Note: This article originally appeared in Isthmus on December 8, 2005
No one watches the Wisconsin Supreme Court with more interest than Forest Shomberg. And what he's seen in recent months has filled him with hope.
"There's been a major shift in the way the justices define fundamental fairness as it relates to the law," writes Shomberg, citing a spate of recent cases in which the court has uncharacteristically affirmed the due-process rights of criminal defendants. "It seems like the collective conscience of the court is changing, that they're doing everything they can to prevent wrongful convictions."
For Shomberg, these matters are hardly academic. The 41-year-old former Madison resident is assessing the state's highest court from within the confines of its harshest prison - the Wisconsin Secure Facility Program (formerly Supermax) in Boscobel. Shomberg is serving a 12-year prison term for the sexual assault of a UW-Madison student in 2002, a crime for which he has always professed innocence. (He has several alibi witnesses and passed a lie detector test.) The state Supreme Court is now deciding his case.
Shomberg's appeal hinges on whether his Dane County judge erred in disallowing an expert witness who would have challenged the process through which Shomberg was picked by two eyewitnesses, virtually the only evidence against him. At oral arguments in late September, the prosecution agreed this testimony should gave been allowed, but said Shomberg's attorney failed to establish its relevance ("A Case of Mistaken Argumentation?" 10/7/05). That's mighty thin grounds to keep a possibly innocent man in prison.
About a mile from the state Capitol where the Supreme Court convenes, Jim Pugh is also eager to discuss some of its recent rulings, especially a trio of cases sympathetic to the liability rights of injured parties.
"We're raising a cry throughout Wisconsin telling people their jobs will be at risk due to the Wisconsin Supreme Court," says Pugh, spokesman for Wisconsin Manufacturers & Commerce, the state's largest business lobby. The group is running an ad in business publications showing a sports car passing a billboard with an outlined map of Wisconsin and the proclamation, "Hello, Trial Lawyers! Good-bye Jobs!" The ad claims "America's personal injury lawyers are racing to Wisconsin" due to recent court rulings that "send a clear signal to every CEO and top executive in the U.S. that Wisconsin will be a risky state in which to operate."
Pugh, not given to understatement, says the court's "bizarre anti-business rulings" have created a "dangerous litigation climate" in which Wisconsin will be "flooded with frivolous lawsuits by trial lawyers seeking to get rich and killing jobs in the process." He calls these rulings "absolutely devastating." Unless the Legislature passes and Gov. Jim Doyle signs legislation to undo the harm, Pugh predicts a "long, slow decline" in the state's economy, as businesses avoid locating here, refuse to expand, or move to greener pastures - all options the WMC campaign seems to affirm as reasonable.
Others interpret these decisions in softer terms, noting that each is limited in scope and potential application. But there's no doubt the court's recent rulings in both the civil and criminal arenas have been surprising, in the alignments they revealed and arguments they employed. In several key cases, Justice Patrick Crooks, once a darling of state conservatives, has joined the court's newest justice, former Milwaukee judge Louis Butler, to create a thin 4-3 majority. Butler, a reliable liberal, was tapped last year by Gov. Doyle to replace Justice Diane Sykes, a reliable conservative, eroding the court's rightward tilt.
Crooks, who is up for reelection next April, is emerging as the court's most significant swing vote, a majority maker who is as likely to side with the court's liberal faction (Shirley Abrahamson, Ann Walsh Bradley and Butler) as with its conservative one (Jon Wilcox, David Prosser and Pat Roggensack). According to an analysis by the Wisconsin Law Journal, Crooks joined the majority in 87 of 91 cases decided in the court's 2004-05 term, including 16 of the 19 cases in which the final tally was 4-3. As Patrick Crooks goes, so goes the court.
The recent record also suggests a triumph of sorts for Chief Justice Abrahamson, by far the court's longest-tenured member. For the first time in years, she's not the most frequent dissenter. (That distinction now falls to Wilcox.) Moreover, the court is relying to a much greater extent on the state as opposed to federal Constitution, as Abrahamson has long urged.
The result is a court that's clearly less predictable and arguably more liberal. In criminal cases, it's more mindful of the justice system's capacity for error and defendants' rights. In civic cases, it has put the interests of individual litigants who have been harmed ahead of the protestations of powerful interests seeking to protect their bottom line. Just this week, it voted unanimously to lower the burden of proof for a Dane County woman seeking her day in court in a lawsuit accusing sheriff's deputies of brutality.
"It's an interesting court to watch now," says Susan Steingass, a law professor at the UW-Madison. "Nothing's for sure."
Sending a message
Michael Yovovich remembers how it used to be. During his 28 years in the appellate division of the state Public Defender's Office, he usually tried to avoid ending up before the Wisconsin Supreme Court. Often when he did, it was because he prevailed at the appellate court level and the prosecution asked the Supremes to get involved.
