Tagged: Wisconsin

ACLU Takes on Wisconsin Officials Operating Youth Correctional Facilities

On January 23, 2017, ACLU filed a class action suit against Wisconsin officials alleging severe human and children’s rights abuses. The complaint’s introduction states:

The State of Wisconsin operates the Lincoln Hills School for Boys and the Copper Lake School for Girls, which incarcerate approximately 150-200 youth who are as young as 14 years old, in remote northern Wisconsin. The State routinely subjects these youth to unlawful solitary confinement, mechanical restraints and pepper spraying. Prior to state and federal raids on the facility at the end of 2015, staff also regularly physically abused youth in the facility. Currently, Wisconsin’s juvenile corrections officials lock up approximately 15 to 20% percent or more of the facilities’ young residents in solitary confinement cells for 22 or 23 hours per day. Many of these children are forced to spend their only free hour of time per day outside of a solitary confinement cell in handcuffs and chained to a table. Officers also repeatedly and excessively use Bear Mace and other pepper sprays against the youth, causing them excruciating pain and impairing their breathing. These practices constitute serious violations of the children’s constitutional rights, including their rights to substantive due process, as guaranteed by the Fourteenth Amendment to the United States Constitution, and their right to be free from cruel and unusual punishment, as guaranteed by the Eighth Amendment to the United States Constitution.

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Prof. Gershman on “Parking While Black”

In his most recent Huffington Post piece titled Parking While BlackProf. Bennett L. Gershman reviews a recent Circuit Court decision, United States v. Johnson, which is currently pending re-hearing at the 7th Circuit after it initially upheld the lower court’s decision. Prof. Gershman raises a fair question: “[Are the courts] about to decide if police have another legal method for harassing black citizens[?]”

In the middle of a Wisconsin winter with streets covered in snow, local Milwaukee police decided to harass a parked car with four black passengers inside after one just returned from a liquor store, citing Milwaukee parking ordinance (alleging the car was parked too close to a crosswalk), pulling all passengers out of the car, handcuffing them, searching the entire car and finding a gun as a result.

While the court’s majority sided with the government and held that the police did not violate the defendant’s Fourth Amendment rights and reasoned that police had probable cause (based on the parking ordinance) and as such “could forcibly detain the car and search the occupants,” Judge David Hamilton delivered a worth-to-read dissent, calling the police conduct “terrifying,” “outrageous,” and “extraordinary.” As Prof. Gershman points out, Judge Hamilton carried on by saying:

Imagine that the police tried that approach in Milwaukee’s affluent east side. Citizens would be up in arms, and rightly so.” … “No police officer could expect to keep his job if he treated a standing car as worthy of a [forcible] stop.”

Prof. Gershman concludes that:

The panel decision was vacated last month, and reargument has been ordered. It remains to be seen whether the entire circuit court will see it as Hamilton did or whether “parking while black” will sadly become as common a phrase as “driving while black.”

Student Perspective: Making A Murderer Event

POST WRITTEN BY: Danielle Petretta (’17), J.D. Pace Law School

On March 2, 2016, Pace Law School’s Criminal Justice Society, Student Bar Association, and the Criminal Justice Institute held an event on the controversial and popular Netflix 10-episode documentary, “Making a Murderer.” The documentary centers on a man named Steven Avery, who found himself stuck deep in the trenches of our criminal justice legal system within a very small knit rural community in Wisconsin.

Steven Avery spent 18 years in prison for a crime he did not commit and in 2003 was finally exonerated. This case received much attention including an effort to pass a bill – the Avery Bill – implementing checks and balances regarding police interrogations, handling and testing of DNA evidence, and policies surrounding an eye witness identification procedures to prevent wrongful convictions.  However, his nightmares continued, as just two years later he was arrested for the murder of 25-year-old photographer Teresa Halbach. Steven Avery’s nephew, Brenden Dassey, was also arrested for partaking in the Halbach murder. Both Steven Avery and Brenden Dassey remain in prison to date and Steven Avery continues to claim his innocence this time around as well. It is yet to be determined what the status of their appeal is, and the documentary leaves gaping concerns and questions to be answered. The documentary maps Steven Avery’s unfortunate journey through the legal system to date and takes the viewer on a shocking ride.

