Kodanko waits alone for the bus in a three-sided plexiglass bus shelter in downtown Milwaukee. Three men approach. Stewart and Moore enter the bus shelter, while their companion, Levy, remains outside. They block Kodanko’s exit from the shelter. Stewart says to Kodanko, “Give us some change, man.” When Kodanko refuses, Stewart repeats his request three or four time in an increasingly loud voice. Stewart then begins to reach into his coat. Moore says, “Put that gun away.” At the same time, Levy enters the shelter and tells his companions, “Let’s go.” The three of them enter a restaurant across the street. Moore returns a few minutes later to make small talk with Kodanko. In due course, the police arrest Stewart for attempted robbery. But was it really a robbery attempt, or just aggressive panhandling?
This is the subject of State v. Stewart, 420 N.W.2d 44 (Wis. 1988), which I teach in my Criminal Law course. The case resonates with me on several different levels. Continue reading “Favorite Wisconsin Cases to Teach: State v. Stewart”
It’s unusual for a law review in one state to devote an issue to a decision from the supreme court of another state, but that’s exactly what happened when the Western New England Law Review published a 2004 symposium issue concerning State v. Oakley, 629 N.W.2d 200 (Wis. 2001). I personally welcome the opportunity to teach and, in the process, critique the decision.
The case involved David Oakley, who fathered nine children with four women and was impossibly behind on his child support payments. Manitowoc County Circuit Court Judge Fred Hazlewood placed Oakley on probation following his conviction for refusing to support his children. However, the probation was conditioned on Oakley having no more children until he could support the ones he already had. A four-judge majority of the Wisconsin Supreme Court confirmed Hazlewood’s order.
Commentators predictably discussed the decision’s ramifications for the right to procreate and the larger right to privacy. Continue reading “Favorite Wisconsin Cases to Teach: State v. Oakley”
I am looking forward to the Law School’s 2009 Public Service Conference, which will address “The Future of Community Justice in Wisconsin.” Organized by our Assistant Dean for Public Service, Dan Idzikowski, the Conference will take place on Friday, February 20. Dan has supplied the following post to explain the significance of “community justice” and why it is such an important topic today, particularly for anyone interested in the fairness and effectiveness of the criminal justice system:
Community justice councils, or criminal justice coordinating councils, have been established in several communities across Wisconsin. These councils bring together key local decision-makers to address the coordination, cost, and effectiveness of the criminal justice system in their area. Milwaukee County, which has the State’s largest concentration of offenders and criminal justice resources, recently established its own Community Justice Council. Remarkably, this council has brought together leadership across the political spectrum to address crime and corrections in the Milwaukee area. The Marquette Law School Public Service conference is designed to support this collaboration and bring together criminal justice experts to lend their counsel to these efforts. For example, Jeremy Travis, the keynote speaker, is the President of the preeminent John Jay School of Criminal Justice at the City University of New York, the former director of the National Institute of Justice at the U.S. Justice Department, and the author of several books and studies on community corrections and reentry issues.
Why is community justice a critical public issue at this time? The past two decades have seen an explosion in Wisconsin’s prison and jail populations. Since 1990 over a dozen new state-operated correctional facilities were brought on line, and existing institutions were expanded. The cost of providing corrections services in Wisconsin grew from $178.4 million in 1990, to $583.4 million in 2000, to $1.2 billion in the current biennium. Continue reading “Community Justice in Wisconsin”
Perhaps Professor O’Hear can straighten me out on this.
The decision of a divided Court of Appeals setting aside the sentence of Landray Harris has gotten a fair amount of play in the blogs and on talk radio. Put briefly, the court vacated the sentence because the sentencing judge, apparently frustrated by the defendant’s failure to get a job, referred to the defendant’s “baby mama” (who supports him) and wondered how “you guys” (referring to one out of four defendants who appeared before the court) find women who are willing to support them in idleness. One of the area’s most prominent African-American defense attorneys has come to the defense of the sentencing judge, suggesting that his comments grew out of conversations that they had over the years about the puzzling ability of ne’er-do-wells to find women who enable them.
