Wisconsin Criminal Justice Study Commission
Summary of Commission meeting held on 9/30/08 at Marquette University.
Commission Members present: Mike Malmstadt (chairman), Gerry Mowris, Greg Weber, Dan
Blinka, Emily Mueller, Kelli Thompson, Penny Beerntsen, Roy Korte, Bob Donohoo, Jerry
Buting, Michael O’Hear, Suzanne O’Neill, Mike Koll, Fred Fleishauer, Ken Hammond, Keith
Findley, Michael Smith, Noble Wray, Chad LaLor, Judy Schwaemle, Edward Liebrecht
Not present: Scott Horne, Steve Glynn, John Charewicz, Enrique Figueroa, Bill Grosshans, Gary
Luhman, Ginny VandenBranden
Also present: Mike Schaefer (Wis. DOJ), Norm Gahn (Milwaukee DA’s Office)
Staffed by: Byron Lichstein
Malmstadt began the meeting by introducing the Milwaukee Police Department’s new
representative, Inspector Edward Leibrecht from the Criminal Investigations Bureau (2).
The members then discussed proposed changes to several forensic science-related statutes. First,
the members discussed a proposal to amend the statute setting forth the purpose of the crime
laboratory, in order to make clear that the purpose of the laboratory includes more than serving
the prosecution (2).
Korte said that Wis. DOJ does not believe the proposal is necessary (3). He said that serving the
defense is set forth elsewhere in the statutes dealing with the crime laboratory. He also said the
proposal would require additional resources for the laboratory to perform services for the
defense.
Findley said the proposal isn’t meant to expand the services the laboratory offers, but rather to
accurately express the reality that the laboratory’s purpose is to be an objective scientific entity
serving more than just the prosecution (4).
The members further discussed the pluses and minuses of amending the purpose statute (4-6).
Schaefer suggested an alternative proposal which would keep the same language about the
laboratory serving law enforcement, but add the word primary before purpose and add that the
purpose is serving law enforcement’s search for the truth (7). He said he objects to any
amendment that could risk expanding the scope of the services the laboratory offers. Findley
disagreed with Schaefer’s approach because it would maintain the impression that the laboratory
is part of law enforcement. He said a change expressing other purposes would not expand the
services the laboratory offers because it would merely accurately express what the laboratory
already does (7).
Mueller said she did not see how the proposal would increase the burden on the laboratory
because it merely reflects what the laboratory currently does (8).
Schwaemle objected to the proposal because she said the laboratory’s primary purpose is serving
law enforcement and its secondary purposes should not be placed on an equal footing (8).
Fleishauer said that the laboratory’s, and the courts’, primary purpose is to search for the truth,
and the laboratory’s purpose statute should reflect that (10-11). Gahn disagreed, saying that the
laboratory’s primary purpose is to serve law enforcement (11).
Fleishauer made a motion proposing alternative language: “the purpose of the laboratories is to
establish, maintain and operate crime laboratories to provide technical assistance in the various
fields of scientific investigation, to support the state's pursuit of the truth in the criminal justice
system” (14-15). Blinka seconded the motion and spoke in favor of Fleishauer’s proposal (15,
16-17).
Schwaemle and Gahn said they do not believe the change is necessary because law enforcement
already consider their job a search for the truth (17). Gahn said the change will result in the
defense bar using the laboratory for analyses that obstruct the search for the truth (17).
Weber suggested that the Commission does not have consensus on this issue (21). Malmstadt
agreed, but took a preliminary vote (21-22). 12 members favored Judge Fleishauer’s proposal. 9
opposed it. The Commission then took a break (22).
After the break, Malmstadt expressed his frustration that, despite repeated requests, members had
failed to communicate their objections to the proposals in advance of the meeting (22). He also
expressed frustration that the Commission seems to be polarized into two camps, prosecution and
defense, and that members are not stepping outside those camps (22-23). He said that he did not
believe it would be beneficial to discuss the remaining forensic science proposals. Smith made a
motion that the Commission move on from discussion of crime lab issues (23). O’Hear seconded
the motion (23).
