ACLU questionnaire for Wisconsin Supreme Court candidates
Experience with the criminal justice system, including experience with the effects of incarceration on individuals and communities:
As a sitting judge in Dane County, my experience with the criminal justice system is extensive. I hear about 1700 cases in a year. I see the effect of the law up close, when it has a direct impact on the people in front of me. I examine each case carefully and choose the most appropriate judgement for each. Sometimes incarceration is the most appropriate sentence. Other times I am able to send the offender to drug court or give a sentence of community service. My goal is always to balance the needs of the community with the rehabilitation of the offender.
Before being elected judge in 2017, I was the Executive Director of the Office of Crime Victim Services. This position brought me into contact with offenders and victims on a regular basis. I directed and managed the Office of Crime Victim Services staff responsible for providing support to crime victims throughout Wisconsin. I also supervised the administration of over $40 million in state and federal grant funds designed to provide aid to crime victims, including grants provided by the Victims of Crime Act, Violence Against Women Act, Sexual Assault Victim Services Program, Sexual Assault Forensic Exam Program and Children’s Justice Act.
Experience in civil litigation or administrative proceedings:
My experience here is also extensive. As a sitting judge, I preside over criminal cases as well as family, small claims, and injunction cases. In addition, during my time at the Wisconsin Department of Justice (2011-2017), I was a strong advocate of U Visas. These are visas a victim of abuse or assault can receive, providing the victim helps prosecute the perpetrator. Many of the potential recipients of these visas were from Mexico and Central America. The visas can contribute to the strong working of our justice system by assisting in the prosecution of abusive behavior, protecting victims, and providing some stability in those victims’ lives. In my experience, there was a reluctance among some authorities to sign the visas. My work involved educating judges and prosecutors in the criminal justice system about the importance of these visas, and increase the number of visas granted.
As Director of Human Resources and Counsel at the National Conference of Bar Examiners (2005-2010), I managed the legal and human resources operations of the organization, identified and analyzed legal issues, assisted with litigation, and assured legal compliance.
From 1992 to 1999 I worked in the Dane County District Attorney’s Office, starting as an Assistant District Attorney, and later being promoted to Deputy District Attorney. My responsibilities included managing the misdemeanor and traffic units, and assisting in establishing prosecution policies in the areas of domestic violence and drunk driving. I also educated prosecutors, municipal and circuit court judges, law enforcement personnel, and probation and parole agents about issues relating to domestic violence, operation of a motor vehicle while intoxicated, and abusive head trauma.
Describe the two or three most significant cases on which you have worked and explain their significance to you, to your client or to the development of the law:
Twenty years ago I worked on what was apparently a false report case. On a strong police recommendation, I filed charges against a woman named Patty Murphy for supposedly lying about an assault. The police had documented 41 supposed lies by this victim. They were wrong. Patty really had been assaulted, and it was wrong to put Patty through the ordeal of arrest and charges.
I apologized publicly, and I apologized privately, and then Patty and I went around the state and trained prosecutors to understand victims better so the mistake wouldn’t be repeated. Now, Patty fully endorses me for a seat on the Supreme Court. The work Patty and I have done together has changed our judicial system, so that hopefully, in the future, other victims won’t have to go through what she did. And thankfully, the man who assaulted her was brought to justice and successfully prosecuted.
In general, I am proud of making sure domestic violence offenders participate in Certified Domestic Violence Counseling. I have had offenders actually thank me for making them do it. Counseling really makes a difference in their lives and decreases recidivism. It keeps their loved ones safe, it keeps the offenders from going back to jail, and it stops intergenerational violence in its tracks.
Describe any significant pro bono legal work in the last five years:
While the nature of my work has often prevented me from engaging in pro bono work, there were times when I provided support. One of these instances involved my son’s best friend, Dereian. He was a 12-year-old African-American boy accused of having a pellet gun on school grounds. School authorities were planning to expel him, even though at no time did anyone actually see Dereian with the supposed gun. An expulsion from school would have destroyed this boy’s life and put him on the path of the school-to-prison pipeline. Two attorneys represented him pro bono and I advised those attorneys as a volunteer. I also created a Change.org petition to organize the community in support of Dereian. Over 870 people signed the petition. Thankfully our efforts were enough, and Dereian was not expelled.
