The Brennan Center for Justice released a first-of-its-kind report, The Steep Costs of Criminal Justice Fees and Fines: A Fiscal Analysis of Three States and Ten Counties, revealing that court-imposed fees and fines thwart rehabilitation, fail to make communities safer, and are an insufficient source of government revenue.
 
The Brennan Center’s report analyzes ten counties within Florida, New Mexico and Texas, as well as statewide data for those three states. Among the report’s key recommendations are: (1) states and localities should pass legislation to eliminate court fees imposed to fund the government; (2) states should institute a sliding scale when assessing fines based on ability to pay; (3) courts should stop jailing individuals for their failure to pay court-imposed fees; and (4) states should stop suspending driver’s licenses for people who are unable to pay their fees and fines.
 
The release of the Brennan Center’s report follows the U.S. Supreme Court’s unanimous ruling in Timbs v. Indiana that the Eighth Amendment’s prohibition of excessive fines applies to state governments as well. On remand, the Indiana Supreme Court determined that the state’s seizure of Timbs’s vehicle was a fine. The Brennan Center and others filed a friend-of-the-court brief in Timbs, which argued that civil asset forfeiture is a violation of the Eighth Amendment.

In the movie Tomorrow Never Dies, Pierce Brosnan as James Bond gets to drive his car by remote control before demolishing it in James Bond style.  The first time Bond drives his BMW he is not even inside the car.  What happens if that is done in real life and James Bond would be drunk?  Could the police pull him over for drunk driving?  Believe it or not, this is not just an academic question.  Just ask “Timmy."

“Timmy” is the name of the client who was kind of in the same position as James Bond in Tomorrow Never Dies.  However, “Timmy” was not charged with drunk driving for driving his car by remote control.  “Timmy” actually did James Bond one better:  He was charged with drunk driving for driving his drone while intoxicated! 

Upon turning 18 years old, “Timmy” got his drone.  As his birthday party, Timmy and his buddies went out to a park and fly the drone around for laughs.  They also brought along some beer.  Lots of beer.  Timmy decided it would be fun if he took pictures from his drone of people as they were walking around.  He also mistakenly flew the drone over a county jail.  Needles to say that behavior got the attention of law enforcement which apparently did not like James Bond or Timmy buzzing the jail with his drone.  Among other things, Timmy was charged with drunk driving of his drone.

 “Drones” are “powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, and can fly autonomously or be piloted remotely. A drone may be expendable or recoverable.”  Wis. Stat. Sec. 941.292 (1).  See also, Wis. Stat. Sec. 114.105 (1) (a) (Drone" means an aircraft operated without the possibility of direct human intervention from within or on the aircraft.); See also, Public Law 112-95, Section 331(8).  Wis. Stat. Sec. 941.292 refers to weaponized drones.  The B4UFLY app is an easy to use tool to help recreational drone flyers know where they can and cannot fly with interactive maps. The new app is now available to download for free at the App Store for iOS and Google Play store for Android.  National Drone safety Week has a helpful publication here.  This publication makes it clear that the FAA sees operating a drone subject to the same regulations as driving a car: “Just like cars and planes – we need to keep the roads and airways secure for everyone – commuters, hobbyists, general public.”

A drone which is not weaponized is “any contrivance invented, used, or designed for navigation of or flight in the air, but does not include spacecraft.”  Wis. Stat. Sec. 114.002 (3).  See also, 49 USC § 40102.  To operate aircraft “means the use, navigation or piloting of aircraft in the airspace over this state or upon any airport within this state.”  Wis. Stat. Sec. 114.002 (17).  While aircraft would typically refer to an airplane, the phrase “contrivance invented, used, or designed for navigation of or flight in the air” could include a drone as well.  Wis. Stat. Secs. 114.105 (1)(a) and 114.002(3).  Regardless of aircraft type, the responsibility to fly safely applies equally to all manned and unmanned aircraft operations.  A summary of FAA rules for drones can be found here.
Flying a drone around in Wisconsin “unless at such a low altitude as to intentionally interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous or damaging to persons or property lawfully on the land or water beneath.”  Wis. Stat. Sec. 114.004.  Further, it is a felony offense to put a weapon on a drone.  Wis. Stat. Sec. 941.292.  Further, if you fly any drone, with or without weapons, over any “correctional institution,” you can be required to forfeit not more than $5000.00.  Wis. Stat. Sec. 114.045.  A drone cannot be operated in a manner that interferes with, any manned aircraft.  Section 336 of Public Law 112-95.

Finally Wisconsin law prohibits a person from operating an aircraft “in the air or on the ground or water while under the influence of intoxicating liquor or controlled substances or controlled substance analogs under ch. 961 or a combination thereof, under the influence of any other drug to a degree which renders him or her incapable of safely operating an aircraft, or under the combined influence of intoxicating liquor and any other drug to a degree which renders him or her incapable of safely operating an aircraft.”  Wis. Stat. Sec. 114.09.  Violation of the statute carries serious jail time, anywhere from 30 days to 6 months which can be increased depending on the level of your intoxication.

On October 18, 2019 USA Today had an opinion column with the writer being Donald Trump.  A political response by Bernie Sanders can be found here.  Readers response to the opinion column  here was headed: “Trump and his party are on a wildly unpopular mission to gut Medicare and protections for pre-existing conditions.”  A fact check of the statements of fact in the Donald Trump opinion column are shown to be false here.
 
Some would say erroneous statements by Trump should not be allowed in the press.  Others will say that the responses criticizing the Trump column is unpatriotic.  Both statements are wrong.  . U.S. Supreme Court Justice Benjamin Cardozo reasoned in Palko v. State  Connecticut, 302 U.S. 319 (1937) that: “[f]reedom of thought... is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of this truth can be traced in our history, political and legal.”
 
