[The following is a guest post from Daniel Suhr ’08, a prior guest alumni contributor to the Blog.]
On June 25th the Wisconsin Supreme Court handed down its decision in Koschkee v. Evers, 2019 WI 76, which is in many ways a rerun of questions raised in Coyne v. Walker, 2016 WI 38. Coyne was, to put it mildly, a jurisprudential mess: “Our mandate resulted from a one-justice lead opinion, a two-justice concurrence, and a one-justice concurrence, all of which agreed only on the outcome of the case” (Koschkee, ¶ 5), plus a principal dissent representing the views of three justices, and a secondary dissent representing the views of only two justices.
Chief Justice Roggensack’s Koschkee majority (which commanded four votes on everything except ¶ 17) briefly discussed the stare decisis weight of Coyne in an early footnote, stating, “When we are asked to overturn one of our prior decisions, lead opinions that have no common legal rationale with their concurrences are troublesome.” (¶ 8, n.5.) They are troublesome, the Court continues, because it is hard to run their rationale through the traditional stare decisis analysis when there is no definitive rationale to analyze.
Justice Bradley’s dissent, by contrast, says the majority “throws the doctrine of stare decisis out the window.” (¶ 62.) To the Court’s argument from the lack of a common rationale in Coyne, she replies, “[T]he split nature of the Coyne opinion is of no import. The mandate of Coyne was clear despite the fractured nature of the opinions. Although the four justices in the majority subscribed to differing rationales, they agreed on the essential conclusion….” (¶ 73.)
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”
On December 14, 2018, outgoing Wisconsin Governor Scott Walker signed into law three bills that were rapidly passed by the Republican-held state legislature during an extraordinary session following the November 7, 2018 election that resulted in Democrats winning each statewide elected seat. Along with serving various other goals of the Republican legislative majority, the trio of so-called “lame duck” laws were designed to curb the powers of incoming Governor Tony Evers’ administration before he took office in the following ways:
Transfer control over leadership appointments to the Wisconsin Economic Development Corporation (“WEDC”) from the executive branch to the legislature until September 2019. Then-candidate Evers campaigned on disbanding the WEDC.
Grant the legislature power to intervene in lawsuits in circumvention of the Wisconsin Attorney General’s office when state statutes are challenged. This provision of the law provides for the use of taxpayer dollars to pay private lawyers to defend the interests of the Republican legislative majority.
Give the legislature the ability to sign off on and decide how to spend court settlements – a power traditionally held by the Attorney General’s Office.
Provide the legislature the power to permanently block any regulations written by the state’s numerous administrative agencies, which are part of the executive branch.
Require the executive branch to get permission from the legislature to make any policy changes within the state’s health care and public benefit programs.
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”
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”
Next week from November 5th to November 11th, Wisconsin is celebrating its Startup Wisconsin Week. Cities across the entire state of Wisconsin will be hosting programs and events geared toward helping Wisconsin grow its startup community. For the entrepreneurial-minded, this week provides an array of opportunities to network, learn tricks of the trade, and become more involved in the startup process. For transitionally focused attorneys, this week offers a variety of opportunities to meet new potential clients and learn more about how entrepreneurs can affect Wisconsin.
“When does the sentence end?“ Albert Holmes says he often faces that question as he works to help people who have been released from incarceration and who are re-entering the general community.
Holmes, president and CEO of My Father’s House, was one of the speakers Thursday, Oct. 4, at a conference at Marquette Law School that focused on what can be done to provide paths for more people in those situations to establish stable lives.
The conference, “Racial Inequality, Poverty, and Criminal Justice,” drew an audience that included two Wisconsin Supreme Court justices, several circuit judges, prosecutors (including Milwaukee County District Attorney John Chisholm), defense attorneys, and many who work in agencies that try to help those getting out of prison or jail or who are advocates on issues involved with the subject. Continue reading “More Help Urged for Those Making “Re-entry” from Incarceration”
Public opinion polls typically find a preference for tougher treatment of defendants in the criminal-justice system. However, few polls attempt to disaggregate types of crime. When laypeople are asked what they think should be done with “criminals,” their responses are likely based on the relatively unusual violent and sexual offenses that dominate media coverage of crime. However, punitive attitudes toward such offenses may not necessarily indicate that similar attitudes prevail more generally.
In order to develop a better understanding of the extent to which public attitudes differ based on crime type, I collaborated with Professor Darren Wheelock of the Marquette Social and Cultural Sciences Department on a set of questions in the most recent Marquette Law School Poll. Rather than asking respondents about crime in general, we posed questions regarding violent crime and property crime. Our results were consistent with the expectation that members of the public see these two types of crime in a rather different light.
Recently, I authored a post on this same blog discussing the first of two frequent observations I’ve made since joining the Milwaukee County District Attorney’s Office as a prosecutor and rookie lawyer in February of last year. There, I expressed my belief that we must do more to educate the nonlegal public about what it is we do as lawyers. Here, however, I wish to share what is perhaps as much a personal conclusion as it is an observation—appellate work is where it’s at.
In the last six or so months, I’ve been tasked on several occasions to represent the State before the Wisconsin Court of Appeals. These experiences have been enjoyable for several reasons—not the least of which is that I do enjoy writing about the law.
More generally, I have come to prefer legal argument over arguing facts. For these reasons, I expect that my career in the law will naturally gravitate toward appellate work. This is not to say I that I don’t enjoy trying cases to juries, but rather it is acknowledgment of one introspective observation.
As I’ve arrived at this conclusion, I’ve also realized that I’m most interested in getting the law right—regardless of whether doing so helps or hurts any particular position I’ve taken in a case. That said, what I find most appealing about appellate work is that I’ve come to believe that appellate courts generally prioritize getting it right above all else. Continue reading “Appellate Work: Getting the Law Right”
Just over fourteen months have passed since I first appeared in a Milwaukee County courtroom as a newly minted (Marquette) lawyer. Rolling the clock back another two and a half years, I recall my first few days as a law student. In all, I’m nearly four years into what I hope will be a long and eventful career in the law.
Over these last four years—this last year, in particular—I’ve found myself often making the same two observations. Though I don’t suspect that either of my observations are especially unique, both are surely the product of spending so many of my days in and around our state’s most active courthouse.