Drug Take Back Day is October 22
A Dose of Reality for All AGs
As Chair of the National Association of Attorneys General (NAAG) Midwestern Region, I recently hosted the regional NAAG conference in Milwaukee. Thanks to the hard work of a number of members of our DOJ staff and a roster of really fantastic presenters, most of whom are from right here in Wisconsin, the event was a great success.
The topic of the conference was "The Role of the Attorney General in Fighting Opiate Abuse." We undertook a comprehensive examination of the kinds of partnerships and initiatives that will be necessary to stem this public health crisis that is devastating lives across our state and the nation. In attendance were attorneys general (AGs) and executive level staff from AGs’ offices from around the country, as well as representatives of many of the industries and organizations that are partners in addressing this challenge.
I chose the topic not just because I have made the opiate epidemic my top priority, but because Wisconsin has been recognized as a leader nationwide in attacking the opiate and heroin crisis.
We started by examining the scope of the problem and how the state found itself in this position. We then went on to explore what we can do to solve the problem. Conference topics included: best practices in providing drug abuse treatment, including medication assisted treatment; building successful collaboration with professional associations and organizations; creating a successful Prescription Drug Monitoring Program; enacting helpful legislation and policy initiatives; building a successful drug disposal program; making effective use of local, state and federal law enforcement resources; changing the prescriptive culture within the medical community; organizing an impactful public awareness program; and promoting evidence-based treatment and diversion courts. The conference was capped by a powerful presentation by a family who has lived through the devastation of opiate addiction.
One of the best demonstrations of the collaborative approach Wisconsin is taking to fight the opiate epidemic was a panel of representatives from professional associations and organizations: Dr. Joe Best from the Wisconsin Dental Association, Mark Grapentine from the Wisconsin Medical Society, Danielle Laurent from the Pharmacy Society of Wisconsin, and Steve Rush from the Wisconsin Hospital Association. These four professionals presented how building trust across disciplines - whether criminal justice, healthcare, public policy, or legal - creates comprehensive solutions that everybody can support and endorse. In addition, Representative John Nygren addressed the conference and discussed the Heroin, Opioid Prevention and Education (HOPE) Agenda, which passed the Wisconsin State Legislature unanimously, and with the support of stakeholders across the medical profession.
At the end of the event, I challenged everyone in attendance to think about what they can do to help put an end to this epidemic. From my perspective, as Wisconsin Attorney General, the answer is "whatever it takes."
Last, don't forget that Saturday, October 22, 2016, is the next Drug Take Back Day. Clean out your unused prescription and over the counter medications and have them safely destroyed. Go to DoseOfRealityWI.gov/Find-A-Take-Back-Location for more information about the most convenient collection location near you. Last spring, we collected a record-breaking 64,000 pounds of unused medications. Let's work together to break the record again!
Wisconsin Argues Clean Power Plan Case Before United States Court of Appeals for the D.C. Circuit
Wisconsin Solicitor General Misha Tseytlin was before the United States Court of Appeals for the D.C. Circuit in September, arguing State of West Virginia, et al. v Environmental Protection Agency (EPA), et al. on behalf of Wisconsin Attorney General Brad Schimel and the State of Wisconsin. Wisconsin and a bipartisan coalition of states seek to invalidate the Clean Power Plan, which effectively allows the EPA to set state energy policy by manipulating the electricity market and controlling the electric grid, a role previously reserved for state regulators. The rule is an illegal expansion of EPA’s authority, beyond what is permitted by the Clean Air Act.
Protect Kids Online: An Interview with Attorney General Brad Schimel
The Wisconsin Department of Justice, Internet Crimes Against Children (ICAC) Task Force launched The Protect Kids Online (PKO) Podcast in August. The PKO Podcast is designed for parents, grandparents, guardians, or caregivers of children and contains information about the trends and updates on the latest apps, websites, and online activity of children 17 years and younger.
In September, Attorney General Brad Schimel met with PKO’s hosts to discuss his experience prosecuting our state’s most sensitive cases, information for parents to be aware of from a statutory perspective, and most importantly, the prevention and recovery services offered to citizens in Wisconsin.
Ask the Office of Open Government
Q: As a private citizen, do I have a right to speak at my city council’s public meetings?
A: The Wisconsin Open Meetings Law acknowledges the public is entitled to the fullest and most complete information regarding government affairs as long as it does not hinder the conduct of governmental business. All meetings of governmental bodies, such as a city council, shall be held publicly and be open to all citizens at all times unless otherwise expressly provided by law. The open meetings law does not require a governmental body to allow members of the public to speak or actively participate in an open session meeting. The law only grants citizens the right to attend and observe open meetings.