"I win, I'm scared," recalls Yovovich, who retired earlier this year. "Will the Supreme Court take it and reverse?"
Overall, Yovovich perceived the court as being "very uniformly against the defense and individual rights. At times, they would acknowledge the rights but find some way to deny the relief." Most of the time, the court simply refused to accept cases appealed by the defense.
For instance, one of Yovovich's colleagues tried, without success, to get the court to hear an appeal on behalf of Steven Avery, a man convicted of sexual assault. In 2003, after serving 18 years in prison, Avery was freed when DNA evidence conclusively demonstrated his innocence - at least with regard to that particular crime. (Avery was just charged with the murder of a woman in Calumet County, based largely on DNA evidence.)
But Yovovich says things are better now: "It's not going to be a dead-bang loser just because it's a criminal case."
In several cases this year, the Supreme Court has evinced concern about possible wrongful convictions. It ordered a new trial for Ralph Armstrong, convicted of a 1981 rape-murder in Madison, based on new DNA evidence. It opened the door for overturning the conviction of former Green Bay police detective John Maloney for the 1999 killing of his estranged wife.
In State v. Knapp, the court ruled 4-3 that evidence seized due to a deliberate violation of a suspect's Miranda rights could not be used against him, saying, "It is not too much to expect law enforcement to respect the law and refrain from intentionally violating it." In State v. Dubose, another 4-3 decision, it took a stand against "show-up" identifications, where victims are shown a single suspect and asked, in essence, if this is the guy.
Jovovich is especially heartened by the court's ruling this July in State v. Jerrell that a juvenile suspect's confession was involuntary and could not be used because of the coercive way it was obtained. (Milwaukee police handcuffed a 14-year-old boy to a wall for two hours, then questioned him for five and a half, denying his requests to call his parents.) "This sends a clear message to the [lower] courts that those standards must be applied," says Yovovich.
But the Jerrell decision went further, to the dismay of conservatives, who see it as an example of legislating from the bench. The court, on yet another 4-3 split, ruled that interrogations of juvenile suspects must be recorded "where feasible" and without exception "in a place of detention." (The three dissenters agreed with suppressing the confession but not with this new requirement.) RadioShack had a great week as police across Wisconsin scrambled to find ways to record these interrogations. And the ruling gave a major boost to legislation that grew out of a state commission appointed in the wake of the Avery case.
"It helped accelerate this," says Rep. Mark Gundrum (R-New Berlin), chair of the Avery Task Force (a name it would not have if formed today), whose bill requires the recording of all juvenile interrogations, and any involving adults suspected of felonies. Until the Supreme Court ruling, "there was a reluctance toward any kind of mandate coming down from the state." Afterwards, there was broad support for the bill, which creates rules and exceptions and helps agencies pay for recording equipment through a 1% hike in the state's criminal-penalty surcharge.
The bill, which also sets new standards for eyewitness identification and use of DNA evidence, unanimously passed both houses of the Legislature on its way to becoming law.
Spotlighting rough spots
The Avery Task Force - made up of an ideologically diverse array of prosecutors, judges and advocates - may have played a even larger role in shaping the Supreme Court's approach to criminal cases. In late 2004, the task force presented findings at a Madison seminar on wrongful convictions attended by lawmakers, attorneys, judges...and all seven members of the Wisconsin Supreme Court.
"They were very attentive," recalls Gundrum of the justices. "There's no question in my mind that they are more focused on the issue of wrongful convictions than perhaps at any time."
Justice Crooks concurs: "I thought the seminar was very helpful in spotlighting some of the rough spots in the criminal justice system." For instance, he notes, the court's ruling in Dubois "reflects current thinking in regard to eyewitness identifications." Once considered highly reliable, they are now seen as highly fallible.
The Shomberg case may present another opportunity for the justices to set higher standards for lower courts to apply. One recommendation of the Avery Task Force is to avoid simultaneous lineups, in which several suspects are presented all at once. Studies show these are twice as likely to result in false identifications as those in which suspects or photos are presented one at a time. Says Gundrum, "What happens is people tend to make a relative judgment."
Shomberg, who has a long history of property crimes tied to his heroin addiction, was placed in a group lineup based on his resemblance to a police sketch of the assailant. The victim agreed at trial that she picked Shomberg because he seemed "the best of the six," even though she wasn't sure. Dane County Judge Patrick Fiedler, having refused to hear testimony from an expert witness knowledgeable in this area, remarked, "The record, which is what I must rely on, has not established to me that a sequential lineup is better than a lineup all at once."