Did the fact that the Avery’s lived in Manitowoc County, a small knit community, affect the way in which they were treated? Did the appearances and social status of the Avery and Dassey families play an influential role in their prosecutions? Why was the police department involved in the first case able to have a continued presence and involvement in the subsequent Halbach case? Was the evidence tampered with? Were proper police procedures followed? Did someone tipped off the woman who found Teresa Halback’s car in the Avery’s 4,000 car lot within just a few minutes? Why was the same judge deciding Avery’s motion for a new trial when he had been the presiding judge in his trial? What happened in the jury room? Why was the key, one main piece of evidence against Avery, found days after the seventh search?

The discussion panel held at this fabulous event consisted of professors, former prosecutors, and the Greenburg Chief of Police. Professors of professional responsibility, criminal procedure and criminal practice  provided valuable feedback responding to many of the questions continuously discussed. After the initial introduction of the topic by the panelists, the room flooded with questions and comments about the documentary, what it portrayed as well as what it didn’t establish. Discussions and comments about the police work sparked much attention among the crowd of students and current attorneys, and critiques and opinion regarding the prosecution and defense lawyers’ conduct triggered a heated response from the audience.

This discussion panel coupled with the audience forum offered an amazing opportunity for students, attorneys, professors, and community members to debate and challenge the current criminal justice legal system that is so embedded within our society.

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‘Making a Murderer’ – A Broader Debate

“Making a Murderer,” the Netflix series about Steven Avery, who may or may not have murdered Theresa Halbach in a rural Wisconsin town, has created a healthy controversy. Everybody is asking: “Did he do it? Or was he framed by the police?” Avery served eighteen years in jail for a crime he did not commit until he was exonerated by DNA evidence in 1999. His multi-million dollar lawsuit against the county, he alleges, is the motive for the police charging him with murder. Avery, along with his nephew Brendan Dassey, a mentally-challenged teenager, were convicted in separate trials.

The 10-part series is controversial. The documentarians are accused of biased reporting intended to prove the defendants are innocent. But that’s unfair;  ultimately, the series  demonstrates something true and more important: that despite the guilty verdicts we really do not know who killed Halbach, how, or why. The prosecution presented a strong circumstantial case, but this evidence is carefully dissected, and a viewer can readily believe that what little there was had been planted by the police. Moreover, Dassey’s “confession” in which he “guessed” at what the police wanted to hear, and later repeatedly recanted, is utterly uncorroborated by anything the police could find and appears to be the unreliable product of well-known unsavory police interrogation tactics.

We should broaden the debate beyond guilty or not guilty,  because “Making a Murderer” raises several fundamental questions about the criminal justice system.

First, what is the goal of our system? Is the goal to yield results that society is willing to accept? To be sure, we hope the adversary system and the use of juries lead to reliable results. But we know that, as the documentary shows, tragic mistajes are made, eyewitnesses are mistaken, and that the most we can ever hope for is uncertainty.  Is that enough?

Does the criminal adversary system really produce a fair fight? Avery’s retained lawyers worked incredibly hard, were unstintingly loyal, and were highly effective. Dassey was indigent and was assigned an attorney who, from the beginning, believed and announced that his client was guilty despite Dassey’s protests of innocence, and in fact,  handed the prosecution evidence to use against him. After this attorney was removed, new counsel was appointed and did the best he could. But once again we revisit the age-old maxim that the quality of justice depends on how much money you have.

Did the prosecutors perform their constitutional duty to be “ministers of justice”? Whether one buys the claim that Avery was framed, it’s clear that the prosecutor accepted whatever came from the police without any independent reflection. Even after the court ordered the local police to stay out of the investigation, they stayed deeply involved and produced the only “evidence” of guilt. The prosecutors believed Dassey’s fantastic tale of bloodthirsty sexual assault even though not a drop of blood or any other forensic evidence could be found to support it. Moreover, disregarding his ethical obligations, the prosecutor repeatedly made highly prejudicial statements to the media revealing extensive inflammatory details about the crime.

A few other thoughts. The absence of any racial issues – everyone involved is Whites – simplifies the legal and policy questions raised by the film. This is an excellent opportunity. But in their place we see issues of class and culture at play in a small rural community in middle America, a culture we really can’t penetrate. How do rumor, personal history, kinships, friendships, and resentments impact the quality of justice here?

In the final analysis, nobody really knows why or how Theresa Halbach died. Avery may be innocent, a degenerate, or a predator; Dassey may be no more than an immature, mentally-deficient teenager. They may have killed her, or maybe they did not. The title alone raises the provocative question: did the police “make” a murderer by framing a case against Avery? Or did society “make” a murderer by wrongly imprisoning a young man for eighteen years on the basis of a single mistaken identification? One can always fault the messengers, but the series raises important questions.

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