The first response is incorrect because erroneous statements should be allowed in the newspapers.  As Thomas Jefferson said, “let them [who make erroneous statements] stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it.”  This contemplates that intelligent response to Trump’s statements must be allowed.
 
That brings us to the second response and why it is also wrong.  Benjamin Franklin wrote, “It is the first responsibility of every citizen to question authority.” So before we agree to serve in the military, before we voice support for a president or other government official, we must be willing to dissent. And I believe this can take the form of questioning authority.  Theodore Roosevelt tells us: “To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American people.”  Franklin and Roosevelt are telling us we must question the authority of even the president of the United States.
 
The take away to this is that intelligent skepticism may be thought of as a way to overcome despair or cynicism, it is to say “Yes, we’re not perfect, but we’re trying.” It’s easy to get cynical about our country and the way it’s being run (just look at national debates of everything from gun control to the Supreme Court). But patriotism is saying no to cynical feelings, believing in our ideals even when we don’t live up to them.
 
A skeptic must be free to criticize our nation and our government.  In fact, patriots should be the most fervent of critics when it comes to the way their nation is being run. But this criticism comes from a place of hope, not one of despair. Patriots criticize because they know their nation can be better.  Bryan Zollinger is a Republican Idaho State Representative who said, “If our nation is to survive, it must have a national narrative that seeks not to blame but to inspire, not to divide but to unite, not to demean but uplift.” I totally take exception to the implication that criticizing the government can’t be done by a patriot and someone who loves their country and that such criticism is demeaning of Our Constitution is one of the most inspiring and culture changing pieces of work ever struck by man. It has held this nation together for two centuries. Progressives and liberals do not hate Idaho or the United States of America. To say or promote such an idea is fomenting division. It is not unity.”

Whatever you think of the impeachment President Trump, as a U.S. citizen, it is your duty as a citizen to understand the impeachment process to advise your government representative about your thoughts on the process.
An impeachment inquiry is a process to determine whether the House of Representatives will vote on impeachment and on what grounds. If the inquiry leads to a vote on impeachment in which a majority of representatives vote yes, then the president is impeached, which means the matter is referred to the Senate for a trial. In the Senate, if 2/3rds of senators also vote yes, then president would be removed from office.

A Simple Timeline for Impeachment and RemovalImpeachment in the House of Representatives① Impeachment Inquiry On Sept. 24, 2019, Speaker of the House Nancy Pelosi announced that the House of Representatives will move forward with an official impeachment inquiry. This announcement alone is enough to begin official impeachment proceedings, starting with the directive that six House committees continue their investigations of the President “under that umbrella of impeachment inquiry.”

② Investigative Authority In the cases of Presidents Nixon and Clinton, a resolution was necessary to grant the House Judiciary Committee with authorities to conduct an investigation into impeachment. However, under the current House rules, the committee already has those authorities. ← We are here.

③ Committee Reports After investigating, committees will report their findings to the House as a whole. In the past, the House Judiciary Committee has voted on whether to recommend impeachment and has reported an impeachment resolution with specific allegations of misconduct. Each investigating committee may report separate findings.

④ Vote on Impeachment The House would then vote on an impeachment resolution containing articles of impeachment, which are the charges of misconduct. This vote only requires a simple majority for passage. If passed, the subject of the inquiry is impeached — which means the matter is referred next to the Senate.

Trial in the Senate⑤ Preparation for a Trial If the House chooses to impeach, there will be a trial in the Senate to determine if the President is guilty. To start this process, the House will select “managers” to present evidence to the Senate and to subpoena witnesses, and the Senate will issue a writ of summons to the impeached official to appear.

⑥ Trial The trial is roughly analogous to a criminal court trial, with the House managers playing the role of the prosecution, the Senate as the jury, the Chief Justice of the Supreme Court as the judge, and the impeached official is the defendant. However, the Constitution is clear that it is not a criminal trial, since the standards for evidence and conviction are up to the Senate.

⑦ Deliberation Similar to a jury, the Senate meets in closed session to deliberate the substance of the trial.

⑧ Vote on Conviction Finally, the Senate votes on each article of impeachment separately. These votes require a ⅔rd majority to convict, which results in removal from office. The Senate may also vote on whether the convicted official becomes disqualified from holding a government position again, for which only a simple majority is required.
Appealing a Conviction⑨ Judicial Review Impeachment proceedings have been challenged in federal court on a number of occasions. In the unlikely event that the president is impeached and the Senate convicts him, there may be lawsuits to appeal the conviction. However, courts have said in the past that Congress’s power to impeach is broad and in many cases is not subject to judicial review.
 
What’s happening now
Democrats and Republicans both generally now agree on the facts — that President Trump asked Ukraine and China to investigate an election rival — but disagree on whether that action warrants impeachment.
Six House committees — including the House Intelligence, Foreign Affairs, and Oversight committees — will submit what they consider evidence of impeachable acts to the Judiciary committee which may then draw up charges, called articles of impeachment.
Support an impeachment inquiry
See the breakdown in the link below this section.  There are two vacancies in the House: Representative Sean Duffy, Republican of Wisconsin, left office in September, and Chris Collins, Republican of New York, resigned on Tuesday.   SOURCE: New York Times, https://www.nytimes.com/interactive/2019/us/politics/trump-impeachment-congress-list.html?mtrref=impeachment.guide&gwh=C353B306E481DD87F246359FB7B871D0&gwt=pay&assetType=REGIWALL
 
What charges are being considered for President Trump?Foreign Assistance in the Election The White House has said that in a July 25, 2019 phone call, President Trump asked Ukraine president Volodymr Zelenskyy for a “favor” to investigate the President’s chief political opponent and to locate the Democratic National Committee (DNC)’s 2016 email server, and on Oct. 3, 2019, President Trump suggested Ukraine and China should open an investigation during a press conference. The President asked Zelenskyy to coordinate the investigations with the President’s personal lawyer, Rudy Giuliani. Although framed as an official investigation into corruption, the focus on the President’s political opponents and the involvement of the President’s personal lawyer suggest the President’s intent was political. Foreign entities are prohibited by law from making contributions to political campaigns, including by providing favors of material value, and an impeachment charge could be based on a violation of law or perceived norms for foreign interference in elections.