Importantly, in both the Dubois and Knapp cases, the court relied on the state's own constitution to give defendants greater protection, a concept championed by Abrahamson since she joined the court in the mid-1970s. In Knapp, the court suppressed the evidence despite a U.S. Supreme Court ruling in the same case allowing it in. Justice Crooks wrote a concurring opinion "to emphasize that the majority opinion serves to reaffirm Wisconsin's position in the 'new federalism' movement' of states going beyond the protections afforded by the U.S. Constitution and U.S. Supreme Court."
This movement has gained strength nationally over the last three decades, because it speaks to both conservatives' concern with states rights and liberals' concern with safeguarding individual liberties. Says Crooks, "People are waking up to their own state constitutions."
Abrahamson, in an interview, explains that federal law serves as a floor, not a ceiling, when it comes to basic rights. While the federal law aims to meet the needs of all 50 states and the federal government, she says, "the state constitution was created by the citizens of this state and adopted by the citizens to fit Wisconsin conditions."
It is the court's rulings in three big liability cases that have stirred the most (over)reaction.
The Miller Stadium decision, rendered in March on a 5-1 vote (Wilcox dissented, Prosser abstained), overturned an appellate court that had vacated a $94 million punitive damage award - the largest in state history - against the operators of the Big Blue crane that collapsed in 1999, killing three workers. The appellate court ruled that the defendant had not acted with malice or intent to harm. The Supreme Court deemed this interpretation too narrow, saying all that was needed was a finding that the defendant acted with intentional disregard for the workers' safety.
"This is a very big decision for individual plaintiffs holding large companies responsible for their reckless behavior," says Milwaukee lawyer Walt Kelly, who ran unsuccessfully against Wilcox in 1997. But the threshold for punitive damages is still quite high, much higher than for simple negligence.
"Punitive damages are rarely asked for," says Steingass, the UW law professor, who served nine years as a circuit court judge handling civil cases. "You have to be acting with reckless disregard for the rights of others, and that's a high standard." Indeed, she says the perceived phenomenon of sky-high civil judgments is largely a myth. A national analysis of cases from 2000 showed the median tort award was $31,000. And most cases that go to trial are won by the defense.
Moreover, in the crane case, the Supreme Court avoided deciding whether the $94 million award was excessive, an issue it may need to revisit. Crooks, in a concurring opinion, expressed his view that this was something the court should have done - signaling to both parties some discomfort with this amount.
In Ferdon v. Wisconsin Patients Compensation Fund, decided on a 4-3 vote in July, the court struck down the state's cap on non-economic damages in medical malpractice cases. The case concerned a boy left partially paralyzed with a deformed arm due to an injury at birth. A jury awarded him $700,000 in non-economic damages; the judge reduced this to $410,322 to comply with the caps.
The Supreme Court found "no rational basis" for the caps, and deemed them to violate the Wisconsin Constitution's equal protection clause. Crooks, in a concurring opinion, affirmed that the Legislature could pass a constitutional cap on non-economic damages, but that the one in place had been "set arbitrarily and unreasonably low." In an interview, he says he does not want a cap so low that it "offends the right to a remedy in Wisconsin."
Justice Prosser, a former state Assembly speaker, wrote a stinging dissent accusing the majority of aspiring to become a "super-legislature." He also faulted his colleagues for relying on the state constitution, possibly to insulate the ruling from U.S. Supreme Court review.
State physicians have been screaming bloody murder, but the Wisconsin Association of Trial Lawyers notes that the old cap, in place since 1995, affected just nine jury awards, for a total reduction of $10.2 million, or "18 cents per person in Wisconsin per year." In fact, malpractice-related expenses account for less than one-half of one percent of state health-care costs. (Meanwhile, a U.S. government study has found that Wisconsin has the highest physician fees in the country, with eight metropolitan areas among the nation's top 10.)
The state Legislature acted quickly to restore the caps, at a level just $5,000 higher for adults and $105,000 higher for children. On Dec. 2, Gov. Doyle vetoed this bill, saying it did not go far enough. Likely, Justice Crooks would have agreed.
The third and most controversial case, regarding lead-paint liability, was decided in July on a 4-2 vote. The court ruled that a young man who allegedly suffered retardation from eating paint chips in Milwaukee as a toddler could seek to recover damages, even though he wasn't sure which of several companies made the paint. (His lawyers still must prove the chips caused the injury, no easy task.)
Attorney Kelly says this "enormously important and path-breaking decision" affirms protections for "individual citizens who are harmed by products." Pugh, of Wisconsin Manufacturers & Commerce, spins things differently.
"It's crazy, absolutely crazy," says Pugh, envisioning lawsuits against "every dairy farmer in Wisconsin" based on claims that someone who ate cheese ended up with high cholesterol. "If we have a system where you're guilty even if you're innocent, nobody's going to put a job in this state."
