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Spinning the wheels of justice

The 115th paragraph of a July 8 Wisconsin Supreme Court opinion consists of a single sentence: “… Justice MICHAEL J. GABLEMAN joins this concurrence.”

On the surface, it is the type of benign statement inherent in a 55-page legal document. But the short sentence marks a milestone, of sorts, for Gableman, who joined the court’s majority in Wisconsin v. Esteban M. Gonzalez, ruling that errant jury instructions unfairly reduced the state’s burden of proving a father knowingly exposed his 3-year-old daughter to pornography.

Prior to Gableman’s concurrence in that case, the third-year justice had never voted to reverse a criminal conviction.

Gableman did vote in favor of a defendant in a July 2010 case, Wisconsin v. Patrick C. Carter, ruling the defendant was entitled to sentence credit. According to the opinion, though, the state “joined the defendant, agreeing that he was entitled to 305 days of sentence credit.”

Gableman’s conservative colleagues, who comprise a majority on the court, vote less reliably in favor of the state Department of Justice, but only slightly so, calling into question whether it’s worth the effort and money for criminal defendants to petition Wisconsin’s highest court.

There are benefits, said Amelia Bizzaro, an appellate attorney and member of the Wisconsin Association of Criminal Defense Attorneys board, but the prospect of winning no longer seems to be one of them.
“I always think it’s worth going to the Supreme Court, particularly in criminal cases,” Bizzaro said, “because without going, you can’t seek release in federal court.

“For me, the makeup of the court doesn’t play as big of a role as it could for some because if my client has constitutional claims, there’s a chance he could get released at federal court, which means seeking review at the Supreme Court is a requirement.”

The court’s 5-2 divide, though longstanding, became more pronounced during the past year, as five justices voted in the majority in more than 90 percent of all cases, while two justices joined the majority in fewer than 60 percent of cases. The most recent term ended June 30.

The split was most extreme in criminal cases, in which Justice Patience Drake Roggensack sided with the majority 100 percent of the time; Justices Gableman, David Prosser, N. Patrick Crooks and Annette Ziegler each voted 95 percent in the majority; and Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley joined the majority in only 35 percent of cases.

Abrahamson and Bradley concurred with each other in 90 percent of criminal cases, often as dissenters on the side of the defendant.

Besides the low odds of winning a criminal case, defense attorneys are having a more difficult time getting their cases heard by the Supreme Court than in years past, said Beth Hanan, an appellate attorney for Milwaukee-based Gass Weber Mullins LLC.

The court’s most recent term, she said, delivered 68 substantive decisions, fewer than 20 of which pertained to criminal cases.

“I think 10 to 15 years ago, the split was probably two to one civil to criminal,” Hanan said. “I think (the justices) have other things on their plate that have changed since then.

“I think they have a heavier administrative load as far as rules petitions go than they did 10 to 15 years ago, so in some ways, it’s probably a more complicated picture.”

The state attorney general’s office, which many attorneys say has become a great beneficiary of the court’s conservative makeup, did not respond to requests for comment.

Hank Schultz, president of the Wisconsin Association of Criminal Defense Lawyers, said it’s not surprising the attorney general’s office wouldn’t have anything to say about the Supreme Court — the state is too busy winning most of its cases.

“It has not been a very good term for those of us who practice criminal defense,” Schultz said. “Just one or two of the decisions, you could argue, were favorable.”

Among the greatest setbacks for criminal defense attorneys, Schultz said, were rulings that a 14-year-old could be sent to prison for life — Wisconsin v. Omer Ninham — and that a prosecutor could knowingly reference false evidence during a closing argument — Wisconsin v. Alan Keith Burns.

“It seems that if you are a state’s attorney and you want to get something reversed, you’re going to have an awfully good shot,” Schultz said. “But if you’re not, you’re not going to have a shot.”

The Supreme Court’s outcomes have become so consistent, Schultz said, that the WACDL will begin polling members to determine whether it should lobby the Legislature to change the method by which justices are selected.

Supreme Court justices are elected to 10-year terms, but the recent contentiousness on the court has revived discussion over whether the governor should appoint members to the bench. Gov. Scott Walker has said it is worth considering.

“Depending on how that vote goes, we may be more active in that area,” Schultz said. “I think it will take a long time — obviously, it requires a state constitutional amendment — but I think we’re likely to see some kind of change over time if the current situation continues.”

Schultz said he agrees with Bizzaro that attorneys should continue petitioning the court, even if the outcome seems to have been predetermined by past elections.

“I think if a client can afford to do it, or you’re on the public defender side of things and have a right to go that far,” Schultz said, “you’re probably going to keep going and try to get a dissenting opinion. If nothing else, you can build on that later.

“If your client has to pay for it, that’s a whole other question. I think you have to ask your client, ‘Do you want to take this up when, given the current makeup of the court, you’re not likely to prevail?’”

Although Gableman’s nearly three-year streak of siding with the Department of Justice has come to an end, the court shows no prospect of becoming friendlier toward criminal defendants.

“In three years, there wasn’t one single criminal case, of all the cases there, that (Gableman thought) deserved reversal,” Bizzaro said. “In my mind, that is kind of stunning and a little bit overwhelming.
“It does make it a difficult place to practice on the criminal side.”

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