Obstructing Injustice

After 20 years, Vollbrecht walks out of prison is No. 4 on top 10 stories list - BARABOO NEWS REPUBLIC

2011-12-30T07:50:00.000-08:00

By Tim Damos, News Republic

Editor's note: Baraboo News Republic news staff used a voting process to develop the list of 2011's top 10 stories. The No. 1 story will be announced in Saturday's edition.

In December 1989, Terry Vollbrecht was taken from a Sauk County Courtroom to a prison cell, where he was slated to spend the rest of his life for the murder of 18-year-old Angela Hackl.

Vollbrecht had been confined for more than 20 years this January when a Dodge County judge granted him a new trial.

Today, Vollbrecht is free on bail and living in the village of Prairie du Sac awaiting another chance to prove his innocence.

That story kicks off this installment of the Baraboo News Republic's four-day countdown to the top story of 2011.

No. 4: Vollbrecht gets new trial

Attorneys for the Wisconsin Innocence Project represented Vollbrecht in his bid for a new trial.

In a decision filed Jan. 10, Dodge County Circuit Court Judge Stephen Bauer granted their motion, saying "the real issue has not been fully tried."

Hackl was found hanging from a tree west of Sauk City in June 1987. She had been shot in the back several times.

Vollbrecht's attorneys claimed the evidence used to convict their client at trial was circumstantial and that other suspects deserved more scrutiny.

Bauer wrote in his decision that there was some evidence pointing to Kim Brown, who was convicted of a similar murder in Adams County the same summer. Brown stated in 1987 "he liked to chain women to trees, light them on fire and shoot them."

After the new trial was granted, Vollbrecht's attorneys asked that their client be granted the same pre-trial presumption of innocence as any other defendant, and they requested a chance to make his case for release on bail.

Although an attorney from the state Department of Justice argued that Vollbrecht was a flight risk, Bauer set his bond at $425,000.

A Prairie du Sac businessmen, Curt Mueller of Mueller Sports Medicine, Inc., later posted bail for Vollbrecht. A new trial date has not been set.

You can view the story here.

Reactions to news of Osama bin Laden's death - RACINE JOURNAL TIMES

2011-05-03T05:13:00.000-07:00

Here are some reactions to the news that the United States killed Osama bin Laden:

"The President's announcement that Osama Bin Laden has been found and killed is simply fantastic news. After 10 years of dedicated effort across two administrations, we have struck a major blow against al-Qaida and achieved a momentous turning point in our nation's ongoing war on terrorism."

- U.S. Rep. Paul Ryan, R-Wis.

"I was surprised at first. But glad they finally got it taken care of ... It's definitely a relief. I don't think it will put a complete stop to the terrorists, but I really think it helps a lot."

- Marine Cpl. Brad Ley, 25, of Racine, who served in Iraq from 2004-05 and 2007-08

"My reaction was it's a great day and Jacob is smiling. It was because of him (bin Laden) that Jake decided he wanted to be in the military... He wanted to do it for the people in the twin towers."

- Donna Meinert, 69, Racine, whose grandson Cpl. Jacob A. Meinert died in Afghanistan in 2010.

"Justice has finally been delivered to Osama bin Laden. Let us hope and pray that the evil this man spread will begin to fade now that his life and influence have ended. We owe a huge debt of gratitude to America's finest who carried out the successful operation and to all of those who have sacrificed to preserve our freedom."

- Sen. Ron Johnson, R-Wis.

"We have dealt a big blow to al-Qaida, limiting their ability to cause us any damage in the future. We should be proud that we have brought an evil man to justice."

- Sen. Herb Kohl, D-Wis.

"Osama bin Laden perverted Islam and the Islamic legal code to celebrate death and slandered the Qur'an to preach a nobility for suicide bombers. When I was in Afghanistan, I worked with Afghan lawyers and translators who left their country to escape an oppressive al-Qaida rule. They found sanctuary in Pakistan. I am thankful that Pakistan did not prove a sanctuary for bin Laden."

- Erik Guenther, a former Racine attorney who worked in Afghanistan training criminal defense attorneys from 2007-08.

Indiana prosecutor resigns over Walker email - WWW.WISCONSINWATCH.ORG

2011-03-24T21:29:00.000-07:00

Initially denied encouraging Wisconsin violence
By Kate Golden
Wisconsin Center for Investigative Journalism

An Indiana deputy prosecutor and Republican activist resigned Thursday after the Wisconsin Center for Investigative Journalism uncovered an email to Gov. Scott Walker in which he suggested a fake attack on the governor to discredit union protesters.

Carlos F. Lam submitted his resignation shortly before the Center published a story quoting his Feb. 19 email, which praised Walker for standing up to unions but went on to say that the chaos in Wisconsin presented “a good opportunity for what’s called a ‘false flag’ operation.”

“If you could employ an associate who pretends to be sympathetic to the unions’ cause to physically attack you (or even use a firearm against you), you could discredit the unions,” the email said.

“Currently, the media is painting the union protest as a democratic uprising and failing to mention the role of the DNC and umbrella union organizations in the protest. Employing a false flag operation would assist in undercutting any support that the media may be creating in favor of the unions. God bless, Carlos F. Lam.”

At 5 a.m. Thursday, expecting the story to come out that day, Lam called his boss, Johnson County, Ind., Prosecutor Brad Cooper, and told him he had been up all night thinking about it.

“He wanted to come clean, I guess, and said he is the one who sent that email,” Cooper said.

He came into the office and gave his resignation verbally, Cooper told the Daily Journal in Franklin, Ind. The resignation was announced after the Center’s initial story was published.

Email headers with detailed IP addresses suggested that the message was sent from Indianapolis.

Lam, an Indianapolis resident, at first told the Center he never wrote it.

Reached Tuesday by phone at the number listed on the email, Lam confirmed his email address matched the Hotmail address appearing on the Walker email, but said he had never written to Walker.

“I am flabbergasted and would never advocate for something like this, and would like everyone to be sure that that’s just not me,” he said, after being read the email.

Asked his views on Scott Walker, Lam said, “I think he’s trying to do what he has to do to get his budget balanced. But jeez, that’s taking it a little bit to the extreme,” he said of the email’s suggestion to fake violence. “Jeez!”

He said he was minivan-shopping with his family when the email was sent.

Walker’s bill to balance the budget and strip most collective bargaining rights from public employees was introduced Feb. 11 and triggered protests involving tens of thousands of people at the Capitol for weeks.

Lam is the second Indiana prosecutor to resign over suggestions to use violence in Wisconsin.

He sent this email the same Saturday on which another Indiana law-enforcement figure, state Deputy Attorney General Jeffrey Cox, tweeted that riot police should “use live ammunition” to clear the Capitol of protesters.

Cox was fired Feb. 23 after Mother Jones magazine published the suggestion from his private Twitter account.

The Wisconsin Center for Investigative Journalism discovered the email to Walker among tens of thousands released to media organizations last week as part of an open-records lawsuit settlement with Isthmus and the Associated Press. It was in a folder produced by the governor’s office called “Pro,” full of emails supporting the governor’s budget repair bill.

A lawyer in the governor’s office, Nate Ristow, said most of the emails to Walker were sorted into folders automatically by a computer, though some were added to the folders manually.

Cullen Werwie, Walker’s press secretary, said no one at the office had seen the email or contacted Lam. Werwie condemned the email’s suggestions Monday in a statement to the Center.

“Certainly we do not support the actions suggested in Carlos’ email. Governor Walker has said time and again that the protesters have every right to have their voice heard, and for the most part the protests have been peaceful. We are hopeful that the tradition will continue,” Werwie wrote.

On Feb. 22, when a prank-caller posing as major Walker campaign donor David Koch suggested planting troublemakers in the crowd, Walker began by saying, “Well, the only problem with that — because we thought about that,” but ultimately said he’d decided it was a bad idea.

“My only fear would be is if there was a ruckus caused is that that would scare the public into thinking maybe the governor has gotta settle to avoid all these problems,” Walker told the blogger.

Walker’s comments troubled Madison Police Chief Noble Wray and Mayor Dave Cieslewicz.

“I find it very unsettling and troubling that anyone would consider creating safety risks for our citizens and law enforcement officers,” Wray said in a statement at the time.

Lam, who had asked that his name not be used, said he was particularly concerned since “the person who wrote this seems to know a lot about me” and his account “had been hacked in the past.” On the advice of Cooper, he took down his Facebook page, changed his cell phone number, email passwords, “library, medical, bank, student loan, and a whole host of records,” and was afraid for his and his family’s safety.

He said he had made some political enemies, particularly in primary fights he helped on, and also said he often left his email account open at his home. But he said he couldn’t think of any specific suspects.

Madison Police Det. Cindy Murphy said that if Lam’s account was hacked and his identity was stolen, either Wisconsin or Indiana could have jurisdiction over that crime.

Murphy, who specializes in computer forensics, said it would have been simple to figure out whether Lam had been hacked by requesting information from Hotmail and his Internet service provider. Lam had declined to name his provider to the Center.

Prosecutor outspoken about conservative views

Lam’s blog posts, video appearances and comments on the Internet paint the picture of an outspoken, politically active, longtime Republican who has publicly lambasted collective bargaining for state employee unions and alluded to government taxation as “essentially taking money at gunpoint.”

In one of his 1,306 comments on a stock investors’ site, Lam called Indiana “an unsustainable public worker gravy train bubble.” In another, he said “unions & companies that feed at the gov’t trough will fight tooth & nail against anything that un-feathers their nests.”

Lam wrote in his account profile there that he “believes that to truly prosper as the republic envisioned by the Founding Fathers, we must return to principles of sound money and limited government. He has his own ‘3G network’ that is quite apart from Apple: guns, gold and gasoline.’ ”

Before Lam resigned, Erik Guenther, a criminal defense and constitutional lawyer at the Madison law firm of Hurley, Burish and Stanton, said that if the email’s writer were to participate in devising such a scheme, he could be held accountable for conspiracy to obstruct justice — “but an unsolicited and idiotic suggestion itself probably is not a crime.”

Madison criminal defense lawyer Michael Short said that if Lam wrote the email, he should be investigated for a possible breach of the Indiana Rules of Professional Conduct, for “suggesting that officials in the Walker administration commit a felony,” namely, misconduct in public office.

Those rules state that “conduct involving dishonesty, fraud, deceit or misrepresentation” amount to professional misconduct. They are the rules to which lawyers are held accountable by the Indiana lawyer discipline system.

Cooper, the Johnson County prosecutor, at first adamantly defended Lam, whom he has known for most of his career. The Republican said he was not considering any such investigation.

“Whether there’s rules of professional conduct that apply or not is irrelevant, because he didn’t send it,” Cooper said Wednesday.

“At the time, I had zero doubts that he had been hacked,” Cooper said Thursday,
after the resignation.

Michele Holtkamp of the Daily Journal in Franklin, Ind., contributed to this report. The nonprofit Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org) collaborates with Wisconsin Public Television, Wisconsin Public Radio and the UW-Madison School of Journalism and Mass Communication and other news media. Kate Golden is at kgolden@wisconsinwatch.org.

All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Email to Walker suggested faking violence - WWW.WISCONSINWATCH.ORG

2011-03-24T21:15:00.000-07:00

By Kate Golden

The email came to Gov. Scott Walker from the personal account of a deputy prosecutor and Republican activist in Indiana.

After praise for Walker, the email — sent Feb. 19, during union demonstrations against Walker’s budget repair bill — then took a darker turn. It suggested that the situation in Wisconsin presented “a good opportunity for what’s called a ‘false flag’ operation.”

“If you could employ an associate who pretends to be sympathetic to the unions’ cause to physically attack you (or even use a firearm against you), you could discredit the unions,” the email said.

“Currently, the media is painting the union protest as a democratic uprising and failing to mention the role of the DNC and umbrella union organizations in the protest. Employing a false flag operation would assist in undercutting any support that the media may be creating in favor of the unions. God bless, Carlos F. Lam.”

Email headers with detailed IP addresses suggest that the message was sent from Indianapolis.

But Carlos F. Lam, the deputy Johnson County, Ind., prosecutor and an Indianapolis resident, said he never wrote it.

Reached Tuesday by phone at the number listed on the email, Lam confirmed his email address matched the Hotmail address appearing on the Walker email, but said he had never written to Walker.

“I am flabbergasted and would never advocate for something like this, and would like everyone to be sure that that’s just not me,” he said, after being read the email.

Asked his views on Scott Walker, Lam said, “I think he’s trying to do what he has to do to get his budget balanced. But jeez, that’s taking it a little bit to the extreme,” he said of the email’s suggestion to fake violence. “Jeez!”

Lam said he hasn’t filed a police report, but he intends to do so by the end of the week.

He said he was minivan-shopping with his family when the email was sent.

Walker’s bill to balance the budget and strip most collective bargaining rights from public employees was introduced Feb. 11 and triggered protests involving tens of thousands of people at the Capitol for weeks.

The email was sent the same Saturday on which another Indiana law-enforcement figure, state Deputy Attorney General Jeffrey Cox, tweeted that riot police should “use live ammunition” to clear the Capitol of protesters.

Cox was fired Feb. 23 after Mother Jones magazine published the suggestion from his private Twitter account.

The Wisconsin Center for Investigative Journalism discovered the email to Walker among tens of thousands released to media organizations last week as part of an open-records lawsuit settlement with Isthmus and the Associated Press. It was in a folder produced by the governor’s office called “Pro,” full of emails supporting the governor’s budget repair bill.

A lawyer in the governor’s office, Nate Ristow, said most of the emails to Walker were sorted into folders automatically by a computer, though some were added to the folders manually.

Cullen Werwie, Walker’s press secretary, said no one at the office had seen the email or contacted Lam. Werwie condemned the email’s suggestions Monday in a statement to the Center.

“Certainly we do not support the actions suggested in (the) email. Governor Walker has said time and again that the protesters have every right to have their voice heard, and for the most part the protests have been peaceful. We are hopeful that the tradition will continue,” Werwie wrote.

On Feb. 22, when a prank-caller posing as major Walker campaign donor David Koch suggested planting troublemakers in the crowd, Walker began by saying, “Well, the only problem with that — because we thought about that,” but ultimately said he’d decided it was a bad idea.

“My only fear would be is if there was a ruckus caused is that that would scare the public into thinking maybe the governor has gotta settle to avoid all these problems,” Walker told the blogger.

Walker’s comments troubled Madison Police Chief Noble Wray and Mayor Dave Cieslewicz.

“I find it very unsettling and troubling that anyone would consider creating safety risks for our citizens and law enforcement officers,” Wray said in a statement at the time.

Lam, who asked that his name not be used, said he was particularly concerned since “the person who wrote this seems to know a lot about me” and his account “had been hacked in the past.” After being read the email, he said he took down his Facebook page, changed his cell phone number, email passwords, “library, medical, bank, student loan, and a whole host of records,” and was afraid for his and his family’s safety.

Madison Police Det. Cindy Murphy said that if Lam’s account was hacked and his identity was stolen, either Wisconsin or Indiana could have jurisdiction over that crime. If he filed a complaint, it would be straightforward to request information from Hotmail and Lam’s Internet service provider (ISP) about the location of the computer logged into his account when the email was sent, said Murphy, who specializes in computer forensics.

“If we run all this down and it does turn out that he was hacked into, then he is a victim, and he should be outraged — and somebody should be held responsible,” she said. “And no one can fake the data that’s held by the ISPs.”

Prosecutor outspoken about conservative views

All the information about Lam in the email was available online, including his email and phone number.

His blog posts, video appearances and comments on the Internet paint the picture of an outspoken, politically active, longtime Republican who has publicly lambasted collective bargaining for state employee unions and alluded to government taxation as “essentially taking money at gunpoint.”

In one of his 1,306 comments on a stock investors’ site, Lam called Indiana “an unsustainable public worker gravy train bubble.” In another, he said “unions & companies that feed at the gov’t trough will fight tooth & nail against anything that un-feathers their nests.”

Lam wrote in his account profile there that he “believes that to truly prosper as the republic envisioned by the Founding Fathers, we must return to principles of sound money and limited government. He has his own ‘3G network’ that is quite apart from Apple: guns, gold and gasoline.’ ”

After reviewing the email to Walker, Erik Guenther, a criminal defense and constitutional lawyer at the Madison law firm of Hurley, Burish and Stanton, said that if the writer were to participate in devising such a scheme, he could be held accountable for conspiracy to obstruct justice — “but an unsolicited and idiotic suggestion itself probably is not a crime.”

Madison criminal defense lawyer Michael Short said that if Lam wrote the email, he should be investigated for a possible breach of the Indiana Rules of Professional Conduct, for “suggesting that officials in the Walker administration commit a felony,” namely, misconduct in public office.

Those rules state that “conduct involving dishonesty, fraud, deceit or misrepresentation” amount to professional misconduct. They are the rules to which lawyers are held accountable by the Indiana lawyer discipline system.

But Lam’s boss, Johnson County Prosecutor Brad Cooper, adamantly defended Lam, whom he has known for most of his career.

The nonprofit Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org) collaborates with Wisconsin Public Television, Wisconsin Public Radio and the UW-Madison School of Journalism and Mass Communication and other news media. Kate Golden is at kgolden@wisconsinwatch.org.

All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Enough questions raised to merit new trial in grisly '87 murder - MILWAUKEE JOURNAL SENTINEL

2011-03-05T07:29:00.000-08:00

By Mike Nichols

If Terry Vollbrecht really did murder Angela Hackl in the woods just outside Sauk City almost 24 years ago - something prosecutors wrongly opposing a new trial continue to insist he did - it's surely one of the most incredible coincidences in the history of Wisconsin crime annals.

Hackl was 18 when she was killed. Last seen leaving Hondo's Bar with Vollbrecht early on the morning of June 12, 1987, her body, partly naked and shot in the back, was later found hanging at the base of a tree with a chain looped around the neck and brush piled all around.

"If you put a match to that," a prosecutor at Vollbrecht's trial said, "you would have a human sacrifice."

It was a uniquely grotesque killing in an area that can go years without a single homicide - but not the last of its kind. Just six weeks later, Linda Nachreiner was killed in another rural, wooded spot about 30 miles away. The woman in her late 20s had been shot from behind and, although her body was found on the ground, her killer later said that he had chained her to a tree by her neck.

That killer, by the way, was not Terry Vollbrecht.

It was Kim Brown - a deeply disturbed Oxford resident who liked to read pornographic books with titles such as "History of Torture"and "Chained & Raped Wife." He also, according to two men who served time with him, said he talked about chaining women up and lighting them on fire. Two others who knew him in prison allege he also admitted to killing Hackl, and one of those has said Brown intended to set her on fire but didn't because his lighter wouldn't work.

Steven Bauer, a former prosecutor who is now a judge, spent a year pondering things after the Hackl case was investigated by the Wisconsin Innocence Project. Because many of the details were not known when Vollbrecht was first tried, Bauer ordered a new trial recently.

Vollbrecht, as a result, was released from his cell the other day on a $425,000 bond put up by a sympathetic Prairie du Sac businessman, Curt Mueller. Prosecutors from the Wisconsin attorney general's office, who want to lock Vollbrecht back up without further ado, are appealing Bauer's ruling and arguing that another trial is not necessary.

It is.

Vollbrecht is not a clearly innocent man. He has admitted having sex with Hackl that June night out by the Wisconsin River far from where her body was eventually found and says it was consensual. His story is that after she dropped him off near his own car in Sauk City around 3:30 a.m., he tried to walk home because he'd lost his car keys. He was seen in the general vicinity of where Hackl's body was found - although there is no evidence putting either him or Brown at the murder scene.

If Brown did do it, moreover, he would have to have somehow come upon her and killed her without being seen in a pretty narrow window of time. Brown, who is incarcerated at Redgranite Correctional Institution and eligible for parole in 2031, denies having anything to do with it.

Still, the man's proclivities - and the similarities between two murders just six weeks apart - should nag at any conscience.

Bauer thinks a new trial would be a toss-up but also points out that newly discovered evidence about Brown undermines confidence in the original verdict.

In the end, only a fresh set of jurors can determine what to believe in - an awful and incredible coincidence or a guy who has already served over 20 years of a life sentence. Vollbrecht, who will turn 50 this summer, deserves another chance to argue that he shouldn't be sent back for 20 or 30 or 40 more.

Mike Nichols is a former full-time columnist with the Journal Sentinel and is now a senior fellow with the Wisconsin Policy Research Institute, a nonpartisan conservative think tank. His column reflects his personal perspective and runs every Saturday in the Journal Sentinel. E-mail MRNichols@wi.rr.com

The article is available here.

Vollbrecht granted bail, moved to Sauk County - BARABOO NEWS REPUBLIC

2011-02-27T11:12:00.000-08:00

By Ed Zagorski

Attorneys representing Terry G. Vollbrecht, who was convicted of murdering 18-year-old Angela Hackl more than 20 years ago, were successful Thursday in getting a Dodge County judge to set a cash bond and also release their client into the custody of the Sauk County Sheriff's Department.

"We are just one more step closer to getting Terry where he belongs in the community," said Erik R. Guenther, a Madison attorney who represents Vollbrecht.

Vollbrecht did not comment during Thursday's hearing.

Dodge County Circuit Court Judge Stephen G. Bauer, who set Vollbrecht's $425,000 cash bond, is the same judge, who, on Jan. 10, granted Vollbrecht a new trial. Bauer reported in his findings that the "real issue has not been fully tried."

Vollbrecht, 49, was convicted in 1989 of the 1987 murder and rape of Hackl, but claimed the evidence surrounding his trial was circumstantial.

Hackl disappeared in June 1987 after drinking with friends in Sauk City and was discovered several days later hanging from a tree west of the village.

She had been shot several times in the back, court records state.

Vollbrecht admitted leaving a bar with Hackl and having consensual sex with her. Police officers focused their investigative efforts on Vollbrecht.

On Thursday, Guenther argued that Vollbrecht should immediately be released from the Wisconsin prison system and transferred to Sauk County's custody in anticipation of the trial.

Vollbrecht has been imprisoned since his conviction in December 1989. He was being held at the Stanley Correctional Institution in Stanley, according to court records.

State Assistant Attorney General David J. Wambach said Vollbrecht should be kept in prison where there are no opportunities for him to escape.

"If there is something wrong with his teeth, they could help him at the institution," Wambach said. "If he gets sick, he can get help at the prison. There is no chance for him to try and escape as there is with transporting a prisoner from one place to another."

Bauer said he trusts the Sauk County Sheriff's Department to keep Vollbrecht in custody.

Guenther also argued that Vollbrecht deserves the same pre-trial presumption of innocence as any other defendant, and as such should have a chance to make his case for release on a reasonable amount of bail.

Wambach asked Bauer on Thursday to set Vollbrecht's cash bond at $1 million.

"It is rational that this court consider all the factors that the original judge did not," Wambach said. "You have the ability to do whatever you deem is appropriate and one is setting bail to assure Mr. Vollbrecht does not flee and makes his future court appearances."

Guenther said Vollbrecht would not attempt to flee prosecution.

"Terry Vollbrecht has cooperated with law enforcement since the beginning of this investigation before his trial," Guenther said. "Terry Vollbrecht stayed in his home community while awaiting his first trial. He is not a flight risk."

Guenther asked that Vollbrecht's cash bail be set at $266,000, which he determined based upon the original $150,000 cash bail from Vollbrecht's first trial with the cost of inflation.

Wambach said on Feb. 22 he appealed Bauer's decision to grant Vollbrecht a new trial.

"It is difficult to predict when the court of appeals will have an opportunity to review it, but it could take several months," he said.

The article is available here.

Federal Court Hears Arguments In Case Defending Transgender People’s Right To Access Medical Treatment in Prison - ACLU of WISCONSIN

2011-02-07T09:33:00.000-08:00

ACLU And Lambda Legal Argue That Doctors, Not Legislators, Should Determine Medical Treatment

FOR IMMEDIATE RELEASE

February 7, 2011

CONTACT:

Robyn Shepherd, ACLU, (917) 302-7189 or (212) 549-2666; media@aclu.org
Larry Dupuis, ACLU of Wisconsin Foundation, (414) 272-4032, ext. 12; ldupuis@aclu-wi.org
Erik Roldan, Lambda Legal, (312) 663-4413 or (312) 545-8140; eroldan@lambdalegal.org

CHICAGO – The U.S. Court of Appeals for the Seventh Circuit heard oral arguments today in a case defending the right of transgender people to receive medical care while they are incarcerated. Under Wisconsin law, prison doctors are prohibited from prescribing hormone treatment to transgender inmates. The law is being challenged by the American Civil Liberties Union, the ACLU of Wisconsin and Lambda Legal.

“The district court correctly struck down a discriminatory law that denied transgender people, and no one else, crucial care for a serious medical condition,” said John Knight, senior staff attorney with the ACLU Lesbian, Gay, Bisexual and Transgender Project. “We hope that the court of appeals affirms this ruling and recognizes that medical treatment decisions must be based on medical, rather than political, justifications.”

In 2005, the state of Wisconsin passed a law that barred prison doctors from providing transgender inmates medically necessary hormone therapy or sex reassignment surgery while in state custody. The ACLU, the ACLU of Wisconsin and Lambda Legal sued the state on behalf of transgender inmates, some of whom had been receiving hormone treatment in Wisconsin prisons for years. An injunction was granted to continue hormone treatment until a ruling was made. In April 2010, after a full trial, a federal district court struck down the so-called “Inmate Sex Change Prevention Act.”

“The trial court ruled that it is cruel and unusual punishment to deny medical treatment to transgender prisoners for a serious medical need,” said Dru Levasseur, Lambda Legal’s Transgender Rights attorney. “We hope this court will affirm the principle that is so important to all of us – doctors, and not legislators, should decide what medical treatment is critical for their patients.”

The clients in this case were represented by Knight of the ACLU LGBT Project, Levasseur of Lambda Legal, Larry Dupuis of the ACLU of Wisconsin, Erik Guenther of Hurley, Burish & Stanton and Jonathan Baum and Alyx Pattison of the Chicago firm Katten Muchin Rosenman.

More information on this case, Fields v. Smith, can be found on the American Civil Liberties Union case profile page at: www.aclu.org/lgbt-rights_hiv-aids/sundstrom-v-frank-case-profile or on Lambda Legal’s case page at: www.lambdalegal.org/in-court/cases/fields-v-smith.html

Wis. judge grants new trial in 23-year-old slaying - CHICAGO TRIBUNE

2011-01-10T14:35:00.001-08:00

MADISON, Wis. — A judge has granted a new trial for a man convicted of chaining a girl to a tree and shooting her to death 23 years ago.

Terry Vollbrecht was sentenced to life in prison in in 1989 in connection with the homicide of Angela Hackl, who was found dead two years earlier outside Sauk City.

Wisconsin Innocence Project attorneys have argued new evidence suggests another man killed Hackl. They say the man made statements that he liked to chain women to a tree, shoot them and light them on fire and confessed he killed Hackl to a fellow prison inmate.

Dodge County Circuit Judge Steven Bauer says in a decision issued Monday the new evidence raises reasonable doubts about Vollbrecht's guilt and granted him a new trial.

Fee hikes an option for SPD - WISCONSIN LAW JOURNAL

2010-11-09T11:21:00.001-08:00

BY: Jack Zemlicka
Staff Photo by Kevin Harnack

The Wisconsin Law Journal describes that "[o]ne of the longstanding barriers to giving private bar attorneys a raise for taking State Public Defender appointments has been cost."

With that in mind, attorneys say that increasing SPD fees to clients may be an option.

[...]

If the time comes that payment rates are raised, Madison attorney Erik R. Guenther said the agency will also need to reevaluate attorney assignments and potentially give clients more say in who represents them.

The Hurley, Burish & Stanton attorney has advocated for an increase in the $40 private bar rate before the Legislature, but doesn’t think increasing client payments is the right approach at this point.

“My concern, whether rates increase or not, is that the individual who has the most at stake doesn’t have any say in who their lawyer ends up being,” Guenther said.

Jack Zemlicka can be reached at jack.zemlicka@wislawjournal.com.

(The full article is available here.)

UW-Green Bay students learn their rights from defense attorney - FOURTH ESTATE

2010-10-20T16:25:00.000-07:00

By Starla Golie

Every year, college students have the possibility of a confrontation with police, which could lead to receiving a ticket. If students know how to deal with the police in the correct manner, it could mean preventing a ticket from being issued.

Erik Guenther, attorney for Hurley, Burish & Stanton S.C. Law Firm, represents a range of clients and cases, and has had experience with college students.

Guenther was recognized as the Volunteer Attorney of the Year by the American Civil Liberties Union of Wisconsin Foundation and was also a recipient of a 2003 Journal Times Award for his contributions to Racine County.

October 6 was the third time he spoke at UW-Green Bay. Since 2002, Guenther has been speaking at campuses nationwide.

Guenther spoke at UWGB about knowing what rights to stress when dealing with the police. He felt it was important to discuss the rights of students, because there are times when they can be taken advantage of by the police.

"Bullies can take on a lot of different forms in a criminal proceeding," Guenther said. "My job is to balance the scales to help get my client through a tough time with the best possible outcome."

Throughout the event, Guenther touched on many topics. He talked about sexual assault, disorderly conduct, drugs, drunk driving, obstructing and resisting an officer, underage drinking, fake identification cards, house parties and what to do when the police are knocking at the door.

Brandon Vest, sophomore business administration major, attended the event for a class, but ended up learning many new things.

"This event was really helpful for college students," Vest said.

Alex Vogl, sophomore theatre and psychology major, thought it was a good idea to attend the event as well.

"This will help me in the future," Vogl said. "I learned if an officer comes to my door, I know what I can refuse. It's really good to know."

Guenther said the most important topic students need to be aware of is that they have the choice to turn down speaking with law enforcement.

He discussed how it is vital to never lie to an officer. If students can't remember every detail, they can wait until a later time to talk with the police, while also having a lawyer present.

Sometimes, if students talk to police without a lawyer, they can get in more trouble than if they would have waited.

"It's important to know and assert your rights," Vest said. "I thought it was interesting to learn it is not smart to talk without a lawyer. You're better off saying nothing at all."

Besides informing students about their rights, Guenther answered questions throughout the event and helped many students with their personal issues as well.

He also gave students the opportunity to approach him after the speech to ask questions they didn't feel comfortable asking during the event.

Guenther encourages students who have questions or who weren't able to attend the event to e-mail him at eguenther@hbslawfirm.com.

(The article is available here.)

‘College Life’ star tells story at Know Your Rights event - THE BADGER HERALD

2010-10-13T07:15:00.000-07:00

By Pam Selman

After three University of Wisconsin students received more than $85,000 in fines from a Sept. 11 house party, UW’s American Civil Liberties Union Student Alliance hosted a session Tuesday night to discuss student rights.

The event featured two key speakers who addressed prominent concerns facing college students.

Kevin Tracy, a UW junior and one of the house party hosts, opened the event by speaking about the bust and voicing his concerns about the way it was handled.

More than 130 citations were handed out to the party’s hosts for dispensing alcohol without a license, procuring alcohol for an underage person and for being adults encouraging underage alcohol consumption, though police said the fines would have been less if the hosts had answered the door immediately upon police arrival.

Tracy used the ACLU’s program as a forum to share his side of the story after national media portrayed Tracy and his roommates as being uncooperative with the police.

Tracy said when the police arrived he was upstairs, and his two other roommates were in the basement. When Tracy went downstairs, four police officers were already in the kitchen.

The program’s second speaker, Erik Guenther, an attorney with Hurley, Burish and Stanton, warned students that anyone at a party can allow the police inside, which waves the right to privacy without a warrant.

Still, Tracy said the worst violation was the invasion of privacy that continued even after police left when they released the names of the three hosts to the media and public.

Additionally, he said a violation of the Eighth Amendment took place with excessive fines of $28,187 per host.

“We’re trying to figure out what we did wrong and how what we did was different than any other one of the thousands of college students who have thrown parties,” Tracy said.

Guenther said Tracy’s case is not isolated — he has represented cases where UW students were charged more than $496,000 for similar house parties, but added the charges in these types of cases are routinely reduced.

To avoid such charges, students should never open the door or speak to police if they arrive at a party, Guenther said.

Though students usually know they must follow police directions, Guenther said students must also understand their rights and know police cannot enter the premise without a warrant. This law does not apply to students living in campus-sponsored dorms.

Additionally, he said police can legally lie to students and are therefore likely to say that consequences will be worse if students do not immediately cooperate without a warrant.

The event drew a crowd of students filled with questions on underage drinking, illegal substance use, use of fake IDs and disorderly conduct.

Andrew Fajnzylber, a junior at UW, said the event was important for students because college students often believe they do not have rights or are too afraid to ask for them, but this workshop gave students the opportunity to learn.

“Students could really easily respond to the talk because it was simple with a powerful message,” he said.

(The article is available here.)

‘College Life’ figure, attorney talk rights - DAILY CARDINAL

2010-10-13T07:01:00.000-07:00

By Ben Siegel

With the help of a reality television personality and a civil defense attorney, the UW-Madison American Civil Liberties Student Alliance gave a group of approximately 100 students a crash course in civil liberties and individual rights Tuesday.

