweig’s 2011 conviction not been expunged, it unquestionably would count, said the Supreme Court. The question before the Court was whether an expunged conviction counts.
 
The Court held that it does. Justice Annette Kingsland Ziegler wrote for the unanimous Court.

The National Association of Criminal Defense Lawyers is getting ready "to pursue a class action lawsuit" if the state does not adequately increase the amount the State Public Defender's Office (SPD) pays private lawyers to represent indigent defendants in criminal cases, according to a Milwaukee lawyer.

"The NACDL leadership has made it clear that $70/hour is constitutionally insufficient and will prompt a lawsuit," defense lawyer John Birdsall wrote in an email to his colleagues around the state. "We have already identified several potential plaintiffs. NACDL is securing a national law firm to pursue the class action, if necessary. "

NACDL represents thousands of lawyers in the United States and other countries.

SPD pays $40 per hour, the lowest rate in the nation, and has proposed raising the rate to $70 per hour. 

SPD proposed the rate increase as part of its 2019-21 budget request. The $70 per hour rate also was included in a joint proposal put forward by SPD, the Wisconsin District Attorney’s Association, the Association of State Prosecutors, the Department of Justice, and Director of State Court’s Office. 

The Wisconsin Association of Criminal Defense Lawyers was not consulted about the proposal, said Birdsall, a leader in the effort to raise the rate.

SPD appoints private lawyers to take cases when its own attorneys are overburdened or have a conflict.

More and more attorneys are refusing to accept cases at the $40 rate. That means pre-trial defendants are sitting in jail longer without lawyers to help them or with lawyers who are inexperienced or who cannot provide adequate representation. The situation is recognized as a looming constitutional crisis.

Birdsall said in his email that he and defense lawyer Hank Schultz, who also has been heavily involved in efforts to increase the $40 rate, have been working on a legislative proposal for variable rates ranging from $100 per hour to $140 per hour, depending on the seriousness and type of case involved. The proposal also would include automatic inflationary increases.

"Given how rotten things are now $70/ hr. might seem OK," Birdsall wrote. "But remember, SCOW (Supreme Court of Wisconsin) has already agreed with us that $100/ hr. is the minimum wage for indigent criminal defense work. And the most complicated cases deserve more than minimum wage compensation. Our plan is a permanent fix because it is indexed – plus the private bar will have an ongoing independent budget voice."

If SPD cannot find a private lawyer to take a case for $40 per hour, the judge in a case can appoint a lawyer for $70 an hour. The State Supreme Court this year ordered that the rate be increased to $100 per hour starting on Jan. 1, 2020. The Court also refused to give SPD-appointed lawyers any raise at all, though justices recognized the lawyers were underpaid.

"We finally have the attention of some decision-makers so the importance of this moment cannot be overstated," Birdsall wrote. "Whatever happens we will likely have to live with it for the next 20-30 years. Seventy dollars/hour is insufficient to fund quality legal representation. Already, in multiple Wisconsin counties, judges can’t find lawyers who will take $100/ hr." ​

By Gretchen Schuldt

​​The question on the Nov. 6 Milwaukee County election ballot was this: "Do you favor allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana?"

The results:

By Margo Kirchner

​A federal judge’s refusal to delay trial for two years so that “Coupon King” Thomas (Chris) Balsiger could be represented by a particular lawyer did not violate Balsiger’s right to counsel, a federal appeals court ruled last week.
 
The ruling means that the 10-year federal criminal case against Balsiger will not be retried.  The U.S. Court of Appeals for the Seventh Circuit affirmed the bulk of Balsiger’s conviction and sentence with the exception of a recalculated forfeiture amount.
 
Balsiger ran International Outsourcing Services, one of the nation’s largest product-coupon processors, in El Paso, Texas, and Bloomington, Indiana.
 
He and 10 others were indicted in 2007 on 25 counts of wire fraud, conspiracy to commit wire fraud, and conspiracy to obstruct justice. The fraud allegations involved coupon payments made by Wisconsin manufacturers Sargento Foods, Good Humor/Breyers Ice Cream, Kimberly-Clark, LeSaffre Yeast, and S.C. Johnson & Sons. The indictment alleged that the wire-fraud scheme caused $250 million in losses to manufacturers.
 
Pretrial proceedings dragged on for years. During that time, in July 2014, Balsiger’s lawyer, Joseph Sib Abraham, passed away.
 
U.S. District Judge Charles N. Clevert, Jr. was notified in August 2014, and a lawyer who worked with Abraham said Balsiger expected to hire new counsel within 30 days.  Yet by early December 2014 no new attorney had appeared in the case and Balsiger claimed he could not then hire a new attorney due to financial difficulties.
 
Clevert set trial for October 2015.
 
At a status conference in early January 2015 Balsiger told Clevert he planned to hire El Paso attorney Richard Esper, and asked for a deadline of April 1, 2015, to hire Esper. Balsiger said he did not have sufficient funds and could not sell his home because of a filing the government made against the property.
 
Clevert soon learned that Esper could not be ready for trial until 2017 at the earliest. The judge also found that Balsiger could afford to hire a lawyer and ordered him to hire someone by Feb. 17, 2015.
 
The court found that Balsiger was not working diligently to hire counsel and warned that failure to hire an attorney would be considered a waiver of the right to counsel.