True Justice Requires Meaningful Rights for Victims
True Justice Requires Meaningful Rights for Victims
We often talk about crime in the abstract. We talk about statistics and trends. We discuss how to prevent people from “becoming victims” and how to bring justice to victims. Today, I want to look, for a moment, at a more practical side of what it is like for victims. This week we are commemorating National Crime Victims’ Rights Week, which recognizes the importance of victims’ rights laws that aim to keep victims informed, able to participate in the criminal justice process, and able to be heard during the process. We are at an advantage in Wisconsin compared to other states—we’ve had comprehensive constitutional victims’ rights since 1993 and additional statutory victims’ rights since 1998. We even have a process for victims to address alleged violations of victims’ rights laws, something few states have. What does this really mean for victims of crime?
Consider that right now, a victim of crime in Wisconsin is reporting a crime to the police. That person is about to enter into a system that is not always easy to navigate—even for those familiar with it. Most of us know how to call the police. But who should you call to find out if an offender was arrested or is still in custody? What if the offender is a juvenile? How will you know what rights you have during different proceedings and stages of the case? Are you allowed to bring an advocate with you to the police interview? Who do you call for an update on the investigation? How will you know about the next court hearing? Is there a place to wait, away from the offender? How long will it last? Will you need to take off work? Is there assistance available for expenses caused by the crime? If you want to meet with the prosecutor, is that allowed and how is that arranged? Is your personal information going to be discussed in open court? Do you have any privacy rights? Is there a way to tell the judge how much the crime affected you? How can you get the offender to pay the bills associated with the crime? How long will the offender be in custody? Will someone tell you when the offender is released?
These are some of the real questions that arise for many victims as the criminal justice process unfolds. When we talk about victims’ rights laws, we are talking about how victims get meaningful answers and assistance to address these questions, and more. Victims’ rights are foundational to a justice system that is fair to the crime victims who participate in the process. Law enforcement, prosecutors, county victim-witness staff, court officials, juvenile intake workers, corrections officials and other public officials have victims’ rights duties spelled out in Wisconsin’s constitution and statutes to ensure victims get the information they need.
The cooperation and involvement of victims during the criminal justice process makes all of us safer, makes cases better, and helps keep offenders accountable. In my 25 years as a prosecutor, I saw firsthand how important our victims’ rights laws are in Wisconsin. As Attorney General, I have an even greater awareness and appreciation for the work being done every day, in every county, to help victims understand and exercise their rights. Victims’ rights are not abstract. They determine whether justice is achieved, because true justice is not only about the final outcome of the case. It is also about how that victim reporting a crime today will be treated during every step that follows.
Find more information about victims’ rights and services at www.doj.state.wi.us
AG Schimel Stands with Marsy’s Law for Wisconsin, Advocates for Strengthening Crime Victim Rights
Attorney General Brad Schimel is joining Marsy’s Law for Wisconsin to update Wisconsin’s Constitution to ensure equal rights for victims of crime.
“We have a proud tradition of standing up for the rights of crime victims in our state and the most compassionate and dedicated people in the country doing that hard work every day – but in Wisconsin we always move forward, and it’s time to do so now,” said Attorney General Schimel. “This constitutional amendment will update our Constitution to ensure equal rights for crime victims that are clear, enforceable, and permanent. It’s time we get to work.”
Wisconsin has a history of leading on victims’ rights, and Marsy’s Law will enshrine permanently in our State Constitution that victims’ rights are equal to those of the accused. The proposed change to the Wisconsin Constitution must be passed in two consecutive legislative sessions, then be put to the voters on a statewide ballot. The legislation is being authored by Senator Van Wanggaard and Representative Todd Novak and circulation for co-sponsorship began on Tuesday.
For more information on Marsy’s Law, please visit: www.equalrightsforwi.com.
Ask the Office of Open Government: Walking Quorums
Question: What is a walking quorum?
Answer: First, it is helpful to define “quorum.” A quorum is the minimum number of a governmental body’s membership necessary to act. One governmental body may define what constitutes a quorum differently than another governmental body. For example, a quorum for a seven member town council may be a simple majority of four members while a quorum for a neighboring town’s seven member council may be a super majority of five members.
A “walking quorum” is a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum. A walking quorum may produce a predetermined outcome and thus render a publicly-held meeting a mere formality. The Wisconsin Supreme Court has commented that any attempt to avoid the appearance of a meeting through the use of a walking quorum is subject to prosecution under the open meetings law. Furthermore, the requirements of the open meetings law cannot be circumvented by using an agent or surrogate to poll the members of governmental bodies through a series of individual contacts. The series of gatherings need not be face-to-face. For example, phone calls, email exchanges, and other electronic messaging may suffice.
The essential feature of a “walking quorum” is the element of agreement among members of a body to act uniformly in sufficient numbers to reach a quorum. Where there is no such tacit or express agreement, exchanges among separate groups of members may take place without violating the open meetings law. Thus, the signing, by members of a body, of a document asking that a subject be placed on the agenda of an upcoming meeting likely does not constitute a “walking quorum” where the signers have not engaged in substantive discussion or agreed on a uniform course of action regarding the proposed subject. In contrast, where a majority of members of a body sign a document that expressly commits them to a future course of action, a court could find a walking quorum violation.