The "Know Your Rights" event was the first event to be sponsored by both the College Democrats and College Republicans in almost two years and featured Kevin Tracy, a cast member on the MTV series "College Life."

Tracy spoke about his experience receiving numerous police citations for hosting a house party last month.

Facing around $30,000 in fines individually, Tracy, along with two roommates, has a court hearing scheduled for Oct. 25. The students also still face the possibility of disciplinary action from the university.

"I feel the worst part of [the police reaction] was the [violation of] privacy," Tracy said. "Before I even knew about it, there were news cameras coming to my house."

Tracy said though he did not let the police into his house right away, which aggravated the situation, he thinks his rights under the Eighth Amendment were violated. He believes the high fines constitute cruel and unusual punishment.

Tracy said he thinks the police made an example of his party to discourage students from throwing big house parties.

"Right now, we're looking at attorneys and trying to figure out what exactly we did wrong or different than the other thousand houses on campus," Tracy said.

Erik Guenther, a Madison criminal defense attorney and president of the ACLU of Wisconsin, spoke about the issues of individual rights and recommended procedure in such situations as a busted house party, drunk driving and drug possession.

"The most important thing I'd recommend in a police encounter is to say ‘I do not wish to speak to you without a lawyer,'" Guenther said.

(The article is available here.)

Editorial: Encourage openness with online court records - GREEN BAY PRESS GAZETTE

2010-10-03T07:16:00.000-07:00

Proposed changes to the Wisconsin Circuit Court Access system leave us with serious concerns about thorough record keeping and maintaining the public's right to know.

The Wisconsin Supreme Court on Monday again will consider a State Bar of Wisconsin petition to make three fundamental changes to WCCA, which allows free public online access to court records from throughout the state.

The Bar is calling for:

•An expansion of state judges' ability to order the expunction of criminal convictions, including the removal of case records from the system.

•A mandate that records of pending criminal cases or those that do not lead to conviction to not appear on the site.

•Provision for a mechanism for the destruction of court records immediately after the mandatory minimum retention periods expire.

Supporters say the changes are necessary in part because potential employers and others can view case records — even those in which an individual was not convicted — and discriminate against the involved person, said Erik Guenther, a Madison attorney who coauthored the petition on behalf of the Bar. The way he and other supporters see it, the proposed changes are a way of extending privacy protections to innocent individuals, whom Guenther says in some cases have less protection than their convicted counterparts.

"When someone has been dragged through the process of arrest, charging, investigation and ultimately prevails," he said, "the state has an obligation to not continue to harm that person by limiting their employment prospects. And it's been demonstrated that a job applicant who has been acquitted of a crime stands in a worse place than one who has no criminal record."

The Supreme Court in February held a hearing on the matter and heard from dozens of people criticizing the system. On Monday, the court again will discuss the petition and possibly act. There's a lot at stake for the public's right to know.

We understand and are sensitive to those who feel the system has harmed them, but we feel these cases are the exception, rather than representative of the common experience. Removing or not placing certain cases on the site is akin to altering the historical record, which concerns this newspaper on a deep and fundamental level.

Bill Lueders, president of the Wisconsin Freedom of Information Council, describes our state's public court management system as one of the most robust in the country, a fact of which Wisconsin should be proud. Lueders also points out that in today's technological age, such records will be available electronically in some form.

"My honest feeling is that removing this information from WCCA is not going to make it go away," Lueders told the Green Bay Press-Gazette, "that once WCCA becomes no longer an authoritative source of information about our state courts, people are going to turn to some provider who is. And this … will be a huge boon to private providers who are going to mine this information and provide it at a charge."

As is, WCCA provides a thorough, accurate and complete record of court activity in this state. It is one of our finest examples of government sunshine and exemplifies the fundamental principles of the public's right to know.

It is not a perfect system, but the benefits of keeping WCCA open and accessible far outweigh the potential drawbacks. We urge the high court to carefully consider this matter and err on the side of openness and the greater public good.

The article is available here.

Sanitized records - MILWAUKEE JOURNAL SENTINEL

2010-09-29T12:48:00.000-07:00

There is a reason the word "public" is in the term "public records." And the public has a particular interest in knowing what its courts are doing.

Efforts in the state Legislature have - so far - been unsuccessful in limiting the information available to the public in court records. There's a reason for that. The public has a right to know what its courts do in all possible instances - not just to information selectively sanitized. That's not a record; that's a Nixon tape.

Unfortunately, efforts continue in the state Supreme Court. On Monday, the court will consider a petition from the State Bar of Wisconsin to limit public access to certain court records, including those online. In other words, judges, prompted by lawyers, will be discussing what the non-lawyer public can read from court records.

We get it; we don't much like it, but judges seal records all the time. Our point is, whether this debate occurs in the Supreme Court's chambers or in the Legislature, any decision on whether a record is public or secret should be weighted heavily in favor of the public's right to know. And that weight derives from the knowledge that these are the public's records, not the court's, not the Legislature's and not even the defendant's. The courts and the Legislature are mere custodians.

The State Bar, understandably concerned about discrimination in housing or employment occurring against those acquitted of crimes or whose charges have been dismissed, is urging the court to make it easier to expunge these online and paper records and make them inaccessible.

We understand the argument made to us by one of the authors of the petition, Madison criminal defense attorney Erik Guenther. He explains that the discrimination is real, the Legislature has allowed expunging records in other circumstances and that the petition seeks to have circuit judges make these decisions in public hearings in which sealings can be opposed. But it still makes no sense to us to tell the people that they can't be trusted with their own records. We are not talking about state secrets or national security here but whether and how people are involved in the judicial system and the outcome of that involvement. The courts' business - in its entirety - is the people's business and, as the petition acknowledges, discrimination on the basis of arrest and conviction records is already prohibited by law.

This is simply too blunt an instrument for this problem. The justices should come down in favor of public access to all possible court records.

The article is available here.

SPD expects budget shortfall, Private bar prepares for gap in reimbursements - WISCONSIN LAW JOURNAL

2010-09-06T11:40:00.000-07:00

The Wisconsin Law Journal details the "projected $9.5 million budgetary gap" which is expected to "delay payments to private bar attorneys for almost five months, until the next state budget cycle begins on July 1."

As described:

Madison attorney Erik R. Guenther said he personally avoids taking appointments out of principle.

While he takes advantage of various pro bono opportunities, the Hurley, Burish & Stanton attorney said that generally, it is hard to ask attorneys to take appointments at a low hourly rate and then impose an “un-bargained” delay in payment.

“That adds insult to injury,” Guenther said. “For me personally, I boycott SPD appointments because I feel it’s inappropriate to not adequately fund one aspect of the criminal justice system.”

The full article is available here.

Constitutional Law: Did City Atty’s Subpoena Sticker Violate Law? Just a Paper-Saving Device, He Says - ABA JOURNAL

2010-08-05T15:57:00.000-07:00

Posted Aug 5, 2010 2:11 PM CDT
By Martha Neil

Over the past five years or so, when a municipal judge in Madison, Wis., sent out a subpoena at least some of the documents also featured an official-looking sticker asking the recipient to call the city attorney's office to discuss his or her testimony.

The problem is, the sticker wasn't part of the subpoena okayed by the judge. And state law prohibits altering a subpoena, reports the Isthmus.

The issue hit the press after one of the subpoenas was sent to a colleague of Erik Guenther, who serves as president of the Wisconsin chapter of the American Civil Liberties Union. He complained to the judge and the stickers have now been eliminated, the article reports.

However, city attorney Michael May says there was no intention to do anything wrong.

"It was an attempt by our office to provide additional information without having to include another, separate piece of paper," he tells the publication. "We affixed it below the judge's signature, right above the notation currently on the subpoena that says, 'Call 266-4511 if you have any questions.' "

You can view the original article here.

City attorney notices called improper - THE ISTHMUS

2010-08-05T09:31:00.000-07:00

Practice of 'altering' subpoenas is halted after objections are raised

Bill Lueders on Thursday 08/05/2010

It may not qualify as the crime of the century, but Madison attorney Erik Guenther suggests it might be a crime.

On July 14, Guenther's law firm colleague, Marcus Berghahn, was served a subpoena ordering him to a hearing six days hence. The subpoena, issued by Madison Municipal Court Judge Daniel Koval, included an official-looking sticker asking Berghahn to contact the City Attorney's Office to "discuss your testimony."

The case at hand is of little matter. The City Attorney's Office subpoenaed Berghahn seeking information on a former client in connection with another case. When Guenther objected, noting that Berghahn didn't remember the individual and attorney-client privilege applied, the subpoena was withdrawn.

But Guenther, president of the Wisconsin ACLU, informed Judge Koval by letter of a larger concern: the official-looking sticker. He said the subpoena was "altered after it was issued by this court," in apparent violation of state law.

Wis. Stat. § 943.38(1) states: "Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions...is guilty of a Class H felony."

Yikes. Is the long arm of the law about to come down on the City Attorney's Office? Will uniformed officers soon be dragging City Attorney Michael May off to a dank jail cell, as he screams for mercy and claws at the ground with bleeding fingers?

Of course not. But Guenther believes a significant violation may have occurred. He notes there is no legal requirement that a witness speak to the party that sought the subpoena. Even a judge cannot compel testimony absent a grant of immunity.

"The doctored subpoena," says Guenther, "did what no court, district attorney or attorney general has authority under Wisconsin law to do: Order a witness to meet with one side to a legal controversy, outside of a courtroom or deposition."

In his case, the recipient knew his legal rights, but Guenther fears others might be conned into thinking they must to do what the sticker advises. Judge Koval, when the matter came to his court on July 20, voiced the same concern.

"The issue that I want to make sure is clear is that I don't authorize or permit these stickers put on after my signature because the impression could be that that is something that the court is ordering, that they have to contact the City Attorney's Office to discuss their testimony," he said in court, according to a recording obtained by Isthmus. "So I don't want any alterations or additions put on my subpoenas if they have my signature."

May, still a free man, confirms Guenther's suspicion that this was not the first time this sticker has been affixed. "As best as we can ascertain, this has been a regular practice for a number of years — at least five years, perhaps longer," he relates. "This is the first instance that any person has questioned it."

But, after Koval spoke out, "We immediately discontinued the practice."

Wasn't this arguably a deliberate attempt to mislead respondents into believing that a judge had ordered them to talk to the City Attorney's Office?

"We reject the charge," says May, a.k.a. Mugsy. "It was an attempt by our office to provide additional information without having to include another, separate piece of paper. We affixed it below the judge's signature, right above the notation currently on the subpoena that says, 'Call 266-4511 if you have any questions.'" It was really just an attempt to save paper.

Guenther is pleased the office has stopped "altering court-issued subpoenas." And while he believes the practice did subvert a subpoena's limited purpose — to compel a witness to give testimony "in the presence of both sides" — he doesn't believe May intended to deceive subpoena recipients, an element in whether a crime was committed.

Finally, Guenther says the whole episode — in which a single spirited objection brought a longstanding practice to a screeching halt — "illustrates the need for defense counsel to check the actions of the government. Absent an adversarial system, even well-meaning prosecutorial overreaching may go unaddressed."

Court: Party membership is First Amendment right - WISCONSIN LAW JOURNAL

2010-06-21T11:11:00.000-07:00

Court: Party membership is First Amendment right
by David Ziemer

Wisconsin’s judges may join political parties.

Writing for the Seventh Circuit on June 14, Judge John D. Tinder concluded, “The state does not have a compelling interest in preventing candidates from announcing their views on legal or political issues, let alone prohibiting them from announcing those views by proxy.”

However, the court reversed in part the lower court opinion by Judge Barbara Crabb. The court held that the state may prohibit judges from endorsing partisan candidates for office and from personally soliciting campaign contributions.

Erik Guenther and Larry Dupuis authored a brief in support of the American Civil Liberties Union of Wisconsin as amicus curiae, in Siefert v. Alexander, No. 09-1713, 2010 WL 2346659 (7th Cir., 2010).

The full article is available here.

Vollbrecht awaits word on appeal - BARABOO NEWS REPUBLIC

2010-06-18T11:28:00.000-07:00

By Christie Taylor / News Republic

Defense lawyers and state prosecutors have completed hearings presenting more evidence this week in the case of Terry Vollbrecht, who was convicted of murdering 18-year-old Angela Hackl more than 20 years ago, and who is appealing with the argument that his conviction was purely circumstantial.

If Vollbrecht is to get a new trial it could be several months before that determination is made.

Dodge County Circuit Court Judge Stephen G. Bauer presided over the hearings this week and in February which will determine whether the decades-old case is brought to the Wisconsin Court of Appeals. Vollbrecht's team must convince the judge they have uncovered significant new evidence for a new trial, or that the prosecution withheld evidence from the defense during Vollbrecht's first trial in 1989.

Hackl disappeared in June of 1987, after spending an evening drinking with friends in Sauk City, and was found several days later hanging from a tree in a lover's lane west of the village. Court records state she had been shot several times in the back.

Before Hackl's body was found, Vollbrecht had freely admitted leaving the bar with Hackl and having consensual sex with her. Law officers focused on him in the months of investigation which followed, and he was charged in October of 1989.

Innocence Project attorneys and law students spent most of this week and a week in February presenting evidence they say casts suspicion on others, including Kim Brown, who was convicted of a similar murder in Adams County the same summer. They also point to former Sauk Prairie Patrol Officer Tom Perschy, who allegedly had a history of sexually harassing women, as a potential suspect in the Hackl case,

On Tuesday, Innocence Project attorney Ion Meyn testified a variety of potentially-important reports from the Wisconsin Department of Criminal Investigation had not been provided to Vollbrecht's attorneys until April of this year, including an account from Portage resident David Kenevan.

Kenevan, a co-worker of Kim Brown, had said he heard second-hand that Brown had mentioned tying up and sexually abusing women.

Ultimately, Bauer said, the defense would have to prove the evidence had not been available at the time of the original trial.

Also this week, state prosecutors brought forth witnesses whose testimonies, they said, countered these contentions, including veteran Sauk Prairie Patrol Officer William Richards. Richards testified that Perschy's activities on the night of the murder did not match the account of a defense witness, who reported seeing Perschy at a Sauk City gas station with a blonde woman in his car.

The hearings completed with brief presentations of evidence Friday morning. The teams will now put together briefs of their arguments for and against a new trial using the evidence presented this week and in February. That process could take more than three months, after which it will be up to Bauer to sort through the briefs, evidence, and hearing transcripts to determine whether Vollbrecht will be allowed to appeal.

All told, the lawyers presented more than 100 exhibits for consideration, including documents and physical evidence.

"The UW innocence Project and Mr. Hurley and I have been working very hard in the hopes that Terry will have an opportunity for a new trial," defense attorney Erik Guenther said. "And we think he deserves it."

Federal appeals court agrees state judges can join political parties - WISCONSIN JOURNAL SENTINEL

2010-06-14T11:24:00.000-07:00

By Patrick Marley of the Journal Sentinel

Posted: June 14, 2010

Madison — Wisconsin judges can join political parties but cannot endorse partisan candidates or directly solicit campaign donations, a federal appeals court ruled Monday.

The decision "simply allows you to be honest and forthright about party affiliation, whereas before you had to play pretend," said Milwaukee County Circuit Judge John Siefert, who brought the lawsuit against state officials in 2008 so he could join the Democratic Party.

State judges have distanced themselves from political parties for more than a century and were explicitly banned from joining them starting in 1968. But last year, U.S. District Judge Barbara Crabb ruled in Siefert's favor and overturned the ban on First Amendment grounds.

On Monday, a three-judge panel of the 7th Circuit Court of Appeals agreed with Crabb that judges can join parties but overruled her on other aspects of the case. Crabb had ruled judges could endorse partisan candidates and make direct appeals for campaign cash, but the appeals court said the state's ban on those practices is acceptable.

The appeals court decision and Crabb's earlier ruling mean judges can join political parties and broadcast their affiliations to voters. But judges will not have their party ties printed on ballots, as happens in Illinois and 11 other states.

The decision is rooted in a 2002 U.S. Supreme Court decision that struck down a Minnesota ethics code that said judges couldn't publicly state their views on disputed legal and political issues. The appeals panel Monday said Wisconsin could not bar judges from signaling their views "by proxy" by joining political parties.

But the 2-1 decision upheld the state's ban on partisan endorsements, saying it helps prevent judges "from becoming party bosses or powerbrokers" and thus combats corruption. The state ethics code allows judges to endorse judges and others running for nonpartisan offices.

Former state Supreme Court Justice Jon Wilcox said he did not expect many judges to sign up with parties.

"In my opinion at least, it's better for a judge to exist as they best can in a nonpartisan capacity," Wilcox said. "If you have partisanship enter in, then there's always the suspicion (of partiality), and that's what's happened with the court both federally and in the state."

Siefert said he would appeal the case to the U.S. Supreme Court to try to get the court to allow him to make some fund-raising appeals.

"If you can't ask for money, then it means special interests can hijack the campaign messages," he said, referring to heavy spending in the 2007 and 2008 state Supreme Court races.

Siefert said he thought the U.S. Supreme Court would take the case because appeals courts in two other districts have said judges can make solicitations for money.

In Wisconsin, judges can sit on their campaign finance committees and appear at their own fund-raisers, but cannot ask supporters for money or even sign their own fund-raising letters. Requests for money fall to their campaign managers or other associates.

According to Monday's decision, judges in Wisconsin disassociated themselves from parties long before their party affiliations were removed from ballots in 1913.

But Siefert said the public usually knows if judges have ties to parties.

Wilcox served in the Assembly as a Republican, as did Justice David Prosser. And last month, former Rep. Gary Sherman (D-Port Wing) was appointed to the Madison-based District 4 Court of Appeals.

The ruling comes at a time when the deeply divided state Supreme Court has been roiled over how to rewrite its ethics code. In January, the court adopted a rule, 4-3, that said campaign contributions from people with pending cases are not enough, by themselves, to force judges to step aside.

Siefert filed his suit against the members of the state Judicial Commission because the group oversees the ethics code. Jim Alexander, executive director of the Wisconsin Judicial Commission, said Monday's ruling represented progress because it does not allow endorsements of partisan candidates or direct fund-raising solicitations.

Special Assistant Attorney General Kevin St. John called the decision a "partial vindication" that helps create a judiciary that "is fair and appears fair." St. John said the Department of Justice is reviewing whether to appeal the ruling on joining political parties.

Siefert, a former police officer, was elected Milwaukee County treasurer as a Democrat in the early 1990s, but he quit the party to sit on the bench, both as a municipal and circuit court judge. He rejoined the Democratic Party after Crabb issued her ruling last year, and he spent last weekend as a delegate to the party's annual state convention in Middleton.

Monday's decision was written by Judge John Daniel Tinder and joined by Judge Joel M. Flaum.

Judge Ilana Diamond Rovner dissented. She wrote that the court needed to apply a different test to reach its decision but said she likely would have reached the same conclusion as the majority.

Rio resident found not guilty in nursing home sexual assault case - PORTAGE DAILY REGISTER

2010-04-29T06:22:00.001-07:00

By Shannon Green, Daily Register | Posted: Wednesday, April 28, 2010

Three not-guilty verdicts produced tears and hugs of relief on the part of defense attorneys and supporters of a Rio man accused of sexual assault in 2007 of three patients in a nursing home.

After deliberating for an hour and 15 minutes, a jury of seven men and five women Wednesday unanimously found Kurt Johnson, 51, who faced 75 years in prison on three felony sexual assault charges, not guilty on all counts.

Defense attorney Erik Guenther of Madison reacted visibly and emotionally as Judge James O. Miller read the verdicts at the end of the three-day trial.

Guenther reacted, he said, "because an obviously innocent man waited way too long to hear those two words (not guilty)."

It was a case that should never have been prosecuted, Guenther said.

Defense attorney Stephen Hurley of Madison characterized Johnson as "a sweet man" who was targeted by co-workers wanting to get him fired because Johnson, a nursing assistant, was slow-working due to a medical condition.

"What you have are three people who wanted him fired, wanted him out of there," Hurley said during the hearing.

Bonnie Priebbenow, a friend of Johnson's, said his friends and family members could not be happier with the verdicts.

"Anyone that knows him knows he was innocent," she said.

The verdict came at the end of a three-day trial in Columbia County Circuit Court.

Johnson was charged in November 2008 with three counts of felony second-degree sexual assault of a patient in a treatment facility after three co-workers at the Golden Living Center in Wisconsin Dells reported they saw him fondle three patients' breasts in late 2007.

The incidents were reported to the Wisconsin Department of Justice after an investigation by the Department of Health and Family Services, which received a report from the facility in December 2007, said prosecutor Eric Defort, assistant attorney general, in December 2008. The department handles cases involving facilities receiving Medicaid funds.

Students learn rights, how to interact with police at Mifflin - THE DAILY CARDINAL

2010-04-21T08:11:00.000-07:00

By Grace Urban

As the annual Mifflin Street Block Party approaches, students were given the opportunity Tuesday to learn how to conduct themselves should they be confronted by law enforcement.

Erik Guenther, an attorney with Hurley, Burish and Stanton, S.C., spoke with students at the Know Your Rights workshop. The event was organized by the American Civil Liberties Union and was the second this semester.

Guenther said there are three basic rules students should follow when attending the block party: be polite to police officers, never lie to them and make no statement without a lawyer present.

“Your chances of being convicted of a crime go up if you give the police something to convict you,” he said. “You can’t get charged with obstruction [of justice] for lying if you never say a word.”

Guenther said there are basic laws every student should be aware of.

“You’re not allowed to say, ‘I didn’t know that was against the law’ [in your defense],” he said.

Guenther added it is important to remember that citizens are under no obligation to speak with police or let them into their home or apartment without just cause or a warrant.

“You never have to let them in,” he said. “Just say no.”

Partygoers should be careful to follow the rules and not attract attention to themselves if they want to avoid being arrested, Guenther said.

“The police have limited resources, and they’re going to single out people that stand out to them,” he said. “So make sure you’re at least the second-drunkest person [there].”

The three main rules for the block party are not to have open alcohol, not to hold glass bottles and not to urinate publicly, he said. Guenther left attendees with one final thought: “Be polite, assert your rights.”

Transgender inmates freed from hormone lockdown - SALON.COM

2010-04-02T08:23:00.000-07:00

A Wisconsin law banning gender therapy is overturned
By Sady Doyle

A Wisconsin law banning transgender inmates from receiving taxpayer-funded hormone therapy in prison has been struck down. The ruling represents a substantial victory for the five transgender women (that is, women born with "male" genitalia who identify and live as female) who pressed the case, and for transgender inmates in general -- but experts stressed to Broadsheet that having access to hormone therapy is not the only serious issue facing incarcerated trans people.

In a phone interview, Harper Jean Tobin, the National Center for Transgender Equality's policy counsel, explained there's a growing recognition that "hormone therapy is medically necessary for transgender people. It's not cosmetic, it's a serious medical need." That much is apparent from looking at the case: Andrea Fields, one of the plaintiffs in the case, had her hormone dosage cut in half, and reported "nausea, weakness, loss of appetite and hair growth," as the Washington Post reports.

Aside from the physical effects of having one's body chemistry rapidly changed, transgender authors and advocates consistently stress that being unable to bring one's body in line with one's gender identity can be deeply traumatic. Which is why mandating access to hormones for trans prisoners is, according to Tobin, "increasingly settled law." "We have a constitutional commitment to providing adequate health care to people who are in prison, regardless of their offense and regardless of their identity," said Tobin. The Wisconsin law was apparently unique, and was struck down specifically because it violated the constitutional ban on cruel and unusual punishment.

But, again, healthcare is not the only issue at play. Even for inmates who are able to keep their bodies in line with their gender identities, the way that inmates are sorted into women's or men's prisons -- according to which medical procedures they've had, or what sort of genitalia they possessed at birth -- can lead to transgender women being incarcerated in men's prisons, and vice versa. Citing the National Prison Rape Elimination Commission, Tobin says "the hard and fast rules that are used to classify transgender inmates often subject them to greater danger" -- namely sexual and physical abuse. Imagine being the only girl in the men's prison. It's not pretty.

Gabriel Arkles, an attorney at the Silvia Rivera Law Project who works directly with transgender inmates, made the same point. "Most of the violence that trans people experience in prison is actually perpetrated by prison staff," he said. And then, according to Arkles, there is the fact that
"trans people, particularly trans people of color, are disproportionately incarcerated because of discrimination, poverty, police profiling, and bias in court proceedings."

So, having one more state in which hormone access for transgender inmates is mandated is a big step. But it's not a cure-all. For one, someone could convince the Washington Post not to refer to the transgender women in the case as "male inmates." That might help.

Judge: Transgender inmates have right to therapy - THE WASHINGON POST

2010-04-02T07:29:00.000-07:00

By RYAN J. FOLEY
The Associated Press
Thursday, April 1, 2010; 5:52 PM

MADISON, Wis. -- A federal judge has struck down a unique Wisconsin law that prohibits transgender inmates from receiving taxpayer-funded hormone therapy, which alters their appearance to be more like that of the opposite sex.

A group of male inmates who identify as female had challenged the 2006 law with the help of the American Civil Liberties Union of Wisconsin and Lambda Legal, a national gay rights group. They say they need the hormones to treat their gender identity disorder, and not having them would lead to severe health problems.

"It's a victory for these inmates who have a condition that is misunderstood and vilified for political purposes that can be very serious," Larry Dupuis, an ACLU lawyer who represented the plaintiffs, said Thursday. "To take away a whole class of treatment just because it's politically disfavored is not constitutional."

While similar prison policies in other states have been challenged successfully, the ACLU and Lambda Legal said the law was the only one of its kind in the nation that denied such medical care to transgender inmates.

Lawmakers who wrote the measure, declared unconstitutional and unenforceable Wednesday by U.S. District Judge Charles Clevert, reacted with outrage and urged Attorney General J.B. Van Hollen to appeal. They warned the decision would open the door for taxpayer-funded sex changes for inmates, which the law had also blocked.

"This ruling puts a higher priority on helping inmate Tommy become Tammy than protecting the pocketbooks of law-abiding citizens," said Rep. Scott Suder, R-Abbotsford. "This is a travesty of justice that must be overturned."

Clevert said the law violates the constitutional ban on cruel and unusual punishment because it "results in the denial of hormone therapy without regard for the individual medical needs of inmates and the medical judgment of their health-care providers." He added "there is no rational basis" for the law, which he said also violates their equal protection rights.

Clevert had issued a temporary order weeks after the law went into effect blocking prison officials from ending the therapy for inmates already receiving hormones during the lawsuit.

The law bans tax dollars from being used for inmates' hormone therapy and sexual reassignment surgery. Lawmakers approved it with bipartisan support and Gov. Jim Doyle signed it into law after an inmate who had received hormone therapy filed a lawsuit to try to force the prison to pay for his sex change.

Before the law went into effect, the Wisconsin Department of Corrections occasionally had approved hormone therapy for inmates its doctors diagnosed as having gender identity disorder. Dupuis estimated that only a handful of inmates receive the therapy at any given time.

Some of the plaintiffs had been on hormones for years before the law was passed. They included Andrea Fields, who had taken hormones since 1996. Before the law was blocked, the inmate's hormone dosage was cut in half, which led to nausea, weakness, loss of appetite and hair growth, according to court records.

Clevert, appointed by President Bill Clinton in 1995, didn't address whether banning sex-change surgery was also unconstitutional in his three-page order and promised to issue a decision soon to elaborate.

Sen. Ted Kanavas, R-Brookfield, one of the measure's sponsors, called the ruling absurd.

"This is another prime example of a liberal judge, far removed from the mainstream, overturning the will of the people," he said in a statement.

Van Hollen spokesman Bill Cosh said lawyers were reviewing the decision and considering an appeal.

If the ruling stands, taxpayers will likely be required to pay the inmates' legal fees, which Dupuis called substantial.

Federal Judge Strikes State-Law Ban on Hormone Treatment for Transgendered Inmates - AMERICAN BAR ASSOCIATION JOURNAL (ABA JOURNAL)

2010-04-01T16:15:00.000-07:00

April 1, 2010
By Martha Neil

Setting the stage for an appellate court showdown, a federal judge in Wisconsin has struck down as unconstitutional a state law that reportedly is the only one in the nation banning prison inmates who were born biologically male but identify as female from receiving hormone therapy.

The law violates the equal protection clause and is an unconstitutional form of cruel and unusual punishment, explained U.S. District Judge Charles Clevert in a brief written order yesterday. That is because it denies hormone therapy without considering individual inmates' medical needs or the judgment of their doctors, according to the Milwaukee Journal Sentinel.

Outraged legislators who drafted the law promised to urge the state attorney general to appeal Clevert's ruling. If it stands, the state likely will have to pay substantial attorney fees to the American Civil Liberties Union of Wisconsin and the Lambda Legal national gay rights group, which represented the plaintiff inmate group, reports the Associated Press.

"It's a victory for these inmates who have a condition that is misunderstood and vilified for political purposes that can be very serious," says ACLU attorney Larry Dupuis, who represents the plaintiffs. "To take away a whole class of treatment just because it's politically disfavored is not constitutional."

It isn't clear from Calvert's order whether it is also unconstitutional for the prison system to ban surgical treatment of transgendered inmates. However, he has promised a more detailed opinion soon.

Federal court rules transgender people must be allowed medical treatment in prison - SAN DIEGO GAY AND LESBIAN NEWS

2010-04-01T10:05:00.000-07:00

SDGLN Staff | Thu, 04/01/2010 - 11:38am |

MILWAUKEE -- The U.S. District Court for the Eastern District of Wisconsin yesterday struck down a law that barred transgender people from receiving medical care while they are incarcerated.

The ACLU and Lambda Legal brought a challenge in January 2006 to the law on behalf of transgender prisoners, some of whom had been receiving hormones in Wisconsin prisons for years prior to the passage of the law.

"The court understood that medical treatment is critical for transgender people and that medical decisions should be made by doctors - not legislators," said Dru Levasseur, Lambda Legal's transgender rights attorney. "The state cannot decide to withhold treatment from people because they disapprove of their gender identity or medical needs - it's unconstitutional."

Overriding concerns raised by of the Department of Corrections medical personnel, the Wisconsin legislature passed a law, effective in January 2006, that prohibited prison doctors from deciding the best course of treatment for transgender people by barring them from prescribing any type of hormone therapy or sex reassignment surgery for transgender people in state custody.

"This decision recognizes that many inmates have a serious medical condition that requires individualized medical treatment. The court's ruling doesn't require inmates to receive hormones or surgery for sex reassignment, it simply means that doctors are the ones who make the decisions about treatment," said John Knight of the ACLU. "The court's decision is just common sense."

The lawsuit charged that it is a violation of the Constitution's guarantee of equal protection as well as the guarantee against cruel and unusual punishment to bar transgender inmates from access to individualized medical care. The legal groups base their challenge on federal case law that establishes that health care providers must determine proper treatment for all prison inmates.

The court ruled that the statute's ban on medical care "constitutes deliberate indifference to the plaintiff's serious medical needs in violation of the Eighth Amendment inasmuch as enforcement of the statute results in the denial of hormone therapy without regard for the individual medical needs of inmates and the medical judgment of their health care providers."

According to the ACLU and Lambda Legal, Wisconsin is the only state in the country to have enacted a law denying transgender people access to medical care while in state custody. The legal team includes John Knight, a senior staff attorney with the ACLU LGBT Project, Larry Dupuis, Legal Director of the ACLU of Wisconsin, Cole Thaler and Dru Levasseur, former and current Transgender Rights Project Attorneys of Lambda Legal, and cooperating attorney Erik Guenther of Hurley, Burish & Stanton, S.C.

Sex-change drugs a right, judge says - MILWAUKEE JOURNAL SENTINEL

2010-04-01T08:27:00.000-07:00

State law limiting inmates overruled
By Bruce Vielmetti of the Journal Sentinel

A federal judge has struck down a Wisconsin law that prohibits prison inmates from getting hormone therapy to treat gender identity disorder.

U.S. District Judge Charles N. Clevert Jr., who presided over a civil trial challenging the law in 2007, issued a ruling late Wednesday and declared the statute unconstitutional on several grounds. Clevert's order indicated a longer memorandum decision would follow.

In early 2006, Clevert had issued a preliminary injunction to allow the hormone therapy to continue.

In Wednesday's order, Clevert found that the law amounts to "deliberate indifference to the plaintiffs' serious medical needs in violation of the Eighth Amendment," because it denies hormone therapy without regard to those needs or doctors' judgments. He found the law unconstitutional on its face and also in violation of the inmates' rights to equal protection.

"We're very excited about it," said Laurence Dupuis, legal director of the ACLU of Wisconsin Foundation, which represented the three named plaintiffs in the case. Lambda Legal, a national advocacy group, was also part of the plaintiffs' legal team.

"There have been other states with policies similar in ways to this and that were generally struck down or settled, but this was the first one with a statute passed by a legislature," Dupuis said.

Another ACLU attorney on the case, John Knight, called the decision common sense.