However, the law permits a governmental body to set aside a portion of an open meeting as a public comment period. While public comment periods are not required, if a governmental body decides to have such a comment period, it must be included in the meeting notice.
There are other state statutes—other than the open meetings law—that require governmental bodies to hold public hearings regarding certain matters. Unless such a statute specifically applies, a governmental body has wide discretion over any public comment period it chooses to permit. Besides the discretion over whether to allow public comments at all, a body also has discretion to decide to what extent it will allow public participation. For example, a governmental body can limit how much time each citizen may speak.
If a governmental body permits a public comment period, it may receive information from the public, and it may discuss any subject raised by a member of the public. A body may not take any formal action on such a subject unless it was identified in the body’s meeting notice. If a citizen raises a subject that is not included on the meeting notice, it may be advisable for the body to limit substantive discussion on the subject until a subsequent meeting in which the body can include the subject on the meeting notice.
Wisconsin Leads Charge in Antitrust Lawsuit Against Makers of Suboxone
Last month, Wisconsin Attorney General Brad Schimel and a bipartisan group of 35 other attorneys general filed an antitrust lawsuit against the makers of Suboxone a brand-name prescription drug used to treat heroin and opioid addictions by easing addiction cravings. The lawsuit, being led by Wisconsin, alleges the companies engaged in a scheme to block generic competitors and cause purchasers to pay artificially high prices.
Reckitt Benckiser Pharmaceuticals, now known as Indivior, is accused of conspiring with MonoSol Rx to switch Suboxone from a tablet version to a film (that dissolves in the mouth) in order to prevent or delay generic alternatives and maintain monopoly profits.
The companies are accused of violating state and federal antitrust laws.
“Wisconsin and the nation are suffering hundreds and thousands of opiate-related deaths each year, and we cannot allow treatment barriers to exist for those suffering from addiction,” said Attorney General Schimel. “We have an obligation to prevent monopolies, like the one the makers of Suboxone engaged in, in order to have an even playing field for the rest of the industry and to prevent artificially increased costs to consumers.”
State v. Christopher Joseph Allen
Christopher Joseph Allen pled no contest to, and was convicted of one count of homicide by intoxicated use of a vehicle and one count of injury by intoxicated use of a vehicle resulting in great bodily harm. The court ordered a pre-sentence investigation (PSI) without recommendation. The PSI indicated that Allen had a municipal citation ticket, which had been paid, and a 7-year-old conviction for substantial battery, which had been expunged. At sentencing, the court sentenced Allen to a total prison of nine years – five years of initial confinement followed by four years of extended supervision. Allen filed a postconviction motion arguing that he was entitled to a new sentencing hearing because: (1) the circuit court erred when it considered his expunged conviction at sentencing; and (2) trial counsel was ineffective for failing to object to the references to the expunged conviction in the PSI at sentencing. The trial court denied Allen’s request, stating that it did not consider his “prior conviction,” but considered his “prior supervision and his opportunity to learn from that experience,” which did not violate State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341. Further, because Leitner does not preclude a court from considering the fact of an offender’s prior supervision and failure to learn from that experience, there was no ineffective assistance on the part of trial counsel for failing to raise an objection.
Allen appealed, arguing that: (1) the circuit court violated Leitner when it considered Allen’s previous expunged conviction at sentencing; and (2) trial counsel was ineffective for failing to object to the references to Allen’s expunged conviction in the pre-sentence investigation and at sentencing. The Court of Appeals affirmed, concluding that Leitner permits sentencing courts to consider “the facts surrounding the entire underlying expunged criminal record,” not just the facts of the underlying crime.
Allen now asks the Supreme Court to determine whether the trial court violated Leitner when it considered that he had an expunged conviction and served a term of probation in imposing his sentence. The case is being argued by Assistant Attorney General Warren Weinstein.
State v. Denny
Jeff and Kent Denny, two brothers from Grafton, were convicted of the 1982 murder of Christopher Mohr on the strength of mountain of evidence, including thirty-six separate inculpatory statements and direct confessions of guilt made by the brothers to multiple witnesses. Although numerous items were collected from the crime scene, DNA testing was not available at the time.
Thirty-two years later, in 2014, Jeff Denny filed a motion for post-conviction DNA testing of approximately one dozen separate items found at the murder scene. The circuit court denied the motion, finding that such testing was not likely to change the verdict. The Wisconsin Court of Appeals reversed. The State is now asking the Supreme Court to reverse that decision, and affirm the circuit court’s original decision denying the DNA testing request.