Fleishauer asked about the final proposal in the crime lab memo, dealing with whether the
prosecution should turn over discovery before the preliminary hearing (23). Weber said that the
judicial council has been considering changes to the criminal code, and perhaps to the provisions
dealing with preliminary hearings, but he said he does not know the status of those efforts and
that for now there is no immediate likelihood of changing the procedure (23-24).
La Lor said that in Superior preliminary hearings frequently turn into mini-trials (25). He said
that requiring discovery before the prelim would be difficult in part because of the logistics
involved in law enforcement having to copy and turn over electronically recorded interviews.
Buting said that this issue is similar to a case called State vs. Schaefer that his office argued
recently in the Wisconsin Supreme Court (25-26). He said there are places, like Illinois and New
York City, where the prosecution turns over discovery before the prelim. He said that even
though the Wisconsin Supreme Court in Schaefer did not require the State to turn over discovery
before the prelim, Justice Abrahamson’s concurring opinion said she saw merit in the idea.
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Malmstadt suggested that perhaps a compromise could be reached where prosecutors would
agree to turn over discovery before the prelim if defense attorneys would agree that hearsay
could be used at the prelim.
Buting said that, in Washington County, the court sets a date for turning over discovery before
the prelim and then the parties agree on whether to have a prelim (28).
Fleishauer said he would favor looking into the issue in part because prelims often seem to have
little point because the result is a foregone conclusion (28). The benefit for the defense from a
prelim is the exchange of information, not the ability to get a probable cause determination.
Schaefer said he does not see how discovery before a prelim helps avoid conviction of the
innocent (29-30). Findley said early discovery helps avoid tunnel vision; he said it’s important
early on in a case to get information into the hands of someone who has an incentive to take a
different view of the case than the view taken by law enforcement (31).
Koll said the U.S. Attorney’s Office has a very early open file policy (32).
Weber said the burden should be on the proponent of changing longstanding practice, and that
the proponents of these proposals haven’t made the case (32). Smith said the Commission should
review what other jurisdictions are doing. Malmstadt asked Lichstein to look into providing the
members with information on this.
The members then switched to a discussion of the position paper on raising the compensation
rate for indigent defense counsel (33).
Buting and O’Hear made several suggestions for specific changes to the report (34). Korte noted
that he supports increasing the pay rate for assigned counsel, but that another issue is the
inability of public defender and prosecutor offices to retain qualified attorneys (34-35).
Malmstadt agreed, but suggested that this report should perhaps focus on the compensation rate
in order to avoid diluting the focus on that issue.
Thompson said she could provide the Commission with numbers concerning how many in-house
staff would have to be added in order to raise the private bar rate without increasing the overall
budget (36-37).
Malmstadt said that the low rate produces low expectations for the performance of private bar
attorneys (37). Buting said that if this is the case then the report should say that our system has a
crisis of competence. Fleishauer said we should include information about the inflation rate since
the last time the rate was raised.
Weber said the legislature might respond to the possibility of very expensive civil litigation
based on a wrongful conviction. Findley said another cost is the number of ineffective assistance
of counsel claims, which might go down if the quality of assigned counsel improved (39). Weber
said that data is probably available.
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Buting said another argument is the waste of correctional resources (40). He said it might make
sense to include a cost estimate for how much money would be saved by a small reduction in the
length of sentences that might occur if defense counsel adequately advocated for clients at
sentencing.
Wray said that the report as currently written does not convey the negative impact on the quality
of justice (41). The Commission members know that impact exists, but the report needs to make
the impact clear to laypeople. Merely demonstrating that the rate is low in comparison to other
jurisdictions will not be sufficient because a low pay rate by in and of itself is not necessarily a
bad thing (41).