"The court's ruling doesn't require inmates to receive hormones or surgery for sex reassignment," Knight said. "It simply means that doctors are the ones who make the decisions about treatment."

He estimated that fewer than a dozen inmates are affected.

State lawmakers passed the Sex Change Prevention Act in 2005 in reaction to the case of a Wisconsin inmate who had been receiving the hormones for years, but sued when the Department of Corrections would not pay for sex-change surgery. Similar challenges were mounted in other states.

Though Clevert's ruling doesn't address surgery, Dupuis said he thinks the ruling supports the principle that any medical care in prisons must be based on medical judgment, which means the surgery would at least be theoretically possible.

But Dupuis said the case has broader implications.

"It's important to transgendered inmates, but also for other people in the system who have conditions that are unpopular and on which politicians might think they could make hay," he said.

State Rep. Mark Gundrum (R-New Berlin), a co-sponsor of the Sex Change Prevention Act, said he expects Clevert's ruling will be appealed.

"There's no way the Eighth Amendment's prohibition against cruel and unusual punishment actually requires that taxpayers fund sex change operations for prisoners," he said.

Rep. Scott Suder (R-Abbotsford), another sponsor of the law, called Clevert's ruling "a travesty of justice" that should be appealed immediately.

"This ruling puts a higher priority on helping inmate Tommy become Tammy than protecting the pocketbooks of law abiding citizens," Suder said.

Bill Cosh, speaking for the Department of Justice, said the agency is reviewing the matter for possible appeal.

Wisconsin federal court says transgender people must be allowed medical treatment in prison

2010-04-01T07:59:00.000-07:00

ACLU of Wisconsin: Wisconsin federal court says transgender people must be allowed medical treatment in prison
4/1/2010

CONTACT:
Larry Dupuis, (414) 272-4032 ext 12, ldupuis@acluwi.org
Paul Cates, (212) 549-2568, pcates@aclu.org

MILWAUKEE, WI The U.S. District Court for the Eastern District of Wisconsin Wednesday struck down a law that barred transgender people from receiving medical care while they are incarcerated. The American Civil Liberties Union and Lambda Legal challenged the law in January 2006 on behalf of transgender prisoners, some of whom had been receiving hormones in Wisconsin prisons for years prior to the passage of the law.

This decision recognizes that many transgender prisoners require individualized medical treatment. While the court’s ruling does not require any particular treatment, it does mean that doctors are the ones who make these medical decisions, said John Knight, a senior staff attorney with the ACLU’s LGBT Project. The court’s decision is just common sense.

Overriding concerns raised by of the Department of Corrections medical personnel, the Wisconsin legislature passed a law, effective in January 2006, that prohibited prison doctors from deciding the best course of treatment for transgender people by barring them from prescribing any type of hormone therapy or sex reassignment surgery for transgender people in state custody.

The court understood that medical treatment is critical for transgender people and that medical decisions should be made by doctors not legislators, said Dru Levasseur, Lambda Legal’s Transgender Rights attorney. The state cannot decide to withhold treatment from people because they disapprove of their gender identity or medical needs it’s unconstitutional.

The lawsuit charged that it is a violation of the Constitution’s guarantee of equal protection as well as the guarantee against cruel and unusual punishment to bar transgender inmates from access to individualized medical care. The legal groups based their challenge on federal case law that establishes that health care providers must determine proper treatment for all prison inmates.

The court ruled that the statute’s ban on medical care constitutes deliberate indifference to the plaintiff’s serious medical needs in violation of the Eighth Amendment inasmuch as enforcement of the statute results in the denial of hormone therapy without regard for the individual medical needs of inmates and the medical judgment of their health care providers.

According to the ACLU and Lambda Legal, Wisconsin is the only state in the country to have enacted a law denying transgender people access to medical care while in state custody. The legal team includes John Knight, a senior staff attorney with the ACLU LGBT Project; Larry Dupuis, Legal Director of the ACLU of Wisconsin; Cole Thaler and Levasseur, former and current Transgender Rights Project attorneys at Lambda Legal and cooperating attorney Erik Guenther of Hurley, Burish & Stanton, S.C.

A copy of the court’s order and additional information about the case is available at www.aclu.org/caseprofiles or www.lambdalegal.org.

The ACLU of Wisconsin has approximately 9,000 members who support its efforts to defend the civil liberties and civil rights of all Wisconsin residents. For more on the work of the ACLU of Wisconsin, visit our webpage. You can also get news and opinion on civil liberties in Wisconsin on our Cap City Liberty blog. Find us on Facebook and Twitter at ACLUMadison and ACLUofWisconsin.

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2010-03-15T17:57:00.000-07:00

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Supreme Court to continue studying record retention and removal petition - STATE BAR OF WISCONSIN

2010-02-26T11:35:00.000-08:00

By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin

Feb. 26, 2010 – The Wisconsin Supreme Court will continue studying a proposal by the State Bar of Wisconsin to provide guidance to circuit court judges when ordering certain case files expunged, removed from an online database or otherwise sealed.

At an all-day public hearing on Feb. 24, almost two dozen individuals testified in favor of the proposal. After the hearing, a majority of the justices appeared willing to continue exploring ways to provide limited relief to individuals harmed by the online presence of cases that have either been dismissed or that ended in outright acquittal.

The vast majority of those who testified favored the proposal, describing how their personal lives or professional careers had been adversely affected by the online posting of court cases. In most of the situations described at the hearing, the cases had either been dismissed, overturned on appeal or had ended in outright acquittal after a jury trial.

“There are so many compelling stories here,” said Justice David Prosser during the court’s open administrative conference following the public hearing. “There are stories of people who are truly innocent. They didn’t do anything wrong. They have been totally victimized.”

“It seems to me that whatever problem we have has been incredibly exacerbated by CCAP and the Internet,” Justice Prosser added. “I don’t think you necessarily have to attack the entire problem if you can attack part of the problem.”

Stating he was not prepared to vote immediately on the petition but did not want the court to stop working on the issue, Justice Prosser said, “The case for redress is much too compelling to just let this die. It does need additional study.”

Justice Pat Roggensack suggested one option the court could consider is simply redacting the names of individuals in the online CCAP posting corresponding to dismissals and acquittals, without doing anything to foreclose public access to the original paper court file.

“That simple little fix, changing the name, does that have the same consequences as what was proposed here?” Justice Roggensack suggested. “People come in, nothing happens, the judge dismisses the charges, and often they are not represented. If the name simply were changed, for the CCAP problem where most of the people seemed to find their heartache, [it might] provide some relief.”

State Bar petition would clarify courts’ authority over their own records

The State Bar’s petition proposes three separate changes to current Supreme Court rules governing record retention.

The petition would provide that in any case that has been dismissed or in any case in which a person was acquitted, circuit court judges could order the record expunged if the court believes expunction is necessary and appropriate: (a) in the interest of justice, and (b) the court finds, either at the time of the dismissal of the case or within a reasonable period of time thereafter, that a party to the case would benefit and society would not be harmed by expunction.

It was this proposed change that appeared to garner a consensus among the justices that a problem existed and the court needed to do something to address it.

“Maybe it does leave some room for dealing with what we hear the most about today, what people are most aggrieved with -- dismissals and acquittals,” said Justice Annette Ziegler. “As a trial court judge, [in regard to] sealing the record and redaction, trial courts have fairly broad authority. So that’s somewhat appealing to me too.”

“Is there a way to deal with these more egregious situations yet keep public access and create an accurate record?” Justice Ziegler asked her colleagues. “I do think there are inherent powers in respect to sealing and redaction.”

Another change the petition proposes would adjust the mandatory retention time periods for certain cases to reflect their status at disposition rather than at filing.

Currently, SCR 72.01 sets forth a schedule of mandatory record retention periods, after which clerks of court may destroy court records and remove the information from the Wisconsin Circuit Court Access program and the Consolidated Court Automation Project (CCAP). Current retention periods vary from five years for ordinance and forfeiture cases to 20 years for misdemeanors and 50 years for most felonies. Under the current rule, retention periods are determined by a case’s status at the time of filing. The State Bar petition would provide that for felony, misdemeanor, forfeiture and ordinance cases, the retention period for a case would be determined by its status at final disposition.

As an example of how this proposed change would apply, a case with one count that was originally filed as a felony but was concluded as a misdemeanor would be retained for 20 years under the State Bar’s proposal rather than 50 years as under the current SCR 72.01. The State Bar’s proposal provides that for cases with multiple counts, the count with the longest retention period would govern the retention time for that entire case.

A third change proposed by the State Bar’s petition would permit any person to petition the circuit court for expunction of a record when the applicable retention time under SCR 72.01 has run but the clerk of court has not yet destroyed the record or removed it from CCAP.

It was this proposed change that seemed to encounter the most skepticism from the justices.

Currently, court records are destroyed and removed from CCAP according to the existing retention schedule under SCR 72.01. However, some justices expressed concern that the legislature may have preempted the field of expunction by enacting Wis. Stat. section 973.015, which provides a limited avenue for expunction to those under the age of 25 when convicted of misdemeanors and certain felonies.

“I’m very hesitant to use the term expunction when that term is used in 973.015 and has a particular definition and parameters that apply,” Justice Ziegler stated. “That seems to potentially conflict with the statute. That deals with a convicted person. I think 973.015 deals with those and we’re going to have a tougher time trying to tether that to retention of record time periods when the legislature has spoken on that score.”

Despite this reservation, most of the justices appeared to acknowledge that the court had the power to at least order limited changes to how CCAP is managed, particularly regarding the online posting of dismissed cases and acquittals.

“That doesn’t seem to be dealt with by 973.015,” Justice Ziegler said. “Maybe there is room for improvement. Maybe it could read ‘State v. Jane Doe or ‘State v. John Doe.’”

Justice Pat Crooks noted that dismissals and even acquittals are sometimes considered by judges when sentencing defendants on other cases.

“I don’t think we should destroy the record so that a judge couldn’t look at it, but I don’t see any reason why [dismissals and acquittals] should continue to be on CCAP and stigmatize and cause grave concern for people,” Justice Crooks said. “All I’m suggesting is, let’s go slowly.”

Justice Prosser agreed, saying “I do think we ought to have a very clear idea of how to implement this. Is there a court hearing? What exactly has to be shown at the hearing?”

“It may be that you could have something automatic in terms of a removal from CCAP after you had a dismissal of charges or an acquittal,” Justice Crooks said. “You could allow for a reasonable period of time, and automatically that matter would be removed from CCAP. Not from the court records, considering open government and open records.”

At the conclusion of the administrative conference on the petition, the justices decided to take the petition up again at a future meeting. The justices want to consult with the court’s technology staff regarding ways to take dismissals and acquittals off of the online CCAP database without disturbing the paper record on file with the court.

Madison attorney Erik Guenther and former State Bar president Gerry Mowris presented the petition to the court on behalf of the State bar. The State Bar’s Board of Governors unanimously approved filing the petition in June 2009, acting upon the recommendations of the State Bar’s Criminal Law Section and the Individual Rights and Responsibilities Section.

Under Wis. Stat. section 751.12 and Supreme Court Internal Operating Procedures II.B.5. and III, any person may file a petition to change Supreme Court rules, pleading, practice, procedural statutes and administrative matters

Supreme Court reviews expunction petition - WISCONSIN LAW JOURNAL

2010-02-26T09:39:00.000-08:00

by Jack Zemlicka

A petition filed by the State Bar of Wisconsin and reviewed by the Supreme Court on Feb. 24 would amend state law to give people who are charged, but never convicted of a criminal offense the chance to have their records expunged by a trial court judge.

After nearly six hours of presentations, the justices briefly debated the petition in open conference and elected to defer a decision until a later date.

Under current law, only those convicted, after a specified period of time depending on the crime and their age, can seek a court order for expunction of a record.

[...]

Attorney Erik R. Guenther, who co-wrote the petition, agreed that in some cases, someone who has never been convicted “is in a worse position” than someone who has.

The current statute, SCR 72.06, provides that some lower level felonies and misdemeanor changes are eligible to be expunged if the convicted individual is under 25.

Guenther said the purpose of the proposed change is to provide some uniformity throughout the circuit courts and have the Supreme Court recognize its inherent authority to go beyond the statute.

“The petition is premised on the idea that the court has the inherent and equitable authority when the statutory remedy isn’t sufficient,” he said.

The full article is available here.

Justices hear arguments over Wis. court records - WISCONSIN STATE JOURNAL

2010-02-24T20:46:00.000-08:00

By TODD RICHMOND

Wisconsin's legal association told the state Supreme Court on Wednesday that judges need broader powers to expunge court records because the records are too easily accessible online and can be abused.

Currently, judges can expunge juvenile records and records of offenders under age 25 who committed misdemeanors or low-level felonies. The State Bar of Wisconsin has petitioned the Supreme Court to adopt rules that would permit judges to erase records in an acquittal, if a case is dismissed or if the minimum time for retaining the records has expired.

"To allow continued access to such easily misunderstood information ... poses the risk that such a record could be 'a vehicle for improper purposes,' whether intentional or not," the association's petition said.

Criminal defense attorney Erik Guenther, speaking on behalf of the bar association during a hearing before the court, argued that judges have the inherent power to control their own records, even if that means going beyond state statutes.

But justices seemed skeptical. Justice Annette Ziegler questioned whether the court could grant judges more powers than state law dictates.

"As a judge you have to follow what the law says, whether you like it or not," Ziegler said.

At issue is Wisconsin's online court database, which offers anyone with a computer and a mouse access to statewide criminal and civil records. The site generates as many as 5 million hits per day.

Each case carries a summary page that notes whether someone was found guilty or innocent. The page also warns that discriminating against a person because of his or her criminal record is illegal in most cases.

Still, pressure is mounting to curtail public access to the site. Rep. Marlin Schneider, D-Wisconsin Rapids, is pushing a bill that would restrict public access to cases with convictions. He says people are complaining that employers, landlords and romantic prospects found their names on the site and denied them a job, housing or a relationship, regardless of whether they were acquitted.

"There is no forgiveness or mercy anymore," Schneider said.

Richard Moeck, 62, told the justices that a state appeals court acquitted him of sexual assault and a host of other charges that stemmed from a 1997 case in La Crosse. He was released from prison in 2005, but the online database still lists his case.

His entry mentions the charges have been dropped, but he insisted the file has cost him relationships with two women and an acting job.

"It's ridiculous they're allowed to put anything on there," Moeck said.

Bill Lueders, president of the Wisconsin Freedom of Information Council, said expanding judges' powers to expunge the records would be "unnecessary and unwise."

He said that people's stories about being wronged by the availability of the records were just that _ stories _ that don't account for other factors, such as a lack of skills for a job. If people are so sure they were harmed they can sue, he added.

He said the database offers an important avenue to evaluate law enforcement and prosecutors' actions.

"The citizens of Wisconsin are entitled to know what their court system is doing," Lueders said.

Justice Patrick Crooks told his colleagues after the hearing that acquittals and dismissals should be removed from the online database.

"People acquitted or found not guilty are stigmatized," he said.

The justices decided to research whether they or the Legislature have the power to make changes and discuss what could be done with the database with their technology staff.

Gov. Jim Doyle has said he supports letting judges decide whether to expunge records.

DNA testing rules may change - WISCONSIN LAW JOURNAL

2010-02-12T22:07:00.000-08:00

by Jack Zemlicka

When a person is convicted of a felony in Wisconsin, a DNA sample is taken and stored in a state database.

But legislators are proposing a change that would require police to collect DNA from every adult who is arrested for a felony and every juvenile who is taken into custody for sexual assault offenses that would be felonies if committed by an adult.

Senate Bill 336 received a public hearing in December. Its companion, Assembly Bill 336, is still waiting to be scheduled by the Assembly Committee on Criminal Justice.

Some criminal defense attorneys argue that the proposed change would violate the Fourth Amendment and could result in innocent people’s DNA being on file with the Department of Justice.

Hurley, Burish & Stanton, S.C. attorney Erik R. Guenther said that the current process of having a judge determine whether to grant an order for DNA is preferable.

“The legislature is looking at allowing highly intrusive searches without any judicial oversight,” he said.

Guenther is a board member of the State Bar of Wisconsin’s Individual Rights and Responsibilities Section, which is opposing the bills on the grounds that they violate the Fourth Amendment and are unconstitutional.

The basis of that opposition, said Guenther, is that DNA analysis provides much more information about a person than just fingerprints or a photograph.

Further, he argued, “for situations in which there was no finding of probable cause to continue with criminal prosecution, access to someone’s DNA sample would be of no benefit to anyone in the legal system.”

The full article is available here.

Wisc. high court asked to stop plan to make it easier to expunge criminal records - WISCONSIN PUBLIC RADIO

2010-02-10T20:54:00.000-08:00

By Gil Halsted, Wisconsin Public Radio

MADISON (WPR) Critics of a plan to make it easier for people to have their criminal records expunged are calling on the Supreme Court to reject the proposed new rule.

The rules petition from the State Bar Association cites studies showing that many employers use criminal records to discriminate against potential employees even when public records show that charges were dropped.

Erik Guenther is a spokesman for the state bar who helped write the petition. He says individuals continue to be penalized by employers because employers don’t see beyond the charge, or don’t care.

Guenther says the new rule would make judges aware of the problem and encourage them to expunge records when a person is acquitted or charges are dropped.

Jerome Dillard of Madison Urban Ministry is an ex-offender himself and works with people who are trying to turn their lives around after serving time in prison. He says the change would be a step a right in the direction. Dillard says people are having a tough time because of the system. He says disorderly conduct is a common charge that may be dismissed, but it’s still on a person’s record.

But both the Attorney General’s office and Bill Lueders of the Wisconsin Freedom of Information Council oppose the change. Leuders says all court records should remain public, and laws on the books forbidding employers from discriminating should be more actively enforced. He says it’s the responsibility of his group to encourage responsible use of the information and “not use it in unfair or discriminatory ways."

The Wisconsin Supreme Court will hear arguments for and against the new expungement rule on February 24th.

Debate to erase court records reaches Supreme Court - WISCONSIN PUBLIC RADIO

2010-02-10T11:28:00.000-08:00

2/10/10

Critics of a plan to make it easier for people to have their criminal records expunged are calling on the Supreme Court to reject the proposed new rule. Gil Halsted reports…

running time 1:35
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Website that provides court records is under scrutiny - WISCONSIN STATE JOURNAL

2010-02-02T08:37:00.000-08:00

- Ed Treleven

For the woman who was a victim of domestic abuse, it was a relief when a Columbia County prosecutor dismissed an unfounded domestic battery charge against her about five years ago.

But in the meantime, the woman said, she lost her job, then couldn't find another within her profession after background checks turned up the dismissed battery charge. And she believes men she dated would vanish after learning her full name and, presumably, checking her out on the Wisconsin Court System's popular Consolidated Court Automation Programs (CCAP) Web site.

"People make assumptions that if you're charged with something, then you must have done something," said the woman, who asked that her name not be used to protect her identity.

Cases like this one are the motivation for separate proposals now pending in the state Legislature and the state Supreme Court that would restrict access to online court records and make it easier for innocent people to expunge cases from those records.

Not everyone is convinced that the changes are necessary. Critics say that restricting access to court records would be harmful to the public's right to know what is going on in their courts.

"Both (measures) to some extent seek to do the same thing. They seek to deal with the perceived problem of people who misuse information by saying, ‘You can't have the information,'" said Bill Lueders, president of the Wisconsin Freedom of Information Counsel.

The changes are being reviewed this month.

A bill by state Rep. Marlin Schneider, D-Wisconsin Rapids, which would limit access to CCAP, is scheduled for a vote Wednesday by the Assembly's Committed on State Affairs and Homeland Security.

And the State Bar of Wisconsin has proposed changes to a state Supreme Court rule that would make it easier for people to have court records expunged. The bar's petition is scheduled for a hearing before the Supreme Court on Feb. 24.

A separate data base

The CCAP bill would remove records of pending cases from the Web site, along with those of people found not guilty. Those records would be kept in a separate database available only to court officials, government agencies, law enforcement, lawyers, licensed debt collectors and accredited journalists.

At a hearing last week, Schneider called CCAP a "court-created monster" that has ruined the lives of innocent people.

"For many, an accusation is the same as a conviction," Schneider said at the hearing.

But Peter Fox, president of the Wisconsin Newspaper Association, which opposes the bill, said the public has long had an intense interest in police and court information and CCAP is instrumental in providing it.

While Fox said if there's discrimination in jobs and housing that occurs because of what is found on CCAP, there are other ways to deal with that issue.

"Killing the messenger by restricting CCAP is not the way to do it," Fox said. "More information is better than less information."

Expunction of court records

The State Bar's proposal is designed to streamline the process to expunge cases, said Madison attorney Erik Guenther, who co-wrote the proposal.

He said the change would create uniform rules that all judges in Wisconsin could follow in deciding whether to expunge cases, a power he said judges already have under long-standing law. Those found innocent or whose criminal charges were dismissed can ask to have the case expunged from court records.

Expunction of court records for innocent people is in principle a good idea, Lueders said. But he is concerned about a portion of the bar's petition that would require the destruction of paper court records from an expunged case.

"No matter who asks that it be done, it's a terrible idea," Lueders said.

Removing all traces of a case, for example, "closes the door on prosecutions that never should have been brought," he said. "Courts have too much power over people's lives for someone to be able to put a match to paper that shows what the courts were doing."

A lawyer for the woman whose battery charge was dismissed was able to convince a judge to expunge the charge from court records. But it took several years, she said.

The woman has since married and is working again in her profession.

"I'm doing my best to put all of this behind me," she said.

Attorney gives students advice: Annual ‘Know Your Rights Workshop’ focuses on students, police interactions - THE BADGER HERALD

2009-10-22T07:49:00.000-07:00

By Lindsay Berger

In preparation for this year’s Halloween festivities, a Madison-area lawyer met with University of Wisconsin students and community members Wednesday evening to arm them with strategies for “surviving Freakfest.”

The annual “Know Your Rights Workshop,” co-sponsored by the UW American Civil Liberties Union Student Alliance and the UW Legal Studies Association, highlighted laws that pertain to student activities on campus with an emphasis on helping students avoid Freakfest legal altercations.

“The laws that we talk about here are ones that are particularly geared toward students, situations that may arise for them as a student and choosing what behaviors to engage in,” said Erik Guenther, a lawyer at the Madison law firm Hurley, Burish & Stanton. “It’s important that they have an appreciation of what the consequences are.”

Guenther focused primarily on the legal complications that result from drug use, sexual assault, battery, use of fake identification, underage drinking and house parties so students are aware of their legal rights and are able to interact with police responsibly.

In regard to house parties, Guenther said students can be fined for both dispensing liquor without a license and serving alcohol to minors, yielding a total fine of nearly $800 per underage person in attendance. In his experience as a lawyer, Guenther said he worked with a client whose house party received $440,000 in fines.

Guenther said students are not legally required to let police into their houses unless they grant them permission, they have a search warrant or illegal substances are in plain view. However, police can enter a house if they smell illegal substances like marijuana.

Guenther advised students who are planning on hosting house parties to remind their roommates and guests not to let police into their houses.

“You want to be in charge and also decide whether this particular guest is potentially worth $800 to you,” Guenther said.

Reginald Young, a UW freshman who attended the event as a member of the Pre-Law Society, said he was surprised to hear that it was possible to receive two separate tickets for one houseguest.

He added that he is not concerned about dealing with the police on Halloween.

Guenther added police are often trained with tactical strategies to persuade students to allow them entry into house parties and get them talking.

Other information Guenther said students should know is that they can legally refuse to be subjected to a Breathalyzer test and that sharing a joint is considered transfer of drugs, which is a felony.

One of the smartest strategies students can use to engage with police is to simply avoid talking to them, Guenther said.

“It’s very common for people to not know that they have the right to say ‘I choose not to talk,’” Guenther said.

Event organizer Steve Horn, social chair of UW’s Legal Studies Association and a Badger Herald columnist, said the workshop aims to provide students with information that is relevant to a university he said is well-known for its party culture.

Workshop preps students to know their rights at Freakfest - THE DAILY CARDINAL

2009-10-21T07:47:00.000-07:00

By Alyssa Connolly

Anticipating the approaching Halloween festivities next weekend, UW students and Madison community members gathered to learn about their rights regarding police confrontation at a workshop Wednesday.

Madison criminal defense attorney Erik Guenther led the event, which was hosted by several organizations, including the UW American Civil Liberties Union, the Legal Studies Association and the UW-Madison College Republicans.

Guenther encouraged UW- Madison students to learn and understand the laws about how to conduct themselves when confronted by police.

“You’re presumed to know these things, so it’s not a defense to say, ‘I didn’t know it was in the book,’” Guenther said.

According to Guenther, the “book” refers to the extensive list of Wisconsin statutes that Guenther says are largely unknown to college students, a fact that can get them in trouble.

Guenther said a common cause of police-issued citations and arrests is disorderly conduct, which encompasses a wide range of behavior including violence, abusive or indecent behavior, profanity, boisterous activity or arguing.

According to Guenther, police officers can easily make disorderly conduct arrests because these types of behaviors can be claimed in most situations.

“It’s easy for law enforcement to have a reason to arrest you,” he said.

He mentioned several rules for dealing with police that can help minimize repercussions. First, he said to be polite to police officers. He said they are much less inclined to use handcuffs if you are calm and composed with them.

Secondly, Guenther said, never lie to police officers. Although they can legally lie to you or use tricks to get you to talk, lying to the police is a crime.

Lastly, he said it is important to make neither a written nor oral statement without a lawyer present. He said it is not uncommon for students to accidentally confess a crime when confronted by police.

Guenther also spoke about specific crimes and their repercussions, including drug use, drunk driving, battery, possession of a fake ID and hosting house parties. He also offered advice about what to do if a police officer shows up at your door.

Sprucing up your criminal client for court - WISCONSIN LAW JOURNAL

2009-10-19T15:17:00.000-07:00

by Jack Zemlicka

October 19, 2009

Image matters. And it especially matters when your criminal client is facing trial.

[...]

There’s a risk that allowing a client to be too comfortable can damage his or her credibility.

[...]

While criminal defense attorneys agree that sloppy or too-casual clients can be a problem, “overdressing” a client is also risky.

Outside appearances count

Hurley, Burish & Stanton attorney Erik R. Guenther notes that the need for a professional appearance can extend outside of court.

If there is a trial with significant public interest, Guenther recommends controlling the client’s image in the media, even before opening arguments are made.

“I generally will try to provide a studio photo of a client [to the media] rather than a mug shot,” he said.

Assuming a client is not in custody, Guenther typically makes arrangement to have the person get a professional head shot done at a local studio. He then circulates the pictures to various media outlets that may have an interest in the case. He said that most choose to run the head-shot.

“It’s really not just white-collar crimes, but anything that generates media interest,” Guenther said. “It’s a way to remind people that there is a presumption of innocence and my client has a right to a fair trial.”

The full article is available here.

ACLU Student Alliance and Legal Studies Association to Host Know Your Rights Workshop in Preparation for Annual Halloween "Freakfest" Activities

2009-10-14T06:48:00.000-07:00

University of Wisconsin-Madison’s American Civil Liberties Union Student Alliance and Legal Studies Association will co-host a timely “Know Your Rights Workshop” on Wednesday, Oct. 21 from 6:30 – 8:00 pm at the Mosse Humanities Building, Room 3650, located on 455 N. Park St.

Co-sponsors include the Criminal Justice Certificate Program, the Criminal and Juvenile Justice Student Association, College Democrats, College Republicans, Young Americans for Liberty, Students for Russ Feingold, Pre-Law Society, Students for Equal Access to Law School, and Wisconsin Union Directorate Society and Politics Committee, making it a truly nonpartisan event.

The workshop will be led by Madison criminal defense attorney Erik Guenther of the Hurley, Burish, and Stanton Law Firm, who also serves as a volunteer attorney for the ACLU of Wisconsin and is the sitting President of the ACLU of Wisconsin Board of Directors.

"I have been doing Know Your Rights Workshops for students at colleges throughout Wisconsin since 2003. The Bill of Rights is nothing more than a piece of paper if people don't understand the protections that they have from government intrusion,” said Guenther. “Many people, including students, wrongly believe that they are required to allow police to search their property and wrongly believe that they have to answer questions asked by police. These workshops educate the audience about the fundamentals of our Constitutional protections. Too many young people premise their understanding of the Bill of Rights upon incorrect information from television or vague notions from textbooks. I talk about how the Bill of Rights relates to the real experiences of students."

The workshop will take place ten days before the annual Halloween “Freakfest” activities, scheduled for Saturday, Oct. 31. “Freakfest” has consistently resulted in many arrests of students and community members. In 2008, 77 attendees were arrested.

"At the ACLU of Wisconsin, we get calls or complaints from people who feel their rights were violated by law enforcement," said Stacy Harbaugh, ACLU of Wisconsin Community Advocate. "It is important for every individual to understand their rights in traffic stops, searches or any other encounters with police. This workshop teaches the details of everyone's rights to privacy and to be free from self-incrimination."

Event co-host ACLUSA-UW aims to be a campus and community civil rights educator.

“The ‘Know Your Rights Workshops’ are just a small, but important sample of the work we do on-campus and in the Madison community,” said ACLUSA president and senior Jessica Johnson. “Most people are unaware of the extent and details of their civil liberties, so we want to change that.”

During Freakfest 2008, members of the ACLUSA-UW handed out “bust” cards to attendees, meant to serve as a reference for party-goers in the event that they are stopped by police.

“The cards got a very positive response among those attending Freakfest and far fewer arrests occurred than in past years,” said Johnson.

For additional information on the “Know Your Rights” workshop and the ACLUSA-UW, contact Steve Horn at sahorn@wisc.edu or (262) 705-5856 or Jessica Johnson at jmjohnson@wisc.edu or (303) 653-6524.

About the ACLU

The American Civil Liberties Union is a national organization defending civil liberties as well as protecting constitutional and civil rights. The ACLU of Wisconsin is a membership organization that defends the civil liberties and rights of all Wisconsin residents in a non-partisan manner.

About Legal Studies Association

The mission of the LSA is to promote the professional and social development of students interested in law related careers through educational and social experiences with other students, academic professionals, and community leaders.

Your Right to Protect Yourself and Your Home - WKOW-TV (ABC)

2009-09-22T08:32:00.000-07:00

Click here for video.

Lawyers testify in favor of bill boosting hourly rate for public defense appointments - STATE BAR OF WISCONSIN

2009-06-10T11:38:00.000-07:00

By Alex De Grand, Legal Writer, State Bar of Wisconsin

June 2, 2009 – A bill introduced in the Wisconsin Assembly aims to raise the hourly rate paid to private attorneys who accept cases from the State Public Defender from $40 to $70 an hour.

Lawyers lined up at the state capitol June 2 to offer testimony in support of Assembly Bill 224 before the Committee on Judiciary and Ethics. A law firm is a small business with overhead costs that continue to rise whereas the rate for indigent defense has been frozen by statute since 1995, the committee learned.

“I sit before you today as a solo practitioner able to tell you that in a streamlined operation with one part-time paralegal, my overhead costs run roughly $70an hour,” said State Bar President Diane Diel. “You can do the math on where that leaves me $30 in the hole if I were to take $40 an hour appointment cases.”

Diel and Past State Bar President Gerry Mowris emphasized that this bill is about small businesses. “The typical Wisconsin lawyer is a small business owner,” Diel stated in prepared testimony. “In fact, of the approximately 3,800 law firms in Wisconsin, 92 percent or about 3,500 are small businesses with five or fewer lawyers. Fully 70 percent or 2,657 of those law firms are solo practices consisting of only one lawyer.”

“The small businesses Wisconsin lawyers operate are woven into the fabric of Wisconsin’s economic life,” Diel continued. “Wisconsin lawyers provide employment, pay taxes, and support other businesses around the state.”

Mowris added that traditionally the law firm accepted an appointment so that a young lawyer could gain experience under the supervision of an older attorney. This critical mentorship that cultivates the next generation of practitioners is impractical when the appointment represents such a tremendous loss of money. This is a loss to the profession and the society it serves, he said.

The State Bar’s Board of Governors has a long-standing public policy in support of raising the SPD rate to a level that fairly compensates lawyers for their time and is equal to those set by the Wisconsin Supreme Court for court-appointed attorneys.

‘It is the right thing to do’

Private practitioners explained that they continue to accept public defense cases because they believe they have an obligation to ensure the fairness of the criminal justice system.

Madison attorney Joanne Keane explained that she is trained for the far more lucrative field of patent law. “But I choose to do public defender work because it is the right thing to do,” she said.

“’Liberty and justice for all,” Keane said. “’It’s as simple as that. And if those words don’t mean anything, then, frankly, I don’t know what does.”

But the attorneys said that there are practical limits to what they can do.

“I am a charitable, generous and committed individual,” said Wausau attorney Peter Rotter. “It is my obligation to give back to society, and I do so. But, that doesn’t make it acceptable for the state to take advantage of me.”

Rotter said he has resorted to cost-saving measures used by other lawyers. He has one person on his staff, but “I don’t pay well, and I can’t offer health benefits.” Rotter said his other clients charged at his customary rate effectively subsidize his public defense work.