Extortion or Quid Pro Quo One of the President’s foreign policy goals has been to get European countries to step up their support for military security, rather than relying on the United States. According to the White House, in the July 25, 2019 Trump-Zelenskyy phone call, the President told Zelenskyy that he thought the United States’s security aid to Ukraine made the nations’ relationship not “reciprocal,” and then in his next sentence asked Zelenskyy for the “favor” described above. Shortly before the call, the President had halted that security aid and postponed a potential visit by Zelenskyy to the White House. Although not stated in clear words on the call, the President and Zelenskyy likely understood the President as asking Ukraine to make the relationship reciprocal by performing the favor — a quid pro quo. Withholding aid and a White House visit to coerce Ukraine to perform an investigation would be extortion (even if Zelenskyy found out about the withheld aid and visit later). Both quid pro quo and extortion are generally accepted tools in foreign policy and well within the President’s foreign policy powers — so long as the President is conducting foreign affairs.

Emoluments According to the White House, in the July 25, 2019 phone call between President Trump and Ukraine president Volodymr Zelenskyy, Zelenskyy said he had stayed at the President’s Trump Tower property on his last visit to the United States, among other thanks and praise, to which the President responded positively. Since the President personally benefits from business at his properties, foreign leaders’ stays at his properties may be a constitutionally prohibited emolument.

Coverup – Mishandling Records A verbatim transcript of the July 25, 2019 Trump-Zelenskyy phone call was filed in a location meant for classified materials, the White House confirmed, even though the call did not involve classified information, according to the whistleblower complaint, in order to restrict access to it. It was also reported that a transcript of a call with China was placed in the same system. Several laws including the Presidential Records Act require presidential records like the verbatim transcript to be preserved but may not require that the records be stored in any particular electronic system. (What has often been described as the public transcript of the call is actually a summary of the call produced by the White House — it is not known whether the White House accurately summarized the verbatim transcript.)

Coverup – Withholding Whistleblower Report Although the whistleblower report was written on Aug. 12, 2019 and was deemed by a Trump-appointed nonpartisan civil servant to be credible, it was withheld from Congress by a Trump-appointed political appointee, the Director of National Intelligence, possibly in violation of existing law that requires that credible complaints be forwarded confidentially to Congress.

Key Documents
Text messages between ambassadors Taylor and Sondland and special envoy Volker. https://foreignaffairs.house.gov/_cache/files/5/0/50759349-fe81-4444-a990-65c92528de82/50EE8A2F1CFC493A98876200762152FC.chairmen-letter-on-state-departmnent-texts-10-03-19.pdf  (July 25-Sept. 9, 2019, 2019; released Oct. 3, 2019)
Video of President Trump suggesting Ukraine and China should investigate Joe Biden, https://www.cnn.com/2019/10/03/politics/trump-biden-call-xi-secure-server/index.html (Oct. 3, 2019)
Here is the whisleblower complaint, https://assets.documentcloud.org/documents/6430388/20190812-Whistleblower-Complaint-Unclass.pdf (Aug. 12, 2019; released Sept. 26, 2019)
Trump-Zelenskyy Call Summary, https://www.nytimes.com/interactive/2019/09/25/us/politics/trump-ukraine-transcript.html (July 25, 2019; released Sept. 24, 2019)
Chronology
Ambassadors’ Roles Text messages between U.S. ambassadors released by the House Foreign Affairs Committee on Oct. 3, 2019 show a debate over whether President Trump was withholding aide to Ukraine and a White House visit by the Ukrainian president in exchange for an investigation into Joe Biden. Kurt Volker, a part-time, volunteer “special envoy” to Ukraine, was also interviewed on Oct. 3, 2019 by the same committee in a closed sesssion — Democrats and Republicans have given inconsistent accounts of the substance of the interview. It was also reported that a previous ambassador to Ukraine was fired earlier in the year for not pushing Ukraine on the investigation. And on Oct 4., 2019, Ukraine said it would open an investigation.
Confirmation President Trump asked Ukraine and China to investigate Joe Biden during a press conference on the White House lawn [video], also on Oct. 3, 2019.
 
Key Documents Released On Sept. 25, 2019, the White House released a summary of the Trump-Zelenskyy call. After the Senate and House voted unanimously on Sept. 24-25, 2019 on non-binding resolutions demanding access to the whistleblower complaint, and minutes before the Director of National Intelligence’s Sept. 26, 2019 appearance before the House Intelligence Commitee, the White House made the complaint available to Congress, which then made it available to the public.
Inquiry Opened In September 2019, it became known that a government employee filed a whistleblower complaint documenting that on July 25, 2019, President Trump urged Ukraine president Volodymr Zelenskyy to investigate alleged actions by presidential candidate Joe Biden, Trump’s chief 2020 election rival at the time. The President also asked Ukraine to locate the Democratic National Committee’s 2016 email server (which was hacked by Russia in an effort to help the President win the 2016 election), and to do both investigations in collaboration with the President’s personal lawyer. On Sept. 24, 2019, Speaker of the House Nancy Pelosi announced an inquiry into the impeachment of President Donald Trump would begin.
Previous Impeachment Votes This is not the first time impeachment of President Trump was proposed — in fact, the House of Representatives has already voted on impeachment three times, rejecting impeachment each time. In December 2017 the House voted 58 to 364 and in January 2018 the House voted 66 to 355 against impeachment based on Trump’s equivocating comments after the white supremacy march in Charlottesville, Virginia and his calls as a presidential candidate to ban all Muslim immigration. In July 2019, the House voted 95 to 332 against impeachment based on Trump’s racist tweet that four congresswomen should “go back” to where they came from. [See how representatives’ votes changed.]
SOURCE: GovTrack.us, https://impeachment.guide/

The art of the criminal system is drawing lines.  For instance, the criminal system takes a lot of time in trying to draw the line between guilt and innocence.  But in the words of Justice Frankfurter, “In law, as in life, lines have to be drawn. But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere. The line must follow some direction of policy, whether rooted in logic or experience. Lines should not be drawn simply for the sake of drawing lines.”  Pearce v. Commissioner of Internal Revenue, 315 U.S. 543, 558 (1942) (dissenting, Frannkfurter, J.)

