Council may propose criminal procedure changes

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More than 20 years in the making, a proposal to overhaul the state’s rules of criminal procedure still could not make it through the state Legislature this year.

Now the state’s Judicial Council — a group charged with recommending changes to Wisconsin’s court system — is hoping that the state Supreme Court can move the proposal forward piecemeal without the help of lawmakers.

At a recent meeting, members of the Judicial Council tried to pinpoint exactly what went wrong with their push to revise Wisconsin’s criminal procedure rules.

The proposal, contained in both Assembly Bill 90 and Senate Bill 82, initially seemed to have enough support to pass the state Assembly, but lawmakers backed out at the last minute. The biggest opponents, advocates said, were district attorneys, some of whom continued to complain about particular provisions even after they had been removed through amendments.

State Sen. Van Wanggaard, a member of the Judicial Council and a Republican from Racine, said the elimination of certain supposed flaws seemed to do nothing to prevent critics from continuing to make the same objections. Now, with having met Feb. 18 for what members say will be the last time in the current Assembly session, the criminal procedure bills are likely dead.

“I’m just very disappointed that we couldn’t get this to the finish line,” Wanggaard said. “We had people working on this for a year and a half. I’m not sure where we go from here. I don’t know that we are going to make everyone happy.”

Attempts to revise Wisconsin’s criminal procedure rules have been going on for so long that one of the proponents who has worked on the changes for more than 20 years will not get to see his work come to fruition while he is still a member of Judicial Council. Dave Schultz, a professor at the University of Wisconsin Law School, saw his term on the advisory group come to an end in September.

Schultz said Wisconsin’s criminal procedure statutes are in need of revision partly to make sure they reflect decades of change in the law. The last time the rules were rewritten, he said, was in 1969.

“Even when the redrafting project began over 20 years ago, the statutes were not a reliable guide to how criminal cases proceeded — and that situation has not improved,” Schultz said. “Many common requirements imposed by court decisions have not been codified. Others are in the statutes but are difficult to find.”

In 2014, changes similar to those called for this year received two hearings but eventually stalled because of disagreement over some of the details. Objections were raised in particular to a provision that would have eliminated pretrial hearings. The proposal introduced this year omits any mention of such a change.

Rather than pretrial hearings, the proposal’s chief undoing this time around proved to be a provision concerning discovery procedures, said April Southwick, staff attorney for the Judicial Council. The defense bar and district attorneys could never reach a compromise, she said.

One complaint made at public hearing on the bill was that it neither specified preservation methods for biological materials gathered as evidence nor stated how long the materials should be kept around. They also objected to provisions that would have allowed lawyers to make motions to obtain certain types of evidence before a trial. The concern was that the new procedures could be used to threaten and intimidate victims.

Still further opposition came from the state Department of Justice, which continued to object to two provisions even after they had been amended out of the bills.

“It was glaringly clear to me that whoever wrote that had not had a chance to read the amended bill,” Southwick said.

Winnebago County District Attorney Christian Gossett, whom the Wisconsin District Attorneys Association appointed to replace Brad Schimel after Schimel had become the state’s attorney general, suggested the council limit itself to smaller changes.

“You can’t send them a 300-page amended bill and expect them to read it,” he said. “We’re in different counties and can’t hear each other talking.”

Tom Shriner, a council member and lawyer, cautioned his fellow members about the likely consequences of scrapping the bill.

“If there is some way we can look forward to reintroduce this bill or several bills made out of it in January, I think that’s important,” he said. “There have been too many changes in players. I think you’ve got concentrated attention on this now. I think it would be to the benefit of the process if we keep going.”

Even as proponents of change lament the lack of progress this legislative session, they acknowledge that their turn to justices on the Wisconsin Supreme Court might not lead to faster results, Shriner said.

Still, “At least they move,” said Rock County Circuit Court Judge Michael Fitzpatrick, also a council member.

In the end, the council voted unanimously Feb. 19 to refer the bill to its criminal procedure committee. That committee is charged with finding which parts of the proposal can now be presented to the Supreme Court in the form of rules petitions.

Both Southwick and Bill Gleisner, the State Bar’s representative on the council, said whereas they expect the Supreme Court justices to act.

“The court is not afraid to make decisions,”’ said Gleisner. “It will expect stakeholders to come forth to articulate their concerns.” Follow @erikastrebel