“That is no way to run a system of justice,” Rotter said.

“Why hasn’t this [rate] been raised already?” asked Madison lawyer Erik Guenther, a member of the Wisconsin Association of Criminal Defense Lawyers board of directors. “Well, this involves compensation for criminal defense lawyers. People don’t like criminal defense lawyers… And the reason for that is when I’m on TV, I’m usually standing next to somebody who everybody has just saw his mug shot. And sometimes they are in an orange jumpsuit.”

But Guenther said that the system is not perfect and he asked lawmakers to consider the importance of a defendant’s due process rights, despite current popular hostility.

“It’s been a long time since we read To Kill A Mockingbird,” he said. “Instead, we have Cops and Law and Order.”

Effect on the courts

Larry Peterson, president of the Wisconsin State Public Defender Association, explained that his members work with the private bar because “the system has to be healthy across the board in order to produce healthy results.”

If lawyers in private practice are discouraged from stepping forward to accept appointments from the SPD, Peterson said this can have serious consequences for finding conflict counsel. Victims are among those affected by delays created by an inability to find willing and competent legal counsel, added Deb Smith, the director of the SPD Assigned Counsel Division.

Preempt a lawsuit?

The bill’s sponsor, Rep. Frederick Kessler (D-Milwaukee), said that part of his motivation to seek a rate increase was to head off a legal challenge to the fairness of Wisconsin’s indigent defense system.

“I introduced this bill because I am appalled at the fact that we have continued to pay people at an hourly rate that was only $5 more than the hourly rate established in 1978,” Kessler said. “I understand the nature of the financial crisis the state is facing, but I think we are in a situation where at some point somebody is going to challenge this $40 an hour rate as not providing adequate counsel and adequate compensation to counsel to be able to do that. And we are going to be ordered by the state or federal court somewhere to say, ‘I’m sorry. We have to pay a reasonable rate to attorneys so that we can ensure adequate representation.”

Kessler said that he would have actually preferred a rate even higher than that proposed in his bill. Most Wisconsin counties pay private attorneys at the state supreme court rate of $70 per hour to take court appointments or serve as guardians ad litem, according to testimony from the SPD.

Other professionals who contract with the state commonly have their compensation set by market demand, the SPD noted. The state procurement hourly rate for a video editor is $225 and a photographer’s rate is $112 to $200 an hour.

Cap City Liberty: Victory! Madison Common Council votes down restrictive youth curfew change

2009-05-13T15:29:00.000-07:00

Cap City Liberty: Victory! Madison Common Council votes down restrictive youth curfew change

Madison Common Council Approves Curfew Change: New Rules Provide Exemptions For Some Teens - WISC-TV

2009-05-06T09:40:00.000-07:00

MADISON, Wis. -- When the Madison Common Council finally took up a proposed new curfew on Tuesday night, it was too late for many of the students who had come to speak on the issue to have their voices heard -- citing the need to go home to complete homework as the reason for their early departure.

Afterward, council members approved a proposal by Alder Michael Schumacher, of District 18. The measure maintains the existing 11 p.m. curfew for teenagers, but provides some exemptions. Teenagers who are working, attending school, faith or community-based activities past 11 p.m., or traveling home from those activities will no longer be subject to curfew violations, WISC-TV reported.

The debate over changing Madison's curfew began earlier in the night with a proposal by Alder Jed Sanborn. The District 1 representative wanted to expand the city's curfew ordinance and require children who are ages 15 and younger to be home an hour earlier -- by 10 p.m. -- Sunday through Thursday.

"I was actually approached by the police department asking for this," Sanborn said. "We do have a problem in some areas with young kids out late at night, looking for things to do and oftentimes looking for trouble."

Sanborn's proposal would have kept the existing Friday and Saturday night curfew at midnight for all children age 16 and younger.

His proposal for a modified Sunday through Thursday ordinance would have had exemptions for teens involved in work or school activities, but didn't change current rules requiring 16 year olds be home by 11 p.m.

Those exemptions raised questions for some parents who were curious if the rules would have applied to non-school activities, like the Wisconsin Youth Symphony.

Others questioned the practice altogether.

"When I first saw this curfew, I thought wow, this is well intentioned, but I think it may have consequences we haven't thought about," Bill Patterson said. "What I've learned from my work with young people, is it doesn't work to cradle them all together and say you do this and you do that, you have to reach them one on one."

Patterson said he supported more community programs that build a connection with youth, especially those considered to be at risk.

"Juveniles need respect, and if they don't get it. They're not going to give it back, just like none of us will," said Rosemary Lee.

Council Member Shiva Bidar-Sielaff would later cite Lee's statement while apologizing to youth who waited two and a half hours to speak before the council only to go home without having their comments heard. Some young people did wait to talk to council members.

"We need to place more trust in our youth. Trust breeds trust, if you trust us, we'll trust you and we'll obey the law, but if you treat us like criminals,comma we'll act like criminals. It's human nature," said 18-year-old Andrew Bange.

Bange said he had a younger brother who would be impacted by Sanborn's modified ordinance. Bange's father Greg also commented and said the proposal didn't just constrain children, but their parents as well.

"As a parent, it's my job to make sure my kids do right, because I want them to have a future. A law of unintended consequences here constrains my ability to parent my children," Greg Bange said.

Madison Police Chief Nobel Wray said the issue comes down to what the council wants to decide about setting the hour neighborhoods should quiet down. Wray cited statistics that show most of the citations are issued after midnight, an hour later than the current curfew time.

"The first hour, officers are using that as a warning, and I would anticipate you would probably see the same thing at 10 p.m.," said Wray, who also addressed concerns by some council members that an earlier curfew would lead to racial profiling by police. "If an officer is going to engage in biased-based policing, they don't need an extra hour to do that."

Alder Judy Compton, who represents District 16, said some of her colleagues on the council weren't "fighting fair" by bringing race into the debate. She said any child of any age and any race can get into trouble.

A representative from the ACLU also spoke about the impact of a curfew change. Erik Guenther said the ACLU was opposed to a change and suggested that any student receiving a curfew citation could be penalized from getting into college and being hired when asked on applications "if they've ever been convicted of anything other than a traffic citation."

Late in the meeting, Alder Brian Solomon asked the council to repeal the entire ordinance, though it wasn't immediately clear how far his suggestion might go.

"I do think poor kids are going to be by default more hit by this, if a kid is walking home in a low income neighborhood, it's going to get them. If they have no safe place to hang out, if they don't have an XBox to play at a friend's house safe at night," said Solomon.

Stay tuned to WISC-TV and Channel 3000 for continuing coverage.

ACLU: Student Alliance to host know your rights workshop in preparation for anuual Mifflin Street block party

2009-04-20T06:38:00.000-07:00

Contact: Steve Horn, Vice-President American Civil Liberties Union Student Alliance –UW, (262)-705-5856, sahorn@wisc.edu

MADISON – The American Civil Liberties Union Student Alliance - UW will host a timely “Know Your Rights Workshop” on Wednesday, April 22 from 7:00 – 9:00 pm (check Today in the Union for location).

The workshop will be led by Madison criminal defense attorney Erik Guenther of Hurley, Burish, and Stanton Law Firm and a volunteer attorney for the ACLU of Wisconsin.

“I conduct Know Your Rights Workshops regularly on college campuses around the state,” said Guenther. “It is important to me as an attorney to share my legal knowledge with college students who may not know what their constitutional rights are when they find themselves in precarious situations with police officers.”

The workshop will take place ten days prior to the annual Mifflin Street Block party, scheduled for Saturday, May 2.

The Mifflin Street Block Party has consistently resulted in many arrests of students and community members. In 2008, 438 attendees were arrested, 383 cited and released, and 51 sent to the Dane County Jail.

“The Mifflin Street Block Party is a well-known haven for arrests and it is important for students to know their Fourth and Fifth Amendment rights when dealing with Madison Police,” said Guenther.

Event sponsor ACLUSA-UW aims to be a campus and community civil rights educator.

“The ‘Know Your Rights Workshops’ are just a small, but important sample of the work we do on-campus and in the Madison community,” said ACLUSA-UW president and senior Tracy Fleischman. “Most people are unaware of the extent and details of their civil liberties, so we want to change that.”

During Freakfest, Madison’s annual Halloween block party occurring on State Street, members of the ACLUSA-UW handed out “bust” cards to attendees, meant to serve as a reference for party-goers in the event that they are arrested.

“The cards got a very positive response among those attending Freakfest and far fewer arrests occurred than in past years,” Fleischman said.

The number of arrests dropped considerably from 2007’s Freakfest, with only 77 arrested, compared to 181 in 2007, 235 in 2006, and 566 in 2005.
http://www.union.wisc.edu/cro/reslist.asp on Wednesday April 22nd for the exact location of the event.

For additional information on the “Know Your Rights” workshop and the ACLUSA-UW, contact Steve Horn at sahorn@wisc.edu or (262) 705-5856.

About the ACLU

The American Civil Liberties Union is a national organization defending civil liberties as well as protecting constitutional and civil rights. The ACLU of Wisconsin is a membership organization that defends the civil liberties and rights of all Wisconsin residents in a non-partisan manner.

Mission Possible: Improving Justice in Afghanistan - WISCONSIN LAWYER

2008-10-13T10:09:00.000-07:00

by Dianne Molvig

Law school doesn't teach you how to react in a hostage situation or how to recognize an improvised explosive device. But those were skills three Wisconsin attorneys - Erik Guenther, Melinda Campos, and Jeremy Arn - had to learn before reporting for volunteer duty with the Justice Sector Support Program (JSSP) in Afghanistan.

Sponsored by the U.S. Department of State, the program's stated mission is "to assist the government of Afghanistan in developing and strengthening the country's criminal justice sector, as a means to enable the courts and the professionals in the justice sector to deliver fair and effective services to the citizens of Afghanistan."

Guenther, Campos, and Arn received two weeks of training in Virginia before leaving for Afghanistan. Their training was, they note, perhaps the final stage of a weeding-out process - a last chance to turn back. It gave them a clear picture of the risks they'd face; they even wrote their own obituaries.

The risks are high, these young attorneys acknowledge. But so, they say, are the rewards.

`A Small Piece in a Very Large Puzzle'

When attorney Erik Guenther got cut off by another motorist while driving down a Madison street one day last spring, his initial impulse was to hit the horn. "I remember thinking, wait," he recalls. "This guy wasn't going to hit his brakes, and there was no explosive device on his rear bumper. I didn't get upset."

Just a few days before this incident, Guenther had returned from Kabul, Afghanistan, where for six months he trained Afghan attorneys - and where every time he got into a vehicle he faced the possibility of not coming back. It took awhile to shake that mentality after returning home on March 23, 2008.

"At first it was hard for me to realize I didn't have to think like that anymore," Guenther said in a conversation three months later. "But something I hope stays with me a long time is an appreciation for what matters. When you're in a situation where there's a real risk you might not make it, it helps you keep your priorities straight."

Guenther tries to hold that thought now that he's returned to his normal daily life as a criminal defense attorney with Hurley, Burish & Stanton S.C., in Madison. He says he also came home with a deeper appreciation of the U.S. justice system.

"When I walk into a courtroom," he notes, "I know that a judge is going to let us appear and listen to my client's side. I feel grateful for all the hard work other people did a long time ago to create what is now a mature justice system."

With a constitution that's just four years old, Afghanistan is in the early stages of building its justice system. Guenther got a chance to be among those working on the ground floor of that effort while serving as a "defense mentor" with the JSSP. His primary duty was to train defense attorneys working for the Legal Aid Organization of Afghanistan (LAOA), described by Guenther as "the cream of the crop of defense lawyers" in the country. He also helped create curriculum for police, judges, and prosecutors.

In the current Afghan criminal justice system, there are two layers of prosecutors. The first works with its own investigators to look into a crime and decide whether to bring charges. Prosecutors in the second level then try the case and appear in court. A judge makes the final decision in a criminal matter; there are no jury trials and no public defender program. An accused person is allowed to present to a judge a statement, which a defense lawyer - perhaps a retired judge or prosecutor - may have helped the defendant prepare.

"It's not what we would think of in terms of motion practice, court appearances, cross examination, and presenting witnesses on behalf of the accused," Guenther explains. "Those are only recent ideas."

Thus, defendants often have no strong advocate, and no checks are in place on prosecutors' and judges' actions. "In practice, you have a system in which corruption is rampant," Guenther points out.

As a result, the public lacks trust in the justice system and in defense lawyers. Trial dates aren't publicly announced in advance, so there's no public or media oversight of trial proceedings, and sometimes even the parties don't know when a trial will take place. People taken into custody become suspicious if offered the services of a defense attorney; they fear they're being duped.

"Because of the lack of awareness of the role of the defense lawyer," Guenther explains, "it's tough for those few lawyers doing that kind of work to operate effectively. But there are efforts under way to educate people about their rights under the constitution." That's enormously difficult, he adds, given the high rate of illiteracy and vast areas of the country lacking radio, television, and electricity.

The police support a stronger defense bar because they often face accusations of wrongdoing, such as stealing during home searches or maltreating suspects or witnesses. "The police, being on the ground, understand the value of a check on the prosecutorial function," Guenther notes.

In his classes and one-on-one consulting with defense attorneys, Guenther covered such topics as how to prepare clients and how to take clients from understanding their rights on paper to being able to exercise those rights. "We also talked about how to build credibility with judges - particularly for female attorneys," he says.

The LAOA staff includes several female attorneys, but that's unusual in Afghanistan's justice and law enforcement circles. Guenther estimates that overall only about 5 percent of the country's lawyers, judges, police, and corrections officials are women.

His main frustration during his six-month stint was the difficulty of getting even simple things done. "Everything moves more slowly than you'd like," Guenther says. "You have limitations in technology. You can't reach people you need to reach, and everybody is dealing with security issues."

All along, he kept reminding himself of advice he got before leaving Madison from John Vaudreuil, a Madison lawyer with the U.S. Attorney's Office who's made numerous trips abroad on behalf of the Department of Justice to teach in countries with emerging legal systems. Appreciate the baby steps, Vaudreuil advised Guenther, and don't expect dramatic accomplishments.

"I was a small piece in a very large puzzle," Guenther says of his service in Afghanistan. He predicts it will take 15 to 20 years of sustained effort from the international community to help the country establish a successful justice system aligned with its constitution.

What most encouraged Guenther while he was there was the hope of the Afghan people. He talked to many his age (early 30s) who had lived their entire lives in a war zone, and everyone has family and friends who were killed or injured.

Still, Guenther notes, "These are people who remain hopeful their country can improve and their quality of life can be better for generations to come. That was inspiring."

He also found that the Afghan people are grateful to those who come to help. They place a high value on family, Guenther points out, and they appreciate that foreign attorneys are willing to leave their homes for many months to work in Afghanistan. "They are a good-humored, kind people," he observes, "and it's a beautiful country. That's not what we see in the news."

'It's Amazing People Want to Learn'

Melinda Campos was apprehensive when she first walked into a classroom in her role as a "justice advisor" in the Kunduz province of northeastern Afghanistan in February 2008. She wasn't sure her class - made up of male police investigators and prosecutors, mostly in their 30s and 40s - would accept a female instructor.

"I thought the first day they wouldn't look at me, or they'd walk out of the classroom," she says. "They weren't like that at all. I've been surprised. They shake my hand every day. They talk with me during breaks in our classes. I didn't think I'd be received this way."

Speaking on the telephone from Kunduz in July on the day before the graduation of her first group of students, Campos noted, "I'm going to miss these guys."

Campos, who's been a public defender in Madison since 2004, signed up for service with the JSSP because she saw it "as the opportunity of a lifetime," she says. It is also, of course, a life-endangering situation. "I'll not sugarcoat it," she says. "We're in a danger zone for sure, but we have security. You get used to how it is here, but you don't become complacent about it. You have to have a level head all the time."

She teaches and lives in a secure compound in the city of Kunduz, the provincial capital, along with about 100 U.S. military personnel, people working for U.S. government contractors, and professionals from other coalition countries who provide police training and help to build infrastructure.

Besides teaching in the compound, Campos conducts training sessions in the cities of Baghlan and Takhar, each about an hour's drive from Kunduz. "The biggest risk is when we're traveling," Campos says. "We have to wear bulletproof vests and helmets when we're on the road, and we're in an armored vehicle. Our security team is armed."

Still, "It is nice to get out," Campos adds. "The scenery is so beautiful."

The teaching team Campos works with on a daily basis includes two other American lawyers, three Afghan lawyers, and three interpreters. The hope is that the Afghan lawyers can carry on this work in the future. "We're trying to establish sustainability," Campos says. She is the only defense attorney in her group. In fact, she notes, the entire Kunduz region, with a population of nearly 600,000, has only seven defense attorneys.

The recently enacted Advocates Law will create a formal defense bar and a public defender system in Afghanistan. It also will establish new consumer protections. Currently anyone, even someone with no training, can hang out a shingle claiming to be an attorney.

In her first six months, Campos has been training criminal investigation police and prosecutors. "We're trying to establish cooperation and coordination between the two groups," Campos says. She hopes to gain approval to do a second six-month stretch in Afghanistan and eventually to get a chance to train defense attorneys.

She describes the training she provides as information sharing, in both directions. The instructors "brainstorm with the students," she says, "about steps to take to curb corruption, to make sure cases are investigated correctly." Class discussions cover a range of topics: crime-scene investigations, search and seizure procedures, ethics, handling domestic violence incidents, and more.

In addition to teaching in the classroom, Campos also mentors students in their workplaces, consulting on actual cases. "We want them to know we'll make the effort to visit them," she says, "and it's good for us to see the reality of the issues they're facing."

The police and prosecutors in her class work in tough conditions in various parts of the Kunduz province. Their offices are sparsely furnished and have no air conditioning. Supplies are lacking. Even acquiring a few legal pads can be impossible.

The country's decimated infrastructure and economy add to the problems. "Daily life is a struggle here," Campos observes. "It's amazing people come to class and want to learn."

All those in Campos's class are literate, which she says is uncommon among police and prosecutors in the Kunduz province. Many educated Afghans fled the country in the past few decades, so less-educated people had to fill police and prosecutor positions. Enhancing their professionalism is one goal of the training Campos and others provide.

Although it may seem odd to Americans that lawyers are unable to read and write, Campos explains that many Afghan prosecutors fulfill different roles than their U.S. counterparts. They're criminal investigators, not courtroom attorneys, and they can perform their duties well, even though they're illiterate.

In her experiences in Afghanistan to date, Campos says she's most encouraged by the country's people. "They have a lot of pride in their nation," she notes. "They want to make changes, so it's not an issue of them not wanting change. But this is a very poor society. We have to try to give them a boost."

'They Thank Me for Coming Here'

Jeremy Arn's experiences since he arrived in Afghanistan last March have been much like those of Guenther and Campos, with some extra danger added. "Things have begun to heat up here in the past month or so," he wrote in an August email from Herat, a city of 600,000 in northwest Afghanistan. He was answering questions about his experiences via an email exchange, given the poor connections in Herat to the Internet and by cell phone to the states.

On assignment as a "justice advisor" with the JSSP, Arn works and lives with some 200other people in a secure compound just outside the Herat city limits. Three times in the month preceding his August email the compound had been the target of nighttime mortar attacks, which sent Arn scrambling from his bed to a nearby bunker.

At such times he wonders what he's doing here, Arn admits. "The questioning gets intense when I'm sitting in a bunker in the middle of the night."

Arn is on leave from the Racine County District Attorney's office, where he's worked for four years. In Herat, he's teaching prosecutors and criminal investigators. Some are locals and some come from southern provinces to which Arn and his teaching team -including two other American attorneys, three Afghan attorneys, and three Afghan interpreters - can't go because of security concerns.

The compound's security is in the hands of Gurkhas, ex-military Nepalese who are descendants of warriors and have a reputation for their loyalty, courage, and battle skills. Arn and his two fellow American attorneys have a personal security team of five Gurkhas. "I have no doubt that each one of them would take a bullet for me," Arn says. "They are also the nicest, most humble people I've ever met."

Besides holding classes in the compound, Arn and his teaching colleagues travel by armored vehicle a couple of times a week to the prosecutor's office and police headquarters downtown. On these and other ventures outside the compound, Arn dons a bulletproof vest and helmet.

"My job while riding," he says, "is to look out my side of the vehicle for IEDs [improvised explosive devices] and suicide bombers. Everyone is completely silent during the ride. A 10-minute ride feels like an hour. I usually feel physically drained by the time we reach our destination, just from sitting there, watching."

His students are "very bright and most know the Afghan penal code and criminal procedure codes inside and out," Arn says. "Many have been prosecuting longer than I've been alive." Those who come in for training from the southern provinces have no more than high school educations.

The vast majority of his students are men. Still, the chief prosecutor of the Herat province is Maria Bashir, the only female chief prosecutor in Afghanistan. "She is a very brave woman," Arn notes. "She has had numerous threats on her and her family's lives since she was appointed by President Karzai. She's not afraid to prosecute the corruption that runs rampant here."

Arn's classes cover diverse criminal law topics. Key underlying themes are improving police-prosecutor coordination and combating corruption - a huge problem, Arn says. Corruption feeds public mistrust of law enforcement officials, and thus many crimes go unreported. "As a result, the security situation worsens," Arn says.

But, he adds, when an official takes a bribe, it's often a matter of survival, rather than moral failure. Prosecutors, for instance, make $65 a month. Many have to hold down a second job to get by. The U.S. Department of State pays prosecutors and investigators a $5-per-day stipend for attending JSSP classes. Still, when Arn told his class about the stipend, some raised their hands to protest it was too much.

"These guys are the good guys here," he says. "They truly want their country to improve. After all the war, all the regime changes, all the corruption, all the mistrust from the public, all the danger that comes with working in their jobs, they still do it. Day in and day out. For $65 a month! And they continually thank me for coming here. It is very humbling."

One of his most dismaying experiences has been discovering the conditions his students face in their jobs. For instance, criminal investigators and prosecutors in southern provinces must take taxis to crime scenes, paying out of their own pockets, because they have no other means of transportation. Plus, because they're often first on the scene, they must provide emergency medical care to those who need it, because ambulances are nonexistent. During the JSSP training, "We had a doctor come in to teach a first-responder class," Arn says. "We also provided our students with first-aid kits, which none of them had, to take back to their offices."

A key challenge for Arn is impressing on his students the importance of correctly applying the Afghan penal code and criminal procedure codes. In practice, prosecutions sometimes become a hybrid of Sharia law, derived from the Koran, and Afghan secular law.

For example, running away is often prosecuted; even though it's not a crime according to the Afghan penal code, it's against Sharia law. Arn notes that in a recent class, a student asked whether he should arrest a man for attempted adultery because the man, while waiting in line at the market, turned around and winked at the woman behind him. Arn stresses to his students that they must assemble evidence to prove their cases.

"There is a long way to go here," Arn says. "But I have seen progress in the way most of our students are thinking about and applying the law. That's encouraging. That's what has kept me here."

Carthage to Kabul: A Journey of Law - THE CARTHAGINIAN

2008-08-30T12:04:00.000-07:00

Erik Guenther, ’99, has a passion for justice. In the past year that passion took Mr. Guenther to war-torn Afghanistan.

Mr. Guenther, described by the Wisconsin State Journal as “a rising star in the state legal establishment and already a teacher in cutting-edge legal issues,” took six months off from his position with the Madison law firm of Hurley, Burish & Stanton to serve in the Justice Sector Support Program, a U.S. State Department program that seeks to establish the rule of law in Afghanistan.

“I enjoy my work here, but this seemed like a very interesting opportunity to do some good,” says Mr. Guenther, a criminal defense attorney. “I figure it would be a good learning experience. I didn’t expect to enjoy it as much as I did.”

The program seeks to train lawyers, prosecutors, judges, correction officers and other persons in the justice system. According to Mr. Guenther, there are few defense attorneys and some judges are simply respected elders with no legal training.

Mr. Guenther describes the goal of the program as “working to create a legal system that people will trust and go to. Creating a more transparent legal system reduces opportunities for corruption.”

Bribery is widespread in the Afghan legal system, a situation Mr. Guenther blames on very low salaries. Smaller bribes are paid to change court dates, while larger ones can be paid to free defendants.

“Police like the idea of a defense lawyer, because it is easy to get falsely accused,” Mr. Guenther told the State Journal. By contrast, he said judges “were less accepting because they couldn’t as easily approach the accused for bribes.”

Mr. Guenther was impressed by the friendliness of Afghans.

“These are people who essentially have been at war for 30 years,” he points out. “How they maintained a sense of hope that things can change for the better, and a really sharp sense of humor, was impressive.”

The attorney is a Kenosha native who attended Carthage as a Lincoln Scholar. He graduated with a dual major in economics and business administration, and has returned to the College numerous times as a guest lecturer in constitutional law.

“Being at a school that size,” he says of Carthage, “if you make the effort you can really get to know professors who care enough about students to help them grow professionally.”

Mr. Guenther mentions Richard Custin, a former business administration faculty member who taught a course in the legal environment of business, as the Carthage professor who may have influenced him the most. Other faculty members he recalls with fondness include philosophy department chair Daniel Magurshak, and economics professors Yuri Maltsev and Robert Schlack.

A background in economics and business administration, Mr. Guenther says, “works out fairly well, for white-collar cases and when we’re representing businesses.”

Mr. Guenther then earned his law degree at the University of Wisconsin-Madison. One of his teachers was Stephen Hurley, a Madison attorney who has represented several high-profile defendants. Mr. Guenther considers him a mentor.

“Working for Steve was my dream job,” Mr. Guenther says.

Before joining Mr. Hurley’s firm, Mr. Guenther was involved in a groundbreaking case in Racine, where he was practicing. Police raided a benefit concert and cited more than 400 people in attendance for being an “inmate of a disorderly house with narcotics,” although only four persons were arrested on drug charges.

Mr. Guenther, who learned about the case from a newspaper article, was recognized by the American Civil Liberties Union of Wisconsin as “Volunteer Attorney of the Year,” after he handled the case on a pro bono basis.

“Picture going to a Dave Matthews or Rolling Stones concert in which law enforcement sees one person 10 rows up smoking a joint and then tries to ticket everyone,” Mr. Guenther told Wisconsin Super Lawyers magazine. “We got everybody’s citation dismissed, and the police department to agree to never use the ordinance to shut down an advertised public event again.”

The Racine Journal Times later saluted Mr. Guenther as one of Racine County’s outstanding citizens of 2003.

“It takes tremendous courage to fight City Hall,” the newspaper observed. “As the Racine community has learned this year, attorney Erik Guenther is no coward.”

Mr. Guenther has become active in the ACLU, and presently is the board president of the Wisconsin affiliate.

“It’s a unique organization, in that its solely dedicated to the protection of the Bill of Rights,” he says. “I don’t agree with every case that its taken on, but its a very important organization to have.”

Looking ahead, Mr. Guenther won’t rule out political involvement, but says he has little interest in becoming a judge.

“You don’t referee if you can play ball,” he quips.

But for now, Mr. Guenther takes satisfaction in his current job.

“My work deals with people who are scared and in a difficult situation putting their trust in you,” he says, adding that as a defense attorney “I think you can do good work and earn a good living. I could probably be making more right now in other fields of law, but I’m very comfortable where I am.”

City lawyer teaches law to Afghans - WISCONSIN STATE JOURNAL

2008-04-27T06:46:00.000-07:00

By GEORGE HESSELBERG
608-252-6140
ghesselberg@madison.com

Erik Guenther opened his e-mail a year ago and found a mass mailing offering adventure, danger and unusual conditions to lawyers interested in a mentoring and education program abroad. Some travel and training required.

Oh yeah, the destination was Kabul, and the training was in how to recognize a suicide bomber.

Guenther, 31 and single, was employed by one of the leading defense lawyer firms in Madison, feted as a rising star in the state legal establishment and already a teacher in cutting-edge legal issues and a civil liberties expert.

Why not interrupt a promising legal career to teach baksheesh-avoidance in a land where assisting the defense means helping with a Kevlar vest?

Guenther, a criminal defense lawyer for Hurley, Burish & Stanton in Madison, recently ended a volunteer assignment in Kabul, Afghanistan, where he joined a unique program that tries to establish a "rule of law " in shattered justice systems.

If conjoining "rule of law " and "Afghanistan " seems a challenge, Guenther is now in a unique position to provide a limited explanation of justice in a territory where there seem to be more rusted Russian tanks than lawyers, defense or otherwise.

'For my country'

He went to work for the JSSP, or Justice Sector Support Program, which is mid-trickle in a trickle-down list of supporting agencies that begins public (State Department), goes private (PAE-HSC Inc.) and gets subcontracted (National Center for State Courts).

In the bureaucracy 's own terms, "the JSSP program seeks to develop and strengthen the institutional and operational capacity of the Afghan criminal justice sector institutions to perform their respective roles in delivering fair and effective justice services to citizens."

Guenther was not particularly restless or seeking new challenges when the e-mail arrived. He hasn 't been long in Madison and, in addition to his lawyer job, is the president of the board of directors of the American Civil Liberties Union of Wisconsin. So he was busy.

"I wasn 't really looking for something. I knew this work existed, but I was not familiar with it, " he recalled from his smallish, sparsely-decorated office incongruously located in the Hurley legal firm 's opulent new offices on the Square.

"It may sound kind of cheesy, but in a way I thought it was something I could do for my country, " Guenther said.

Guenther was looking at an established program with long-term goals on a topic dear to a lawyer 's heart: explaining a system of justice to people who want to learn about it.

In Madison, Guenther was able to find a unique counselor on that topic in John Vaudreuil, a U.S. attorney who has made 22 trips abroad on behalf of the Justice Department to teach courses in countries with emerging adversarial legal systems.

Vaudreuil, who has taught one-week sessions in Albania, Macedonia, Uzbekistan, Georgia, the Mideast, the Czech Republic and elsewhere, thought Guenther to be a fine fit for the program.

Few defense lawyers

After the usual vetting and profiling and permission to take a leave from lawyering here, Guenther made it to training in Virginia last September.

He got lessons in non-courtroom-related defensive tactics, with serious repercussions for anyone not paying attention: what to do in hostage situations, how to disarm someone who is pointing a gun at you and how to determine what sort of weapon it is. There was also training in combat driving, the consequences of suicide bombing and even the unspoken signals used by the security team protecting you.

"We wrote our own obituaries, " he recalled.

Bunked with the lawyer team in a new compound in Kabul, Guenther settled in to a regimen of security -- provided by both private and military units -- and setting up training and mentoring of legal system workers: lawyers, prosecutors, judges, correction officers and others.

The diversity was not only in profession, but in experience. Some Afghan lawyers have been to law school, some judges are simply old wise men with no legal training, and illiteracy is a significant problem, Guenther said.

There are few defense lawyers in the country, he said.

"There are a fair amount of lawyers working for the government, mostly, " he said. "There are few private practice attorneys, though the idea of a criminal defense lawyer is fairly new. "

Also little understood were concepts of active cross examination, challenges to detention, even the right to having a defense lawyer, though the Afghanistan Constitution guarantees it.

"There are people in jail who do not know what a defense lawyer is. "

Nor was there an organized public defender system.

Guenther and his group allied with the Legal Aid Organization of Afghanistan, which he described as "people fighting the good fight. "

Americans welcome

Guenther may have been teaching the rule of law, but he was also quickly learning the back doors of a system that is already in place. He was also learning that danger is always present, especially for foreigners. During his tenure, a terrorist bombing in January of a hotel popular with journalists and diplomats was a bloody reminder of that reality.

The irony was that, in general, Guenther and his colleagues were well-accepted.

"Yes, you don 't really get that from the media (which) gives the impression that there are terrorists hanging out all over the place. Most of the people I talked with hated the Taliban. Everyone has horror stories about life under the Taliban. Kids wave to you, and a fair number of people recognize you are there trying to do some good, " Guenther said.

He describes the Afghans he met as good-humored and, "like everyone else, trying to get along in the world. America and Americans are very well received. "

On a professional level, Guenther said the program he worked with and the concepts of defense lawyering were well received by most, especially police and often not judges.

"Police like the idea of a defense lawyer. Because it is easy to get falsely accused, or come up for false allegations, " defense lawyers are a credibility buffer for police.

Judges, however, "were less accepting because they couldn 't as easily approach the accused for bribes, " Guenther said.

Judges also would try to call cases without any lawyers present, a process not allowed under the constitution. Lawyers would hire runners to post at courthouse doors to keep track of the schedules.

Attributing the widespread corruption in the legal system to very low wages, Guenther said bribery -- or baksheesh -- exists on two scales. The smaller-scale bribes are used for daily requirements, such as changing a court date or schedule. The larger-scale bribes can make a difference between being set free and going to prison.

Learned a lot

After six months and a safe return, Guenther is back into the defense lawyer schedule.

In Afghanistan, he said, "I learned a lot more than I taught. It gave me an appreciation for how all the pieces in the justice system matter. "

In private, there was an inevitable reference to the irony of the presence in Afghanistan of American law.