Unfortunately, some states have arbitrarily drawn a line in the criminal system.  In 1996 Kansas adopted the mens rea approach to the insanity defense which “allows evidence of mental disease or defect as it bears on the mental element of a crime but abandons lack of ability to know right from wrong as a defense.”  In a few words, Kansas drew a line in the criminal system that allowed people who had a mental disease or defect to be criminally punished.  Kansas (along with Alaska, Idaho, Kansas, Montana and Utah) wants people to know that people with a mental disease or defect should be in prisons not in mental hospitals.  Do not let that mental disease or defect fool you!  Kansas says just because you are crazy you are still rational to justify criminal punishment.

Kansas wants the public to forget the deep-rooted principle of law that “[t]hose who are under a natural Disability of distinguishing between Good and Evil. . . are not punishable by criminal Prosecution whatsoever.” 1 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 2 (1739).  The significance of this line from England is that “the Eighth Amendment’s ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time the Bill of Rights was adopted.” Ford v. Wainwright, 477 U.S. 399, 405 (1986).

However, the prohibition against criminalizing the mental ill has older roots.  Law-breakers suffering “mental disease . . . [are] not punishable for criminal acts.” Davis v. United States, 160 U.S. 469, 484-85 (1895).  Also forget the ancient principle that for a system of criminal punishment to be just, there must be some measure of mercy accorded to those who cannot appreciate “right and wrong” or distinguish between “good and evil” because of a mental illness. Bernard Diamond and Anthony Platt, The Origins of the “Right and Wrong” Test of Criminal Responsibility and Its Subsequent Development in the United States: An Historical Survey, 54 CAL. L. REV. 1227 (1966).  As the American Bar Association has noted in its Criminal Justice Mental Health Standards, “[t]he Greek moral philosophers, at least as far back as fifth century B.C., considered the distinction between a culpable and nonculpable act to be among the ‘unwritten laws of nature supported by the universal moral sense of mankind.’” ABA CRIMINAL JUSTICE MENTAL HEALTH STANDARDS 324 n.8 (1989) (quoting B. JONES, THE LAW AND LEGAL THEORY OF THE GREEKS 264 (1956)).  Likewise, “[a]ncient Muslim law, Hebraic law, and Roman law all sought to absolve the mentally ill of criminal responsibility.” Andrew P. March, Insanity in Alaska, 98 GEO. L.J. 1481, 1493 (2010).

But hey….why should history get in the way of throwing the mentally ill in prison?  Well maybe because the moral purpose of the insanity defense is to implement society’s “judgment that individuals unable to understand or control their conduct deserve treatment, not punishment.” Stephen M. LeBlanc, Cruelty to the Mentally Ill: An Eighth Amendment Challenge to the Abolition of the Insanity Defense, 56 AM. U. L. REV. 1281, 1285 (2007).  As the United States noted that it is a “humane principle, existing at common law” that offenders should be punished only when they exhibit “sufficient mind to comprehend the criminality or the right and wrong of such an act.” Davis v. United States, 160 U.S. 469, 484-85 (1895). In our criminal justice system, “a criminal sentence must be directly related to the personal culpability of the criminal offender.” Tison v. Arizona, 481 U.S. 137, 149 (1987).

Skip forward to America today.  The issue of the insanity defense and guilt and innocence is before the United States Supreme Court.  In Kahler v. Kansas the issue is whether the Eighth and 14th Amendments permit a state to abolish the insanity defense.  The Kansas Supreme Court upheld Kahler’s death sentence, rejecting his argument that the failure to allow him to raise an insanity defense violated the Constitution. The U.S. Supreme Court agreed to hear the case in March.

So where would you draw the line?

The Daily Beast explains that at Cremona, Italy’s Stradivarius Museum, peerless 18th century violins are protected by cameras, alarms, and armed guards stationed both in the museum’s hallways and inside a remote control booth.  Stradivarius violins are some of the most sought after and valuable instruments in the world. With instruments from the violin maker’s golden period of 1700 to 1725, it is a rare honor to set eyes, or hands, on one.

In Milwaukee, Wisconsin, circa 2008, however, the Lipinski Strad—a 1715 Stradivarius violin valued at over $6 million, and rumored to have once been touched by the Devil himself—was left in the hands of acclaimed musician Frank Almond, whose sole means of safeguarding it was hiding a cell phone in its case, for GPS-tracking purposes.  In 2014 Frank Almond was robbed of this one-of-a-kind Lipinski Stradivarius violin. 

I was to come in contact with this famous violin when I represented Universal Allah, a humble barber obviously way in over his head when he hooked up with the mastermind of the offense, Salah Salahadyn.

That story, entitled “Plucked” was to be told by Joel Van Haren who is an award-winning journalist and Emmy-nominated cinematographer at the 2019 Tribeca Film Festival at Village East Cinema on April 28, 2019 in New York City.