In 2001, the Wisconsin Legislature passed a law allowing convicted criminals to request DNA testing of relevant evidence, but only after a judge determines that DNA testing is “reasonably probable” to result in acquittal. Since that law was passed, DNA-testing requests have increased significantly, including DNA testing for so-called “touch DNA,” where DNA can be detected without the presence of visible material, such as blood. In 2005, the Supreme Court of Wisconsin interpreted this statute to provide for more situations in which DNA testing was available, and also broadened the scope of public funding for these tests. The Wisconsin Department of Justice is calling on the Court to overrule that case, called State v. Moran. This case is being argued by Solicitor General Misha Tseytlin
State v. Brian I. Harris
Brian I. Harris was charged with burglary as a repeater and other related counts. At the time of his arrest, Harris was handcuffed and placed in an officer’s squad car. Once in the squad car, Harris made some statements. The morning after his arrest, a detective went to the jail to interview Harris, and when asked if he would like to give a statement, Harris declined.
Harris filed a motion to suppress his self-incriminating statements at the scene of his arrest and, later, in the jail, arguing that: (1) he was never given his Miranda warnings; and (2) that under the totality of the circumstances, his statements were not voluntary. The trial court denied Harris’s suppression motion. Harris proceeded to a jury trial, and the jury returned verdicts of guilty on all four counts. Harris appealed, contending that the trial court erred in admitting his incriminating statements into evidence. The Court of Appeals affirmed.
Harris now asks the Supreme Court to determine whether a defendant is deprived of his constitutional right against self-incrimination (Fifth and Fourteenth Amendments and Article I, §8 of the Wisconsin Constitution) by the admission at trial of his unwarned custodial statements made in response to law enforcement’s request for a statement. This case is being argued by Assistant Attorney General David Perlman.
State v. David W. Howes
David W. Howes was charged with operating a motor vehicle while intoxicated (OWI), fourth offense, and with a prohibited alcohol concentration, fourth offense. Before trial, Howes moved to suppress the results of a blood test on grounds that: (1) there was no probable cause to arrest him; and (2) the officer failed to obtain his consent for the blood draw. Howes also filed a supplement to his motion to suppress, seeking a declaration that part of Wisconsin’s implied consent statute, Wis. Stat. §343.305(3)(b), is unconstitutional. The circuit court concluded that: (1) the officer had probable cause to arrest Howes; and (2) that Wis. Stat. §343.305(3)(ar) and (b) are unconstitutional on their face and as applied. The State moved for reconsideration, and the court denied the motion in a written decision and order. The State appealed. District IV of the court of appeals certified the case to the Supreme Court.
The State now asks the Supreme Court to clarify whether provisions in Wisconsin’s implied consent law authorizing a warrantless blood draw from an unconscious suspect violate the Fourth Amendment. The State further asks the Supreme Court to clarify if the “implied consent” that is deemed to have occurred before a defendant becomes a suspect is voluntary consent for purposes of the consent exception to the Fourth Amendment’s warrant requirement. This case is being argued by Chief Deputy Solicitor General Ryan Walsh.
State v. Patrick K. Kozel
Patrick K. Kozel was charged with operating a motor vehicle while intoxicated (OWI), second offense, and with a prohibited alcohol concentration, second offense. At the time of his arrest, Kozel was transported to the Sauk County Jail, where an EMT-intermediate technician (EMT) drew blood from his arm. The blood draw indicated that Kozel had a blood alcohol level of 0.196. At a motion hearing to suppress the blood draw evidence, Kozel argued that: (1) the State did not prove that the EMT acted “under the direction of a physician” for the purposes of Wis. Stat. §343.305(5)(b); and (2) the State did not prove that the EMT stuck a needle in Kozel’s arm in a constitutionally reasonable manner. The trial court denied Kozel’s motion, finding that the blood draw was reasonable because it was performed by an experienced EMT who was licensed and certified “in accordance with medically accepted procedures” and who took Kozel’s blood “in accordance with the preexisting authorization” of a physician. Kozel subsequently entered a plea of no contest to OWI as a second offense, and the Court entered a judgment of conviction.
On appeal, Kozel argued (1) the State failed to prove in the lower court that the EMT was “a person acting under the direction of a physician” within the meaning of §343.305(5)(b); and (2) the blood draw was not constitutionally reasonable under either the Fourth Amendment, or Article I , § 11 Wisconsin Constitutions. The Court of Appeals reversed, finding that the EMT was acting under the license of the physician, but not under his direction. The Court of Appeals did not address whether the blood draw was reasonable, concluding that its determination that the EMT was not acting under the direction of a physician was dispositive.
The State now asks the Supreme Court to clarify: (1) whether an EMT who draws a person’s blood while under the general supervision of a doctor is a “person acting under the direction of a physician,” under Wis. Stat. §343.305(5)(b); and (2) if blood is drawn under the implied consent law by a person not authorized to do so under §343.305(5)(b), if suppression of the blood test results is required. This case is being argued by Assistant Attorney General Michael Sanders.