"They 'd ask, what are you talking about (with rule of law)? You 've got Guantanamo Bay, and extraordinary rendition (secret transport of suspected terrorists)? Those are fair questions. What I can talk about is one-on-one diplomacy. My clients get constitutional guarantees, and this is what happens if we all play fair. You have to be an ambassador every day, " he said.

That was also the message he got initially from Vaudreuil, who said "you not only see the world in ways few others get to see it, you see the furnace of the world, and you are meeting people who want to succeed, people who care.

"The goal we share, " said Vaudreuil, "is that we want a system that works fairly. "

Will this program have any effect?

Maybe in 15 to 20 years, Guenther said.

"For this to have any chance for real success, I think it will take a steady commitment by the international community for that length of time. "

There are signs, however, that the work is valued.

If there was an indelible moment, Guenther said it was at a training session where the American lawyers were mobbed by attendees.

"You would have thought we were giving away rock concert tickets, " Guenther said.

What they had, however, was even more valuable and rare: complete written sets of Afghan laws.

ACLU to students: Know your rights - WISCONSIN STATE JOURNAL

2008-03-31T07:28:00.000-07:00

By Andy Hall
608-252-6136
ahall@madison.com

Parents of a Madison fourth-grader who was suspended from school for asking a classmate to disassemble his pencil sharpener say they wish their son had remained silent and had insisted they be present before he answered questions from the principal.

"Now all of a sudden, pencil sharpeners are a danger to society?" asked Lisa McConkey, the mother of the Kennedy Elementary student.

Her new advice to the fourth-grader and his younger brother: "If you ever get called into the office again, you tell them that you want your mom there."

And that's the gist of the advice coming from an expanding American Civil Liberties Union of Wisconsin campaign to inform elementary, middle and high school students of their rights.

Children who get in trouble at school should refuse to answer questions from school officials and police until a parent, attorney or other advocate arrives, according to the nonprofit civil rights organization.

"You have the right to remain silent," says the headline on a three-point summary the ACLU has designed for students to carry in their wallets and purses.

"Don't say anything without your attorney or parent present," says the tip sheet, which adds that students should "never speak to school administrators about a suspension, expulsion or the accusations, even if law enforcement is present, without an advocate."

ACLU officials say the hardline advice is needed because school officials, increasingly concerned about school safety issues, appear to be taking harsher actions against students deemed to be troublemakers.

"We're not training kids to be noncooperative with staff but to understand what are the rules, what are their rights if they're accused of breaking the rules and what the consequences are for breaking the rules," said Stacy Harbaugh, ACLU community advocate.

But the head of a group representing the state's school superintendents says that if students follow ACLU's advice, students will unnecessarily miss hours of class, administrators will waste time waiting for students to talk, and students and staff might be placed in danger.

"Certainly students should know their rights but students should not be afraid of the truth and I don't know why the ACLU would be," said Miles Turner, a former superintendent and principal of elementary, middle and high schools who now is executive director of the Wisconsin Association of School District Administrators.

"Unfortunately the ACLU's tipsheet does not differentiate throwing a spit wad from phoning in a bomb threat."

Turner said that it makes sense for students to be represented by a parent or other advocate when facing allegations of criminal conduct, but it's also essential that students feel an obligation to speak up when they know of imminent danger.

"There are times when immediate information may save other children," said Turner, who recalled that while he was superintendent of the Wisconsin Heights School District, a student's tip allowed school officials to remove a weapon from the school before anyone was harmed.

Students' willingness to talk to administrators, Turner said, also was the key to foiling a 2006 bombing plot at a Green Bay high school. The ACLU's message, he said, threatens to confuse students into remaining mum.

"The assumption that somebody is going to twist their words and find them guilty of something that they didn't do is absurd," said Turner, who suggested that ACLU should be telling students: "Well, what's wrong with the truth? Maybe you deserve to be suspended or expelled to take responsibility for your actions."

Harbaugh, in response, said the ACLU "would never suggest that students should be silent on reporting abuse, threats of violence or the threats of weapons or a bomb."

Those lines of communication can remain open, Harbaugh said, even as they assert their right to remain silent to avoid self-incrimination.

Erik Guenther, a Madison lawyer and president of the board of directors of the state ACLU, said that with so much at stake, students should avail themselves of the opportunity to remain silent until they know about the evidence against them and review the student conduct handbook. Too often, he said, students' words have been misconstrued or misused.

"If you miss a class or two while waiting for parents to show up, it's worth it, " said Guenther, who for years with fellow Madison lawyer Marcus Berghahn has presented workshops focusing on the rights of students ranging from elementary school to college.

Lisa and Todd McConkey, parents of the 10-year-old boy involved in the Kennedy Elementary pencil sharpener case, said they wish they could have been present to help protect his rights while he was questioned by school officials. Instead, they received a phone call after he'd admitted asking a classmate to remove the blade from a small pencil sharpener he'd purchased at the school store.

"Does this make the person who operates the school store an arms dealer?" Todd McConkey said. "It's crazy."

The incident, which occurred about a month ago, began after three of their son's classmates unscrewed the covers of their small pencil sharpeners. The McConkeys said their son then asked a classmate to do the same to his pencil sharpener. It wasn't taken apart, but another classmate told a school official about it.

The McConkeys said they're concerned that a letter placed in their child's school file says that he tried to obtain a blade -- a detail that might someday hurt his chances of landing a scholarship or job just as a similar case once kept a relative in the Marines from being allowed to serve at the Tomb of the Unknowns at Arlington National Cemetery.

Madison School District officials declined to discuss details of the case, citing student privacy laws.

However, Superintendent Art Rainwater said that student behavioral records are destroyed a year after graduation, and "a case where a child is suspended for a half-day in fourth grade is not going to affect their future. "

Rainwater praised the ACLU for helping make students aware of their rights but criticized the group for advising students to remain silent until an advocate arrives. Such silence, he said, may be appropriate in some cases involving criminal conduct.

The vast majority of school incidents, however, are relatively minor, Rainwater said, and it's in the students' best interest to give their version of events.

Administrators, Rainwater said, "are not prosecuting you. They're there to find out what happened."

Rainwater acknowledged, though, that in some cases, principals or assistant principals who investigate incidents do wind up testifying against students in expulsion hearings.

On a new, two-page tipsheet, the ACLU also advises students to "find an advocate before trouble happens "so that "if you get busted for fighting or get into conflicts over student protests, it's good to know in advance where to get help so that you aren't scrambling at the last minute. "

Rainwater said it's impractical to think that the district's more than 24,000 students should line up an advocate.

The Madison district this spring plans to hire a staff member to help guide students facing disciplinary action, making it perhaps the first school system in Wisconsin to offer such assistance to students. The new employee, known as a navigator, won't advocate on behalf of the student but will inform the student and family of how the system works and what types of help are available from attorneys and unpaid advocates.

GET A TIPSHEET

The ACLU's latest tipsheet on student rights isn't yet available on the Internet, but copies are available from Stacy Harbaugh, community advocate, at sharbaugh@aclu-wi.org or 608-469-5540. She also has information on workshops. More information is available from Madison lawyers Erik Guenther and Marcus Berghahn at http://www.hbslawfirm.com/articles_display.php?id=49.

Peer Recognition: How Erik Guenther gets juries to sympathize with clients accused of sexual assault - WISCONSIN SUPER LAWYERS AND RISING STARS 2007

2007-12-31T07:54:00.000-08:00

Chris Hollenback

"A good lawyer," says attorney Erik Guenther on the Hurley, Burish & Stanton web site, "helps the jury see themselves in the client's shoes."

Guenther should know. In only five years he has built a successful law practice doing just that. Not an easy tast when your clients are accused of sexual assault and child molestation.

"Sexual assault cases are probably worse than homicide cases in terms of carrying a stigmam," Guenther says. The presumption of innocence, he adds, is "kind of a courtroom myth. Because when a case is on the front page of the newspaper and you can read that article, I don't know anybody who thinks of the presumption of innocence."

It is, in fact, this very presumption of guilt that Guenther uses to his advantage. "Getting a jury to see themselves in my client's shoes is pretty easy once you get them to understand all it takes is somebody to point a finger at them," he says.

Guenther has been dealing with negative press headlines since his first case out of law school. In 2002, Racine police raided a benefit concert for a nonprofit theater and cited more than 440 people for being an "inmate of a disorderly house with narcotics." The cops called it a "rave," due to the host's use of electronic music, and journalists followed suit. But while undercover police arrested only four individuals for drugs, they issued citations to nearly everyone. Guenther read about the incident in the paper, contacted the ACLU-WI and handled the case pro bono.

"Picture going to a Dave Matthews or Rolling Stones concert in which law enforcement sees one person 10 rows up smoking a joint and then tries to ticket everyone," Guenther says. "That's basically what happened here."

The case garnered wide media attention; as it wore on, news coverage improved.

"We got everybody's citations dismissed, the police department to agree to never use the ordinance to shut down an advertised public event again and for the city to train its officers on Fourth Amendment issues," Guenther says.

Not only did the case put Guenther on the map, it bolstered his belief in the presumption of innocence.

"It's amazing how quickly someone's life falls apart," he says of his clients accused of sexual assault. "And this could be absent any corroborating evidence. The work I'm most proud of is work nobody reads about because we persuaded a prosecutor not to issue a charge."

One former client whose sexual assault case was dropped describes Guenther's work as meticulous. "The way things worked out, I give Erik credit," says the client. "He was very caring, understanding."

Guenther asks clients not to tell him if they're guilty, but a few admit guilt anyway. Asked if that affects him, he pauses, then pauses again, then says, "Probably not. It's harder when my client tells me they didn't do it. Because the greatest fear you can have is that you lose a case with a factually innocent person."

He adds: "I tell clients: What no attorney can do, no matter how good, is take them back to the day before somebody accused them. But in my best work, they walk away. When I do that and know I've had a dramatic effect on somebody's life, that means a lot to me. It's definitely not just a job."

Hormone case goes to federal court - MILWAUKEE JOURNAL SENTINEL

2007-10-21T07:27:00.000-07:00

Trial to test state's Inmate Sex Change Prevention Act

By JOHN DIEDRICH
jdiedrich@journalsentinel.com

Posted: Oct. 21, 2007

A trial set to start today in federal court will test a Wisconsin law that prohibits hormone therapy for male state prison inmates who are trying to become women.

The lawsuit, brought by three inmates, says that Wisconsin's law passed in 2005 amounts to cruel punishment and unfair treatment.

The law, believed to be the only one of its kind in the nation, was a response to the case of Scott Konitzer. Konitzer, who now goes by the name Donna Dawn Konitzer, is serving 123 years for multiple armed robberies and for stabbing another inmate, and has been receiving hormone therapy as treatment for gender identity disorder since 1999. But when the state Department of Corrections would not allow him to have gender reassignment surgery, which can cost $10,000 to $20,000, he sued. That case is ongoing and not a part of the trial starting today.

When legislators learned of Konitzer's suit, they wrote the Inmate Sex Change Prevention Act, prohibiting the state from providing hormone therapy to inmates. The lawsuit was filed in 2006 challenging the law. Several inmates were cut off the hormones for a time and suffered side effects, the lawsuit says.

U.S. District Judge Charles Clevert issued a preliminary injunction in early 2006 ordering the therapy to resume. A new lawsuit was filed last week by another inmate seeking the hormone therapy, and Clevert extended the injunction to include that person.

Laurence Dupuis, an attorney with the American Civil Liberties Union, called the case a "classic prisoner health case."

"It's worse than most prisoner health cases because here you have a bunch of legislators trying to practice medicine," he said.

Dupuis expects much of the trial will revolve around gender identity disorder. It is defined as having a strong and persistent discomfort with a person's birth gender and a wish to live as the other, according to the Diagnostic and Statistical Manual of Mental Disorders, a reference book used by mental health professionals.

The trial is expected to last three days.

Court overturns OWI conviction - THE SHEBOYGAN PRESS

2007-08-23T05:44:00.000-07:00

Judge rules witness's report was not enough

By Eric Litke
Sheboygan Press staff

A Sheboygan woman's drunken driving conviction was overturned Wednesday when a state appeals court judge ruled she should not have been pulled over based solely on a witness's report.

The opinion spared Elizabeth A. Walker a five-day jail sentence but does not set a legal precedent on anonymous tips since it will not be published, officials said.

Walker, 40, of 612 Superior Ave., was convicted in Sheboygan County Circuit Court in January after pleading no contest to second-offense operating while intoxicated, a misdemeanor. She was arrested March 3, 2006 with a blood-alcohol level of 0.17 — more than twice the legal limit of 0.08 — after a Burger King employee reported she was driving strangely in the drive-through.

The seven-page decision by District II Court of Appeals Judge Daniel P. Anderson supported Walker's argument that the officer did not have reasonable suspicion to stop her, calling the employee's report a "bare-boned" tip.

But Sgt. Scott Mittelstadt of the Sheboygan Police Department said the arresting officers acted just as they should have.

"Especially something like a drunk driver, we want to be very vigilant in our pursuit of that," he said. "If you let the person drive a while to see if we observe anything, you always run the risk that that person could have an accident while we're behind them."

According to court records:

Walker was pulled over about 10:45 p.m. after the employee reported Walker's red sport-utility vehicle had gotten stuck in the drive-through and that she appeared to be drunk or in need of help.

Officer Stephen Schnabel, who was at a nearby crash scene, spotted a red SUV at the intersection of 14th Street and Erie Avenue, immediately next to the restaurant. He heard two screeches as the driver of the SUV tried to start the already running vehicle.

Schnabel then alerted Officer Brandon Kehoe, who stopped the SUV on North 14th Street at Michigan Avenue. Walker failed field sobriety tests and handed a credit card to Kehoe when asked for a driver's license.

Walker was ultimately fined $906 and sentenced to five days in jail, though the sentence was stayed pending the appeal.

Circuit Court Judge James Bolgert said the stop was justified since the proximity of the SUV confirmed the tip, as did the "irrational" attempts to start the vehicle. But Anderson ruled that while the observed behavior was "odd," it was not criminal, adding that the tipster did not describe Walker's vehicle specifically enough.

Walker's attorney, Chad Lanning, said the ruling — and his argument — doesn't prohibit the use of anonymous tips, it merely means that this tip was not specific enough to warrant police intervention.

"The laws are very liberal for what it takes to stop somebody, but in this particular case, the officers didn't see any bad driving, the officers didn't see any violations of the law," Lanning said. "This decision upholds people's right to be free from unreasonable stops."

Sheboygan County District Attorney Joe DeCecco said the ruling cannot be cited as precedent in future court proceedings since the court did not order it published, but said it is nonetheless disappointing.

"This is the kind of stuff that happens all the time. This is how we catch drunk drivers," DeCecco said. "Just seeing the SUV by itself, that's not enough, but when someone's apparently twice trying to start an already running vehicle, there's obviously something going on there."

Erik Guenther, a Madison criminal defense attorney, said he doesn't expect the decision to have much impact on future cases because it is very specific in addressing the facts in Walker's situation. For that reason, many appeals court rulings favorable to the defendant go unpublished, he said.

DeCecco said he has not decided whether to appeal the case to the state Supreme Court, a move that would have to also be approved by the state Attorney General's Office.

"While it's disappointing for our specific case, it doesn't establish any new rules, so we may just decide it's not worth the time and effort," he said.

Local attorneys shed light on students’ constitutional rights - THE DAILY CARDINAL

2007-03-23T06:43:00.000-07:00

Written by Jillian Levy
Friday, 23 March 2007

As UW-Madison students fill their suitcases for Spring Break, local attorneys and student groups offered them one important item—legal knowledge, advising them how not to get arrested on their vacations at a Know Your Rights Workshop on Thursday.

The workshop, sponsored by UW-Madison’s American Civil Liberties Union chapter and Students for Sensible Drug Policy, informed students on how their constitutional rights can protect them on campus and at their Spring Break destinations.

“It’s important for students to understand their rights,” said ACLU-UW treasurer and UW-Madison junior Mark Eatough.

Local attorneys Erik Guenther and Marcus Berghahn provided students with a visual presentation aimed at raising students’ awareness of their constitutional rights and how to exercise them, instead of seeing the rights as “just a piece of paper.”

The attorneys said legal action against students cannot only affect a student’s criminal record but can result in suspension or expulsion from school.

Both attorneys advised that in situations involving police, on campus or anywhere else, students should follow their “Three Golden Rules,” modeled after the fourth and fifth amendments.

Most importantly, the attorneys advised students not to consent to searches or open the door without the presence of a warrant and not to speak to an officer without a lawyer present.

“Always ask for a warrant because it tells you why they think you’re a criminal,” Guenther said. “You have a right not to incriminate yourself.”

However, they advised students to always be polite to police, regardless of the situation.

Berghahn and Guenther also gave students a list of the 10 most important laws a student should be aware of, among them false identification laws in Dane County.

Guenther said students seeking his legal council regarding fake ID citations are “a dime a dozen.” He said in some cases, a student can be charged with a felony if it can be proved that money was exchanged for the fake ID. In other cases, if police confiscate a fake ID, the student’s driver’s license can be suspended.

UW-Madison senior Leslie Bourget, an intern for the ACLU and planner of the event, said the program would be available to students again next fall.

“I feel like the entire student body should be aware because everyone’s civil liberties and civil rights are something they should be aware of,” Bourget said.

Experts teach break rights - THE BADGER HERALD

2007-03-23T06:38:00.000-07:00

by Carl Jaeger
Friday, March 23, 2007

With spring break only a week away, Madison attorneys presented a single message to University of Wisconsin students Thursday night: Know your rights.

During a presentation aimed at educating students about their legal rights, Madison lawyers Erik Guenther and Marcus Berghahn advised students on what to do if police confront them during their mid-semester break — or any time.

Guenther said students should be aware of their constitutional rights if ever questioned by a police officer.

“Assert [your] rights and be polite,” Guenther said. “If police abuse your rights, let the lawyers take care of it later.”

Search and seizures, underage-drinking offenses and fake IDs were among the topics discussed by Guenther and Berghahn.

When it came to police searching students’ houses — or hotel rooms — Berghahn stressed the importance for police to show a search warrant or demonstrate probable cause, such as having contraband in “plain view or plain smell.”

Berghahn said police can enter a house with consent from the resident, but warned that the moment a student gives consent, “you give your rights away.”

“They bully people with their badge and the threat of a hefty citation, and people give them consent,” Berghahn said.

However, Guenther added that students have to be aware of more than just their personal conduct and behavior.

According to Guenther, students could be held liable for the actions of people around them.

“You could be held responsible for your roommate’s actions and face criminal penalties,” Guenther said. “Innocent people can get caught up in the consequences of other people’s actions.”

Guenther and Berghahn also warned students about the consequences they could face for violating laws, including losing their right to vote, their driver’s license or federal financial aid.

The presentation concluded with a list of 10 laws every student should be aware of, including laws on drunken driving, disorderly conduct and battery.

Berghahn said 10 to 15 percent of cases in his Madison practice involve defending UW students who were cited or arrested for incidents involving house parties or alcohol-related violence.

The reason he speaks to students, Berghahn said, is because he has too often heard them say they did not know their rights.

“I thought someone should reach out to them and say, ‘Look, you have to know what your rights are,’” Berghahn said. “The law presumes that you know what the law says, so get educated.”

Yara Korkor, a member of the UW American Civil Liberties Union — which co-sponsored Thursday’s event with Students for Sensible Drug Policy — said the issues discussed were especially relevant to UW students living in Madison.

“There’s a lot of underage drinking on this campus and a lot of using fake IDs,” Korkor said. “It’s important for students to know and engage in what the law has to say about that.”

Guest appearance on Forward Forum

2007-02-19T06:55:00.000-08:00

Yesterday, I appeared as a guest on Forward Forum with John Quinlan and Laura Gutknecht on Madison's 1670 The Pulse. We discussed how to select the best candidate for the Wisconsin Supreme Court and the ethical rules that apply on the campaign trail.

Here are some details from the program's website:

LOCAL ACLU LEADERS SPEAK ON "JUDGING THE JUDGES"
AND OTHER ISSUES SURROUNDING THE ELECTION OF
THE NEXT WISCONSIN SUPREME COURT JUSTICE

In our second hour, we'll be interviewing local attorney Erik Guenther, Vice President of the board of the ACLU of Wisconsin. At this Tuesday's (Feb. 20th) primary election, Wisconsin voters will narrow the field from three to two candidates for a vacant seat on the Wisconsin Supreme Court. Given the court's current three conservative and three liberal members, this person could be the swing vote on many important cases, including a likely ruling on the constitutionality and scope of the so-called Marriage Amendment.

While the state Supreme Court rules on dozens of bread and butter issues affecting Wisconsinites each year, the process of selecting the right person for the job remains a mystery to many voters. Some of this is because of restrictions that discourage candidates from commenting on issues that may eventually appear before them. How then, do we decide? Join us for a lively discussion on "Judging the Judges."

Erik Guenther is a criminal defense attorney at the Madison firm of Hurley, Burish, and Stanton. He is a past recipient of the ACLU of Wisconsin's "Volunteer of the Year" Award, as well as a special 2003 community service award from the Racine Journal Times (see http://www.hbslawfirm.com/profile_page.php?id=3 ). Attorney Guenther will be joined by Madison ACLU staff person Stacy Harbraugh, who will also give us an update on recent efforts to strengthen the presence of the ACLU here in Madison. (See http://www.aclu-wi.org/madison/index.shtml .)

You can subscribe to the podcast of the program here: http://podcast.loyalears.com/wtdy.php?task=shows&show_id=56

Should constitution define marriage? - WISCONSIN LAW JOURNAL

2006-11-01T12:19:00.000-08:00

By April Rockstead Barker
Special to Wisconsin Law Journal

Nov. 1, 2006

The proposed amendment to the state constitution that will be on the Nov. 7 ballot has attorneys from many areas of practice considering its purposes and potential effects.

The amendment would create a section of article XIII of the state constitution that would provide that “only a marriage between one man and one woman shall be valid or recognized as a marriage” in Wisconsin.

It also would provide that “a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized” in the state.

[...]

Erik R. Guenther, who practices with Hurley, Burish & Stanton SC in Madison and who also serves as the vice president of the ACLU of Wisconsin board of directors as well as the chair of the Individual Rights and Responsibilities Section of the State Bar of Wisconsin, said that the proposed amendment would run afoul of the constitution’s purpose.

“In Wisconsin, there’s never been language in our constitution or any of its amendments that’s there to discriminate,” he said, adding that the proposed amendment “would paint a large black mark on a document that’s there to advance liberty” and to uphold equality.

The full article is available here.

Judge Finds Michigan Rave Raid Arrests Were Unconstitutional - DRUG POLICY ALLIANCE

2006-10-23T08:23:00.000-07:00

A judge with the Genesee County Circuit Court in Michigan ruled last week that Flint, Michigan police violated clubgoers' constitutional rights in a 2005 raid.

In March of 2005, law enforcement officers conducted a drug raid at Club What's Next in Flint, Michigan, and arrested 117 people. All the arrestees were strip searched, and 94 who were not found to be in possession of any illegal drugs or drug paraphernalia were charged with "frequenting a drug house."

This charge potentially meant 90 days in jail or a $500 fine for people who were at the club to listen to music, dance and socialize. After the arrests, DPA raised national awareness of the raid and over 3,500 people contacted the Flint City Council to register their disapproval.

The American Civil Liberties Union of Michigan took on the case, arguing that the First Amendment and Fourth Amendment rights of those 94 clubgoers were violated. The First Amendment protects the right to free speech, assembly and expression--which includes music and dance--and the Fourth Amendment protects against unreasonable searches and seizures.

A District Court ruling last fall sided with law enforcement. That decision said that police had probable cause to arrest the defendants in part because the clubgoers should have known that there would be drug use at the club based on its association with rave culture.

The Circuit Court's reversal states that "the finding of probable cause was based on no more than mere assumption."

DPA welcomed the Circuit Court ruling. "This decision sends an important message to law enforcement around the country that it's unconstitutional to prosecute people based on their musical taste," said Bill Piper, DPA's director of national affairs.

Drug Raids: Michigan Judge Rules Flint Rave Raid Arrests Unconstitutional - DRUG WAR CHRONICLE

2006-10-20T06:31:00.000-07:00

from Drug War Chronicle, Issue #458, 10/20/06

In March 2005, police in Flint, Michigan, burst into Club What's Next late one Friday night after witnessing a few instances of drug sales in or near the club and marijuana smoking inside the club, which was holding a rave party. Although police found drugs or paraphernalia on only 23 people (despite strip searches and body cavity searches), they arrested all 117 persons present at the scene. The remaining 94 people were charged with "frequenting a drug house," a misdemeanor offense.

Last Friday, a Genesee Circuit Court judge threw out those arrests, holding that Flint police had violated the constitutional rights of the club-goers. In his decision, Judge Joseph Farah held that police lacked probable cause to arrest people merely for being in the club.

"The District Court erred in finding probable cause to arrest these defendants," Farah wrote in his decision. "To allow to stand the arrests of these 94 defendants would be to allow lumping together people who had been at the club for five minutes or five hours, people who never stopped dancing with those who sat next to a drug deal, people who sat at a table facing the wall with those in the middle of the mischief, and charge those dissimilarly present individuals with equal awareness and knowledge of wrongdoing."

The ACLU of Michigan, which represented the 94 people arrested for being present, greeted the decision with pleasure. "The ordinance under which the arrests were made is in place to protect Flint citizens from actual drug houses. It was never intended to be randomly deployed by the police against law-abiding citizens who go out to clubs to hear music and socialize," said Michigan ACLU executive director Kary Moss in a statement issued the same day. "Judge Joseph Farah's decision vindicates the constitutional rights of our clients and sends a strong message to police departments across the country."

"Judge Farah's opinion correctly concludes that the police had no business arresting any of them," said Ken Mogill, cooperating attorney for the ACLU of Michigan who argued the case with Elizabeth Jacobs. "This is a gratifying victory for each of those law-abiding, wrongly arrested individuals and for the rule of law in our community."

Vote "No" For A Better Wisconsin

2006-10-16T12:15:00.000-07:00

On November 7th, Wisconsin voters we will be asked whether to change the Wisconsin Constitution to ban same-sex marriage, civil unions and domestic partnerships. Same sex marriage is already illegal in Wisconsin. And it is criminal for same-sex partners to get married somewhere else and seek to have Wisconsin recognize the marriage. Voting “no” to the amendment will not legalize same sex marriage.

So, if same-sex marriage is already illegal why does the vote matter? It matters because if the amendment passes, we will tell groups of our citizens that we want to make hatred transparent. The amendment would tell entrepreneurs and businesses that we don’t want them to be able to decide how to run their companies. If the amendment passes we will guarantee that communities will spend tax dollars to litigate complicated legal questions that put rights of elderly couples, unmarried couples and children at risk. Voting “no” isn’t simply a “gay rights” issue; voting “no” supports small government and equality in Wisconsin while protecting our pocketbooks from litigation and lost business revenue.

The amendment would create bad law. Enacting a law with the specific purpose to alienate an unpopular group is precisely what the Constitution is designed to prevent. When the Constitution has been amended, it has been for traditionally only two purposes: to modify basic political structure or to expand individual rights. Enactment of this amendment would be the first time in Wisconsin history that the drastic process of amending the State constitution, would be for the purpose of limiting, rather than expanding, individual liberty. This would be a landmark change in constitutional functioning. It would be a change contrary to the history of Wisconsin’s Constitution since we received Statehood. Given that same-sex marriage is already illegal, there is no justification for taking this drastic step. If you do not want to create a slippery slope that puts the function of our constitution at risk to the detriment of minorities, then you should vote “no.”

The amendment would also throw a number laws into question, leaving the court system to sort out the new messes that the amendment would create. This costs tax payers money and put the rights of our neighbors in jeopardy. As examples:

* The amendment would cast into doubt the protection of children with unmarried and same-sex parents, with respect to issues such as guardianship and co-parenting agreements.

* The amendment casts into doubt the ability of unmarried and same-sex couples to appoint their partners as their health care power of attorney to assist with their difficult end-of-life decisions.

* The amendment may also invalidate wills and other estate planning tools used by a unmarried individuals to direct their assets to their partner, upon their passing.

* Employee benefit plans which provide benefits to unmarried designated partners (both same sex and straight couples) would be put at risk and may be invalidated.

These uncertainties are bad for Wisconsin’s economy. Wisconsin struggles to attain and maintain its top young talent. Our State needs to be in a position to attract new business. The statistics show us that businesses want to show that they are inclusive, so that they can obtain the best talent regardless of characteristics such as race, religion, marital status or sexual orientation. Over 7,469 employers throughout the country offer domestic partner benefits, as do over 40% of Fortune 500 companies. More than 90 Wisconsin employers offer same sex benefits, including 6 of Wisconsin’s 20 largest private companies. The second sentence of the proposed amendment prevents businesses from deciding what benefits they choose to offer which will discourage businesses from relocating to Wisconsin. It would also prohibit current businesses from being able to offer the benefits that they choose; disenfranchising current employees. Attracting young talent to Wisconsin will be more difficult if the amendment passes. If you do not want Wisconsin to shut its doors to business and the tax support that it creates, vote “no.”

Finally, voting “no” does not put one’s one own marriage at risk, nor does it offend religious values. This is not about same-sex marriage which is already illegal - voting “no” means that you choose not to make an unneeded statement of hatred, you choose not to create legal havok to put our neighbor’s rights at risk, and you choose to protect our economy. Voting “no” to the amendment is a vote for a better Wisconsin. Marriage can be protected by taking dancing lessons together and leaving the Constitution alone.

Club patrons' rights violated, judge rules - Flint JOURNAL

2006-10-15T13:00:00.000-07:00

In March 2005, I posted about the police raid of Club What's Next in Flint, Michigan. I consulted on 4th Amendment issues on behalf of the defense team. Click here, here and here for details. Earlier this week Genesee County Circuit Court Judge Joseph Farah found the the Flint police did not have probable cause to arrest the 94 people who were cited as patrons of a disorderly house. The police tactic was similar to that use by law enforcement in a raid of a Racine, WI electronic music event in 2002. For details about the 2002 raid click here.

THE FLINT JOURNAL FIRST EDITION
Saturday, October 14, 2006

JOURNAL STAFF WRITER

FLINT - A Genesee County Circuit Court judge on Friday ruled that Flint police violated the rights of 94 people who were arrested during a March 20, 2005 raid at a Flint night club, according to a statement from the ACLU of Michigan.

The ACLU said Circuit Judge Joseph Farah determined that police did not have probable cause to arrest the 94 people after officers busted an alleged rave party at Club What's Next, 2511 W. Pasadena Ave.

Police officers testified that people were openly using and selling drugs in the club before the raid.

Ecstasy, LSD and a psychedelic mushroom were found inside the club, police said.

People at the club were charged with frequenting a drug house, but Farah said allowing the arrests to stand would lump together people who had been at the club "for five minutes or five hours," said the ACLU.

The misdemeanor charge carried a maximum penalty of 90 days in jail.

Farah's decision did not affect the cases against 23 people who were arrested for drug or paraphernalia violations.

City officials could not be reached for comment late Friday.

Personal expression online versus job security - CORPORATE REPORT WISCONSIN

2006-08-01T06:07:00.000-07:00

By Arendt, Laurie

EMPLOYEES TODAY CAN INHABIT TWO WORLDS: THE literal world of their jobs, and the virtual world of cyberspace with its Web logs, personal sites, and discussion groups. Comments made in the virtual world can have dire consequences for the working world, according to Erik R. Guenther, an attorney with Hurley, Burish & Stanton SC of Madison. He notes that the World Wide Web can be quite an interesting place to find out all sorts of things about employees and potential employees.

The first stop on our virtual tour: personal blogs.

Many bloggers are often quite naive about the concepts of libel, slander, confidentiality and appropriateness.

"An employer could terminate an employee based on disparaging comments made on a blog," said Guenther, who also noted that there are currently no state or federal laws specifically pertaining to termination due to blogging.

"Should the comments be severe enough, they could also create liability for the employee. However, if an employee is complaining of harassment or discrimination on his or her blog, terminating that employee could give rise to a retaliation claim."

In addition, Guenther said that if an employee is using a blog or other Web site to attempt to organize with other employees, this communication is protected under the National Labor Relations Act. The NLRA also protects discussions of employees regarding wages, benefits, and conditions of employment of union and non-union employees.

"Another potential pitfall could be if an employee is whistle-blowing through the use of a blog," noted Guenther.

Even if you try terminating an employee due to his or her blog, you might just be up for a challenge in court.

"A creative plaintiff's lawyer challenging a termination could argue that blogging is a protected activity under the 'use or non-use of lawful products' language of the antidiscrimination statute," said Guenther, who noted that this protection was lobbied for by the tobacco industry in Wisconsin and many other states. "This protection has been used to defend against other situations like social drinking outside the workplace."

The second stop on our virtual tour: MySpace.com and other personal pages.

"A MySpace page may present a lot of personal information that wouldn't necessarily come up in an interview or at work," said Guenther. "In this instance, an employer needs to remember what the protected classes are under federal, state or local municipal laws. Even though some of these classes may be clearly evident on a MySpace page, they cannot be used as a basis for a hiring or firing decision."

