Long road ahead for proposed criminal code overhaul

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A proposal to rewrite Wisconsin’s criminal code is drawing ire from some because of a clause that would eliminate preliminary hearings in felony cases.

Assembly Bill 383, introduced Friday by Rep. Jim Ott, R-Mequon, seeks to clean up the language and organization of the state’s criminal law code, as well as codify practices that long have been justified by legal precedence.

The Wisconsin Judicial Council, a Legislature-mandated 21-member group tasked with making recommendations about court proceedings, worked on the proposal for more than 20 years, aiming to revise a code that hasn’t been updated since 1969, said David Schultz, a University of Wisconsin Law School professor and council member.

The proposed changes are wide-ranging, from allowing a misdemeanor citation to be used as a criminal complaint to specifying that a jury verdict must be unanimous.

“The intention from the beginning was to have this be neutral,” said Schultz, who is widely acknowledged as the mastermind behind the bill, “in the sense that this wasn’t designed to have it work better for prosecutors or defendants. We were trying to improve the administration of justice.”

The Legislative Committee of the state’s Judicial Conference voted unanimously to support the measure at its Sept. 10 meeting.

A hearing before the Assembly’s judiciary committee, of which Ott is a member, is scheduled for 1 p.m. Thursday.

Give and take

The provision that would eliminate preliminary hearings in felony cases is resulting in pushback.

Those hearings are normally when a prosecutor is tasked with proving there is enough probable cause for a case to continue. The bill would change that by allowing a defense attorney to file a motion to dismiss on a specific issue. Then a judge could allow prosecutors and defendants to “present arguments and may allow testimony to resolve whether a genuine issue of material facts exists.”

“You can imagine,” said Adam Gerol, Ozaukee County district attorney and president of the Wisconsin District Attorneys Association, “how that would protract litigation, how tough that would be on judicial time and victims if the state was forced to call witnesses.”

The WDAA was not consulted during drafting of the bill, Gerol said, and it has not yet taken a formal position on it. But, he said, expanding the parameters of dismissal motion proceedings is “a very significant departure” from the preliminary hearing it would ostensibly replace.

John Birdsall, an attorney with Birdsall Law Offices SC and member of the State Bar of Wisconsin’s Criminal Law Section, also expressed concern.

“The way that’s worded, it doesn’t really guarantee a hearing,” Birdsall said, adding that he was not speaking on behalf of the Criminal Law Section. He predicted many judges would elect to let questions raised in the motion simply go to a jury.

Ott said the preliminary hearing often is waived by defendants. Doing away with it, he said, will “probably speed things up in the court system.”

But Birdsall was not convinced.

“The whole idea is to be efficient, to save money or even be fair,” he said. “I don’t see that.”

Other portions of the proposal have support, however. Gerol said he liked a piece that would allow a judge to force a defendant to “participate in a procedure to obtain nontestimonial evidence” such as trying on clothing or providing blood, urine or semen samples.

Schultz said the bill most likely will not appease everybody.

“But the committee and judicial council still supported it as something that was well worth doing,” he added.

The bill has a long way to go.

The Judicial Council has not yet found a Senate sponsor. It approached Sen. Glenn Grothman, R-West Bend, who serves on the council. His chief of staff said in an email Monday evening that the senator “has not fully reviewed [the bill].”

And the State Bar has not yet taken a position, though the Criminal Law Section has reviewed the bill.

Ott acknowledged it may be a stretch to push the proposed changes through this year. There are still a lot of people who need to be heard from, he said, and many people haven’t yet “gone through it with a fine-tooth comb.”

“It’s a long way from becoming a final product,” Ott said. “Honestly … I can’t say for sure this thing is going to get done this session. It’s six months away from the end of the session.”

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