MULS alum Tom Foley is derisive of the critics, suggesting that they have failed to understand the proper standard for evaluating such matters. He points out that the majority asked whether the sentencing remarks could suggest to a reasonable observer or a “reasonable person in the position of the defendant that the court was improperly considering Harris’s race?” Thus, Tom argues, the question to be answered is not what, say, Jeff Wagner would make of the judge’s remarks but how they would be perceived by an African-American defendant. Continue reading “I Refer to the Woman with Whom You Have a Child But Who Is Not Your Wife (Hereafter “Baby Mama”)”
Yesterday the Wisconsin Supreme Court voted to accept two more cases this term, Zellner v. Herrick, no. 2007AP2584, and State v. Lange, 2008AP882-CR.
At issue in Zellner v. Herrick is whether the transcript of Robert Zellner’s closed arbitration proceeding is a “public record” under Wisconsin’s public records law, and if so, whether personal information must be redacted before release of that record. Zellner is the Cedarburg School District teacher who lost his job for allegedly viewing pornography on a school computer. The issue of whether the transcript of Zellner’s arbitration proceeding is a public record was certified to the court from the court of appeals. At the same time as it accepted the certification, the Wisconsin Supreme Court declined to hear Zellner’s appeal of the court of appeals decision that affirmed the trial court’s conclusion that an arbitration panel wrongly reinstated Zellner to his position.
Does a police officer have probable cause to suspect a driver is operating a vehicle while intoxicated, when the officer observes a car driving more than 84 miles per hour in a 30 mph zone, on the wrong side of the road, shortly after bars have closed, and then hitting a utility pole and flipping over, leaving the driver unconscious? That is the question in State v. Lange, where the State appeals from the Court of Appeals decision that the police lacked probable cause.
I wanted to comment briefly on one of the cases recently accepted by the Wisconsin Supreme Court, as reported here by Jessica Slavin.
In State v. Welda, the court will consider the application of the hate crime penalty enhancer set forth in § 939.645(1) providing for increased penalties where the state can prove that a defendant “[i]ntentionally select[ed] the person against whom the crime . . . is committed . . . in whole or in part because of the actor’s belief or perception regarding the race . . . of that person . . . .”
Without getting into the distasteful detail, the defendants were convicted of disorderly conduct arising out of what seems to be an argument with some African-American passers-by who objected to the defendants’ repeated use of the n-word.
There are some not very interesting (and not particularly powerful) arguments that the comments were not directed to the African-American complainants.
But there are three things that I think merit comment. Continue reading “Thoughts on Welda and Hate Crimes”
The Wisconsin Supreme Court recently voted to accept review in three more cases, one criminal case and two civil ones.
The criminal case is State v. Popke, 2008AP446-CR. From the court’s website, “A decision by the Supreme Court could clarify if a momentary crossing of the center line creates probable cause to believe that a motorist has failed to drive on the right side of the roadway, as required by Wis. Stat. § 346.05. Alternatively, the court may provide further guidance as to what driving conduct a police officer must observe in order to create a reasonable suspicion of an OWI violation. From Waupaca County.” Continue reading “Wisconsin Supreme Court Accepts Three More Cases”
The Wisconsin Supreme Court recently considered a number of petitions for review and voted to accept six new cases. (As I said before, I am planning to write here whenever the Wisconsin Supreme Court accepts new cases. This is the second of that series.)
The cases accepted today include three criminal cases and three civil cases. This post describes only the three criminal cases. I’ll blog next about the civil cases.
Probably the most interesting of the three criminal cases is State v. Welda, 2007AP2024-CR. State v. Welda presents questions of interpretation and constitutionality of Wisconsin’s disorderly conduct crime and hate crime enhancer penalty. The underlying charges stem from incidents in which three Janesville residents used offensive racial epithets against a number of African-American residents, including two children. State v. Welda, 2008 WI App U 135, ¶ 2-5. When police arrived at the scene, 10-15 residents had gathered in the area of the disturbance. Id. ¶ 2. In addition to describing their African-American neighbors with inflammatory racial epithets, one of the Defendants also waved a Confederate flag during the incident, and two of the Defendants continued to speak the racial epithets after police directed them not to stop. Id. ¶ 3-5. Continue reading “Wisconsin Supreme Court Accepts Six New Cases, Will Consider Constitutionality of Hate-Crime Penalty Enhancer”
Beginning with this post, I will report here when the Wisconsin Supreme Court accepts new cases for review. I invite your comments.