That film is coming to Milwaukee for the Milwaukee Film Festivel and will be shown at the Broadway Theatre Center, 158 N Broadway, Milwaukee, WI 53202 on Tues., Oct. 22, 2019 at 6:45 pm and at the Oriental Main, 2230 N Farwell Ave, Milwaukee, WI 53202 on Friday , Oct. 25, 2019 at 9:15 pm

In our internet society with boundless information at our fingertips, people try to take legal matters into their own hands.  Forgotten is the old saying of the person who represents him/herself in court has a fool for a client.  People continue to try to represent themselves in court after watching some TV show or reading an article on the internet.

That is dangerous.  Very dangerous.  Do you think you can do brain surgery because you watched “House” or “Gray’s Anatomy” on TV?

Rather than trying to represent yourself in court, consider hiring a lawyer for limited term representation.  The Wisconsin Bar has explained that limited scope representation allows attorneys to work on limited aspects of case. For instance, a lawyer might agree to draft a motion. A lawyer may agree to drafts briefs in litigation, but not to appear in court. Or, a lawyer may agree to appear in court, but only for one particular proceeding. 
The current Wisconsin Rules of Professional Conduct for Attorneys have explicitly allowed limited scope representation since 2007.  SCR 20:1.2(c) reads as follows: 

A  lawyer  may  limit  the  scope  of  the  representation  if  the  limitation  is  reasonable  under the circumstances and the client gives informed consent. Thus   the   Rules   explicitly   allow   limited   scope   representation   under   certain   circumstances.

Comment [6] to the Rule further explains:

A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may  exclude  specific  means  that  might  otherwise  be  used  to  accomplish  the client's  objectives. Such limitation may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

Judge John P. Anderson, Bayfield County Circuit Court & Attorney Mary K. Wolverton, Chairpersons of Limited Scope Representation Subcommittee of Planning and Policy Advisory Committee for the Wisconsin Supreme Court have explained that “[l]imited scope representation is one [ ]tool that can improve access to justice for some Wisconsin residents who may not wish to retain counsel throughout an entire legal proceeding or who may not have the resources for full representation.”

Judge John P. Anderson continues, “As a result of economic downturn, families have less money to spend at a time when their legal needs remain at least the same or are rising. The result is more people are using inappropriate legal documents purchased through online companies to file pleadings, affidavits, and other documents. At the same time, lawyers face economic challenges of their own in finding new clients willing and able to hire an attorney. Many self-represented litigants are unaware that they have the option of hiring an attorney to provide limited assistance. It’s a match based on mutual interest that would benefit everyone involved.”

Attorneys must determine whether it is reasonable to limit the scope of representation based on the circumstances at the time of the engagement.  The Chicago Bar has explained that this requires attorneys to consider both the complexity of the legal matter and the capabilities of the client.

Complexity of the Legal Matter:
• Is the case simple enough substantively, strategically, and procedurally to be broken down into discrete steps that can be easily divided between the attorney and the potential client?
Capabilities of the Client:
• Does the potential client have realistic expectations about their ability to handle all or parts of the case on their own?
• Does the potential client have the mental, physical, and emotional capacity to handle parts of the case on their own? When making this determination, an attorney should consider many factors including, but not limited to, disability status, English proficiency, and whether the potential client is a victim of trauma.
• Is the potential client capable of appearing independently in court?
• Does the potential client have the ability to follow instructions?
• Does the potential client have access to the technology needed to comply with e-filing and other court requirements and do they know how to use it?

If the answer to any of the above questions is “no,” the attorney should consider carefully whether limiting the scope of representation will be reasonable. However, the attorney should also keep in mind that reasonableness does not require the lawyer to predict that the client will prevail in the matter with limited scope assistance, but merely that there is a reasonable chance the litigant will do so.

Help where it’s needed
New Wisconsin limited scope rules expressly allow an attorney to appear on behalf of a client for a specific hearing or on a specific issue, provided everyone is given notice of that fact right away.  A good starting point for limited scope representation can be found here.  The new rules call for a written description of the limits on the scope of representation, but it doesn’t have to be anything fancy; many attorneys use a simple checklist, signed by the attorney and client, to take care of this requirement.  When the attorney has completed the scope of the work he or she has been hired to do, the attorney simply files a notice with the Court stating that fact, and the self-represented party is on their own from that point forward.
The new limited scope rules are good for the general public depending on the facts of a case. People who have limited income and are in need of legal assistance and guidance can focus their resources on issues in areas that will provide them the greatest benefit.  This will result in courts seeing fewer cases where unrepresented parties struggle with complex legal problems.

The Wisconsin Circuit Court Access (WCCA) website provides access to certain public court records of the Wisconsin Circuit Courts on the internet.  I am frequently asked the question about how long records of a case will remain on line. 

How long are cases kept on WCCA?
Generally, case information is displayed on WCCA for the minimum retention period for the case type as set by Supreme Court Rule - Chapter 72. However, beginning at the end of the first quarter of 2018, there is a shorter display period for criminal cases where all charges are dismissed or the person charged was acquitted, for injunction petitions that are denied or dismissed, and for small claims cases that are dismissed.
Additionally, cases remain displayed so long as there are active warrants, active appeals, or money still owed on the cases. Contact the clerk of circuit court’s office in the county where the case was filed for complete case information for those cases that no longer display on WCCA. Case types that are confidential do not appear on this list.

Cases remain displayed as follows:

Civil cases (CV) not small claims
20 years, with the following exception:

• Injunctions under Chapter 813, Wis. Stats., for domestic abuse, child abuse, individual at risk, and harassment that are denied or dismissed, are displayed for 2 years.

Commitment of an inmate cases (CI)
75 years
Complex forfeiture cases (CX)
20 years
Criminal traffic cases (CT)
20 years, with the following exception:

• Criminal traffic cases with a disposition of acquittal or a disposition of dismissed, including dismissals resulting from deferred agreements, are displayed for 2 years.

Docketed judgments
20 years
Family cases (FA)
30 years, with the following exception:

• Dismissed divorce and annulment/legal separation cases are retained for 5 years.

