Committee won’t pursue change to preliminary hearings (UPDATE)

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Following a morning of criticism about a proposed criminal code rewrite that would eliminate preliminary hearings, a Wisconsin Judicial Council committee voted to not pursue the change Tuesday.

The council’s criminal procedure committee voted 10-3 to recommend removing a provision that would have replaced preliminary hearings with a process for defense attorneys to file a motion to dismiss.

“We know the purpose of it,” committee member Grant Huebner said of the preliminary hearing. “We know the burdens of it. We know how everything works there.”

The full Judicial Council meets Friday morning and is expected to discuss the committee’s decision at that time.

The preliminary hearing changes were part of a larger bill the Judicial Council has been working on for more than 20 years. If passed, it would overhaul the criminal code in Wisconsin, which hasn’t been dramatically changed or rewritten since 1969.

A similar bill was introduced last session by council member and Rep. Jim Ott, R-Mequon, but it died after receiving two public hearings. Ott has said he intends to bring it back in early 2015, so lawmakers and stakeholders have ample time to parse through a bill that will be hundreds of pages long. He also said he did it so the council could, if it wanted to, make changes to the bill.

When it was introduced last year, though, it was clear the elimination of the preliminary hearing was a major sticking point.

As proposed in the failed bill, in place of preliminary hearings, prosecutors and defendants would have been allowed to “present arguments and may allow testimony to resolve whether a genuine issue of material facts exists.”

But it was clear Tuesday that prosecutors, defense attorneys and victims’ advocates each had a reason to oppose eliminating the hearings. Madison defense attorney Steven Meyer said that with a preliminary hearing, each side was able to see a preview of how a trial would play out.

“Defense lawyers saw the weaknesses in their case, (and) clients said ‘Oh my God, that person’s really going to say that?’” Meyer said.

Tony Gibart, public policy coordinator at End Domestic Abuse Wisconsin, said a motion to dismiss system could lead to anxiety and problems for victims as they have to spend more time in the same room as an abuser and recount information that is difficult to talk about.

And Outagamie County Assistant District Attorney Kyle Sargent said the system would end up protracting cases, due to holding more hearings on the motions to dismiss.

“It’s ultimately going to draw out the criminal justice system,” he said, “and stretch it thinner and thinner.”

After hearing the testimony Tuesday, Huebner and others on the committee said it’s clear the current system, while not perfect, works OK.

And because of this, as well as concerns that committee members had about technology and possible dated practices, some members even wondered aloud whether the bill itself should be scrapped altogether.

“It’s obvious there were serious objections from stakeholders,” committee member Adam Gerol said. “The goal was to find a bill that would pass.”

But committee member David Schultz, however, said that even if all the comments were against elimination, the arguments made were not new. He said the same issues were brought up when it was discussed in the past two decades.

And committee member and state Rep. Gary Hebl, D-Sun Prairie, said the bill shouldn’t be scrapped altogether.

“There’s been way too much work done on this to say ‘let’s start over,’” Hebl said. “It can be improved. It can be made much better.”

Preliminary hearings, while being a useful tool to have, often are waived. And Washburn County District Attorney Thomas Frost – who testified by phone – told the committee that his experience in Minnesota, where a similar omnibus hearing system was enacted a few years ago, did not result in a change in the number of cases bound over for trial.

And even if the committee decided to kill it for now, council attorney April Southwick told the committee that a new proposal can still be made.

During the meeting, the committee voted to create a subcommittee to study this issue, as well as issues surrounding technology in the courts, to see if any proposals can be made in the future.

The criminal procedure committee will again take testimony July 15 about proposed changes to discovery procedures. Another proposal to remove discovery provisions from the proposal Tuesday was shot down by a 7-6 vote. Follow @eheisigWLJ