Last week the Wisconsin Supreme Court voted to accept State v. Hoppe for review. The issue presented, according the court’s press release, is “the extent to which a judge may rely on the contents of a plea questionnaire and waiver of rights form” in lieu of questioning the defendant on the record. Continue reading “Wisconsin Supreme Court Accepts State v. Hoppe for Review, on Plea Colloquy Issues”
Last Friday, a Brooklyn mother was convicted of manslaughter in an infamous case that has, once again, led to soul-searching and overhaul of New York City’s child welfare system. What is remarkable about this case is that the mother never struck a single blow; rather, her 7-year-old daughter was beaten to death by her stepfather. Seven months ago, the stepfather was similarly convicted, and he is currently serving 26 1/3 to 29 years in prison. Ironically, the mother could end up serving much more time than that, because she was also convicted of assault, unlawful imprisonment, and endangering the welfare of a child.
As any child advocate will tell you, the facts of cases such as this one are horrifyingly familiar: brutal beatings and sadistic tortures by one adult (in this case, the little girl was tied to chairs, held under cold water, and forced to use a litter box instead of a toilet), chilling acquiescence by another adult, and mistake after mistake by whatever public agency is supposed to prevent this kind of thing by early intervention into suspicious circumstances. Nearly two decades ago another notorious New York case, which involved the beating death of another little girl, triggered a national discussion about accountability and responsibility on the part of the “passive” parent. In that case, 6-year-old Lisa Steinberg was beaten unconscious by Joel Steinberg (who had illegally adopted her) while Steinberg’s partner, Hedda Nussbaum (pictured above), was in the next room. Steinberg left the apartment for three hours, leaving the girl unconscious, and Hedda did not call for help until the next morning, when the child stopped breathing. In the Steinberg case, though, Joel was convicted of the killing while all charges were ultimately dropped against Hedda.
Why the difference in outcomes? Continue reading “The Culpability of Passive Abuse”
The Sentencing Project has just published a new edition of Reducing Racial Disparity in the Criminal Justice System, a manual for policymakers that describes numerous best practices for addressing disparities. This publication should be of particular interest in Milwaukee and Wisconsin, which have some of the worst criminal justice disparities in the nation. As The Sentencing Project described in a May publication, blacks in Milwaukee are seven times more likely than whites to be arrested for a drug offense, the second-highest such disparity among the forty-three major American cities analyzed. Similarly, a state-level analysis by Human Rights Watch determined that blacks in Wisconsin are forty-two times more likely than whites to receive a prison term for a drug conviction, the highest such disparity among the thirty-four states studied.
Of course, to say that there are racial disparities is not to say the disparities are necessarily unwarranted. For instance, if it turned out that blacks committed serious drug crimes more frequently than whites, then at least some of statistical disparities might be warranted. Still, the magnitude of the racial disparities in Milwaukee and Wisconsin is so high, particularly in comparison to national norms, that there is good reason to believe we do indeed have a serious problem.
In a fascinating case decided this week, the Wisconsin Court of Appeals affirmed the suppression of a video recording apparently showing a husband having sexual intercourse with his wife, a stroke victim who was unconscious and lived in a nursing home. See State v. Johnson (Appeal No. 2007AP1485-CR, 9/11/2008). The husband was charged with second degree sexual assault, a class C felony, which can result in imprisonment up to 40 years. The offense occurs when a defendant “has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.” Wis. Stat. § 940.225(2)(d). The statute further provides that “A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.” Wis. Stat. § 940.225(6). Continue reading “Privacy Interests in Extremis”