Felony class A cases (CF)
75 years, with the following exception:

• Felony cases with a disposition of acquittal or a disposition of dismissed, including dismissals resulting from deferred agreements, are displayed for 2 years.

Felony class B - I cases (CF)
50 years, with the following exception:

• Felony cases with a disposition of acquittal or a disposition of dismissed, including dismissals resulting from deferred agreements, are displayed for 2 years.

Foreign judgment cases (FJ)
20 years
Forfeiture (non-traffic ordinance violation) cases (FO)
5 years, with the following exception:

• Forfeiture cases with a disposition of acquittal or a disposition of dismissed, including dismissals resulting from deferred agreements, are displayed for 2 years.

Incarcerated person cases (IP)
5 years
John Doe cases
75 years (JD, with class code 34001) for proceedings under §968.26, Wis. Stats.
Misdemeanor cases (CM)
20 years, with the following exception:

• Misdemeanor cases with a disposition of acquittal or a disposition of dismissed, including dismissals resulting from deferred agreements, are displayed for 2 years.

Paternity post judgment actions (PA)
30 years
Probate and informal probate cases (PR and IN)
75 years
Proceedings commenced under §968.02(3)
75 years (JD, with class code 34003)
Small Claims Cases (SC)
20 years, with the following exceptions:

• Dismissed small claims cases filed prior to 7/1/2006 are removed 1 year after the final order.
• Dismissed small claims cases filed 7/1/2006 or later are removed 2 years after the final order.
• Small claims cases that are dismissed with no money judgment are displayed for 2 years.

Tax warrants (TW)
20 years, with the following exceptions:

• Filed before 7/31/1981 - 10 years.
• Filed from 7/31/1981 - 4/30/2004 – Permanent retention.
• Filed after 4/30/2004: 20 years, but can be renewed for an additional 20 years.

Traffic forfeiture cases (TR)
5 years, with the following exception:

• Traffic cases with a disposition of acquittal or a disposition of dismissed, including dismissals resulting from deferred agreements, are displayed for 2 years.

Transcript of judgment cases (TJ)
20 years
Tribal court order cases (TC)
20 years
Unemployment compensation cases (UC)
20 years
Workers compensation cases (WC)
20 years
Will filed cases (WL)
100 years

Wisconsin gains jurisdiction over a person when:

 (a) The person commits a crime, any of the constituent elements of which takes place in this state.
(b) While out of this state, the person aids and abets, conspires with, or advises, incites, commands, or solicits another to commit a crime in this state.
(c) While out of this state, the person does an act with intent that it cause in this state a consequence set forth in a section defining a crime.
(d) While out of this state, the person steals and subsequently brings any of the stolen property into this state.
(e) The person violates s. 943.201 or 943.203 and the victim, at the time of the violation, is an individual who resides in this state, a deceased individual who resided in this state immediately before his or her death, or an entity, as defined in s. 943.203 (1) (a), that is located in this state.
(f) The person violates s. 943.89 and the matter or thing is deposited for delivery within this state or is received or taken within this state.
(g) The person violates s. 943.90 and the transmission is from within this state, the transmission is received within this state, or it is reasonably foreseeable that the transmission will be accessed by a person or machine within this state.   Wis. Stat. Sec. 939.03.
 
The Wisconsin Supreme Court has characterized § 939.03 as relating to the personal jurisdiction of the court.  State v. Smith 131 Wis. 2d 220, 239,240, 388 N.W.2d 601 (1986).  See also, Platz, The Criminal Code, 1956 Wis. L. Rev. 350, 359-60.  The limitations in § 939.30 assure a sufficient relationship between the defendant and the State of Wisconsin to constitutionally exercise authority over him.  Id. at 239.
 
A question arises about how Wisconsin gains jurisdiction over someone not living in Wisconsin.  Normally, that is gained by the extradition process.  U. S. Const. Art. IV, § 2, cl.2, provides: "A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime."  See also, Uniform Acts in Criminal Proceedings, Wis. Stat. Chap. 976.  There were early challenges to this uniform act when it was adopted in states but it was found constitutional despite going farther than what was provided in the Constitution.  State v. Kriss, 62 A. 2d 568 (Md. 1948); People v. Herberich, 276 App. Div. 852, 93 N. Y. S. 2d 272 (1949) aff'd mere., 301 N. Y. 614, 93 N. E. 2d 913 (1950); English v. Matowitz, 148 Ohio St. 39, 72 N. E. 2d 898 (1947).
 
Sometimes law enforcement does not like to have to follow legal procedures.  The question then arises can law enforcement kidnap someone in one state and force them to appear in another state?  The person who is thus kidnapped and brought for trial into the state having jurisdiction over the subject matter of the crime may urge that the court has no jurisdiction over the person of the defendant (or, if it has jurisdiction, that it should not exercise this jurisdiction) in view of the illegal manner in which his presence in the state was obtained. In the reported cases he usually raises this issue of jurisdiction over the person either in the trial court by a plea to the jurisdiction, or by applying after the abduction for a writ of habeas corpus in a state or federal court.  Under the Federal Rules of Criminal Procedure, rule 12(b) (2), it has been held that a kidnapped defendant must challenge personal jurisdiction by a pre-trial motion; it is too late to raise the issue by a motion in arrest of judgment after verdict. United States v. Rosenberg, 195 F. 2d 583 (2d Cir. 1952). Failure to raise the point early constitutes a waiver. Id. 
 
