Marquette University Law School Student Bar Association writes to you today to address the tragedy that we as a community and a country have faced in the last three weeks. Not one of a pandemic, but rather the state-sanctioned murders of Black Americans. Namely, Ahmaud Arbery, Nina Pop, Breonna Taylor, George Floyd, and countless others. Their deaths are not novel, and we would be remiss to categorize them as such. Their deaths are the tragic manifestation of a long-standing system of racial oppression that continues to unjustly claim the lives of Black Americans.
Kelli Thompson admits she wasn’t entirely eager to become a lawyer, particularly the kind involved in courtroom work. As a student at Marquette Law School, “I probably did a very, very good job of staying far, far away from any kind of trial advocacy or litigation type of class. I think my thought was I would get the J.D. behind my name and just do something else. The something else, I have no idea what that was going to be.”
But, she said during an “On the Issues with Mike Gousha” program at Eckstein Hall on October 15, 2019, “In my third year of law school, I think it was killing my father that I was not even considering going into a courtroom.”
Her father, by the way, is Tommy G. Thompson, who, at that time in the mid-1990s, was governor of Wisconsin.
Kelli Thompson recalled, “At that point in time, he certainly wasn’t pushy, but he said, ‘Before you decide you hate it (courtroom work), you at least have to try it.’ . . . He said Marquette has wonderful clinical programs.” He told his daughter to pick one. “I said, ‘OK, you pick for me because I don’t know what I want to do’ . . . He said, ‘There’s no doubt, public defender, you should go there.’
Paul Butler refers to himself as “a recovering prosecutor.” A native of the south side of Chicago, he graduated from Harvard Law School, clerked for a judge, and went into private practice. He became a federal prosecutor with the hope he would part of solving problems in the criminal justice system that lead to so many people being incarcerated, especially African American men. He concluded that, as a prosecutor, he was part of the problem and not the solution. He left the job and is now the Albert Brick Professor of Law at Georgetown University and an advocate for major reform of the criminal justice system.
This third and final post reflecting the “In Search of Better Outcomes” theme of the new Marquette Lawyer magazine begins with a third pair of articles, the one that actually provides the quoted phrase (see here and here for the previous posts and previous pairs). These last two articles, with a brief introduction, look at the impact of law enforcement on people on different sides of the badge—and at possibilities for better outcomes both for those in law enforcement who are affected negatively by the cumulative trauma with which they deal and for offenders upon release, after they have served time in incarceration.
“Behind the Badge: A Growing Sense of the Need in Law Enforcement to Cope with Trauma” is an edited transcript of a panel discussion involving four people who have served in law enforcement. They offer insights on the need for better avenues for getting help for those who see so much violence and extreme behavior as part of their jobs protecting the public. The discussion was part of Law School’s Restorative Justice Initiative conference on November 9, 2018, titled “The Power of Restorative Justice in Healing Trauma in Our Community.”
“Putting a Period at the End of the Sentence,” an article by Alan Borsuk, draws on a conference, on October 4, 2018, of the Law School’s Lubar Center for Public Policy Research and Civic Education. Titled “Racial Inequality, Poverty, and the Criminal Justice System,” the gathering focused on issues facing people who are returning to the general community after incarceration. The story features some of the keynote remarks by Bruce Western, a sociology professor at Columbia University and author of Homeward: Life in the Year After Prison (2018). It also reports on observations by leaders of programs in the Milwaukee area that aim to help people leaving incarceration establish stable lives in the community.
It’s no secret that Wisconsin has long been known for having some of the most lenient drunk driving laws in the country. Throughout the spring semester I saw firsthand just how limited the consequences can be—compared to other states like my native Illinois—as first-time offenders were simply cited for ordinance violations in Milwaukee Municipal Court and not charged criminally. However, there have been efforts in recent years to crack down on drunk driving in a state famous for its beer. State legislators have passed a number of measures to deal help law enforcement, and this past week one such measure found itself before the United States Supreme Court.