Walking quorum issues are complex and fact specific. If a member of a governmental body or a citizen has questions or concerns regarding a possible walking quorum, they should consult with their legal counsel.
Drug Take Back Day is April 29
Mark your calendar! Saturday, April 29 is the next statewide Drug Take Back Day!
Drug Take Back Day provides the community with a safe, convenient, and responsible means of disposal. Bring your unused, expired, and excess prescription drugs to a participating drug take back location, which can be found by visiting: www.doseofrealitywi.gov .
All Prescription (controlled and non-controlled) and over-the-counter medications, ointments, patches, non-aerosol sprays, inhalers, creams, vials and pet medications are welcome!
Please leave illegal drugs, needles/sharps, aerosol cans, bio-hazardous materials, personal care products, household hazardous waste, and mercury thermometers at home.
To find a drug take-back location near you, or for more information on prescription drug abuse, please visit: www.doseofrealitywi.gov
April Oral Arguments in the Seventh Circuit Court of Appeals
In the mid-nineties, Daniel Aguilar was convicted of multiple counts of armed robbery. Based on the date of his offenses, Aguilar was placed on parole when he was released from prison. The Legislature then changed the law regarding supervision of offenders released from prison, so that offenders whose offenses occurred after January 1, 2000, would be placed on “extended supervision,” rather than “parole.” In 2012, Aguilar absconded, and his parole agent issued an apprehension request. Aguilar was apprehended approximately three months later, and in processing Aguilar’s violations, his parole agent mistakenly checked a box on his paperwork that designated Aguilar as being on “extended supervision” rather than “parole.” Following this incorrect designation, Aguilar’s parole agent (and her supervisors) imposed a 90-day “extended supervision sanction,” which is a sanction that is not applicable to offenders on parole.
In this case, Aguilar raises claims under the Due Process clause and the Eighth Amendment, arising from having been misclassified as being on extended supervision rather than parole. The State argues that the mistaken designation was at worst negligent, which does not give rise to constitutional liability. The State also contends that Aguilar does not present a viable Eighth Amendment claim because none of the defendant were “deliberately indifferent” to a risk of harm to Aguilar. Additionally, the officials argue that there is no due process violation because the incorrect designation was not part of an official policy and was instead the result of random employee conduct. The district court granted summary judgment in favor of the State. The Seventh Circuit will decide whether the district court erred in granting summary judgment, and whether Aguilar should be allowed to proceed to trial on any of his constitutional claims. This case is being argued by Assistant Attorney General Gabe Johnson-Karp.
Jesse Swinson was convicted of felony theft by false representation in 1995, and one count of felony bail jumping in 1999. The State proved that Swinson obtained $250,000 from the Kohler Corporation by making false representations. Swinson challenged in state court, and challenges in this federal habeas corpus action, the Parole Commission’s denial of discretionary parole in February 2010, and the Program Review Committee’s denial of his request to be reclassified from medium to minimum security status in December of 2010. Swinson filed a petition for a writ of certiorari in circuit challenging the denial of security reclassification. The circuit court denied the writ and the Wisconsin Court of Appeals summarily affirmed.
In federal court, Swinson argues that the denial of parole and/or security reclassification in 2010 violated his rights to due process and equal protection, and operated as an ex post facto law that increased his punishment for the underlying crimes. The district held, alternatively, that: (1) habeas review is barred because Swinson did not fairly present his constitutional claims to the state courts; and (2) the claims lack merit.
The State argues before the Court that it should not reach the merits of Swinson’s procedurally defaulted constitutional claims because he did not fairly present them to the state courts. Swinson failed to present the operative facts and the controlling legal principles to support his claims at any level of state court review. This case was argued by Assistant Attorney General Dan O’Brien.
April Oral Arguments in the Wisconsin Supreme Court
Dodge County Sheriff’s Deputies, cooperating with City of Beaver Dam Police Department, arrested Kenneth Asboth on warrants related to an armed robbery of a bank and a probation violation. Asboth was found at a Dodge County storage facility in a car not registered in Asboth’s name. After his arrest, law enforcement had to decide what to do with the vehicle, which had blocked access to several storage units, impeded traffic in the storage facility, and was potentially stolen. Dodge County sheriff’s deputies impounded the car because it would otherwise be left unattended and create a major inconvenience for the innocent property owner of the storage facility. Asboth challenges the impoundment as a violation of his Fourth Amendment rights. The State argues the impoundment was reasonable under the long-established community caretaker exception to the Fourth Amendment, and that the impoundment was constitutional even if the Fourth Amendment requires standardized impoundment policies. The case will be argued by Chief Deputy Solicitor General Ryan Walsh.