Crooks shakes his head at such statements. "To portray this in the way it's been portrayed is a real exaggeration," he says, noting that the court simply applied its own precedent of "risk-contribution" from a 1984 case involving DES (diethylstilbestrol), an anti-miscarriage drug blamed for birth defects. "If this was such a horrible decision, where was the outcry [in the earlier case]?" He adds that the circumstances at hand are exceedingly rare: "It's not a case that's going to be applied over and over again."
Bob Habush seconds that opinion. The famed Milwaukee lawyer, on the winning end of the Miller Park case, says the DES and lead-paint cases are the only two he can think of in which the "risk-contribution" theory could be applied. "It's such an unusual and unique fact situation where you can't identify the offending product."
Justice Butler, who wrote the lead-paint majority opinion, says the court actually "applied the precedent [in the DES case] but narrowed it," ruling that the plaintiff must prove the companies knew they were making a dangerous product. "We didn't just extend risk-contribution to every situation."
So why is WMC sounding an all-out alarm? Crooks and Butler just smile and decline comment. Habush takes the bait: "They are trying to use this hyperbole, this hysteria, to forward their political agenda." Former Justice Bill Bablitch, who along with Steingass is one of Crooks' campaign co-chairs, adds a chorus from the same hymnal: "This is an opportunity for those interests to froth up their constituents, raise some money, and perhaps elect some candidates favorable to their positions."
The interest of justice
In August, a national Republican group led by Dick Armey, the former majority leader of the U.S. House of Representatives, announced it was prepared to spend $2 million to help oust Justice Crooks due to his votes "in support of frivolous lawsuits." Armey declared these rulings had turned Wisconsin into a "Tort Hell Tundra." Trial lawyers, he said, "used to avoid Wisconsin, but now may swarm to the state like a scourge of mosquitoes, replacing the doctors who leave because they can't afford medical liability insurance."
Wisconsin Assembly Speaker John Gard followed up by labeling Crooks "an activist judge" and encouraging people "who don't want to be activist judges" to run for the court. But with less than a month until the filing deadline, no challengers have stepped forward, attesting to the difficulties of ousting a sitting Wisconsin Supreme Court justice. (This last happened in 1968, when Chief Justice George Currie got the boot, partly as backlash over a court ruling that upheld the Milwaukee Braves' right to move to Atlanta.)
Pugh insists WMC has no interest in trying to take Crooks out. He cites an analysis by a national consultant which found that Crooks voted in favor of "restraining the spread of liability" in 56% of relevant rulings since 2001. And a challenge from the right, he says, could make Crooks more vulnerable to some "extremely liberal activist judge."
The real problem, Pugh stresses, isn't Crooks so much as the liberal Butler's appointment to the court by Gov. Doyle - who, he hastens to add, is up for reellection next year. A political agenda? WMC's critics may be on to something.
But there are also those who see political motives in Crooks' votes. One Madison lawyer, speaking on condition of anonymity, says that, on the three big liability cases, "Crooks switched his vote with no discernible basis for that switch other than to seek support from the trial lawyers." Crooks, of course, says he calls 'em as he sees 'em. But he admits asking lawyers who have appeared before him for their support. Several of these lawyers, including Habush, have agreed.
Mike McCabe, executive director of Wisconsin Democracy Campaign, thinks the Supreme Court has become "noticeably more partisan" in recent years, as candidates' campaigns are increasingly bankrolled by partisan interest groups. Not only are the justices more likely to fall clearly into a conservative or liberal camp, they frequently find themselves compromised by their political affiliations.
For instance, three of the seven justices recused themselves from a case decided earlier this year in which former legislative leaders were seeking dismissal of felony misconduct charges. The three justices all had ties to the leaders. But so did Crooks, who did not recuse himself; one of the defendants, former Assembly Speaker Scott Jensen, ran Crooks' last campaign and funneled thousands of dollars into his campaign coffers.
"He had a flagrant conflict of interest," fumes McCabe. "He had no business ruling on that case." The four justices who did vote deadlocked 2-2, preserving an appellate court ruling that the cases could move forward. Crooks voted to reverse the appellate court.
Most of the people whose cases come before the court - and the many more whose lives are affected by its rulings - are not politically connected. They aren't looking for special treatment or ideological bent. They just want a fair hearing, a chance to prove that the law ought to work a certain way because that's what makes sense, and serves the interest of justice.
Take Forest Shomberg, who awaits the court's ruling on his fate (a decision could come anytime before June) from within his 8-by-12-foot cell. He writes in one letter:
"The court understands that mistaken identification is the primary cause of the conviction of innocent people in the United States, [and that] expert testimony to the scientific principles of perception and memory is essential to the truth-seeking process."
Or so he hopes.