It is of particular note that early decisions found that where a defendant was properly in custody on a federal case, he could be brought before a state court for trial.  Ponzi v. Fessenden, 258 U. S. 254 (1922).  Likewise, the U.S. Supreme Court has found nothing in the U.S. Constitution from stopping one state from kidnapping a person and forcing him to appear in another state for trial.  Mahon v. Justice, 127 U. S. 700 (1888). Two justices dissented on the ground that the Constitution "clearly implies that there shall be no resort to force." Id. at 716. See Ker v. Illinois, 119 U. S. 436 (1886) (where police can be held liable civilly to the victim for false imprisonment or assault and battery, no need to forbid a trial under the due process clause of the kidnapped person.).  A later case dealing with federal control over state jurisdiction over a defendant abducted from another state, Frisbie v. Collins, 342 U. S. 519 (1952), did not mention the extradition provisions of the Constitution or statutes.  The Frisbie decision was reached despite 18 U.S. Code § 1201. Kidnapping (Lindbergh Law) which provides severe criminal penalties for “[w]hoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person …when the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense.”  See also, 34 U.S.C. § 12601 which makes it unlawful for State or local law enforcement officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or laws of the United States.  The types of conduct covered by this law can include, among other things, excessive force, discriminatory harassment, false arrests, coercive sexual conduct, and unlawful stops, searches or arrests. However, in order to be covered by this law, the misconduct must constitute a "pattern or practice" -- it may not simply be an isolated incident.  Thus, one incident of kidnapping is permissible.
 
What of the due process clause which provides the government "shall deprive any person of life, liberty, or property, without due process of law"?  The due process clause, as applied to state criminal procedure, has been said to embrace "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."  Snyder v. Massachusetts, 291 U. S. 97, 105 (1935).  Due process requires all that is "implicit in the concept of ordered liberty,"  Palko v. Connecticut, 302 U. S. 319, 325 (1937). and, as applied to state criminal procedure, "denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice.”  Lisenba v. California, 314 U. S. 219, 236 (1941).  Doesn’t kidnapping someone in one state and forcing him to appear in another state violate due process?  In short answer, the Frisbie court said prior decisions denying any due process violation by such action "rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a [state] court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will."  Frisbie at 522.  All the process that is due a person is to be notified of the charges and get a fair trial.  See also, Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056 (2016) where Justice Clarence Thomas, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito, held the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband.  Thus, police have a free pass to violate the rights of individuals — just so long as they find evidence of a ‘crime.’  Justice Elena Kagan wrote a dissenting opinion, in which Justice Ginsburg joined in full, where she argued that the majority's ruling "creates unfortunate incentives for the police"
 
Since federal law permits illegal conduct by the police to bring a person into court, what of state law?  Some states originally barred kidnapping in the name of law enforcement.  For instance in State v. Simmons, 39 Kan. 262, 18 Pac. 177 (1888), the court stated: "It would not be proper for the courts of this state to favor, or even to tolerate, breaches of the peace committed by their own officers, in a sisterstate... [Jurisdiction should not be sustained when obtained only] in violation of some well-recognized rule of honesty or fair dealing, as by force or fraud .. . [Such jurisdiction] would not only be a special wrong against the individual .. .but it would also be a general wrong against society itself a violation of those fundamental principles of mutual trust and confidence which lie at the very foundation of all organized society, and which are necessary in the very nature of things to hold society together" 18 Pac. at 178-9.  Simmons was overruled by implication in Foster v. Hudspeth, 170 Kan. 338, 224 P. 2d 987 (1950),
 
Sadly, Wisconsin, like many states, does not see a problem with police breaking the law to enforce the law..  In State v. Smith, supra., it was held that “an illegal arrest as a jurisdictional defect is not a constitutional mandate. A defendant cannot claim immunity from prosecution "simply because his appearance in court was precipitated by an unlawful arrest," nor does an illegal arrest serve as a defense to a valid conviction.”  State v. Smith at 236.

The criminal system is a blunt tool used to deal with society’s most delicate problems.

Delicate meaning difficult.  Delicate meaning complex.  Delicate meaning misunderstood.

Problems meaning everything from violence between strangers and family, drug (including alcohol) abuse, theft, homelessness, and the poor.

One of the most common delicate social problems the criminal system is called upon to address is caring for persons who have a mental disease or defect.  According to the Treatment Advocacy Center, “Serious mental illness has become so prevalent in the US corrections system that jails and prisons are now commonly called “the new asylums.” In point of fact, the Los Angeles County Jail, Chicago’s Cook County Jail, or New York’s Riker’s Island Jail each hold more mentally ill inmates than any remaining psychiatric hospital in the United States. Overall, approximately 20% of inmates in jails and 15% of inmates in state prisons are now estimated to have a serious mental illness. Based on the total inmate population, this means approximately 383,000 individuals with severe psychiatric disease were behind bars in the United States in 2014 or nearly 10 times the number of patients remaining in the nation’s state hospitals. . . .A 2004–2005 survey found there were ‘more than three times more seriously mentally ill persons in jails and prisons than in hospitals.’”  Moreover the Treatment Advocacy Center found that mentally ill inmates remain in jail longer than other inmates, cost more to house than other inmates, cause problems that too often result in stays in solitary confinement, and are more likely than other inmates to commit suicide.

The Wisconsin Department of Corrections in May 2018 published its “inmate profile for 2017.”  This publication identified 37% of males and 84% of females as having a “mental health condition.”  The Department of Corrections 2019-21 budget request indicates that among the serious mental illnesses affecting inmates are “major depressive disorder, bipolar disorder, psychotic disorders, and behavioral disorders, which significantly impact the inmate’s ability to function effectively.” 

According to Mental Illness Policy, in Wisconsin as of 2005, there were 36,154 prisoners in jail and prison, the estimated number of those prisoners who were seriously mentally ill was  5785, the number of patients in state or private psychiatric units in general hospitals was 1500 meaning that the odds of a seriously mentally ill person being in a Wisconsin jail or prison compared to in a hospital was 3.9 to 1.  This means that is Wisconsin, more mentally ill persons are in jails and prisons than hospitals.