In its decision in Mitchell v. Wisconsin, the Court upheld Wisconsin’s implied consent statute and ruled that states are not restricted from taking warrantless blood samples from unconscious drunk-driving suspects by the Fourth Amendment.
In 2013, Mr. Mitchell was arrested in Sheboygan Wisconsin after police, who were responding to reports of an intoxicated driver, found him drunk and disheveled at a local beach. Mitchell stated that he wound up there after he felt too drunk to drive. The officer decided not to preform sobriety tests at the scene because Mitchell’s condition would have made it unsafe to do so. Instead, a preliminary breath test was administered with a resulting BAC of 0.24. While being transported to the police station Mitchell’s condition deteriorated and he was eventually taken to the hospital. Upon arrival, Mitchell was completely unconscious. He was then read the standard Informing the Accused form and a blood sample was taken, all without him regaining consciousness. That sample indicated a BAC of 0.22. While consent to a blood draw is normally withdrawn when the Informing the Accused is read—a form that actually asks if the subject will submit to an evidentiary test—Mitchell was obviously unable to withdraw consent in his condition.
On June 20, 2019, the United States Supreme Court reversed the conviction of Curtis Flowers. The most recent appeal marks the sixth time that Mr. Flowers has been tried for charges arising from a quadruple homicide that occurred at the Tardy Furniture Store in Winona, Mississippi. Mr. Flowers has been incarcerated for over 20 years, as he awaits trial. Throughout this time, Mr. Flowers has consistently maintained his innocence. By way of background, Mr. Flowers is black. Douglas Evans, the prosecuting attorney of all six trials, is white.
APM’s investigative podcast titled In the Dark conducted an in-depth analysis of the case. The podcast explores the nature of the circumstantial evidence that the prosecution relied upon. It scrutinizes the methodology of the investigating officers and explores alternative innocent interpretations of the evidence proffered. But, for the purpose of the appeal, sufficiency of evidence is not at issue. The narrator, Madeleine Baran, explains that “we’ve talked to hundreds of people who live in this part of Mississippi and it’s clear that the way people think about the Curtis Flowers case for the most part depends on whether they are white or black.” And it is the issue of race, which is at the heart of the appeal recently decided by the United States Supreme Court. Continue reading “Out of the Shadows: Peremptory Juror Strikes At Issue in Flowers v. Mississippi”
Currently before the State Legislature are bills regarding the State Public Defender private bar appointment rate. Currently the rate is $40 per hour (the lowest in the nation), but the bill is proposing to raise the rate to $70 per hour. Recently a petition to the Wisconsin Supreme Court attempted to get the Supreme Court to raise the private bar rate of the public defender to $100 per hour. While the Supreme Court acknowledged the current rate as woefully inadequate, it did not take action regarding the public defender appointed rate, although it did raise the court-appointed rate effective next year to $100 per hour for all court-appointed lawyers.
The issue regarding the lack of attorneys willing to take SPD appointments to represent the indigent has picked up significant media attention and has prompted one lawsuit. The discussion that the State is failing to fulfill constitutional obligations to its citizens is important. Why did it take a “constitutional crisis” to reach this point? The criminal defense attorney is not just politically unpopular but can often be viewed as a reason elections have been lost. Continue reading “Second-Class Treatment of Criminal Defense Lawyers”
A Warren Court cornerstone has been “remastered and upgraded,” as they say, by the Wisconsin Supreme Court in a case that has riled the waters nationally. In Brady v. Maryland (1963), the Warren Court held that prosecutors must disclose exculpatory evidence to the defense. No hiding the ball. Over fifty years of case law, however, has occluded the rule with sundry conditions and qualifications that obscure its modest disclosure provision. More time is spent describing the ball than looking for it.