This case concerns a provision in Wisconsin’s implied consent law, Wis. Stat. § 343.305(3)(ar)2, that authorizes a law enforcement officer to request a sample for testing from a person who is involved in an accident resulting in death or great bodily harm, if the officer believes the person violated a traffic law. In this case, Adam Blackman turned his car in front of a bicyclist. The car hit the bicyclist who, as a result, suffered great bodily harm. An officer believed that Blackman violated a traffic law, and he requested a blood sample under the implied consent law. The officer told Blackman that if he refused to provide a sample, his operating privilege would be revoked. Blackman agreed, and submitted a sample. Testing showed that Blackman’s blood alcohol concentration was above the legal limit. The circuit court granted Blackman’s motion to suppress the blood sample, concluding that Blackman was coerced into providing a sample, because a revocation for a refusal under Wis. Stat. § 343.305(3)(ar)2 would be statutorily unenforceable. The court of appeals reversed, concluding that Blackman was properly informed under the implied consent law, and that he consented to giving a blood sample.
The Supreme Court of Wisconsin will likely decide whether Wis. Stat. § 343.305(3)(ar)2 is unconstitutional, both, on its face and as applied in this case; and whether Blackman was coerced into providing a sample of his blood. This case was argued by Assistant Attorney General Michael Sanders.
Navdeep Brar was arrested for O.W.I. and transported to the police department where he was read the Informing the Accused Form (the Form). After being read the Form, Brar equivocated about taking the test. After being asked three times what his position on taking the test, Brar said, “Of course,” and then additional words akin to not wanting to lose his license. The officer took this to be a submission to the test, and initiated escorting Brar to the testing site. Brar asked what kind of test it would be, and when the officer said it was to be a blood test, Brar asked if the officer needed a warrant to do that. The officer said no. The blood test was then performed without incident.
The State argues that both the trial court and the court of appeals correctly held that Brar by saying “Of course,” and then additional words indicating a wish not to lose his license, was submitting to the test. Brar makes a factual challenge; he claims that he did not say “of course” and that even if he did, his question about what the test would be showing indicates that he had not yet agreed to take the test. There is also a conceptual divide between the parties: Brar attempts to impute traditional consent principle into the reading of the Form stage of an O.W.I. arrest. The State argues that Brar had already consented to the test, by implication, when he applied for his driver’s license, and when he drove. The State argues that the reading of the Form stage is not a request for consent, but rather a process to see if the suspect will stand by his earlier implied consent or recant and face penalties. The State argues, that within that framework, Brar had submitted to the test. Brar also argues that he was misled, since case law requires the police to get a search warrant when they want to perform a blood test. The State counters that a warrant is only necessary if the subject refuses the test and since Brar submitted, no warrant was necessary. This case was argued by Assistant Attorney General Dave Perlman.
On patrol in a high crime area, a City of Racine police officer pulled over Lewis Floyd in his vehicle after running his license plate and finding his registration was suspended. The officer immediately noticed multiple air fresheners throughout the vehicle and tinted windows, creating suspicion that Floyd was engaging in illegal activity. After taking several minutes to process citations in his squad car, the officer returned to Floyd’s vehicle and asked him to step out to explain the citations he was giving Floyd, as well as to explain how he could not drive away because his registration was suspended. The officer asked Floyd for consent to conduct a pat-down search for his safety, and Floyd gave his consent. The officer discovered a bag containing marijuana, and Vicodin® while conducting this search. Floyd argues that the search unnecessarily extended the duration of the stop and was thus unreasonable; and argues that his counsel was ineffective for failing to present evidence that he did not consent to the search. The State argues the search was reasonable as officers have long been allowed to conduct pat-down searches for their safety, and that Floyd was not prejudiced by his trial counsel’s performance. The case will be argued by Deputy Solicitor General Luke Berg.
In 2011, the Legislature revised the statutes relating to violations of driver’s license requirements. Among other things, the Legislature intended to make it an offense to operate a vehicle after revocation of an operator’s license whether or not the driver knew that his license had been revoked. They intended to increase the penalty to a misdemeanor if the driver caused a death while operating after revocation, whether or not the driver knew about the revocation, and to increase the penalty to a felony if the driver caused a death and knew that his license was revoked. But because of an obvious drafting error, the statute appears to require knowledge of the revocation for all three grades of the offense. This drafting error appears to create two different penalties, one a misdemeanor and the other a felony, for exactly the same conduct, i.e., causing a death while operating a vehicle knowing that an operator’s license was revoked.
The defendant in this case, Ernesto Lazo Villamil, was convicted of the felony offense. He argues that the statute, as written, is unconstitutional because it provides different penalties for the same conduct with no way to determine whether a driver should be charged with or convicted of the felony offense rather than the misdemeanor. The State argues that the Supreme Court should exercise its constitutional power to construe legislation to correct the obvious drafting error in the statute to effectuate the obvious intent of the Legislature, and to rule that there is a rational difference between the felony and misdemeanor offenses–the felony requires knowledge of the revocation while the misdemeanor does not. Since Villamil knew that his license had been revoked, he was properly charged with and convicted of the felony offense.
Another issue is whether the Legislature intended to require circuit courts to consider certain factors in imposing a sentence for a revocation offense, or whether the Legislature only suggested that circuit courts should consider these factors. This case was argued by Assistant Attorney General Tom Balistreri.
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