Using the blunt force of the criminal system to warehouse people is costly to taxpayers.  According to a 2014 study of Los Angeles County, the average cost of jailing an individual with serious mental illness exceeds $48,500 per year. By comparison, the price tag for providing Assertive Community Treatment, or ACT, and supportive housing—one of the most intensive, comprehensive, and successful intervention models in use today—amounts to less than $20,500 annually, just two-fifths the cost of jail.

These numbers are staggering in and of themselves.  However, what is really important from these numbers is what is not said.  All these facts and figures relate directly to mental illness with nothing said about prisoners with a mental defect like intellectual disability.  So it is clear, in the Diagnostic and Statistical Manual of Mental Disorders version 4 (DSM-IV), there was a diagnostic category called "mental retardation." When the new DSM-5 came out in 2013, mental retardation had disappeared; in its place was a new disorder called "intellectual development disorder." This change likely was influenced by congressional action in October 2010 with the passing of Rosa's Law, which required references to “mental retardation” in specified Federal laws to become “intellectual disability,” and references to “a mentally retarded individual” to “an individual with an intellectual disability.” Public Law 111-256.

Rosa's Law is part of a long line of changes that has been ongoing since the early 1900s. Words such as idiot and moron were common in court documents and diagnosis throughout the early 1900s for intellectually disabled persons. See, e.g., Biennial Report of the Commission for Segregation and Control of the Feeble-Minded. This early belief has contributed to this nation's mistreatment of intellectually disabled people which has been described as 'grotesque' by five members of the Supreme Court. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S. Ct. 3249, 3262 (1985) (Stevens, J., concurring, joined by Burger, C.J.); id. at 3266 (Marshall, J., concurring in part and dissenting in part, joined by Brennan and Blackmun, JJ.). In the 1960s, changes in the law led to the use of such terms as mental retardation. With the loss of idiot (IQ 0-25), imbecile (IQ 26-50) and moron (IQ 51-75), specific descriptors of IQ-based intelligence were abandoned because of negative public sentiment. Under Rosa's law, these would be described respectively as moderate, profound, and severe levels of intellectual disability. See Letter of Senators Barbara A. Mikulski and Mike B. Enzi urging fellow senators to adopt “Rosa’s Law.”

Intellectually disabled persons often “look normal” and learn to mask their deficits even while suffering from a disability that delays learning, diminishes memory, curtails problem solving and distorts the understanding of cause and effect.  A person with significant intellectual deficits lacks a normal person's ability to reason and understand simple relationships (both similarities and differences) and therefore cannot relate to others on an equal footing.  See generally, White, Critical Influences in the origins of competence, 21 Merrill-Palmer Q 243, 246 (1975), as cited in the amicus brief for the APA in Penry v. Lynaugh, 492 U.S. 302 (1989) at p. 6.  In a nutshell, he is profoundly impaired.  Being intellectually disabled leads to severely debilitated decision making. The result is a person who may appear normal but is, in fact, a very vulnerable person, particularly within the confines of the criminal justice system. See James W. Ellis and Ruth A. Luckasson, Mentally Retarded Criminal Defendants, 53 GEO. WASH. L. REV. 414 (1985).

For example, many intellectually disabled people are predisposed to 'biased responding' or answering in the affirmative questions regarding behaviors they believe are desirable, and answering in the negative questions concerning behaviors they believe are prohibited. See generally Sigdman, Budd, Stankel & Schoenrock, When in Doubt, Say Yes: Acquiescence in Interviews with Mentally Retarded Persons, 19 MENTAL RETARDATION 53 (1980) The form of a question can also directly affect the likelihood of receiving a biased response, Sigelman, Winer & Schoenrock, The Responsiveness of Mentally Retarded Persons to Questions, 17 EDUC. & TRAINING MENTALLY RETARDED 120, 123 (1982); Budd, Sigelman & Sigelman, Exploring the Outer Limits of Response Bias, 14 SOCIOLOGICAL FOCUS 297, 305-06 (1981), and thus police officers, judges, and lawyers may inadvertently or intentionally cause the susceptible intellectually disabled accused person to answer in an inaccurate manner by asking a question in an inappropriate form. Further, many intellectually disabled persons are reluctant to resist questioners by refusing to answer questions that are beyond their ability. Kernan & Sabsay, Getting There: Directions Given by Mildly Retarded and Nonretarded Adults, in LIVES IN PROCESS: MILDLY RETARDED ADULTS IN A LARGE CITY (R. Edgerton ed. 1984) (Mentally retarded persons were asked for directions to their homes. Fifty-five percent of the sample gave directions which, although complete, proved inaccurate in significant ways.)

According to a Bureau of Justice Statistics report, 30% of jail inmates reported having a cognitive disability—far higher than among the general public, where less than 5% of people self-report a cognitive disability.  This is clear overrepresentation of person’s with a intellectual disability.  The Bureau of Justice Statistics notes this number is an underestimation based on the limits of the questioning.  Id.  Cognitive disabilities—such as Down syndrome, autism, dementia, intellectual disabilities, and learning disorders—are among the most commonly reported.  Id.
So why are so many people with disabilities arrested?  Several factors can lead to higher rates of arrest for people with cognitive disabilities, including:

• The ARC explains that people with low IQ and other developmental disabilities can engender suspicion because they lack the necessary social cues that other adults understand, resulting in inappropriate responses—such as becoming overwhelmed by the police presence and running away or hiding. When questioned by police or other authority figures, they often smile inappropriately, fail to remain still when ordered to do so, or act agitated and furtive when they should be calm and polite.
• People with cognitive disabilities may say what they think the police want to hear, even to the point of confessing to crimes they didn’t commit.  Id.
• As reported by the Journal of Psychology and Law, they may waive Miranda rights without realizing the repercussions of doing so, while saying they do understand.

As one police officer put it, “They are the last to leave the scene, the first to get arrested, and the first to confess.”