Findley suggested providing more information about the experience level of the attorneys taking
appointments (42). This might help illustrate the problem. Thompson said the SPD would have
this information.
Buting suggested looking at the federal defender’s experience, in which the number of quality
attorneys available increased after the rate went up (44).
Malmstadt said that another issue is eligibility for public defender representation (45). The low
eligibility guidelines shift the costs to the counties.
Buting and Malmstadt suggested finding anecdotes from misdemeanor cases in which a
misdemeanor defendant received incompetent representation that led to unnecessarily stiff
punishment (46). Organizations such as the Benedict Center or Justice 2000 might have such
data.
The members discussed whether to include eligibility issues in this report, or to focus this report
on only assigned counsel compensation (47-50). Malmstadt suggested making the report about a
single issue, underfunding indigent defense.
The Commission took a break for lunch (50).
After lunch, the members continued discussing the report on compensation for assigned counsel.
The members agreed to include language expressing the need for increased funding for
prosecutors (50).
The members then discussed the Wisconsin District Attorneys Association’s petition to create a
new ethical rule concerning what prosecutors should do upon learning of new evidence of a
convicted defendant’s innocence (50-51). Lichstein described the specifics of the proposed rule.
Korte confirmed that the WDAA voted to adopt the rule (51). He said he believed the WDAA
vote was unanimous. He said Wis. DOJ abstained from that vote (51).
Blinka said that if the WDAA has adopted this, it seems the Commission should support it (5152).
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The members discussed the differences between the ABA’s ethical rules and Wisconsin’s rules
(52-53). Mowris made a motion for the Commission to support the petition (53). Another
member seconded the motion. The members voted to support the petition (57).
The members then discussed the future of the Commission (57). Lichstein said that the
Commission needs to select a next issue to consider. He also said that the Commission’s current
funding ends next summer and that his tenure as staff attorney will end at that point as well, so
the members need to determine whether the Commission should continue beyond that time.
As to what issue to consider next, several members suggested studying snitch testimony, one of
the remaining causes of wrongful convictions that the Commission has not yet considered (58).
Findley gave a brief description of the snitch issue (58-59). He said that about 21% of the DNA
exoneration cases involved perjured jailhouse informant testimony. 46% of death row DNA
exonerations involved such evidence. Findley noted various commissions that have studied the
issue, and he described the reforms those Commissions proposed.
Donohoo said that Milwaukee prosecutors are increasingly having to decide whether to use
snitch evidence (60-61). He said he can think of 7 or 8 cases in the last 3 to 4 months with such
evidence.
Blinka suggested that the Commission could look at the snitch issue for the Commission’s
remaining time, and then pass any progress on to the Judicial Council, which has recently
received increased funding (61). Weber said that if the Commission studies the snitch issue it
will be important to have a high level of specificity about what reform we’re considering (62).
Mowris asked whether the reforms implemented in other jurisdictions have worked (62). Findley
said he didn’t know, which is why further study would be necessary. Mowris said he recently
had a six-week homicide trial which relied in part on snitches flown in from around the country,
and that the issues were very difficult to litigate. Donohoo agreed that snitches present a very
difficult issue, because they usually want something in exchange for testifying. He said it would
be useful for prosecutors to have suggested guidelines for using snitches.
Malmstadt said we should bring in experts for the next meeting to discuss the issue (64). He said
we should also hear more information about the possibility of requiring discovery before
preliminary hearings.
The members then discussed the composition of the judicial council (65). Weber said it has
defense representation, but not law enforcement composition. Wray said the law enforcement
representation on this Commission has been important. Mowris said he thinks the judicial
council composition is set by statute, and that it could perhaps be amended to include a law
enforcement representative.
Malmstadt said that many of the members seem to agree that this Commission should continue
its efforts until summer of 2009 and then perhaps pass off work in progress to the judicial
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commission (66). Wray suggested finishing our study of the pending issues and then reassessing.
Malmstadt said the Commission can continue discussion of this issue at the next meeting.
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