On Constitution Day, a Stacked Deck Against Defendants at Wisconsin Supreme Court

by Matthew Rothschild, Executive Director

September 15, 2017

This Sunday, Sept. 17, is Constitution Day. In Wisconsin, it’s a sad day because over the last several years, the Wisconsin Supreme Court has issued one ruling after another curtailing the constitutional rights of the accused.

Here are a few of the most egregious rulings, where the conservative majority has gone out of its way to ignore both the Constitution and U.S. Supreme Court precedents in order to stack the deck against defendants. Often the rationales invoked by the majority were shabby and threadbare. As Justice Shirley Abrahamson wrote in one case, the justices in the majority engage in “legal and logical gymnastics” to arrive at the conclusions they desire.

In the following two cases, the Wisconsin Supreme Court chipped away at the Fifth Amendment right against self-incrimination.

In the 2014 case State of Wisconsin v. Adrean L. Smith, the defendant, a suspect in armed robberies, was being questioned by a police officer after being read his Miranda rights. After some discussion, Smith said, “I don’t want to talk,” and “I don’t even want to talk about this.” He also declared his innocence. The majority of the justices ruled that his responses to police after he said he didn’t want to talk were still admissible in court because his “proclamation of innocence is incompatible with a desire to cut off questioning.”

In the 2017 case State of Wisconsin v. Brian Harris, the defendant, a homeless man the police found drunk in the basement of a building allegedly trying to steal copper piping, was not even given a Miranda warning. The police took him to jail, and without reading him his rights, a detective asked him, “Would you like to give me a statement?” Harris responded: “They caught me, man.” Harris’s attorneys argued that this statement was not admissible because he wasn’t Mirandized. The conservative justices disagreed, arguing that the detective’s question was insignificant and not part of an interrogation. “The only information it sought was whether Mr. Harris would like to make a statement; it did not seek the statement itself.”

In the 2017 case State of Wisconsin v. Glenn T. Zamzow, the Wisconsin Supreme Court curbed the Sixth Amendment right of the defendant to confront witnesses against him. An officer had made a traffic stop of Zamzow and the officer told him at the time, “The reason I stopped you is you were crossing the center line,” and there was an audio recording of that statement. Problem is, the officer subsequently died. Zamzow’s lawyers moved to suppress the recorded statement because Zamzow couldn’t confront the officer. But their motion was denied at the suppression hearing, and the Wisconsin Supreme Court upheld that decision, claiming that “the Sixth Amendment does not mandate that statements considered at a suppression hearing face the crucible of cross-examination.”

In a case this year State of Wisconsin v. Jeffrey C. Denny, the majority on the Wisconsin Supreme Court wouldn’t even allow Denny, who was convicted of murder, to test DNA evidence to see whether it would exonerate him. Actually, they said he only had a right to look at the test tube, but he couldn’t get it tested. As Justice Ann Walsh Bradley wrote in a scathing dissent, the majority ruled that “all Denny can do is look at evidence with the naked eye when its potential to exonerate him is invisible until it is tested. Such a useless procedure renders the majority's determination absurd.”

And in several cases, the Wisconsin Supreme Court has chiseled away at the Fourth Amendment right to protection against unlawful searches and seizures.

In the 2016 case State of Wisconsin v. Brett W. Dumstrey, the Court ruled that people who live in apartment buildings have fewer Fourth Amendment rights than those who live in single-family homes – at least as those rights relate to what happens in the garage. An off-duty police officer claimed Dumpstrey was driving erratically, so he flashed his badge at a stoplight and told him to pull over. Instead, Dumpstrey drove to his apartment complex and went into the underground garage. Before Dumstrey could close the garage door with his remote control, the officer drove his car over the threshold. Another officer arrived and arrested Dumstrey. The majority ruled that unlike the garage in a single-dwelling home, “the parking garage underneath this apartment building does not constitute” a protected zone of privacy. “Dumstrey has shown no reasonable expectation of privacy in the garage.”

In a similar 2016 case, State of Wisconsin v. Richard L. Weber, a sheriff’s deputy flashed his lights at Weber’s car because he had a defective tail light. Weber was just 100 feet from his driveway, so he pulled in and went into his attached garage. The deputy followed Weber into the garage, and as Weber was walking up the stairs into his house, told him to stop. He refused. The officer stepped just inside the house and grabbed Weber, who was subsequently arrested. Weber’s lawyers argued that this was an invasion of his Fourth Amendment rights, but the majority on the Wisconsin Supreme Court would have none of it. “We conclude that the deputy’s warrantless entry into Weber’s garage and subsequent arrest of Weber were constitutional because they were justified by the exigent circumstances of hot pursuit of a fleeing suspect who had committed jailable offenses.”

Even conservative Justice Rebecca Bradley didn’t buy that. “The objective facts here do not support probable cause of a jailable offense and do not establish any exigent circumstance,” she wrote in a rare dissent.

Justice Ann Walsh Bradley wrote a long and powerful dissent that was joined by Justice Abrahamson: “The lead opinion would erode the Constitutional rights of us all,” she wrote. “It sets a trajectory where, bit by bit, almost unnoticed, we may awaken one day to discover that the freedoms for which so many have fought and sacrificed have been severely curtailed.”

By using pretexts like “exigent circumstances” or the police’s “community caretaker function” (as the Court did in the 2016 case State of Wisconsin v. Charles V. Matalonis), the Wisconsin Supreme Court has done grave damage to the Fourth Amendment.

As Justice Ann Walsh Bradly noted in a dissent this summer, “In the last two terms, this court is batting nearly zero when it comes to upholding Fourth Amendment challenges in criminal cases.”

That’s not a good batting average, and it doesn’t reflect impartiality. Quite the contrary: It demonstrates bias. And it means that criminal defendants cannot get a fair shake when they walk into the Wisconsin Supreme Court, regardless of what the U.S. Constitution says.

WDC Executive Director Matthew Rothschild
Matthew Rothschild
WDC Executive Director

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