In State v. Wayerski (2019 WI 11), the Wisconsin Supreme Court scraped off Brady’s barnacles, overruled fifty years of precedent, and held that prosecutors must provide the defense with any information that is exculpatory or impeaching — even if the defense could have found it as easily as the prosecutor. Continue reading “Full(er) Disclosure: Wisconsin Invigorates the Brady Rule”
States and municipalities have increasingly relied on fines and forfeitures as a means to raise revenue, and the ability of law enforcement to impose fines and forfeitures for various criminal and civil offenses has largely gone unchecked by the federal government until recently. The United States Supreme Court’s February 20, 2019 decision in Timbs v. Indianasignificantly limits the once broad leeway states and municipalities have enjoyed in imposing fines and forfeitures. Under Timbs, law enforcement must now be additionally cautious not to impose fines and forfeitures that are far out of proportion to the gravity of the offense committed. Continue reading “Timbs v. Indiana: SCOTUS Hits the Brakes on Major Source of Revenue for States & Municipalities”
As discussed in Part I, I have gathered data on the Wisconsin prison inmates who are 70 or older. Out of an initial set of 299 inmates, I selected a representative subset of 100 in order to take a closer look at the inmates’ most recent convictions. Thirty-eight of the 100 were convicted of more than one offense in their most recent felony cases. In these cases, I focused only on the conviction that resulted in the longest sentence.
Nationally, the number of senior citizens in prison has grown dramatically in recent years. In Wisconsin, for instance, the number of prisoners aged 60 or older grew from just 202 (or 1.2 percent of the total) in 2000 to 1,231 (5.4 percent) by the end of 2016. Such increases should be of public concern for a number of reasons, including the exceptionally high costs of incarcerating the elderly. To a great extent, these costs are related to the prevalence of chronic illnesses and physical and mental disabilities among older inmates. One national study estimated that the average cost of imprisoning a senior is about twice the overall average. In general, it is less costly to manage chronic health problems in the community than in prisons, which are not designed to function as assisted living facilities, and which tend to be located in rural areas at some distance from specialized treatment providers.
Fiscal and humanitarian concerns alike have sparked considerable interest in recent years in “compassionate release” and other mechanisms that might hasten the return of elderly prisoners to the community. On the other hand, there are also countervailing concerns that early release might endanger the public or depreciate the seriousness of the underlying criminal offenses. On both sides of the debate, there seems a tendency to rely on unexamined stereotypes about who the old folks in prison are—the frail, harmless grandparent serving an excessively harsh sentence for a long-ago offense, versus the confirmed predator whose dangerousness can never be fully erased by age.
“It requires little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and positive dislike, and that state laws might be enacted or enforced to perpetuate the distinctions that had before existed.” – Strauder v. West Virginia, 100 U.S. 303, 306 (1879)
As ominously foreshadowed by the Supreme Court in 1879, current state and federal laws and practices continuously present disadvantages to people of color. Removed from enslavement and the oppressive nature of the Jim Crow Era, today many of the participants in our justice system and in politics are blind to discrepancies within this nation’s criminal justice system and erroneously believe that the black defendant enjoys the same rights as the white defendant. The black defendant is seldom given a jury that racially represents him or her, and this lack of representation is a product of case precedent, judicial reasoning, and discriminatory practices. In Wisconsin, these discriminatory practices take the form of both state and federal jury pooling procedures. As such, the purpose of this blog post is to draw attention to the disproportionate jury pooling practices in Wisconsin circuit courts as well as federal district courts in our state, and to provide a forum for debate on this important issue.
Federal Jury Pooling in Wisconsin and the Depleted African American Voting Population
The right to a jury is so critical to the makeup of our system of justice that the Constitution mentions juries in four different sections. However, while individuals have a constitutional right to a jury, the pooling and selection of such juries is not always constitutionally executed. Both the Eastern and Western District Courts of Wisconsin have jury pooling practices that raise constitutional concerns due to the disproportional impact that those practices have on black criminal defendants. Continue reading “Racial Discrimination in Wisconsin Jury Pool Practices”