Describe your judicial philosophy and/or your view of the proper role of a State Supreme Court Justice, with particular attention to the role of the Supreme Court in the criminal justice system:
The courts play multiple key roles. First, we are a place to resolve disputes, although it would be better if fewer disputes came to court. Second, we resolve and address criminal behavior, and protect the rights of the accused. Third, our experience in both civil and criminal law can and should inform policy-makers so they can make better judgements about laws, statutes, administrative rules, and government programs. I reject the false talking point of “originalism” put forward by the Federalist Society and their partisan supporters, as they are often the most outcome-based jurists in the system.
When I hear a judge say “apply the law as it is, not as I wish it to be,” I generally know they are likely to be the worst kind of activist judge, intending to implement a far-right-wing agenda. I am committed to the rule of law, to an independent judiciary, and to applying the Constitution fairly and equitably to today’s world.
Identify a judge or justice (state or federal) whom you admire and explain why:
Judge William Foust, a Dane County Circuit Court Judge. He had a calm temperament and was kind and respectful to everyone in his courtroom. He was always prepared, and never lost his sense of humor. He was a great example of how to behave in the courtroom and positively affect the people around him.
Identify what you consider the best Wisconsin or US Supreme Court decision in the last 30 years and explain why you consider it the best:
I believe Paroline v. United States, 134 S.Ct. 1710 (2014) is one of the best decisions of the past 30 years because in this case the U.S. Supreme Court modeled treating victims with sensitivity, dignity, and respect by showing empathy towards the victim, protecting her privacy, and instructing on the importance of restitution.
The victim in Paroline, identified as "Amy," was sexually assaulted by her uncle as a young girl. Compounding his crimes, her uncle also recorded and later disclosed pornographic images of her abuse on the Internet. Paroline was convicted for possessing two of these images as they were among the 150 to 300 total images of child pornography in his custody. Amy sought $3.4 million in restitution, under the federal statute that mandates full restitution to child pornography victims, arguing that everyone who possesses images of her is continuing to contribute to her injury and, consequently, each of them should be required to pay the full amount for her losses.
The Supreme Court ruled that Paroline was not responsible for the entire $3.4 million but he should have to pay his share of restitution and that amount must be enough to send the message that his part in the crime was not victimless. Although the court did not rule that Amy should receive the full $3.4 million from Paroline, the court's decision was exemplary in its treatment of Amy as a crime victim.
In the decision, the justices show compassion and sensitivity towards Amy. In demonstrating empathy for Amy, the court signals to all who read this case that Amy is a real person worthy of our attention and respect. Justice Kennedy summarized the impact of the crime on Amy: “The full extent of this victim’s suffering is hard to grasp. Her abuser took away her childhood, her self-conception of her innocence, and her freedom from the kind of nightmares and memories that most others will never know. These crimes were compounded by the distribution of images of her abuser’s horrific acts, which meant the wrongs inflicted upon her were in effect repeated; for she knew her humiliation and hurt were and would be renewed into the future as an ever-increasing number of wrongdoers witnessed the crimes committed against her.”
The court also protected the victim's right to privacy by allowing Amy to use a pseudonym rather than her real name. This will allow Amy to avoid further humiliation as she puts her life back together. Not all courts allow victims to remain anonymous. When victim identities are revealed along with graphic details of the crimes committed against them, it exacerbates the trauma they experience. In modeling the use of a pseudonym, the U.S. Supreme Court indicates to lower courts that this practice is not only acceptable, but preferred.
Lastly, the court fully embraced the importance of restitution as an important penological tool noting that restitution is effective in rehabilitating offenders because it forces them to concretely confront the harm they caused.
Identify what you consider the worst Wisconsin or US Supreme Court decision in the last 30 years and explain why you consider it the worst:
I can’t pick just one.
I think the absolute worst case the Supreme Court decided was Citizens United. They clearly wanted to get to a result to open up more massive corporate spending in elections, and made a spurious First Amendment decision to get to that result. It has been a disaster, as judges are now acting more like politicians.
I think the Wisconsin Supreme Court recently made a terrible decision in the Koschkee case, in which they reduced the power of agencies to promulgate administrative rules. This case is especially bad because it reverses a decision from just three years previous, just because the membership of the court changed, with Justice Kelly joining the court, and so the right-wing justices made a 180° reversal. Nothing had changed except the ideology of the judges deciding the case.