Federal law prohibits discrimination on the basis of race, color, religion, sex, national origin, age or disability. Wisconsin's Fair Employment Law adds arrest and conviction records, marital status, genetic and honesty testing, military membership, pregnancy and childbirth, sexual orientation and use or nonuse of lawful products off of a company's premises during nonworking hours.

Local ordinances such as Madison's Equal Opportunities Ordinance can add a few more protected classes: Source of income, less than honorable military discharge, physical appearance, sexual orientation, political beliefs and student status.

So what should an employer do? Guenther recommends a proactive rather than a reactive approach:

1. Google your company, employees and products to see what is being discussed online.

2. Have a well-drafted policy in place with respect to confidentiality; become familiar with trade-secrets law and take steps to limit access to sensitive materials.

3. Create an additional policy regarding expectations about professionalism, respect for the company and of co-workers.

4. Consult with counsel before terminating an employee for Internet-based communications.

One final tip: A certain degree of virtual information has a timeless quality to it. The person sitting before you may have no idea you've stumbled upon a forgotten, early college-era, politically charged blog, or a revealing photo or six... or some other potentially embarrassing information.

Such information may be best left in the past.

Sexual assault charges dismissed against Cambridge coach - DULUTH NEWS TRIBUNE

2006-07-11T09:00:00.000-07:00

JEFFERSON, Wis. (AP) - Charges were dropped Monday against a high school teacher and coach accused of sexually assaulting an 18-year-old female student in 2005.

Joseph Parish, 37, of Cambridge, had been charged with second-degree sexual assault, false imprisonment and intimidation of a victim. His jury trial was scheduled to begin Tuesday.

Prosecutors requested the dismissal, ordered Monday by Jefferson County Circuit Court Judge John Ullsvik.

"We believe this resolution is in the interests of the public and of justice," Jefferson County Prosecutor Tris Baker told the Daily Times in Watertown.

Neither Baker nor Parish's attorneys would make direct comment on the resolution.

Court records, including a defense motion seeking the victim's medical records state, "(The victim's) allegation (of sexual misconduct) is refuted by her phone records. (Her) cellular phone records show that her phone was used during the time period when she claims her phone was lost and also during the time frame of her claim of sexual assault."

Other records indicate the girl informed a counselor that no assault had occurred.

Sex case against Cambridge coach is dismissed - THE CAPITAL TIMES

2006-07-11T05:27:00.000-07:00

By Steve Sharp
Watertown Daily Times
July 10, 2006

JEFFERSON - With a jury trial scheduled to begin Tuesday, a Jefferson County judge this morning dismissed all charges against former Cambridge High School teacher and coach Joseph Parish, who was accused of sexually assaulting an 18-year-old female student in 2005.
The charges were dismissed at 10 a.m. today by Jefferson County Circuit Judge John Ullsvik upon recommendation of the state.

"We believe this resolution is in the interests of the public and of justice," Jefferson County prosecutor Tris Baker told the Watertown Daily Times after a brief hearing in which the judge signed the dismissal.

In a statement released after the hearing, Parish resigned from his teaching and coaching job at Cambridge.

According to the clerk of court's office, the court record of this morning contains no further explanation for the dismissal and neither Baker nor the attorneys for Parish would make further direct comment on the resolution.

Parish declined to speak with the media as he left the courtroom this morning, but his attorneys, Erik Guenther and Stephen Hurley of the law firm Hurley, Burish & Stanton, S.C. were at his side and issued a written statement to the Daily Times.

"Mr. Parish is thankful that this difficult process is finally brought to a close," the statement reads, adding Parish has been thankful for the opportunity to have been a part of the Cambridge High School community as an educator and coach.

"The past 12 years have included many proud events," the statement continued. "While I have appreciated every moment that I have served in the community, the hardship of the allegations that I have faced have caused me to rethink my career path. After consulting with my family and giving this matter much thought, I have chosen to resign from my position at Cambridge High School."

Parish said he will miss being a teacher and coach in Cambridge, and for now, intends to spend time with his family and friends who he said have been valuable to him during the court process. After a short break, he said, he plans to pursue his coaching education and later become an educator at the collegiate level.

"Mr. Parish is thankful for the support that he and his family have received throughout the community, as they have weathered this storm," his statement reads.

In recent weeks Parish's defense had introduced motions asking Ullsvik to subpoena the alleged victim's mental health and counseling records at Meriter Hospital. The victim was admitted to that facility on Jan. 13 due to suicidal thoughts. They were also seeking records, including hand-written notes, from the woman's subsequent consultations with Mental Health Solutions, as well as all records from Cambridge High School relating to her meetings with counselors since the alleged incident Sept. 14, 2005.

The documents related to the subpoena request also contained information from the defense regarding the woman's cellular phone records that the defense maintained showed the woman's phone was used during the time period when she claims her phone was lost and also during the time frame of her claim of sexual assault.

The defense has maintained Parish was elsewhere during the window of time in which the woman claimed the assault was made. The defense also said there may be counseling records that show the woman may have indicated that no sexual assault occurred.

Overall, the defense maintained the date and time of the alleged assault, as recounted by the accuser, were sufficiently questionable to impeach her credibility.

In addition to the charge of second-degree sexual assault with the use of force, Parish had faced one count each of intimidating a victim with the threat of force and false imprisonment. If convicted on all three of the charges, Parish could have faced a maximum of 56 years in prison and/or a $135,000 fine.

Charges against Cambridge coach dropped - WISCONSIN STATE JOURNAL

2006-07-11T05:18:00.000-07:00

GEORGE HESSELBERG ghesselberg@madison.com
July 11, 2006

Though charges of sexually assaulting a student were dropped Monday, popular teacher and coach Joseph Parish said he will resign his positions at Cambridge High School and "rethink my career path."

The community was rocked last April when charges were filed against Parish, 37, who had been varsity football coach for four years and had also coached boys' varsity basketball and baseball teams.

Monday, Jefferson County Circuit Court Judge John Ullsvik dismissed all of the charges. The trial was to begin today. The district attorney did not say why a dismissal was requested, but Parish's lawyers had filed papers earlier indicating he was demonstrably out of town when the assault was said to have occurred.

Parish was charged in Jefferson County Court with second degree sexual assault, false imprisonment and intimidating a victim. An 18-year-old female student contacted authorities in March and accused Parish of attacking her last September after school hours in a deserted high school locker room.

In an additional memo to the court seeking the 18-year-old woman's mental health records, Parish's lawyers included the accuser's cell phone records, which show her phone was in use when she said it was lost, and during the time period the assault was to have taken place. In statements to investigating officers from the Jefferson County Sheriff's Department, the accuser said she had returned to the high school after hours because she had forgotten her cell phone in her locker.

After 6:20 p.m. Sept. 14, after football practice, Parish was 40 miles away, in Watertown, getting a haircut himself and then for his children. He then joined his parents for dinner, according to a notice of alibi filed last month by his lawyers, Stephen P. Hurley and Eric Guenther.

The accuser had been specific about when - between 8 and 9 p.m. - and where the assault happened, in the girls' locker room. The complaint alleged that Parish had pulled down her pants, groped her and then threatened to "do it again, only worse." The complaint also said he threatened her months later in a grocery store.

The student made the allegation against Parish to police on March 2. Parish was charged in late April, and had been placed on paid leave in March. His lawyers said that though he was aware of the investigation and had offered to meet with investigators whenever they wanted, Parish was not interviewed before he was arrested on an April Friday, then kept in the county jail over the weekend.

In a statement issued through Hurley's office, Parish said the "hardship of the allegations that I have faced has caused me to rethink my career path. After consulting with my family and giving this matter much thought, I have chosen to resign from my position at Cambridge High School."
He said he hoped to pursue a coaching education and to become an educator on the college level, according to the statement.

Parish had been employed at the Cambridge School District since 1994, after he graduated from UW-Whitewater, where he played football. He had been the head football coach at 339-student Cambridge High School for the past four years. Before that, he was the varsity boys basketball and baseball coach for several years.

Neither Cambridge Superintendent Ron Dayton, whose son played football for Parish, nor
Assistant District Attorney Tris Baker, would comment on the dismissal of charges Monday.
In his statement, Parish said "I am thankful for the opportunity to have been a part of the Cambridge High School community as an educator and coach. The past twelve years have included many proud events."

He said he would "greatly miss being a teacher and coach here in Cambridge."

http://www.madison.com/wsj/home/local/index.php?ntid=90628

Charges Against Cambridge Teacher Dismissed - NBC 15

2006-07-10T18:35:00.000-07:00

Updated: 6:38 PM Jul 10, 2006

For video click here: http://nbc15.madison.com/news/headlines/3321166.html

New court filings have been released relating to an assault case involving a Cambridge teacher and a student. And now, those charges have been dismissed.

Those court filings have to do with the teacher's alibi and the accuser's cell phone records.

According to the criminal complaint, the accuser said Cambridge High School teacher and coach Joseph Parish sexually assaulted her when she went into a locker room to pick up her cell phone.

But according to court documents, the victim was using her cell phone during the time she said the attack took place.

Those documents also say Parish was in Watertown, getting a haircut at the time of the alleged assault.

Now that charges have been dropped, Parish's attorney has released a statement saying: "The hardship of the allegations I have faced has caused me to rethink my career path. After consulting with my family, I have chosen to resign from my position at Cambridge High school."
Parish's attorney says the former teacher will now be pursuing a master's degree and hopes to continue coaching at the college level.

Assault Charges Against Cambridge Coach Dismissed - WISC TV

2006-07-10T13:33:00.000-07:00

UPDATED: 2:01 pm CDT July 10, 2006

JEFFERSON, Wis. -- Sexual assault charges against a former Cambridge high school teacher and coach were dismissed on Monday.

Joseph Parish was facing a jury trial on Tuesday on accusations he assaulted an 18-year-old female student last year.

Jefferson County Judge John Ullsvik dismissed the charges at the request of prosecutors.

In recent weeks, Parish's defense had introduced motions asking Ullsvik to subpoena the alleged victim's mental health and counseling records at Meriter Hospital.

The defense has maintained Parish was elsewhere during the window of time in which the woman claimed the assault was made.

Three felony charges against Parish carried a maximum 56 years in prison upon conviction.

Judge dismisses all Parish charges - WATERTOWN DAILY TIMES

2006-07-10T13:27:00.000-07:00

JEFFERSON - With a jury trial scheduled to begin Tuesday, a Jefferson County judge this morning dismissed all charges against former Cambridge High School teacher and coach Joseph Parish, who was accused of sexually assaulting an 18-year-old female student in 2005.

The charges were dismissed at 10 a.m. today by Jefferson County Branch I Circuit Court Judge John Ullsvik upon recommendation of the state.

“We believe this resolution is in the interests of the public and of justice,” Jefferson County Prosecutor Tris Baker told the Daily Times after a brief hearing in which the judge signed the dismissal.

Parish declined to speak with the media as he left the courtroom this morning, but his attorneys Erik Guenther and Stephen Hurley of the law firm Hurley, Burish & Stanton, S.C. were at his side and issued a written statement to the Daily Times.

“Mr. Parish is thankful that this difficult process is finally brought to a close,” the statement reads, adding Parish has been thankful for the opportunity to have been a part of the Cambridge High School community as an educator and coach.

“The past 12 years have included many proud events,” he said. “While I have appreciated every moment that I have served in the community, the hardship of the allegations that I have faced have caused me to rethink my career path. After consulting with my family and giving this matter much thought, I have chosen to resign from my position at Cambridge High School.”

Parish said he will miss being a teacher and coach in Cambridge, and for now, intends to spend time with his family and friends who he said have been valuable to him during the court process. After a short break, he said, he plans to pursue his coaching education and later become an educator at the collegiate level.

“Mr. Parish is thankful for the support that he and his family have received throughout the community, as they have weathered this storm,” his statement reads.

According to the clerk of court's office, the court record of this morning contains no further explanation for the dismissal and neither Baker nor the attorneys for Parish would make further direct comment on the resolution.

In recent weeks, however, Parish's defense had introduced motions asking Ullsvik to subpoena the alleged victim's mental health and counseling records at Meriter Hospital. The victim was admitted to that facility on Jan. 13 due to suicidal thoughts. They were also seeking records, including hand-written notes, from the woman's subsequent consultations with Mental Health Solutions, as well as all records from Cambridge High School relating to her meetings with counselors since the alleged incident Sept. 14, 2005.

The defense also said there may be counseling records that show the woman may have indicated that no sexual assault occurred.

The documents related to the subpoena request also contained information from the defense regarding the woman's cellular phone records that the defense maintained showed the woman's phone was used during the time period when she claims her phone was lost and also during the time frame of her claim of sexual assault. The defense has maintained Parish was elsewhere during the window of time in which the woman claimed the assault was made.

Overall, the defense maintained the date and time of the alleged assault, as recounted by the accuser, were sufficiently questionable to impeach her credibility.

In addition to the charge of second-degree sexual assault with the use of force, Parish had faced one count each of intimidating a victim with the threat of force and false imprisonment. If convicted on all three of the charges, Parish could have faced a maximum of 56 years in prison and/or a $135,000 fine.

Sexual assault charges dismissed against Cambridge coach - MILWAUKEE JOURNAL SENTINEL

2006-07-10T08:55:00.000-07:00

JEFFERSON, Wis. (AP) -- Charges were dropped Monday against a high school teacher and coach accused of sexually assaulting an 18-year-old female student in 2005.

Joseph Parish, 37, of Cambridge, had been charged with second-degree sexual assault, false imprisonment and intimidation of a victim. His jury trial was scheduled to begin Tuesday.
Prosecutors requested the dismissal, ordered Monday by Jefferson County Circuit Court Judge John Ullsvik.

"We believe this resolution is in the interests of the public and of justice," Jefferson County Prosecutor Tris Baker told the Daily Times in Watertown.

Neither Baker nor Parish's attorneys would make direct comment on the resolution.

Court records, including a defense motion seeking the victim's medical records state, "(The victim's) allegation (of sexual misconduct) is refuted by her phone records. (Her) cellular phone records show that her phone was used during the time period when she claims her phone was lost and also during the time frame of her claim of sexual assault."

Other records indicate the girl informed a counselor that no assault had occurred.

Parish, who has worked at the School District of Cambridge since 1994 and is currently on leave of absence, distributed a statement and said he would resign.

"The past 12 years have included many proud events. While I have appreciated every moment I have served the community, the hardship of the allegations that I have faced has caused me to rethink my career path."

Parish said he would miss being a teacher and coach at Cambridge High School. He said he would take a break and then pursue being a coach and later an educator at the college level.

During a May 22 preliminary hearing, Judge Randy Koschnick bound Parish over for trial based on the testimony of the 18-year-old who said Parish assaulted her on Sept. 14, 2005 in the high school girl's locker room.

She said she returned to school to search for her cell phone between 8 and 9 p.m. and Parish let her in. Crying softly on the witness stand, the woman said Parish followed her into the girls' locker room and slammed her locker shut when she tried to open it.

The teen said Parish grabbed her right arm and spun her around against the lockers.
The girl said she started crying while Parish allegedly held her against the locker with his right arm across her chest and then pulled down her shorts and underwear with his left hand and touched her.

The defense has maintained Parish was elsewhere during the window of time in which the woman claimed the assault was made. Overall, the defense maintained the date and time of the alleged assault, as recounted by the accuser, were sufficiently questionable to impeach her credibility.

If convicted on all three of the charges, Parish could have faced a maximum of 56 years in prison and a $135,000 fine.

The charges were dismissed without prejudice, meaning that Parish could be recharged in the future if evidence warranted it.

Parish has worked at the School District of Cambridge as a physical education teacher and coach since 1994. For the past four years, Parish has served as the head football coach of the Blue Jays, leading the team to its first Capitol Conference championship in 2004 with a 10-1 record.

Court records can't be used to discriminate - CORPORATE REPORT WISCONSIN

2006-07-01T06:00:00.000-07:00

By Arendt, Laurie

THOUGH THEY MAY NOT ADMIT IT IN POLITE company, many employers do a little sleuthing on the Internet as part of the hiring process.

"It just makes sense to me," said Dave, a small business owner in suburban Milwaukee who logs on to the Wisconsin Circuit Court Access Web site as well as the Wisconsin

Sex Offender Registry to check every application that comes across his desk.

Dave said he's not concerned about the occasional speeding ticket, or a minor, youthful infraction.

"What I am concerned about is protecting my business, because while employees are an asset, sometimes they can be a liability," he said. "I don't want someone with a drunk driving conviction in any of my vehicles."

If you count yourself among those businesses that use Internet resources as part of your own due diligence, here is a quick refresher on how you can legally use that information in your hiring decisions.

While it is legal, if you accept the terms listed on the front page of the circuit court Web site, to access the public records, what you do with them as a potential employer is an entirely different story.

According to the Wisconsin Department of Workforce Development's Equal Rights Division, Civil Rights Bureau, while an employer can ask if an applicant has any convictions or pending charges, that information can only be given consideration if the offenses are "substantially related to the circumstances of the particular job or licensed activity."

"The legislation's intent was to protect by law the ability to have gainful employment," explained attorney Erik R. Guenther of Hurley, Burish & Stanton SC in Madison.

As for what is or is not "substantially related," Guenther said employers need to focus on making an inquiry as fact-based as possible to avoid potentially discriminating against an individual.

"This is most clear in situations where an individual's record prohibits him or her from obtaining licensing or bonding," he said. "For example, a pharmacy technician [who] cannot obtain or renew his or her license after a drug conviction."

Should you come across an individual listed on Wisconsin's Sex Offender Registry, Guenther suggested two points to remember.

"First of all, not every registered sex offender is a sexual predator," he said. "secondly, these offenders are already on probation and have significant curtailments in place to integrate them back into society in a safe way."

Not everything about public access to information is always clear, either. Guenther is concerned with the interpretation that can occur when accessing such Web sites.

"Certain important information is not always part of the accessible record," he explained, citing a case where a woman faced felony and misdemeanor charges while defending herself against an abusive fiance. Guenther was able to show that the fiance had a history of abuse in prior relationships and the charges were dismissed, though they remain on her record.

"With a criminal charge, the presumption tends to be guilt" he said. "And because the online records aren't detailed, someone accessing the record wouldn't necessarily understand what had happened."

The circuit court Web site is also not complete. Not all Wisconsin counties put their cases there, and some use it on a limited basis.

And if you've done a search on your own name and can't figure out why that stray parking or speeding ticket didn't seem to show up, there's a good reason for it.

"The Web site is also far more likely to show county cases and not municipal citations," said Guenther. "If a citation was issued by a city or village, it may not even show up even though it occurred."

Next month, we will cover blogs and other online information that can affect hiring practices.

Minimizing the Danger of an Online World - WISCONSIN LAW JOURNAL

2006-06-16T06:37:00.000-07:00

Computers and electronic documents can be dangerous for attorneys and their clients. Most often, we read about the use of computer evidence in criminal cases involving illegal pornography and online gambling. However, the risks inherent in technology apply to attorneys and clients in any field of the law that makes use of a computer in favor of a typewriter. Innocuous documents sent through one’s computer and materials stored on the computer can create risks in litigation and in dealing with clients.

As an example, did you know that the number of times a document was edited, the date it was first created, the last user to edit the document and other information can be obtained when viewing an emailed Word or WordPerfect file? Further, older versions of Word or WordPerfect store edits which may be revealed to allow opposing counsel to view the changes you have made in drafting.1 Imagine sending an email with a attached draft settlement proposal that has circulated between two colleagues at a law firm. One suggests a smaller settlement offer in the client’s approved range as reasonable, but this is replaced, after discussion, with a higher amount by the second firm attorney. The attorney then emails the settlement offer to opposing counsel. Technologically sophisticated opposing counsel may be able to retrieve the “metadata” buried within the document and discover the changes made to the documents and learn of his opponent’s willingness to settle the case for a significantly smaller figure.

Such exposure can be avoided by only sending documents through email which are in .pdf (Portable Document Format). In order to use this format, a computer user needs to purchase Adobe Acrobat Writer available at www.adobe.com. This software creates an option in the File menu to “publish” a document as a .pdf document. This essentially creates a image of the text document. Because it is an image of the text document, the underlying changes to the file can not be revealed. (This format is common to those who practice in the Eastern District Federal Court in Milwaukee, as the court requires filing of pleadings in this format, and the Western District Bankruptcy Court, where electronic filing is encouraged.) Sending documents in a format other than .pdf can allow for the risk of others viewing (or making) changes to your file.
Computers users also erroneously assume that moving files to the trash can icon and then “emptying” the trash removes these files from their computer. Taking these steps does not truly delete these files; it simply removes the “pointers” indicating to the computer that such data can be overwritten. A computer contains data allocated space and unallocated space. The “allocated space” on your computer is for programs and files that have a designated file path or location. The “unallocated space” does not have a file path and is available to be overwritten.
The materials, that computer users mistakenly believe that they have deleted, reside in the unallocated space until they are overwritten with new data. The materials in the unallocated space are not overwritten in a chronological process either. The overwriting process is not related to the duration of time that data has been unallocated; it relates to the size of the material. When new data is “overwritten”, it replaces a strip of data which may have been “unallocated” for several years, months or hours. Additionally, the “slack” area of the hard drive may maintain data for years that a user believes is deleted.

Files and programs that users believe that they have deleted may be located and examined by the use of computer forensic software. Consider the import of this statement: sensitive materials that a user believes that he or she has deleted may still be retrieved and read. This type of investigation arises often in cases in which the government has seized the computer of an individual accused of possession of child pornography or of being involved in white collar computer crimes. However, the scope of the ability to recover data is much more broad - attorneys can seek access to mirror image of a witness’ computer hard drive through subpoena and attempt to recover deleted documents, images or remnants of sent emails. Also, with these same forensic tools, computers used by former employees can be searched by an employer. The possibilities and risks are extreme.

Software exists to securely remove the data stored in the unallocated space of one’s computer. As attorneys, we use email to converse with clients regarding sensitive and privileged matters. For the protection of client matters, attorneys ought consider purchasing and routinely using software which eliminates the unallocated data. One recommended example of this type of software is called “Shred-X 3.0”, which overwrites unallocated data.

Finally, attorneys should also consider using encrypted email and electronic signatures. Encrypted emails and electronic signature software are available though companies like PGP Corporation (referred to often as “Pretty Good Privacy”). PGP is a software encryption program that allows for secure communications with clients through email. These tools can help protect email from unwanted interception or distortion.

The security risks in an online world should not be taken lightly. The steps described above can help to minimize the risks of communicating in an online environment. However, despite these protections, when one decides to get rid of a computer, it should be broken into pieces, burned and/or shot and email should never be the vehicle for communication of extremely sensitive matters.

Erik Guenther is a criminal defense litigator with Hurley, Burish & Stanton, S.C. (www.hbslawfirm.com), practicing in both state and federal courts. The firm’s criminal practice group has taught defense attorneys statewide about the nuances of defending child pornography cases. While handling a variety of criminal matters, Erik has a keen interest in computer crime cases.

1 A computer forensic expert advises that recent versions of Microsoft Word and WordPerfect do not store the underlying changes to the document, or “metadata”. Changes to a Microsoft Word document are contained in a separate temporary file. This temporary file is deleted, though still recoverable on the computer, when the Word file is saved. It is a different file and thus when the Word document is emailed it would not be attached to the message. However, if a Word document is provided to another party on disc, then the changes may still be discovered.

Parish attorneys issue statement after hearing - THE WATERTOWN DAILY TIMES

2006-05-24T12:17:00.000-07:00

JEFFERSON - Attorneys for Joseph Parish, a Cambridge High School physical education teacher accused of sexual assault, released a statement following a preliminary hearing on the charges Monday which was held in Jefferson County Circuit Court.

The statement was issued by Stephen Hurley and Erik Guenther, of the Madison law firm of Hurley, Burish & Stanton, S.C.

It states:

“Joseph Parish and his family face the worst nightmare of every educator - a false allegation of sexual contact by a student. Mr. Parish and his family are hopeful that the complainant in this matter will have the integrity to advise the school and/or the Cambridge Police Department that her claims are untrue. Alternatively, Mr. Parish takes solace in the fact that he will have the opportunity to refute the claims at a later jury trial.

“A preliminary hearing was held on this matter on Monday. The purpose of a preliminary hearing is for the state to demonstrate that they have some evidence in order for a case to proceed to trial. Here the state presented the testimony of the complainant. Wisconsin case law prescribes that the judge at a preliminary examination is not to make any finding as to a witness' credibility. Further, the judge is to continue a case to trial, as he did here, so long as the state is able to present some evidence. This is a low standard which is routinely met.

“A preliminary examination is not the time for the defense to present evidence. Mr. Parish is prepared to demonstrate that the allegations made by the (complainant) did not occur should this matter go to trial.

“Mr. Parish and his family appreciate the support that he has received from the community during this ordeal. He looks forward to returning to his positions as an educator and coach in service to the Cambridge community.”

Based on the testimony from the 18-year-old student who alleged she was assaulted on Sept. 14, 2005, in the Cambridge High School girls locker room, Judge Randy Koshnick bound Parish over for trial. The trial will be heard by Judge John Ullsvik in Branch One of Jefferson County Court. The Daily Times on Tuesday published an incorrect date for when the assault was alleged to have happened.

The next activity in the case will be a pretrial conference at 1 p.m. on Wednesday, May 31. That conference will be between the prosecuting attorney Tris Baker in the district attorney's office, and Hurley and Guenther.

Parish, 37, is facing charges of second degree sexual assault, false imprisonment and intimidation of a victim. Convictions on those charges would carry a maximum of 56 years in prison and up to $135,000 in fines.

Parish remains free on a $20,000 signature bond.

Judge takes stand against sex offender registry - APPLETON POST CRESCENT

2006-05-04T08:11:00.000-07:00

Waupaca case raises underage-consent issue

By Dan Wilson Post-Crescent staff writer May 4, 2006

WAUPACA — A Waupaca County judge has ordered convicted sex offender Sam Roloff's name to be added to the state's sex offender registry — but not until nearly 100 years have passed.

Circuit Judge Philip Kirk said the list, which now numbers more than 18,000 people, is rendered useless when it includes people like Roloff who engaged in consensual sex with underage parties.
"It's diluted," he said this week. "It has lost the purpose for which it was designed. It should apply to people like the David Spanbauers (who molested and killed children) or priests who abuse children, but it gets applied to consensual sex because it was outside the age requirement."

The law includes a "Romeo and Juliet" clause that allows a judge to exempt a defendant from registration if the defendant is 19 years old or younger and the victim is within four years of age. It does not recognize legal consent for underage people, even when they willingly engage in sex, because experts point out that juveniles don't have the maturity or judgment to consent.

That's the heart of the debate that has pitted Kirk against the state attorney general's office and a state appeals court, both of which are trying to force Kirk to put Roloff on the sex offender registry. Roloff was 20 when he had sex with four girls, all between the ages of 15 and 17.

Roloff, of Waupaca, was convicted of three felonies last year under a plea agreement. The plea deal included a joint recommendation of six months in jail and an unspecified term of probation. As a convicted sex offender, Roloff also should appear on the state's sex offender registry.

Kirk, however, doesn't think Roloff should be on the registry because the girls willingly participated in the sexual acts, some of which were videotaped by one of the girls. Those under the age of 17 cannot legally consent to sex even if they willingly participate.

"This was the first case to come along that provided a vehicle to have this issue addressed," Kirk said. "It's pushing the legal, judicial envelope."

Kirk viewed the videotape before the Nov. 7 sentencing.

"I was aghast at the behavior of all parties," Kirk said, according to the sentencing transcript. "There was no way to separate, in terms of culpability, that of these four teenage girls.

"I think that the voluntarism of the parties' behavior is an appropriate consideration for sentencing purposes. This was a 'Girls Gone Wild' home video made by the girls. They produced it; they starred in it."

Kirk refused to impose a sentence on the felony charges so that Roloff would not become a registered sex offender. Instead, he placed Roloff on probation for four years and ordered him to serve six months in jail on the misdemeanors that were part of the original set of charges.

The state attorney general's office intervened by securing a court order from the 4th District Court of Appeals, Madison, that forced Kirk to complete the sentencing. At a second sentencing hearing April 21, Kirk placed Roloff on probation for two years and 200 days on the felony charges and ordered him to register on the sex offender list.

But the judge added a twist. Kirk stayed the sentence for 100 years, effectively keeping Roloff off the sex offender registry for life.

"The sex offender registration is a death knell for anybody," Kirk explained.

A person remains on the list for 15 years after they complete parole or probation. Convictions on first- and second-degree sexual assault carry mandatory lifetime registration. The state Department of Corrections lists 28 offenses that require registration upon conviction.

The attorney general's office plans to appeal Kirk's sentence, although officials there declined to comment. Waupaca County Dist. Atty. John Snider also declined to comment, saying only "the matter is being pursued at the appellate level."

Although Roloff is not on the sex offender registry, the girl who made the videotape is registered. She was convicted of sexual exploitation of a child, and a different judge placed her on probation for four years and ordered her to register as a sex offender.

Kathleen Lhost, executive director of the Sexual Assault Crisis Center of the Fox Cities, said the statute should be revisited. Lhost, an attorney, also served on the bench as Outagamie County court commissioner.

"Once you are on that list it has the potential of ruining your life because employers look at it," she said. "I think it is a problem because it doesn't distinguish between someone who makes a mistake with a younger girl who is factually consenting and someone who is aggressive and forcing himself upon people in a more violent way.

"I am sure that is what Judge Kirk is trying to do, to force the issue so the Legislature looks at it again and returns some discretion to the judges."

Roloff's attorney, Tom Johnson, said cases like Roloff's are all too common.

"The issue isn't the statute's existence, it is the indiscriminate use of the designation sexual predator," Johnson said. "There isn't any discretion. It is either on or off. You demonize them. When are we going to wake up as a society and acknowledge that teens are sexually active?"

Arrested justice: When LGBT people land in jail - PlanetOut

2006-03-31T06:19:00.000-08:00

Recent coverage of the Sundstrom case and treatment of transgender individuals in prison...

by Patrick Letellier

Kari Sundstrom, a 41-year-old transgender woman, had been on female hormones for 15 years when, in January, the Wisconsin Legislature passed a law banning hormone treatments or sex reassigment surgery for prison inmates. This meant Sundstrom, incarcerated since 2003, would have to discontinue her hormone therapy.

On Jan. 12, the Wisconsin Department of Corrections cut Sundstrom's hormone dosage in half. Officials notified her it would be halved again in 30 days, and, 30 days later, terminated.
Suddenly stopping hormone therapy can be calamitous for transgender people, causing, among other possible problems, diabetes, hypertension, muscle wasting, osteoporosis and heart failure. It can also lead to self-mutilation and suicide attempts.The effects on Sundstrom were almost immediate. She suffered severe headaches, hot flashes, crying jags and was afraid she'd become suicidal.

Another transgender woman in the same prison, Andrea Fields, experienced depression, nausea, muscle weakness and developed bumps on her skin when her hormones, too, were suddenly reduced.The women's concerns became part of a lawsuit challenging the new Wisconsin law, which led to their hormone therapy being restored two weeks later. A federal judge ruled that while the courts sorted out whether or not the law was constitutional, Sundstrom, Fields and a third woman named in the suit, Lindsay Blackwell, would be allowed to continue their hormone therapies.

"This treatment has been determined by doctors to be medically necessary and appropriate for our clients," said Cole Thaler, Lambda Legal's attorney representing the women. Prohibiting such treatment shows a "deliberate indifference to their serious medical condition," Thaler says.
That "deliberate indifference" to the well-being of transgender inmates, however, extends far beyond health care. Transgender inmates are among the most reviled and abused individuals in America's jails and prisons, activists say, facing an unimaginable array of harassment and violence at each level of the criminal justice system that often begins with abuse from police officers on the street.

According to a 2005 Amnesty International report on police violence, transgender people, especially those who are poor or of color, are subject to the "most egregious cases of police brutality," from sexual harassment and invasive body searches to physical and sexual violence and false arrests, often for merely going about their daily lives. Transgender women in particular face arbitrary abuse and arrest, Amnesty reported, because they are frequently profiled by the police as sex workers.

"Their gender is seen as part of their criminality," says Dean Spade, an attorney with New York's Sylvia Rivera Law Project, which advocates on behalf of LGBT inmates. As a result, Spade says, transgender people disproportionately end up behind bars, where violence against them often continues unabated.In all state prisons and the vast majority of county jails, transgender inmates are housed according to their birth gender, regardless of how they currently identify. Sundstrom, Fields and Blackwell, for instance, are all housed in men's prisons, despite living as female for up to 15 years, taking hormones and having had feminizing surgeries, including, in Fields' case, breast augmentation.

"Once you're in custody, you're no longer the person you say you are," says Alex Lee, an attorney with the Transgender, Gender Variant & Intersex Justice Project in Oakland, Calif., which advocates for transgender inmates. "Instead, you are your birth certificate."

