Reserve judges pose strategic dilemma for lawyers

Listen to this article

When faced with an unknown reserve judge, criminal defense attorney Theodore Perlick Molinari seeks delays rather than risking an unexpected ruling.

Molinari, of Milwaukee-based Birsdall Law Offices SC, knows the tendencies of the permanent Milwaukee Misdemeanor Court judges, especially when it comes to drunken driving sentences. For instance, he knows which judges give electronic monitoring, and he tries to steer his clients clear of those who do not.

Reserve judges, though, can be wildcards.

“In those situations, it’s a strategic decision,” Molinari said. “I’d rather have as much certainty as I can, and I’m not going to put a client in front of a judge I know will send him to jail for 30 days.”

But the odds of sidestepping reserve judges are decreasing, at least temporarily in Misdemeanor Court. Since Aug. 1, reserve judges have filled the vacancy created when Judge Francis Wasielewski retired.

In mid-September, the court began dealing with a second vacancy, that one temporary while Judge Jean DiMotto is out on medical leave until at least March.

DiMotto is expected to return, but Wasielewski’s vacancy won’t be filled until Gov. Scott Walker appoints a replacement. Tom Evenson, Walker’s communications aide, said the appointment could be made as soon as Friday.

In the interim, the approach with reserve judges is working, said Daniel Konkol, presiding judge for the division. But the possibility of case delays remains a concern, he said.

“If you see the same case being adjourned over and over again,” Konkol said, “then you start to question it and say to the attorney, ‘Wait a minute, didn’t you use that excuse last time?’”

There is no way to accurately track the number of case delays or which judges are adjourning cases because those figures are not recorded in the Consolidated Court Automation Programs website, said James Wilson, Criminal Division assistant administrator in Milwaukee County. But case management statistics for the Misdemeanor Division between Aug. 1 and Aug. 31 show reserve judges are closing cases as consistently as sitting judges.

In August, judges in the vacant Branch 17 closed 91 cases, which ranked third highest of the eight branches in the division. Branch 17 also had the second-highest number of pending cases with 333. Wilson said that number is a result of the judges handling previously filed cases.

“Those include open, pending and post-conviction cases,” Wilson said. “Misdemeanor court is always going to have a lot of cases.”

Reserve judges tend to be retired members of the bench from various parts of the state and serve one-week terms. These short stints leave little time for reserve judges to become familiar with case histories and can give attorneys an opportunity to delay cases, sometimes several times, until the case goes before a sitting judge.

“There is a potential that lawyers want to drag cases out, and that’s one pressure,” said Judge Michael Malmstadt.

But Malmstadt, who is serving as a reserve judge in the Misdemeanor Court, said there also is pressure to minimize a calendar before a permanent judge takes over.

“You don’t want that person to take over a calendar so overloaded and unworkable for six or nine months,” he said. “We know as reserve judges, we are supposed to get cases resolved and get them done.”

Malmstadt said his answer to delay tactics is to delay cases only for legitimate reasons, such as letting a client finish a treatment program or allowing time to find a witness. If he suspects an attorney doesn’t have good cause to delay, Malmstadt said, he will accelerate proceedings.

“I’ll say, ‘We did a little on this case now, but I’m only here for a week,’” he said. “I put it over for two days, and the lawyers hear that and it messes them up terribly.”

There are other concerns when using reserve judges, Konkol said.

“One reserve judge could take the plea, but then it could go before another one for sentencing, and they don’t know what happened because there is no transcript,” he said. “Suddenly, a client asks his attorney, ‘What have you gotten me into?’”

The outcome for the client is always the focus, Molinari said.

“It’s not a slight on the judge,” he said. “I just don’t know them, and, for a lot of people, that could be a significant difference between serving their sentence at home or in jail.”