There’s also a disturbing trend lately of Justice Kelly and his allies at WILL (Wisconsin Institute for Law and Liberty) circumventing the judicial process and having the Supreme Court take cases directly, instead of letting them work their way first through a Circuit Court, then the Court of Appeals, and then to the Wisconsin Supreme Court. They are short-circuiting the process, preventing parties from having their day in court. Parties then can’t introduce evidence, cross-examine witnesses, and create a record. It’s what political activists do when they want to hide their goals, and it is unbecoming of the Wisconsin Supreme Court.
Identify one of the most significant Wisconsin Supreme Court decisions on criminal justice issues in the past 30 years and explain why you consider it important:
I would point to a recent case - State v. Wayerski. Although in this case the defendant’s claims were not upheld, a 4-3 court in a decision written by Justice Rebecca Dallet, which included in the majority Rebecca Bradley and the three justices most commonly seen as more liberal, clarified the responsibilities of the prosecution under Brady in important ways. By insisting that prosecutors must always turn over relevant evidence, and not constructing a test for what defense attorneys “should have” found on their own, the decision restores important balance to the process by which a court determines whether evidence should be considered.
Identify one of the most significant U.S. Supreme Court decisions on criminal justice issues in the past 30 years and explain why you consider it important:
One incredibly important case is Roper v Simmons. In this case the US Supreme Court decided that juveniles who commit crimes cannot be subject to the death penalty. It goes along with Atkins v Virginia, which ruled that those who have intellectual deficiencies cannot be executed. I believe the Court must consider in the coming years whether or not capital punishment, when we can be reasonably convinced innocent people have been put to death, is constitutional at all. In the meantime, I think it is extremely important that the Court headed in the direction, in Roper and in Atkins, of limiting use of the death penalty. We know the death penalty is applied in racially and economically inequitable ways, is seen by many as morally repugnant, and risks harming the innocent, and it’s time for the Court to address this challenge head on.
Discuss one Wisconsin or U.S. Supreme Court decision that has contributed to the levels of incarceration in the state or the nation:
I think Utah v Strieff is a bad decision, and a difficult case. Basically, it allows police who have failed to have a good-faith basis in taking an enforcement action, to nevertheless use that action to uncover evidence. In her dissent, Justice Sonia Sotomayor effectively criticizes the decision: “Do not be soothed by the opinion’s technical language. This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong.” She goes on to say that the case violates a “basic principle” of the Fourth Amendment: “Two wrongs don’t make a right.”
We need law enforcement to act within the law when enforcing the law. Period.
Discuss one Wisconsin or U.S. Supreme Court decision that has played a role in disproportionate incarceration of people of color in the state or nation:
In McCleskey v. Kemp an African-American man was convicted of murdering a police officer in Georgia and sentenced to death. He argued that a statistical study showed that African-American defendants who killed white victims were the most likely to receive death sentences in the state. The Court held that because McCleskey failed to show that purposeful discrimination had a discriminatory effect on him during his trial, there was no constitutional violation. The majority did not accept McClesky’s reliance on a statistical study. Instead the court found that McCleskey’s data was best presented to legislative bodies and not to the courts.
We will not see meaningful change in our justice system without courts recognizing that there are issues to address. By turning a blind-eye on hard data the U.S. Supreme Court in McCleskey refused to even begin to recognize the issue of racial disparity in our criminal justice system.
Why do you want to be a Wisconsin Supreme Court Justice?
We need to get our state and our country back on track. Too many current justices see themselves on one political team or another. I don’t hold with that point of view. We need leaders who will put our strong Wisconsin political tradition of independent and honest courts first.
I have strong Wisconsin values. I believe in our Progressive traditions of independent courts and nonpartisan local officials, strong public schools and infrastructure, protecting our beautiful natural resources, and treating everyone with respect. Everyone deserves dignity as a human being, regardless of race, ethnicity, or documented status.
It’s distressing to me that we live in a time when far-right political forces seek to roll back the advances in civil rights we’ve made in the last few generations. I want to continue to defend the rights of all Wisconsinites.
I’m especially concerned about the rule of law — the courts are constantly being dragged into Donald Trump’s attempts to undermine our immigration system, and local law enforcement is pressured to become deputized to support ICE and CBP. We need every Wisconsin resident to know they will be treated fairly and with dignity in our court system, and that our state courts won’t become partners in the national attempts to destroy our immigration systems.
Finally, I have spent my career as a strong advocate for victims, and I think that both makes me the right person for the job and the strongest candidate in this race.