In men's facilities, transgender women are often immediately targeted by sexual predators, including some guards. Countless transgender inmates have reported sexual harassment, rape and forced prostitution in American jails. Transgender men housed in women's prisons report enduring repeated and unwarranted strip searches, often in front of other inmates or guards.

"It's torture and sexual slavery," says Spade. "These are the proper terms for it."

In a few county jails, including San Francisco and Multnomah County, Ore., transgender inmates are housed in separate facilities to spare them such atrocities. But that, too, comes with a price. Segregation from the general population often means exclusion from the few programs offered to help inmates avoid incarceration in the future, including drug treatment, high-school equivalency training and anger-management courses.

"It's punitive segregation," Lee says, "and a form of discrimination, even if unintended."

In state prisons, often the only safeguard transgender prisoners have from violent inmates is protective custody, sometimes called "lockdown," in which inmates are locked in an isolated cell 23 hours a day or housed with other inmates considered vulnerable. But even there they are subject to abuse from guards and, on occasion, other inmates.

No matter where they are housed, incarcerated transgender people report chronic difficulties in getting appropriate medical care, especially hormone therapy. Most jails and prisons don't have written policies on hormone use, so arbitrary decisions can be made by individual corrections officers rather than by doctors.

In addition, Thaler says, "there's a misperception that if hormones are made accessible to inmates, then trans people will commit crimes to get into prison to get them."

"But if you think about the ways transgender people are treated in prison," he says, "that's ludicrous."

Parents decry teacher's plea agreement - THE PORTAGE DAILY REGISTER

2006-03-09T06:29:00.000-08:00

I represented Mr. Bravick in defense of baseless charges of invasion of privacy. These charges were dismissed yesterday, so that Mr. Bravick and his family may move forward with their life and seek return to his employment position.

by Paul Ferguson

Parents of some Poynette Middle School students say justice isn't being served in the case of a former physical education teacher accused of entering a girls' locker room while the girls were undressed on several occasions in March of last year.

The Columbia County District Attorney's office dismissed invasion-of-privacy charges Wednesday against Dennis Bravick, 45, and settled on a deferred prosecution agreement for a bail-jumping charge to which Bravick pleaded no contest.

Under the agreement, the charge will be suspended and ultimately dismissed if Bravick complies with certain conditions for two years.

Parents spoke out against Bravick, a 17-year veteran of the school district, at Wednesday's plea hearing.

One mother said she'd moved out of the Poynette district due mostly to Bravick. She said she hopes he'll never teach physical education again.

Another mother characterized the deferred prosecution agreement as Bravick "getting his hand slapped."

"When these young adults stood up for what they believed to be right, the justice system shouldn't let them down," the woman said.

She listed several alleged incidents that made three of her daughters feel uncomfortable around Bravick. The mother said she'd heard many stories from her daughters' schools, "but none as disturbing as Mr. Bravick's."

The agreement stipulates that Bravick, a married father of two, is to undergo psychological evaluation and counseling, stay out of trouble and have no contact with any of his accusers. With certain exceptions, he is to stay at least 1,000 feet away from Poynette School District property and may not attend any extracurricular activities involving Poynette schools.

In the event that an arbitration case in which Bravick is appealing his dismissal from the school district ends with his employment being reinstated, his contract can be revisited or terminated.
Assistant District Attorney Crystal Long said she and defense attorney Erik Guenther reached the plea agreement after many hours of negotiations, which began in earnest as the prosecution's case began to unravel weeks ago.

One of four initial counts of privacy invasion was dropped Feb. 24 when it was discovered Bravick wasn't in school on the day alleged. Long said Wednesday she had to dismiss the remaining three charges because one key witness recently changed her story while testifying in Bravick's arbitration case.

To get a plea from Bravick for the deferred prosecution agreement, Long filed a one-count case of misdemeanor bail jumping Tuesday, accusing Bravick of violating bond conditions simply by going to Poynette High School Dec. 29 for an arbitration hearing.

Judge Daniel George said he understood that it frustrated the parents to let the privacy-invasion charges go.

"Given the sentiments that exist, perhaps a better course of procedure might have been to try it and let the jury determine for itself whether he was guilty or not guilty," he told Long.

But Long said a concern that prosecutors deal with every day is taking unsuitable charges to a jury and getting an unjust conviction. Once the new testimony came to light, "Invasion of privacy, which is what he was charged under, didn't fit anymore," Long said.

Guenther said Bravick acknowledged violating bail conditions, but the attorney declined comment on the allegations raised by parents. As to the formal charges, "He's maintained throughout that he didn't commit the invasion of privacy charges that were alleged," Guenther said.

In addition to Bravick's pending arbitration case, he is under investigation by the Department of Public Instruction, according to the teacher licensing database on DPI's Web site.
DPI spokesman Joe Donovan said such investigations could lead to revocation of Bravick's teaching licenses if investigators find Bravick committed immoral conduct, defined in state law as "conduct or behavior that is contrary to commonly accepted ethical or moral standards and that endangers the health, safety, welfare or education of any pupil."

http://www.wiscnews.com/pdr/news/index.php?ntid=75586&ntpid=-1#

Charges Dismissed Against Poynette Educator

2006-03-08T06:34:00.000-08:00

FOR IMMEDIATE RELEASE
March 8, 2006
Contact: Erik Guenther (Counsel for Dennis Bravick)
(608) 257-0945

COLUMBIA COUNTY, WI -- Charges against physical education instructor Dennis Bravick for invasion of privacy were dropped today by the Columbia County District Attorney’s Office. The charges were brought based on allegations that Mr. Bravick entered the girl’s locker room in the Poynette school last spring. Mr. Bravick denied the allegations and maintained his innocence. Based on the allegations, Mr. Bravick was dismissed from his position with the Poynette School District. Mr. Bravick is currently seeking reinstatement of his position through an arbitration process.

Mr. Bravick was charged with four counts of invasion of privacy in April 2005. On February 24, 2006, the District Attorney’s Office dismissed one count after determining that Mr. Bravick was not in school on the date of the allegation. Mr. Bravick’s trial for the remaining three misdemeanors was scheduled for March 8 - March 10, 2006. The remaining charges were dismissed today.

"Dennis has served the Poynette School District for seventeen years. He has steadfastly maintained his innocence and is thankful that the charges were dismissed," said his attorney Erik Guenther.

Mr. Bravick continues his arbitration process seeking reinstatement of his position with the Poynette School District. "Mr. Bravick is pleased that based upon review of additional evidence the case was dropped against him. He and his family can put the fear of unfounded criminal charges behind them and focus on seeking return to his position," added Guenther.

In a separate matter, Mr. Bravick acknowledged his error in visiting the school district after school hours as part of the arbitration process, in violation of his bond conditions. Mr. Bravick visited the school with the arbitrator, counsel for the Poynette School District and his employment attorney. Mr. Bravick pled no contest to this bail jumping charge. Judge George accepted the recommendation of the District Attorney’s Office and Mr. Guenther to defer judgment in this matter, which will ultimately result in dismissal of this charge.

– end –

Two New Measures To Bring Death Penalty to Wisconsin - NBC15

2006-03-07T07:59:00.000-08:00

Last night Madison's NBC affiliate carried a story discussing the proposed death penalty referendum. I was featured in opposition to the referendum.

By Dana Brueck

A single referendum question could tell lawmakers, once and for all, how Wisconsin feels about the death penalty. A death penalty opponent says the move would advance the political debate without providing real information on the issue.

No one has been put to death in Wisconsin in more than 150 years, but the case of Steven Avery has compelled some lawmakers to re-visit the debate.

"I had a number of constituents call up who were actually crying and said you need to introduce your bill and do something," Sen. Tom Reynolds says.

Reynolds calls his legislation the most narrowly crafted death penalty bill in the nation. Anyone convicted of sexual assault, murder and dismemberment or mutilation of another would be eligible for a sentence of death, if DNA evidence is present.

Steven Avery, who was wrongfully imprisoned for 18 years, is suspected of raping and killing freelance photographer Theresa Halbach. He has not been tried, but the case's brutality has some lawmakers calling for the death penalty in Wisconsin.
"This is why western society, history of mankind may have had the death penalty, for people who have dehumanized themselves with such vile behavior," Sen. Reynolds says.

"Those examples are the ones you'd expect a politician to pick out because they're the easier ones to justify," criminal defense attorney Erik Guenther says. The State Bar of Wisconsin opposes the death penalty.

Guenther says a system of justice, not of revenge, exists to punish those convicted of heinous crimes. "Punishment with lifetime imprisonment, which is what we have now, does adequately address punishment and is significantly less costly than we as a society accepting the moral compromise to put people to death," he says.

But Sen. Alan Lasee wants to put the issue to voters through referendum ... asking, "Should the death penalty be enacted in the State of Wisconsin for cases involving a person who is convicted of first-degree intentional homicide, if the homicide is vicious and the conviction supported by DNA evidence?"

"If the majority say yes, then I would introduce a bill next session and take it from there," Sen. Lasee says.

But Guenther calls the question slanted, saying it also leaves out important issues, such as the quality of legal representation for a defendant. "The quality of representation affects the ability to question and challenge the presence of DNA evidence. Not all DNA evidence is the same."

LaSee's resolution is scheduled to hit the floor on Tuesday. If passed by both houses, the advisory referendum question would go on the September ballot. A committee hearing on Reynold's draft bill is scheduled for Wednesday.

To view the story as it aired on last night's evening news go to:

http://nbc15.madison.com/home/headlines/2418161.html

93 arrests at '05 rave now hang in balance - THE FLINT JOURNAL

2006-02-22T12:44:00.000-08:00

An update on the Flint "rave" case...

By Paul Janczewski

pjanczewski@flintjournal.com • 810.766.6333

FLINT -A judge is expected to decide within 35 days whether to dismiss misdemeanor charges of frequenting a drug house against 93 people arrested last March at a rave party at Club What's Next.

Genesee Circuit Judge Joseph J. Farah also will rule if evidentiary hearings are needed for those arrested when police swooped in.

Farah listened to arguments from attorney Kenneth M. Mogill, who represents one woman arrested in the bust, and assistant Flint City Attorney Sam R. Terry.

Mogill also spoke for other attorneys and the American Civil Liberties Union, who are representing others arrested at the club March 20.

Flint police and the Genesee County Sheriff's Department arrested clubgoers after undercover officers and civilian operatives bought Ecstasy, LSD and a psychedelic mushroom inside the club, they said.

About 17 people, including the promoter, were arrested on felony drug charges. The other partygoers were strip-searched and arrested on misdemeanor drug possession charges or for frequenting a drug house, a maximum 90-day misdemeanor.

Officers seized Ecstasy pills, LSD, the so-called "date rape drug" GHB and Ketamine, an animal tranquilizer.

Mogill said the people whom he and others represent had a right to be at the club and should not be arrested for the actions and activities of others. He said one clubgoer was arrested blocks away after he left the club at 2511 W. Pasadena Ave.

None of the defendants represented by the ACLU had drugs or drug paraphernalia on them.

Terry said police conducted surveillance and used confidential informants before making arrests.

He defended the language of the city ordinance that was used to issue charges and said drug activity or sales were noted in 60 spots in the club.

"It's completely unreasonable to say (those arrested) could not have known" of the drug activity, he said.

Earlier, Flint city prosecutors offered plea deals to those charged in the raid, but the deals were apparently withdrawn when no one accepted them by an October deadline.

An evidentiary hearing would shed more light on the arrests and procedures. Mogill said police do not know when those present entered the club, their proximity to drug activity or that they had knowledge that it was occurring, information that could be revealed through such a hearing.

ACLU sues over sex-change ban - THE BADGER HERALD

2006-02-06T08:27:00.000-08:00

More press coverage relating to Sundstrom et. al. v. Frank et. al. Rep. Suder seems to consider the nation's most prominent civil liberties organization to be "crazy".

by Ann Babe
Monday, February 6, 2006

The American Civil Liberties Union filed a lawsuit against the Wisconsin Department of Corrections Jan. 24, challenging the constitutionality of a state statute that prohibits inmate sex changes.

The lawsuit came in response to the complaints of four Wisconsin prisoners currently undergoing hormonal sex changes, who were temporarily forced to discontinue hormonal therapy after the passage of Assembly Bill 184.

The bill, signed into law early last month, mandates that state funds cannot be used to fund the hormone therapy or sex-reassignment surgery of prisoners or forensic patients.

Although AB 184 lead author Rep. Scott Suder, R-Abbotsford, backs the current law’s legitimacy, the ACLU views it as a form of cruel and unusual punishment.

“Prisoners have a constitutional right to reasonable and necessary medical care,” said Attorney Larry Dupuis, who is representing the ACLU of Wisconsin. “If the state provides care that is deliberately different to serious medical needs, that violates the Eighth Amendment … and that’s unconstitutional.”

According to the ACLU, the law also violates the Equal Protection Clause, as it specifically targets an identifiable minority and treats it differently.

A federal district court in Milwaukee agreed the law may prove unconstitutional and ordered a temporary injunction last month to make the law inactive until the lawsuit is concluded.

Suder disagreed, however, pointing to the lack of certifiable proof and reducing the health risks to “medical theories.”

“I think it’s absurd for anyone, especially a federal judge, to argue that sex-change therapy is somehow medicinal in nature,” Suder said. “The so-called disorder the ACLU is referring to is not a medically necessary treatment. It is a choice.”

The ACLU, however, said prominent medical groups, including the American Psychiatric Association, recognize afflictions caused by hormone discontinuation as real disorders.

“The Legislature tried to substitute their judgment for the medical judgment of doctors,” Dupuis said.

According to Dupuis, forcing sex-change patients to discontinue hormone therapy is medically irresponsible and downright dangerous.

The four prisoners experienced hot flashes, anxiety attacks, skin breakouts and psychological disorders, Dupuis said, adding even further risks of contracting diabetes and heart complications are possible.

Suder, however, refuted claims the law amounts to cruel and unusual punishment, instead calling the hormone therapy an unfair financial punishment for the state’s taxpayers.

“To stop forcing taxpayers to pay for sex-change therapy for prisoners certainly is not cruel and unusual punishment,” Suder said, adding for judges to rule otherwise is “the height of judicial activism.”

Though Suder said he does not have a lot of confidence in Attorney General Peg Lautenschlager to “vigorously fight against the lawsuit,” he said he and bill co-sponsors would fight to uphold the law.

“It’s unfortunate crazy groups like the ACLU think it’s a good idea to give sex-change operations to [prisoners], but we’re going to fight in any way we can and the fight certainly isn’t over,” Suder said, adding he is not ruling out a constitutional amendment.

The final hearing is scheduled for Aug. 24.

Sundstrom case a topic on this morning's Joy Cardin call in show on Wisconsin Public Radio

2006-02-03T11:13:00.000-08:00

Co-counsel in the Sundstrom case, Larry DuPuis with the ACLU of Wisconsin, appeared on the Joy Cardin show this morning. You can listen to the show at the link below.

For Program On: Friday, February 3, 2006 at 6:00 AM
After six, Joy Cardin's guest from the A-C-L-U of Wisconsin explains why his organization is challenging the constitutionality of a state law that bans sex change therapy for inmates. Guest: Larry Dupuis (do-PWEE), legal director for the American Civil Liberties Union (ACLU) of Wisconsin. www.aclu-wi.org

Sundstrom case a topic on last night's "The Situation with Tucker Carlson"

2006-02-03T10:56:00.000-08:00

Co-counsel in the Sundstrom case, Cole Thaler with Lambda Legal, appeared last night on "The Situation with Tucker Carlson". Not surprisingly, Mr. Carlson failed to grasp that the judgment of medical and psychiatric professionals ought hold weight in determining medical necessity.

CARLSON: It looks like non-English speaking drunks aren‘t the only ones getting a break these days. Thanks to yet another judge, transsexual prisoners in Wisconsin will continue to get expensive, gender changing hormone therapy, despite a new state law barring the use of taxpayer money for inmate sex changes.

Here to defend the right of prisoners to use your money for sex changes, Cole Thaler. He‘s a lawyer with the Lambda Legal Defense and Education Fund. He joins us live tonight from Atlanta.

Mr. Thaler, thanks for coming on.

COLE THALER, LAWYER, LAMBDA LEGAL DEFENSE AND EDUCATION FUND: Thanks for having me, Tucker.

CARLSON: The state law seems pretty clear. The people of Wisconsin don‘t want to pay for inmates to change their sex. So why should the taxpayers be paying for inmates to change their sex? I don‘t get it.

THALER: Actually, Tucker, the lawsuit that‘s been filed by Lambda Legal and the ACLU is not about any particular medical treatment. It‘s about what the Constitution requires prisons to provide in terms of health care to transgender inmates.

And the three clients that Lambda Legal and the ACLU represent have been receiving hormone therapy for a serious health condition for years and years, and the law that has been passed by the Wisconsin—Wisconsin legislators withdraws the treatments that they have been receiving for all of their adult lives and puts them at serious risk of harm.

CARLSON: OK. There is so much spin in the sentence you just uttered, I just want to unpack it here slowly. The therapy they‘re receiving for a serious condition, what is this serious condition afflicting these people?

THALER: The clients that Lambda Legal and the ACLU represent have been diagnosed with gender identity disorder, which has been recognized, both by the medical establishment and by all of the courts that have...

CARLSON: So are they going to die if they don‘t get it?

THALER: There are potentially life-threatening risks of not receiving it.

CARLSON: Such as? What, are they going to have a heart attack?

Cancer? What are the risks?

THALER: Hormone therapy, Tucker, affects every system in the body, including the cardiovascular system, the metabolism. There are serious health risks, including potentially suicide, self injury.

CARLSON: Now—I‘m sorry, Mr. Thaler. I want to treat, again, you with respect, but you‘re spinning me. These are people who are men who believe that somehow they weren‘t meant to be men and they should be women. And they want to be women. And they think the state should pay them to make the transformation to men to women, male to female. That‘s the bottom line. And you know what? To pass this off as some sort of an emergency appendectomy is not telling the straight truth.

THALER: Actually, Tucker, the bottom line is the substitution of the legislature‘s judgment about what‘s appropriate medical treatment for medical judgment. Legislators are not in the business of making medical judgment. That‘s the doctor‘s job.

CARLSON: Give me—give me a break. Doctors don‘t have a right in this country to decide societal norms. I‘m sorry. They‘re physicians. We respect them. They don‘t get to—they don‘t get to decide what the rest of society believes is acceptable and unacceptable. Voters do. It‘s a democracy. It‘s not a society run by doctors.

And people don‘t believe in Wisconsin—they said so, in a referendum they don‘t believe that a sex change is a medical necessity. Are you arguing that it is?

THALER: I‘m arguing that the medical providers that have been giving treatment to all of our clients have determined that this is medically necessary for them. And the Department of Corrections in Wisconsin pays doctors to make medical judgments. The reason that the Department of Corrections has doctors is to treat each patient individually and to provide medical treatment that is in accordance...

CARLSON: I can tell you‘ve been doing focus groups that tell you that throwing out the term “medical” is the way to success on this issue. But let‘s just—let‘s just keep this perfectly clear. These are people who believe that they should be another sex. They are not dying of anything. They don‘t have a chronic, physical condition. They don‘t have cancer. They don‘t have coronary artery disease. They don‘t have diabetes. They have a desire to become women. That‘s different than a chronic disease.

THALER: Actually, Tucker, the American Psychiatric Association recognizes that the risk of not providing treatment to people who have been diagnosed with gender identity disorder could have potentially disastrous consequences. That‘s the words and the term of the American Psychiatric Association. Gender identity disorder is a recognized, serious health condition.

CARLSON: So a bunch of shrinks—just because a bunch of shrinks says something is so don‘t make it so.

But let me just get to the kind of bottom line principle issue here. Don‘t the voters of Wisconsin have a right to determine what their tax dollars go to? And isn‘t that right expressed in the form of a referendum, an election? Don‘t they get to vote on it? Or do the shrinks run everything in Wisconsin and the Lambda Legal Defense Fund? Are you in charge now?

THALER: Actually, Tucker, 30 years ago the U.S. Supreme Court decided that the Eight Amendment set certain constitutional requirements for the healthcare that is provided to inmates in prison. And—and the contours and the scope of that treatment is appropriately determined by doctors. That is a policy that was in place prior to the Wisconsin legislature passing this law last month.

CARLSON: Doctors—doctors are not God, and a sex change operation is not a medical necessity. I feel sorry for these guys. I really do. I think they must be very troubled people. But I can understand why people in Wisconsin don‘t want to pay for it. But they probably will, because you seem like a smart guy. And you‘ll probably end up winning, unfortunately.

Cole Thaler, thanks a lot.

THALER: Thank you, Tucker.

http://www.msnbc.msn.com/id/11162133/

Wis. law can't stop four inmates' hormone treatments - Associated Press

2006-02-02T08:50:00.000-08:00

MILWAUKEE (AP) -- A new Wisconsin law barring the use of state tax money for prisoner sex changes won't stop four male inmates from getting state-paid hormone treatments until at least August.

The law took effect last week, but the American Civil Liberties Union and Lambda Legal, an Atlanta-based advocacy group for homosexual, bisexual and transgender people, filed suit in U.S. District Court in Milwaukee on behalf of the four, challenging the statute as unconstitutional.

The law bars the state Department of Correction from using tax dollars for hormone therapy or gender reassignment surgery to treat prisoners for a condition of gender identity disorder.

The four inmates claim stopping the treatments would be cruel and unusual punishment and would violate their right to equal protection under law.

"The Legislature is substituting its judgment for medical judgment, which is causing serious harm to our clients," said Cole Thaler, the lawyer for three of the inmates.

State Rep. Mark Gundrum, R-New Berlin, one of the authors of the law, predicted it would withstand the challenge.

"It's ridiculous to ask the taxpayers to pay for this," he said.

A preliminary injunction issued last week by Judge Charles Clevert Jr. prevents the state from stopping the hormone treatments at least until he holds a hearing on the matter, scheduled Aug. 24.

People with gender identity disorder have a strong and persistent discomfort with their birth gender and wish to live as the other,

According to the Diagnostic and Statistical Manual of Mental Disorders, those with the relatively rare gender identity disorder can have trouble functioning in society and severe depression, in some cases leading to suicide.

The legal fight over treatment started in 2003, when inmate Scott Konitzer filed a lawsuit against the Department of Corrections. He is serving 123 years in prison for multiple armed robberies and stabbing an inmate.

Konitzer, now known as Donna Dawn Konitzer, has been getting hormone therapy as treatment for gender identity disorder since 1999.

He was seeking gender reassignment surgery, which the state has never permitted and can cost $10,000 to $20,000.

In reaction to his lawsuit, legislators passed the Inmate Sex Change Prevention Act, which was enacted Jan. 6 and was set to take effect Jan. 25.

On Jan. 24, three more inmates filed suit.

The four are the only Wisconsin prisoners getting hormone therapy, which costs from $675 to $1,600 a year.

What’s Truth Got to Do With It? The Burden of Proof Instruction Violates the Presumption of Innocence - THE WISCONSIN DEFENDER (FALL 2005)

2006-02-01T06:41:00.000-08:00

By Erik R. Guenther

In Wisconsin state courts, jurors are instructed that their role is to find the truth. Wis JI - Criminal 140 instructs jurors that: “While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt. You are to search for the truth.”

This statement is read to jurors in every county in Wisconsin without objection. This portion of the instruction ought be objected to by the defense as it violates the right of the accused to the presumption of innocence. The instruction also is contrary to the multiple purposes served by the criminal jury trial.

Whatever our broader hopes for our justice system, carefully speaking, a criminal trial is not a search for the “truth.” In actuality, a trial is an evaluation of the evidence presented in order to determine if the State has proved each element of each alleged offense beyond a reasonable doubt.

The criminal trial serves a number of goals that are inconsistent with a lay understanding of truth, by using of a higher burden of proof; by limiting the ability to have new evidence (even of actual innocence) considered; by using the exclusionary rule, the Rules of Evidence and privileges to exclude evidence; and by using a non-expert jury.

In a criminal case, an accused is entitled to a determination at a burden of proof higher than that of civil cases. The use of a burden of proof higher than that in civil cases expresses a preference for erring on the side of liberty, not its loss. In re Winship, 379 U.S. 358, 372 (1970) (Harlan, J., concurring). By requiring that a jury return a verdict of guilt only if it finds that the allegation was proven beyond a reasonable doubt, the system reflects a preference for a truth that is probabilistic, not absolute, and thus different from a lay understanding of the term “truth.”

In all criminal trials, the system is one of uncertainty, which remains following a jury verdict. Some residual doubt typically exists as to whether the alleged acts were committed by the accused following a jury verdict. As such, the system does not seek “the truth;” it opines whether or not the State has met its burden of proof. An acquittal is not a finding of an accused’s innocence, but merely a finding that the State has not met its burden. A conviction is not a finding that an accused is actually guilty, but a finding that the State has met its burden of proof beyond a reasonable doubt.

As Professor Alan M. Dershowitz explained in Reasonable Doubts:

If the only goal of the adversary system were to find “the truth” in every case, then it would be relatively simple to achieve. Suspects could be tortured, their families threatened, homes randomly searched, and lie detector tests routinely administered. Indeed, in order to facilitate this search for truth, we could all be subjected to a regimen of random blood and urine tests, and every public building and workplace could be outfitted with surveillance cameras. If these methods -- common in totalitarian countries -- are objected to on the ground that torture and threats sometimes produce false accusations, that objection could be overcome by requiring that all confessions induced by torture or threats must be independently corroborated. We would still never tolerate such a single-minded search for truth, nor would our constitution, because we believe that the ends -- even an end as noble as truth -- do not justify every possible means. Our system of justice thus reflects a balance among often inconsistent goals, which include truth, privacy, fairness, finality, and equality.

The U.S. Supreme Court has made clear that the justice system also has an
interest in finality that may be more important than truth. The Court ruled that there are limits to the ability of inmates to raise new evidence even in claims of actual innocence. Herrera v. Collins, 506 U.S. 390 (1993)(finding that some wrongful convictions and even executions of innocent defendants must be tolerated due to the need for finality in capital cases.)

In Herrera, the Court declined to expand the right to habeas relief to cases of evidence of innocence. The Court stated that, “[it] would be ... disruptive of our federal system ... to provide for federal habeas review of freestanding claims of actual innocence.” Id. at 401. The majority opinion carved the possibility of an exception, by noting:

We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high.

Id. at 417.

This decision pointedly illustrates that “truth” is but one aim of the criminal justice system and that “finality” is another important aim of the system. In a different way favoring defendants, the justice system’s interest in finality is also expressed in the use of statute of limitations or statutes of repose to bar claims after a certain point in all matters other than murder. A statute of limitations values a concern for the stale recollection of witnesses, the possible lack of other evidence and the need for an individual to move forward in life without fear of criminal charge, over a general notion of truth: after all, truth has no arbitrary cut-off date.

The interest in finality is also illustrated by the prohibition against double jeopardy. The court system operates differently than the common idea of searching for truth in life or scientific or historical study, where new evidence can lead to a re-examination of what is true at any time.

The exclusionary rule also supports the idea that preventing police misconduct can compete with truth as a value, and in some cases may even transcend it. In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court fashioned a remedy for police misconduct which would not allow evidence obtained by police action in violation of the defendant’s constitutional rights to be introduced even at a state trial. Therefore, the jury was prevented from hearing evidence (in that case, learning about obscene materials found by the police) which would have helped reach a determination of the truth of the accusation. Even beyond the inability to hear evidence at trial, the Supreme Court went further and explicitly recognized that the deterrence of wrongful government conduct may be so important that it is worth the cost of freedom for a criminal.

The Rules of Evidence also filter the types of evidence that may be presented to a jury. The most basic rules filter evidence that is not relevant to a determination of these charges, or that is unduly prejudicial. The most telling example in Wisconsin may be the exclusion of details of prior criminal charges, which prevents a jury from focusing on the criminal history of the defendant and redirects focus instead upon the pending allegation. In contrast, outside of the courtroom, the nature of a prior conviction would matter in choosing whom to watch your child, whom to associate with as friends, and whom to date or marry. As such, the system expresses a preference against common factors used in making a decision and dictates that in determining whether to convict an individual of a crime, we ought minimize the criminal history presented to a jury to the number of prior convictions and not their nature.

Hearsay is also excluded from trials, with some exceptions. This is based on concerns for fairness (specifically, confrontation) and reliability. As the Wisconsin Court of Appeals has noted, “[h]earsay should be carefully scrutinized since it is often unreliable: the statement is taken out of context and the demeanor of the witness cannot be observed.” State ex rel. Ortega v. McCaughtry, 221 Wis.2d 376, 388, 585 N.W.2d 640, 646 (Wis. App. 1998). Additionally, out of court statements in criminal cases can offend an accused’s rights under the Confrontation Clause. Crawford v. Washington, 541 U.S. 36 (2004). Again, though, outside the courtroom we consider all sorts of hearsay and regularly sift it for reliability, rather than rejecting it outright.

Other evidence, although it may help lead a jury to the truth is
inadmissible based on the grounds of privilege. Conversations by an accused with his current or former counsel, his spouse, his physician, his priest, his therapist (and to a limited extent his Dean) are all deemed privileged. The context of these conversations generally cannot be introduced at trial. These privileges are based on principles that in some circumstances the ability of individuals to speak freely without fear of reprisal has an importance greater than truth. Similarly, the accused’s decision to remain silent cannot be introduced at trial under the Fifth Amendment, which recognizes the importance of freedom from self-incrimination by keeping the choice to exercise this constitutional protection from the jury.

Some evidentiary privileges also operate to the detriment of the accused. For example, the sexual history of an accuser is protected, with some exceptions, by the rape shield privilege, which keeps relevant information from a jury in order to encourage complainants to speak to police. Limitations are also placed on the accused’s access to relevant medical records of her accuser. In carving these exceptions, a value is placed on privacy and the benefits of confidential communications which is deemed greater than allowing a jurors to hear the contents of these conversations or reviewing documents which may help them reach a commonsense determination of the truth.

The search for truth is also limited by the use of a jury from the community. A different type of decision might be reached if stock traders sat as jurors in a white collar criminal case, or ex-convicts or law enforcement officers sat exclusively in criminal cases generally. In searching the truth in other situations, typically experts in the field conduct the investigation. However, in our trial system we explicitly require a jury of people without regard to their expertise, and one that cannot be segregated by use of peremptory strikes in a discriminatory manner.

Referring to a jury’s role as the “search for truth” thus misstates the jury’s unique role in the criminal justice system. The jury’s determination is something different than seeking the common understanding of “truth.” A lay jury makes a collective determination whether the evidence (limited by Rules of Evidence, constitutional rights of the accused, and specific privileges) is sufficient to demonstrate that the prosecuting party proved its case to a certain standard unique to the criminal court system (“beyond a reasonable doubt”). This evidence may only be presented once by the prosecution and in most circumstances there are time limitations within which an individual must be charged. Further, the jury is told to find the “truth,” but the accused is limited in providing relevant evidence based on the rape shield law, the Schiffra-Green decisions and other handicaps in getting relevant information regarding his accuser. Even following a trial, the jury does not and cannot know for certain whether the accused committed the offense despite its collective wisdom.

Therefore the courts ought not include the broad language in the final paragraph of Wis JI - Criminal 140 as it misstates the role of the jury. This paragraph detracts from the State’s burden of proof to the detriment of an accused.

Defense counsel should request that Wis JI - Criminal 140 be read without inclusion of the final paragraph describing the jury’s job as a “search for the truth.” The removal of this paragraph would charge the jury to do its duty in a manner more consistent with the presumption of innocence afforded to everyone who is criminally charged.

ACLU and Lambda Legal Challenge Law Barring Transgender People Access to Medical Treatment in Prison

2006-01-26T08:38:00.000-08:00

I have joined the ACLU and the Lambda Legal in representing Andrea Fields, Kari Sundstrom and Lindsey Blackwell in protecting their rights to necessary medical care while incarcerated.

(Milwaukee, WI, January 24, 2006) — Lambda Legal and the American Civil Liberties Union filed a lawsuit today in federal court on behalf of two transgender women challenging a Wisconsin law that bars them from access to appropriate medical treatment while they are incarcerated.

“The Wisconsin legislature should stick to solving the problems of the state, not interfering in the medical treatment of prisoners,” said John Knight, senior staff attorney with the ACLU’s Lesbian and Gay Rights Project. “This law bars prison doctors from properly treating their patients and puts lives at risk.”

Over the objections of the Department of Corrections, the Wisconsin legislature passed a law last year that bars prison doctors from deciding the best course of treatment for transgender people by denying them access to any type of hormone therapy or sex reassignment surgery while in state custody. Lambda Legal and the ACLU are representing Kari Sundstrom and Andrea Fields, who are both serving time in Wisconsin prisons on forgery charges. Sundstrom, 41, has been on hormone therapy since 1990. Fields, 29, has been on hormone therapy since 1996.

“It is well-established medical practice to prescribe hormone therapy to transgender people,” said Dr. Randi Ettner, a clinical psychologist who practices in Evanston, Illinois. “Blocking people from access to hormone treatment after they have been on the treatment is especially dangerous and could cause life-threatening damage including hypertension, diabetes, muscle wasting, osteoporosis and potentially even heart failure.” Legislators supporting the law claimed that it was necessary to reduce expenses. However, when the law went into effect on January 24, 2006, only a handful of people in the Wisconsin prison system were receiving hormone therapy.

