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'It's our job'

ELKHORN

After hours of waiting, killing time in the Walworth County Courthouse while a jury weighed the defendant’s future, both sides received notice—the jury had reached its verdict.

Lawyers, family members, victims, the defendant and others filed into the courtroom.

Hearts likely were pounding—the forthcoming decision could be the difference between freedom and prison.

Mackenzie Renner, the head of state assistant public defenders in Walworth County, said jury trials are “very stressful” for her clients. The defendants trust their futures to “12 complete strangers from the community.”

“For many people, that’s very scary,” she said.

While jury trials are still relatively rare—most cases end with plea agreements—Walworth County has for years been near the top of the state in jury trials.

But in 2017, the year District Attorney Zeke Wiedenfeld took over, Walworth County had 54 jury trials—more than the two previous years combined.

In 2018, only two much larger counties—Milwaukee (693) and Dane (93)—had more jury trials than Walworth County, which by itself accounted for 3.4 percent of all the state’s trials.

Wiedenfeld said jury trials let the public have its say on a case. Same is true for victims, who can testify. Jury trials let defendants have their day in court, which is guaranteed under the Sixth Amendment to the Constitution.

Jury trials carry costs, however.

Jury trials are time-consuming to lawyers, judges, witnesses, jury members and anyone else involved in the cases, but Wiedenfeld said trials are what his office is paid to do. When prosecutors decide to file charges, they consider if they could prove the case to a jury beyond a reasonable doubt.

“It’s not our job to not work,” he said. “It’s our job to present cases to juries.”

‘Dictated by justice’

In 2016, former Walworth County DA Dan Necci left his post. Wiedenfeld officially took over as the county’s top prosecutor in January 2017.

That year, Wisconsin saw a 7 percent increase in criminal jury trials—moving from 1,402 to 1,501.

Walworth County, meanwhile, saw a 135 percent increase—from 23 to 54—in Wiedenfeld’s first year, according to Wisconsin court data on criminal trials analyzed by The Gazette. These criminal cases include felony, misdemeanor and criminal traffic cases.

Both of Wiedenfeld’s first two years saw 54 jury trials. Before Wiedenfeld, the average for Walworth County from 2009 to 2016 was fewer than 30 trials per year.

The DA said many factors probably are at play in the jury trial increase. On the practical side, he said, Walworth County had a backlog of cases when he started. Having more cases leads to more trials.

Still, Wiedenfeld is charging more cases than his predecessors, even though arrests in the county have been down. Criminal case filings have reached levels higher than they have been in 12 years.

But that alone does not explain the higher number of jury trials.

Both 2017 and 2018 featured higher percentages—3.1 and 2.7 percent, respectively—of Walworth County cases that went to trial when compared to the total number of cases completed. Both of those percentages are higher than any year in the last 10.

Walworth County doesn’t have as many trials as Dane County, whose population is more than five times that of Walworth’s. But Dane’s percentage is at 1.7 percent (Milwaukee County is at 5.4 percent).

Wiedenfeld said another factor is how judges in the county decide sentences and what their expectations are for cases. Judges ultimately don’t have to accept plea agreements, so the chance of them rejecting a plea agreement is a factor prosecutors have to consider, he said.

“Obviously, we’re not dictated by what the judges say, and the judges aren’t dictated by what we say,” he said. “But we certainly factor that in, too.”

Additionally, Wiedenfeld said, he reinstated a policy he learned from former DA Phillip Koss that could cut down on last-minute deals. Assistant district attorneys need his approval to modify a plea-agreement offer if it’s within two weeks of trial.

“It’s not that there couldn’t be agreements worked out,” he explained. “But avoiding either side trying to do a last minute, ‘Oh well, let’s just quick do this to make the case go away’ type (of) agreement.”

He was an assistant district attorney under Koss when the now-judge was the county’s top prosecutor.

Whether a case ends with a jury trial should be “dictated by justice,” Wiedenfeld said. The decision should not be motivated by finances or putting “notches on your belt.”

“It’s really just about trying to get a fair result,” he said. “Really, jury trials are just a defendant expressing their rights. They’re entitled to have a jury trial.”

What it means

A lot of the lawyers who work in the Walworth County courthouse have each other’s cellphone numbers. Renner said it’s because being an assistant public defender or prosecutor is not a 9-to-5 job.

Trial preparation takes time. There are police reports to review, videos to watch, witnesses to track down, strategy to plan.

But before a case goes to trial, both sides are able to negotiate an offer to end a case without a jury being seated.

Cecelia Klingele, an assistant professor at the UW Law School, said an abundance of jury trials could mean plea offers are not being perceived as fair or cases include evidence defendants want to challenge. She said there are other possibilities, too.

Renner said she really doesn’t know what the number of jury trials says about plea negotiations in the county. She can just walk her clients through the cost-benefit analysis of each choice.

During plea negotiations, Wiedenfeld said, his goal is to do the right thing, which is getting justice for victims and for the public.

Trials can give defendants a chance to have their cases put into context. They can tell their sides of the story, Renner said.

“And there are cases of actual innocence,” she said.

Ultimately, however, she said the decision of whether to go to trial or not isn’t hers to make.

“Ultimately, we are doing what our clients are asking of us,” she said.


'A pawn on the chessboard': In lame-duck lawsuits, 15 appointees caught in the middle of partisan battle

MADISON

Fifteen people are caught in the middle of a legal and political war between Democratic Gov. Tony Evers and the Republican-controlled Legislature.