State v. Rozerick E. Mattox
Rozerick E. Mattox was charged with first-degree reckless homicide by delivery of heroin. To prove that the victim died as a result of a heroin overdose, the State introduced the testimony of the associate medical examiner that performed the victim’s autopsy. During her testimony, the medical examiner relied heavily on, among other things, the results of the victim’s toxicology report from the St. Louis University Toxicology Laboratory. Defense counsel objected to the introduction of the toxicology report, arguing that its use violated Mattox’s right to confrontation. The circuit court overruled the objection. The court subsequently found Mattox guilty of first-degree reckless homicide by delivery of a controlled substance. Mattox appealed, arguing that he was entitled to a new trial where the circuit court violated his right to confront witnesses against him by admitting the toxicology report and allowing the medical examiner to testify about the report. The Court of Appeals certified the case due to “significant tension” between its recent decisions in 2014 and 2015, State v. Heine and State v. VanDyke, respectively – two Confrontation Clause cases bearing “substantial similarities” to this one – and decisions of the United States Supreme Court and Wisconsin Supreme Court.
Mattox now asks the Supreme Court to clarify whether there a violation of a defendant’s rights under the Confrontation Clause (Sixth Amendment to the United States Constitution) where the State introduces at trial a toxicology report identifying certain drugs in a deceased victim’s system and/or testimony of a medical examiner basing his/her cause-of-death opinion, in part, on the information set forth in such a report, if the author of the report does not testify and is not otherwise made available for examination by the defendant. This case is being argued by Deputy Solicitor General Luke Berg.
State v. Tabitha A. Scruggs
Tabitha A. Scruggs committed felony burglary on December 30, 2013. Earlier in 2013, the legislature amended the DNA surcharge statute, effective January 1, 2014, to make the surcharge mandatory for all felony convictions. When Scruggs was sentenced on June 9, 2014, the court imposed a $250 DNA surcharge. Scruggs appealed, arguing that the mandatory $250 DNA surcharge was an unconstitutional ex post facto law as applied to the facts of her case, and should be vacated. Specifically, Scruggs argued that: (1) the mandatory DNA surcharge was intended to impose a new criminal penalty; and (2) that the surcharge was so punitive that even if it was intended to be a civil assessment, it acted as a criminal penalty. Applying the “intent-effects” test used in State v. Rachel, 2002 WI 81, 254 Wis. 2d 215, 647 N.W.2d 762, the Court of Appeals affirmed, holding that a single mandatory DNA surcharge was not an ex post facto violation because Scruggs had not demonstrated that the single surcharge imposed on her constituted a punishment.
Scruggs now asks the Supreme Court to determine whether the state and federal prohibitions against ex post facto laws are violated when DNA surcharges are imposed on defendants who committed their crimes before January 1, 2014. The Supreme Court will also determine whether the Court of Appeals misapplied the test for determining whether a law violates ex post facto by failing to separately consider the punitive intent and the punitive effect of the mandatory DNA surcharge. This case is being argued by Assistant Attorney General Jeffrey Kassel.
State v. Glenn T. Zamzow
Glenn T. Zamzow was charged with operating a motor vehicle while intoxicated, third offense, and operating a motor vehicle with a prohibited alcohol concentration, third offense. Zamzow filed a motion to suppress, for lack of reasonable suspicion for stop, and a motion hearing was held.
At the hearing, the State introduced into evidence a squad car camera DVD of an officer’s stop of Zamzow’s vehicle. The DVD contained the officer’s initial statement to Zamzow that he stopped Zamzow because he observed him cross the center line twice. Zamzow objected to the admission of the DVD at the suppression hearing on the grounds that the officer’s audio statements violated Zamzow’s Sixth Amendment right to confront witnesses against him because the officer had died since the arrest. Relying on a 1990 Court of Appeals ruling in State v. Frambs, the trial court rejected Zamzow’s Confrontation Clause claim on the basis that the right of confrontation did not apply to pre-trial motions. In the alternative, the court also concluded that the statement the officer made to Zamzow was non-testimonial under Crawford v. Washington (2004). Zamzow was convicted on both charges, and appealed.
On appeal, Zamzow argued that: (1) the trial court erred in admitting the officer’s audio statements; and (2) the officer’s statements were too unreliable to comport with due process. The Court of Appeals affirmed.
Zamzow now asks the Supreme Court to determine whether the Sixth Amendment Confrontation Clause applies at a pretrial suppression hearing. This case is being argued by Assistant Attorney General Warren Weinstein.