“This legislation has absolutely nothing to do with costs. It is designed to punish transgender people and deny them access to necessary medical care,” said Cole Thaler, Lambda Legal’s transgender rights attorney. “Doctors, not lawmakers, should be the ones deciding what health care is appropriate for their patients.”

The lawsuit charges that it is a violation of the Constitution’s guarantee of equal protection as well as the guarantee against cruel and unusual punishment to bar transgender inmates from access to individualized medical care. In legal papers filed today, the organizations asked the U.S. District Court, Eastern District of Wisconsin to issue an immediate order barring the law from going into effect so that the two women will continue to receive the prescribed medication they have been taking for years. The legal groups base their challenge on federal case law which establishes that health care providers must determine proper treatment for all prison inmates. The plaintiffs in the lawsuit do not seek sex reassignment surgery, but merely seek to continue the hormone therapy they have received for all of their adult lives.

According to the ACLU and Lambda Legal, Wisconsin is believed to be the only state in the country to have enacted a law denying transgender people access to medical care while in state custody. For additional information about the case visit, www.aclu.org/caseprofiles or www.lambdalegal.org.

Hundreds sound off on gay marriage - AP

2005-11-30T10:15:00.000-08:00

I testified at the hearing yesterday described below. Other attorneys covered the constitutional issue effectively, so I focused on the effects on Wisconsin business.

Here is a summary of my remarks:

An amendment that prevents these businesses from deciding what benefits they choose to offer (which would be prohibited by the second sentence of the proposed amendment), would discourage businesses from relocating to Wisconsin. It would also prohibit current businesses from being able to offer the benefits that they choose; disenfranchising current employees.

Attracting young talent to Wisconsin will be more difficult in the face of a marriage discrimination amendment. Wisconsin is known for its excellent public universities (I am a proud product of Madison's law school), but we have suffered from significant "brain drain" here in Wisconsin with 52,000 college graduates leaving the State in the 1990's. A same sex marriage ban would advance the significant loss of young professional talent in Wisconsin because most people under 34 support marriage or civil unions for gay couples. Richard Florida, a Carnegie Mellon professor, economic development expertand pioneer of the young professional movement, researched this issue and found that geographic areas that demonstrate diversity and tolerance of gay people are more likely to attract high-tech industries and employees to support those industries.

In summary, I will be a future business owner in Wisconsin. I do not want the Legislature to move forward on an amendment which, if passed, will prevent me from offering the benefits that I choose for my employees. Also, I, like most small business people, are able to be more financially viable if the community around me is doing better financially, so I am deeply concerned by a proposal that will tell business that Wisconsin shuts its door to progressive benefits and homosexual employees.

It is no secret why the same sex marriage amendment is being put on the ballot to coincide with the election for Governor. The Republican Legislature hopes to bring out voters on this issue to encourage support for their candidate. I vote based on the candidate and have never joined a party, nor voted the party line in an election. I can tell you that playing politics with the lives of Wisconsin families and with Wisconsin business interests is ugly politics and something that is offensive to me. Such action does not encourage me to weigh a Republican candidate for governor on his or her merits; I would be inclined to dismiss such a candidate out of hand. I expect as knowledge of this political scheme moves forward in the next twelve months that many moderate voters will share my perspective.

By TODD RICHMOND
Associated Press Writer

MADISON, Wis. (AP) -- Ray Vahey and Richard Taylor have been in love for almost 50 years. They share meals, an apartment, a car. What they can't share are taxes, dental insurance or Social Security benefits.

"We have yearned for a marriage recognized in America," Vahey said.

Rebekah Gantner, a home-schooled 19-year-old from Watertown, never wants to see that happen. In her book, being gay is a sin and letting homosexuals marry would tear apart society.

"If marriage became just for anyone, our society and the next generations to come aren't what it should be or what it used to be," she said.

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Republican lawmakers are right with her. They're pushing an amendment to the Wisconsin Constitution that would ban gays like Vahey and Taylor from ever getting married.

Current state law defines marriage as a union between a man and wife, but the GOP fears judges could interpret that wording to mean gays can marry, too.

The gay community and activist groups say the amendment amounts to thinly veiled discrimination and could strip away employment benefits for same-sex couples.

Some 300 people, including Vahey, Taylor and Gantner, jammed a public hearing before the Senate and Assembly judiciary committees Tuesday to sound off on the idea. So many people showed up legislative pages had to herd them into two overflow rooms.

The scene was a virtual replay of a similar public hearing last year. The amendment must pass two consecutive legislative sessions and a statewide referendum.

The GOP-controlled Legislature easily passed the ban last year. The hearing Tuesday marked the first step toward passage this session.

Neither committee was expected to vote on the amendment Tuesday, but passage through the full Legislature is all but inevitable given that Republicans backing the measure control both the Assembly and the Senate. Democratic Gov. Jim Doyle plays no role in adopting a constitutional amendment.

That means voters could see the question on the ballot in November 2006.

Nineteen other states have approved similar constitutional bans to gay marriage. Wisconsin's version defines marriage as between one man and one woman and bans any legal status "substantially similar" to marriage for people who aren't married. The amendment doesn't define such a status.

Rep. Fred Kessler, D-Milwaukee, questioned whether that ambiguity means employment benefits already in place for same-sex couples would be rolled back. Sen. Scott Fitzgerald, R-Juneau, the amendment's co-author, said he believes the measure wouldn't prohibit a public or private employer from offering such benefits, although a court may have to make the ultimate interpretation.

The amendment's other author, Rep. Mark Gundrum, R-New Berlin, said Wisconsin must adopt it after the Massachusetts Supreme Court legalized gay marriage. He said allowing such unions would force schools to teach children about alternative families, making their teen years even more confusing.

Vahey, 67, and Taylor, 80, told the committees they met in 1956.

"We've become like one in our thinking," Taylor said later. "We're part of each other."

Because they can't marry, the Milwaukee men pay more in taxes because they can't file jointly. Taylor can't share any of Vahey's work-provided insurance or pension options, and whoever outlives the other isn't entitled to share in his Social Security benefits.

Taylor fought with the U.S. Navy during World War II for the same rights as straight people, Vahey said.

"This is not 1956 and millions of (young gay people) are just beginning to build their lives as we did," Vahey said. "They will not stand for being shunned, disenfranchised and treated as second-class citizens."

Gantner, the 19-year-old from Watertown, said she was raised in a traditional home with five brothers and four sisters. Her parents taught her morality and to follow God, she said.

"They have shown me the love of both a mother and a father," she said. "A marriage is the permanent union of a male and a female who complete each other in their differences."

"Divided Consent" 4th Amendment Issue Heard Before U.S. Supeme Court

2005-11-08T15:11:00.000-08:00

Today the U.S. Supreme Court heard oral argument in a "divided consent" case (Georgia v. Randolph). The State of Georgia petitioned for cert. after the Georgia Supreme Court held that consent of both cohabitants is required to justify a warrantless search. The case involves the police requesting to enter the Randolph's home. The accused's wife consent to the search, but Mr. Randoph objected. The police entered the home based on the consent of one of the cohabitants. The Georgia Supreme Court affirmed that the husband's right to be free from unreasonable searches and seizures was violated by the police search. The State of Georgia asked the U.S. Supreme Court to hear the case and they will hear argument today.

The Georgia Supreme Court reached the correct decision. It is my hope that the Roberts' Court upholds the decision and protects the 4th Amendment right of cohabitants. The 4th Amendment is designed to protect the home from unwelcome government intrusion. Kyllo v. United States, 533 U.S. 27, 31 (2001) (the home is the principal space protected by the Fourth Amendment); and Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 620 (1989) (a search or seizure absent a judicial warrant is unreasonable except under certain well-defined circumstances.) As stated by the U.S. Supreme Court, “[p]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed...” United States v. U.S. District Court, 407 U.S. 297, 313 (1972).

There are only limited circumstances in which a search may be done by the police without a warrant. These are were there are: exigent circumstances (gunshot is heard outside a house by police or the house is on fire), were contraband is seen in "plain view" or where there is consent by the property owner.

The U.S. Supreme Court has approved searches based on “third party consent” only when the subject of the search has voluntarily relinquished his right to exclude the police, in other words, when the owner has put someone else in charge of their property. See Frazier v. Cupp, 394 U.S. 731 (1969)(allowing “third party consent” when consent was given by a person to whom the defendant had entrusted the property being searched); see also, United States v. Matlock, 415 U.S. 164 (1974) (allowing “third party consent” when one of the occupants of a house consented and none of the others were present or objected.) In contrast, the search of a rented home based on the landlord’s consent was found invalid where the tenants had not consented to the search or relinquished control of the property to the landlord. Chapman v. United States, 365 U.S. 610 (1961).

The United States Supreme Court has never suggested that the police can search a home when the individual target of the search is present and does not consent, simply because a consenting resident had common authority over the property. Indeed, the Court’s cases reject such a notion. As examples, third party consent cases have held that hotel employees could not validly consent to the search of guests’ rooms, even though the employees had a right to access the room. See, Stoner v. California, 376 U.S. 483 (1964)(hotel clerk); United States v. Jeffers, 342 U.S. 48 (1951)(assistant manager); and Lustig v. United States, 338 U.S. 74 (1949) (manager).

In the case before the Court, Randolph never relinquished his ownership right to his home to his wife. As such, any evidence derived from the illegal entry ought be suppressed. The Georgia Supreme Court came to this conclusion and held that consent to warrantless search of home given by defendant’s wife, while defendant was present was not valid without his consent. Additionally, last week the Connecticut Supreme Court reached a similar decision. In State v. Brunetti, 276 Conn. 40, --- A.2d ----, 2005 WL 2678818 (Conn.,2005), the Connecticut Supreme Court held that when joint occupants have equal control over the premises, and both are present when consent to search is sought, both joint occupants must give their consent in order for the ensuing search to be valid). Years ago the Washington State Supreme Court reached the same conclusion. See State v. Leach, 113 Wash.2d 735 (Wash., 1989)(holding the police must obtain the consent of a cohabitant who is present and able to object in order to effect a valid warrantless search).

In Randolph, the Georgia Supreme Court distinguished United States v. Matlock, 415 U.S. 164 (1974) and Illinois v. Rodriguez, 497 U.S. 177 (1990), noting that in neither of those cases were law enforcement faced with the physical presence of joint occupants, with one consenting and the other objecting to the search. The Randolph opinion concluded that consent by one cohabitant is sufficient when the other cohabitant is absent, but if “the cohabitant be present and able to object, the police must also obtain the cohabitant’s consent. Any other rule exalts expediency over an individual’s Fourth Amendment guaranties.” Id. at 615.

The U.S. Supreme Court ought affirm this principle and protect the 4th Amendment rights of individuals who share their home with relatives or roommates and not put them on lesser footing then those who choose to live alone.

More Police Departments Using Taser Guns - WISCONSIN PUBLIC RADIO

2005-09-13T09:09:00.000-07:00

I was quoted on Wisconsin Public Radio this morning regarding the purchase of additional TASER weapons in Madison. You can listen to the story with RealAudio by clicking on the link below. (Although, I volunteered to assist the ACLU in this matter, I do not work for them as the story suggests.)

09/13/05

Now that the state Justice Department has come up with standards for using stun guns, more police departments are getting the devices. Critics say the weapons may not be safe for suspects and may even be harmful to officer's safety in certain situations. Shamane Mills reports…

Listen to the story:

http://www.wpr.org/news/newsstories.cfm

Running time 1:50

Judge lets rave arrests stand, ACLU vows to continue fight - FLINT JOURNAL

2005-09-09T13:52:00.000-07:00

Here is another article about Flint, Michigan trial Judge Roberts's disappointing decision. In her holding she undermines the First Amendment rights to free association and free speech. It also violated the presumption in our system that guilt is individual, not collective and that we are responsible for the consequences of our own acts and not the acts of others.

As the U.S. Supreme Court has recognized “[T]he right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct …that itself is not protected.” NAACP v. Claiborne Hardware Company, 458 U.S. 886, 908 (1982). While the citations against those who have in fact committed offenses may be sustained, “mere association with [a] group - absent a specific intent to further an unlawful aim embraced by that group - is an insufficient predicate for liability.” Id. at 920-26. “[G]uilt by association alone without (establishing) that an individual’s association poses a threat feared by the Government, ‘is an impermissible basis upon which to deny First Amendment rights [such as the right to free association at issue here].’” Healy v. James, 408 U.S. 169, 186 (1982) (quoting United States v. Robel, 389 U.S. 258, 265 (1967).

Additionally, Judge Roberts states that one should be aware of the presence of drugs at a "rave" in other words saying that if you enjoy a disfavored type of music, here electronic music, the government ought be allowed to arrest you. Not only is the premise that "raves" have a higher incidence of drug use flawed by a study by the Dept. of Justice, but its also unconstitutional to penalize someone based on musical taste. See Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989) ("Music, as a form of expression and communication, is protected under the First Amendment."); Reed v. Village of Shorewood, 704 F.2d 943, 950 (7th Cir. 1983 (rejecting effort to close bar because of playing rock music); Fact Concerts, Inc. v. City of Newport, 626 F.2d 1060, 1063 (1st Cir. 1980) rev'd on other grounds, 453 U.S. 247 (1981)(ban on rock concert is content-based restriction on speech); Cinevision v. City of Burbank, 745 F.2d 560, 566 (9th Cir. 1984).

Judge Roberts' decision has chilled a legitimate form of artistic and cultural expression. The decision is wrong on the law and a strike at the heart of the First Amendment.

Friday, September 09, 2005By Ken Palmer
kpalmer@flintjournal.com • 810.766.6313

FLINT - A judge Thursday refused to dismiss charges against dozens of people arrested on charges of frequenting a drug house during a controversial raid on a Flint nightclub in March.

Flint District Judge Ramona M. Roberts said the arrests did not violate the free speech and free assembly rights of those who attended the rave party at Club What's Next and were not caught with illegal drugs.

The ruling was a setback for the American Civil Liberties Union, which represents 93 people cited under a city ordinance.

Roberts agreed to stay the cases while ACLU lawyers appeal her ruling to Genesee Circuit Court.

City attorneys lauded the decision, saying it will help keep promoters from holding drug-based events in the city.

The ACLU vowed to fight the cases all the way through the court system, if necessary.

"Unless this decision is reversed, the police will be able to arrest anyone in a licensed nightclub or any music concert whenever a stranger lights up a marijuana cigarette," said Ken Mogill, who leads a team of 10 ACLU attorneys working on the case.

The March 20 party at Club What's Next, 2511 W. Pasadena Ave., had been promoted for months on the Internet and drew people from southern Michigan and other states, police said.

Flint police and the Genesee County Sheriff's Department arrested 130 people after undercover officers and civilian operatives bought Ecstasy, LSD and a psychedelic mushroom inside the club, they said.

About 17 people, including the promoter, were arrested on felony drug charges. The other partygoers were arrested on misdemeanor drug possession charges or for frequenting a drug house, a maximum 90-day misdemeanor.

Officers seized Ecstasy pills, LSD, the date-rape drug GHB and Ketamine, an animal tranquilizer.

ACLU attorneys argued the arrests violated the partygoers' rights to free speech, free association and free expression. They also claimed the city ordinance was vague and overbroad.

Roberts said the ordinance specifically bars someone from knowingly going into a place where drugs are being sold or used, even if it's a licensed establishment.

The culture of dance parties or raves means that people who attend them can expect there will be drugs, the judge said.

Police saw open drug dealing and use and had probable cause to arrest and search partygoers, she said.

Roberts said she will hold a separate hearing on the officers' conduct during the raid. Some partygoers claim they were subjected to inappropriate strip searches or illegal body cavity searches.

The city denies that officers conducted body cavity searches, which require a search warrant.

Motion to Dismiss Denied in ACLU Case Representing Dance Club Patrons Subjected to Mass Arrest and Searches - ACLU OF MICHIGAN

2005-09-08T14:47:00.000-07:00

The trial judge in the Flint, MI, club raid issued a disappointing decision denying the ACLU's motion to dismiss.

September 8, 2005 - Press Release

DETROIT – The American Civil Liberties Union of Michigan expressed dismay today that the motion to dismiss the charges against 93 young men and women arrested, strip searched and/or cavity searched by the Flint police was denied. All of the people, represented by a team of lawyers from the ACLU, were drug free when they were at a dance club last March where other patrons in the bar possessed drugs, but charged with “frequenting a drug house.

“The ACLU is committed to defending these clients as long as it takes to vindicate their rights. Arresting, strip searching and cavity searching drug-free patrons of a licensed nightclub is not only unconstitutional, it is frightening,” said Kary Moss, ACLU of Michigan Executive Director. “These young people simply did what thousands like them do all over the country, they went to a licensed and legal club on a Saturday night to listen to music, dance and socialize.”

On March 20, undercover officers from the Genesee County Sheriff’s Department and the Flint Police Department, entered Club What’s Next, a Flint dance club, to investigate possible drug activity. While the undercover officers reportedly bought drugs from certain individuals in the bar, nobody represented by the ACLU possessed drugs or drug paraphernalia. Nonetheless, a team of police officers raided the club and charged all patrons who did not possess drugs with a misdemeanor for “frequenting a drug house.”

“Unless this decision is reversed, the police will be able to arrest any one in a licensed nightclub or any music concert whenever a stranger lights up a marijuana cigarette,” said Ken Mogill, the ACLU cooperating attorney leading the 10 person legal team. “That’s absurd.”

During the raid, the dance club patrons were handcuffed and divided into two groups – males and females. Most men were taken into a men’s bathroom and searched, sometimes two at a time, and told to raise their shirts, drop their pants and underwear, and to bend over and cough. Some were told to put a finger into their anus. Those who were still handcuffed had their pants and underwear pulled down to around their knees by officers. One man was reportedly stripped on the side of the road after he had left the club.

Women were taken into a women’s bathroom and searched, at times in the presence of others. Some were told to lift their shirts and bras in front of eight male officers. An officer commented to one woman about the size of her breasts and asked if they were “real.” Several women have reported that they were subjected to cavity searches. One woman reported that the officer did not change the latex glove in between searching her vagina and anus.

“When did it become a crime for enjoying music at a legal venue?” said Gregory Gibbs, ACLU-Flint Branch president and one of the attorneys in the case. “Such a policy would have a tremendous chilling effect on free expression.”

In addition to asking the court to dismiss the charges, the ACLU told the judge in August of the egregious police conduct involved in these arrests, and asked the court to direct the arresting agencies to return to all records of each arrest, including arrest and description case, photographs and photographic negatives and any other records in this incident to each its clients.

This case is the latest of several incidents involving law enforcement misconduct that the ACLU is investigating. Most recently, a lawsuit was filed against the Saginaw County Jail for the egregious conditions where pre-trial detainees are forced to strip and are held naked in a segregated cell. Last year, the ACLU successfully resolved a class action filed on behalf of approximately 250 women who alleged privacy violations in the Livingston County Jail. The county agreed to implement policies to correct the longstanding privacy violations.

In addition to Mogill and Gibbs, other ACLU volunteer lawyers on the case include: Elizabeth Jacobs, Jeanmarie Miller, Glenn Simmington, Dean Yeotis, Chris Pianto, Matthew Abel and Michael Segesta.

Can Defense Counsel Ethically Breach a Plea Agreement?

2005-08-31T13:16:00.000-07:00

http://www.wisspd.org/html/publications/WdefSummer05/PleaBreach05Sum.pdf

Expanding Crawford v. Washington: The Need for An Absolute Confrontation Clause

2005-08-31T13:14:00.000-07:00

Last term, the United States Supreme Court announced its decision in Crawford v. Washington,2 which overruled the "Roberts framework"3 as a means to determine the admissibility of an out of court statement in which the declarant was unavailable to testify at a criminal trial.4 The "Roberts framework" allowed the admission of out of court testimony if the statement bore "adequate 'indicia of reliability'", 5 which meant that the evidence must either fall within a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness."6

Lower courts struggled with the application of Roberts, 7 and the U.S. Supreme Court finally abandoned it in Crawford v. Washington. Justice Scalia's opinion looked to the historic context of the Sixth Amendment and created a test based on the nature of the statement.8 The new test requires a trial court to first determine whether a statement is "testimonial" or "non-testimonial". If the statement is found to be "testimonial" then the out of court statement is not admissible at trial unless the declarant is unavailable and the defendant had "a prior opportunity for cross-examination". If "non-testimonial", then the statement is admissible without requiring the declarant to be available for cross-examination at trial (or an earlier proceeding). This begs the question left unanswered by the Court, what does "testimonial" mean?

The Court provided some guidance by indicating that, while "leav[ing] for another day any effort to spell out a comprehensive definition of 'testimonial'", "at a minimum [testimonial statements include] prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations". 9 The use of the "testimonial" test was favored by amici (including NACDL, the ACLU, and a distinguished group of criminal law professors) and on its face appeared to be a step toward strengthening the Confrontation Clause, but it has unfortunately quickly created confusion among the lower courts 10 and at least one instance where the trial court seems to avoid the Crawford ruling. 11

The major reason for the inconsistency in the lower courts is the lack of a uniform definition of "testimonial," so courts can clearly and uniformly determine if statements are testimonial or nontestimonial. A comprehensive definition would remedy a great deal of the inconsistency in the application of the Supreme Court's test. For example, the 6th Circuit Court of Appeals has adopted Professor Robert Friedman's logical approach that a statement is "testimonial" if it was "made in circumstances in which a reasonable person would realize that it likely would be used in investigation and prosecution of a crime."12

The other concern arising from the Crawford opinion is that Justice Scalia has arguably invited inconsistent results in applying the Confrontation Clause in cases of nontestimonial hearsay. Given the undefined nature of the term "testimonial", that concern extends to the application of the Crawford test in any instance other than those circumstances specifically described in the Supreme Court opinion. In Crawford, Justice Scalia wrote that "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." 13

Justice Scalia's language appears to invite State court's to create their own hearsay rules for nontestimonial statements. It opens the door for an interpretation that the Confrontation Clause would not provide an accused with any right to confront a hearsay statement deemed to be non-testimonial. 14 The undefined nature of "testimonial" places discretion with the trial courts to make a determination that can avoid the Confrontation Clause altogether for testimony that they characterize as "non-testimonial." This gives judges, like Judge Greenberg who found that a 911 call was "nontestimonial" apparently under any circumstance, 15 the ability to craft a desired result simply by determining a statement is "non testimonial."

In order to correct these results, at the minimum, a clear standard for testimonial statements should be laid out by the United States Supreme Court. The inconsistencies under both the Roberts framework and the Crawford test support the assertion that, in order for the rights of the Confrontation Clause to be secure, it should apply to all statements to be used in court against a defendant. The Confrontation Clause should be interpreted to provide the right of the accused to cross-examine all statements introduced by the prosecution without the use of a "testimonial"/"nontestimonial" inquiry.

The danger of Justice Scalia's invitation to state court judges's to define types of statements as non testimonial is more than the just lack of consistency in the law. The impact of the Supreme Court's lack of guidance has already been dramatically felt in People v. Moscat. Unfortunately, it is not difficult to imagine even more severe results.

For example, picture a scenario where the prosecution seeks to introduce a statement from "an ancient text" in trying an individual accused of possession of child pornography. The document is a 20 year old article from a poorly-circulated tabloid newspaper which includes a statement that your client "likes them young" and that the commentator "wouldn't leave [your client] alone with her children".

Your client informs you that the individual providing the statement was a former romantic interest, who made negative comments to the press in retaliation to their break-up. Your client has no idea where this individual currently resides. You employ an investigator but are unable to locate the individual. The prosecutor intends to use the statement, and the matter comes before the court. Despite diligent efforts, you inform the court that the person providing the quote to the newspaper can not be located for service.

The trial judge reviews the statement and analyzes it under the Crawford test. The judge finds correctly that the statement was not made in circumstances in which a reasonable person believed would lead to investigation of a crime, focusing on the lack of any investigation at that time, the low circulation of the document, and that the statement did not refer to any specific act. The court finds that the statement was "nontestimonial" in nature, and rules that it will be admissible at trial.

The result does not allow for your client to confront and cross-examine the statement, which can lead to damaging results at trial. It does not provide the defendant with the opportunity to inform the jury as to the rationale behind the statement or to explore or dispute the statement through cross-examination. The jury can not gauge the credibility and truthfulness of the declarant. There is a lack of assurance as to openness of procedure to show that the statement was not coerced earlier. Finally, the lack of open testimony can create doubt as to the accuracy of the declarant's position.

In sum, the statements by Justice Scalia provide an opportunity for courts to void the result of Crawford by characterizing a statement as nontestimonial and creates the opportunity for result-oriented judging disregarding the Sixth Amendment's Confrontation Clause protection, just like it created that opportunity under the Roberts framework. The reality is that the result that Justice Scalia indicated that he sought to avoid, though the Crawford decision, has already reared its head.16

While the majority opinion rightly points out that the Crawford framework can "hardly be any worse than the status quo [under the Roberts framework]", it left to the state courts, provided with no definition of "testimonial", to determine whether the new framework will be any better.

Civil libertarians should advocate for a standard in which the Confrontation Clause requires that statements sought to be introduced by the prosecution at a criminal trial are inadmissible unless the prosecution is able to provide the author of that statement at trial. The only exceptions to that rule would be in circumstances where the accused caused the unavailability of the witness,17 or waived objection to the statement. This would eliminate the ability to introduce statements in which the defendant had a prior opportunity to cross-examine that statement but the witness was not available at trial (since this would not allow the jury the opportunity to observe the demeanor of the witness and make credibility determinations) and also not allow the admission of dying declarations in a criminal trial (since the defendant can have no opportunity to cross-examine the declarant for possible animus in making the statement or other bias).

Instead of courts subjectively attempting to interpret the rationale behind an individual providing a statement, as required under Crawford, the Confrontation Clause should be given its proper meaning and require that the defendant have the opportunity to cross-examine any statement used by the prosecution, whose intent to prosecute is clear. Only under this absolute framework, can "the accused enjoy ... the right ... to be confronted with the witnesses against him" as provided for under the Confrontation Clause of the Sixth Amendment.

--------------------------------------------------------------------------------

This article is based on a portion of the materials the author prepared as part of the "Wisconsin Criminal Litigation Update" seminar panel hosted by the Professional Education Systems Institute, LLC.
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Crawford, 124 S.Ct. at 1378 (Rehnquist, C.J., concurring). As discussed in this article, it is unclear whether the Roberts framework will be applied to nontestimonial statements consistently by lower courts. However, thus far two reviewing courts have concluded that the Roberts analysis is still valid for nontestimonial statements. State v. Rivera, 844 A.2d 191, 202 (Conn. 2004)("because this statement was nontestimonial in nature, application of the Roberts test remains appropriate"); State v. Blackstock, 598 S.E.2d 412 (N.C. App. 2004) (holding that a nontestimonial statement was still barred by Roberts).
Ohio v. Roberts, 448 U.S. 56 (1980).
Id., at 65.
Id., at 66.
Crawford, 124 S.Ct. at 1371.
The majority opinion was unanimous as to the result, and garnered a 7-2 vote as to overruling Roberts.
Crawford, 124 S.Ct. At 1374.
For example, 911 calls, statements to police officers responding to 911 calls and statements to private victim services organizations have been found to be "testimonial" and also "nontestimonial" by lower courts.
In People v. Moscat, 777 N.Y.S.2d 875, 2004 N.Y. Slip 24090 (N.Y. City Crim. Ct. 2004), a Bronx man was accused of threatening and punching his girlfriend, who refused to testify. Bronx Criminal Court Judge Ethan Greenberg issued an opinion on March 25, 2004, allowing in a 911 call believed to be of the girlfriend to be played to a jury without the defendant having an opportunity to cross-examine the statement in disregard of Crawford. His opinion appeared to be that 911calls are simply not testimonial under any circumstance. This judicial grandstanding ended up coming back to haunt Judge Greenberg and provide a lesson as to the rationale behind the Confrontation Clause. It turns out the caller was not the alleged victim and the call was made roughly nine hours after the incident. Prosecutors abandoned the case. See Sabrina Tavernise, Legal Precedent Doesn't Let Facts Stand in the Way, N.Y. Times, Nov. 26, 2004, p. A1. However, Moscat has been cited approvingly by other courts, and at least one court has extended the rationale to statements made to officers responding to 911 calls. People v. Aubrey, 2004 WL 2378400 (Cal.App. 4 Dist. Oct. 25, 2004).
U.S. v. Cromer, 2004 WL 271130 (November 30, 2004).
Crawford, 124 S.Ct. at 1374.
This interpretation was already suggested by at least one Wisconsin commentator. See Steven M. Biskupic, Hearsay and the Confrontation Clause, Wisconsin Lawyer, May 2004, at 19.
See note 12, supra.
Justice Scalia wrote that "judges, like other government officers, could not always be trusted to safeguard the rights of the people...". and that "[the Framers] were loath to leave too much discretion in judicial hands". Crawford, 124 S.Ct. at 1373.
This is referred to as the "forfeiture by wrongdoing" exception. United States v. Dhinsa, 243 F.3d 635, 651 (2nd. Cir. 2001). In order for the prosecution to admit testimony based on this exception they should be required to show "beyond a reasonable doubt" that the defendant caused the inability of the witness to testify. The prosecution should not be able to show that defendant's complicity through only the lower "preponderance of evidence standard" which has been applied by some courts. See White v. United States, 116 F.3d 903, 911-913 (App. D.C. 1997).

ACLU, Flint battle on in nightclub case ACLU says patrons' rights were violated - ABC 12

2005-08-30T09:37:00.000-07:00

A decision in the Flint, MI, dance club raid is expected on September 8th...

ACLU, Flint battle on in nightclub case ACLU says patrons' rights were violated
By Josh DeVine

Flint - (08/30/05)--The back and forth continued Tuesday between the American Civil Liberties Union and the city of Flint.

The ACLU says the city's police force crossed the line during a drug bust back in March. Both sides argued it out Tuesday afternoon in front of a judge.

There's still no final decision in the case. It all has to do with a bust at Club What's Next in March.

Police arrested 117 people, charging most with frequenting a drug house. That's a misdemeanor.

But ACLU attorneys say police handcuffed and strip searched those people. They say that further violated their rights and they want their charges thrown out.

The courtroom was again packed before Chief Judge Ramona Roberts.

In arguments Tuesday, the city's attorney said undercover officers smelled marijuana and witnessed several drug deals inside the club that night.

But they argue everyone there knew some people at the club were doing drugs. The ACLU disagrees. Their attorneys say police did not have a right to arrest every person there.

Attorneys for the city say officers had the legal grounds to do what they thought it took to stop the deals. Several people do face felony charges in connection with the night's bust. They're not part of this case.

Roberts will issue her decision on those misdemeanor charges Sept. 8. Either side could appeal from there.

http://abclocal.go.com/wjrt/story?section=local&id=3397380

Group arrested at club cries foul - WWW.ABC12.COM

2005-08-29T09:47:00.000-07:00

ACLU asks judge to throw out charges
By Joel Feick
Flint - (08/29/05)--When Flint police busted a so-called rave party back in March, more than 100 people were arrested. Now lawyers for those defendants are crying foul.

The American Civil Liberties Union is asking a Flint judge to throw out the charges against 93 men and women who were arrested in the spring at the "What's Next" dance club.

The suspects packed Judge Ramona Roberts courtroom Monday, many of them represented by counsel.

Flint police say there was open drug use at the club that night and that drugs like ecstasy, GHB and cocaine were confiscated from patrons.

Of the 118 arrests, 17 were felonies. Flint police will present evidence to show they feel the arrests were justified.

But an ACLU attorney says the cops went overboard, arresting people who weren't using or possessing drugs. One of those arrested says she was violated.

Roberts' decision on whether to throw out the case was not reached Monday. The case was adjourned until Tuesday at 2 p.m.

A Flint police lieutenant says promoters of similar rave parties beat tickets in other jurisdictions with the help of the ACLU.

http://abclocal.go.com/wjrt/story?section=local&id=3393528

ACLU Defends Club-Goers - NBC 25

2005-08-29T09:44:00.000-07:00

Reported by Dan Armstrong, darmstrg@nbc25.Net

Humiliated and violated. That's how more than 100 Flint club-goers feel after being arrested for something they say they didn't do.

Dozens of young people were arrested at club What's Next in March. Police said the young people were guilty of "frequenting a drug house," and that drug deals were going down there.

But these young people said they weren't a part of it.

Jennifer Thompson of Taylor was one of the people arrested.

"It was a very traumatizing experience, especially since I'm not a drug user. I've never been," she said. "It's terrible. I got arrested for something I never think of doing."

Attorneys from the American Civil Liberties Union tried in court Monday to get charges against the club-goers dropped.

Attornies for the city of Flint are withholding comment until they present their case Tuesday at 2 p.m. Judge Ramona Roberts said she won't make a decision until all of the attorneys are heard.

http://www.weyi.com/home/1704011.html