They are people from all over the state who were picked by former Republican Gov. Scott Walker to serve on high-profile boards such as the one that oversees University of Wisconsin campuses. Others were appointed to boards unknown to most Wisconsinites, like one that polices radiographers.

“I’m a pawn on the chessboard,” said Scott Beightol, who was appointed by Walker to serve on the UW Board of Regents.

“I’m just surprised by this. This seems very silly to me.”

Beightol was one of 82 appointments confirmed by the state Senate in December during a legislative session that was ruled illegal by a Dane County judge last week. After the ruling, Evers rescinded the appointments after the judge said the Legislature’s action was void.

But a state Appeals Court this week blocked the lower court’s order to eliminate the confirmations.

And on Thursday, Evers reappointed all but 15 of the Walker appointees back to their old positions—leaving Beightol and 14 others off the list.

To Evers, the 15 people are no longer appointed to any of the boards. On Wednesday, he blocked Public Service Commissioner Ellen Nowak from stepping on an elevator to return to her job at the commission.

But the Republican leader of the Senate says Nowak and the rest of the 15 are legally entitled to their positions.

Without a referee bringing certainty to the situation, some are drawing their own conclusions.

“As far as I’m concerned, I’m still on the Banking Review Board,” Bob Gorsuch said. “I think the Appeals Court ruled and what (Evers) is doing is illegal.”

And Beightol said he plans to attend the next Board of Regents meeting, which is scheduled for Thursday.

But it’s unclear if his seat will be waiting for him. UW System officials and Board President John Behling did not respond to whether they consider Beightol a regent or not.

“It’s a public meeting,” Beightol noted. “I don’t think I’d be barred.”

Democratic Attorney General Josh Kaul declined to say Friday who was right about the appointments, but he blamed Republicans for sowing confusion by passing laws that they knew would face a barrage of litigation.

“It has made just the basic functioning of state government much more complicated and has introduced uncertainty that just shouldn’t be there in our process normally,” he said in an interview.

The December confirmation vote by the state Senate did not put the appointees in the jobs for the first time—the appointees had already been serving in their roles before then.

The conflicting views on the status of the appointees come as fallout from the lame-duck session and the litigation continues.

On Friday, a federal court agreed to let Kaul withdraw Wisconsin from an appeal of a multistate lawsuit challenging provisions of the Affordable Care Act that provide protections to transgender people and women seeking abortions.

Kaul was barred from trying to get out of that case and others because of the lame-duck laws. But he was able to make the request recently because of rulings in Dane County.

Lame-duck fight

started in December

Republicans passed the lame-duck laws after Evers and Kaul won their elections but before they were sworn in. The laws barred Kaul from settling lawsuits without the approval of lawmakers, limited Evers’ control of the state’s economic development agency and prevented Evers from making changes to public benefits programs without their approval.

During the same session, senators approved the 82 appointees by Walker. Those appointees had already been serving in their jobs and the Senate confirmation was aimed at preventing Evers from pushing them out of their jobs.

Opponents of the lame-duck laws took action in four cases. In one of them, Dane County Circuit Judge Richard Niess issued an order last week throwing out all the laws and appointments.

In response, Evers revoked those appointments but put 67 of the 82 people back into the same jobs. He has not filled the other 15 positions.

Many of the appointees—both those who were reappointed and those who were not—are longtime donors to Walker and Republicans. Walker’s most important appointments were left vacant by Evers.

On Wednesday, an Appeals Court blocked the lower-court ruling while it considers the case. That order prompted the new disagreement between Evers and Republican lawmakers over who held the jobs.

On Friday, Fitzgerald sent a letter to Evers saying he considered Evers’ re-appointments of the 67 people invalid because he believes they continue to hold their positions from when Walker appointed them.

“Any attempt to change these appointments would violate the court order and I will not participate in any such action,” Fitzgerald wrote.

In a second case, Dane County Circuit Judge Frank Remington on Tuesday halted some provisions of the lame-duck laws, but his ruling was not as extensive as Niess’ order.

Remington’s decision remains in effect, but lawmakers are appealing it.

What happens to the group of 15 remains up in the air as the legal battle plays out in court.

Nowak said Thursday she is exploring the idea of taking legal action to get her job back.

Gorsuch said he wanted to serve the state but will ultimately go along with whatever he’s told to do.

“It’s just the world we live in. You just roll with the punches,” he said. “If they want me, fine. If they don’t want me, that’s fine, too.”

Kaul gets state

out of transgender case

As soon as Niess issued his decision, Kaul asked to pull the state from federal lawsuits that were started by his Republican predecessor, Brad Schimel. Until then, the lame-duck laws had prevented Kaul from trying to drop out of the cases.

The Fifth Circuit Court of Appeals on Friday granted Kaul’s request to drop Wisconsin from an appeal affecting transgender people. That appeal will continue because of the involvement of other states.

“I don’t think that that suit was in the interest of Wisconsinites and so by withdrawing from that (appeal) we’re no longer in litigation in that case against protections for transgender people under the Affordable Care Act,” Kaul said.

Courts have yet to rule on other cases Kaul is trying to drop—one challenging the entirety of the Affordable Care Act and one challenging federal rules on mercury emissions.

While Niess’ decision was blocked by the state Appeals Court, Kaul said the ruling by Remington allows him to continue to try to pull the state from lawsuits he does not believe are in its interest.


Angela Major 

The WAVE system is designed to help keep people safe in schools, hospitals and other buildings by improving communications at the start of an emergency situation.


Mackenzie Renner


Obituaries and death notices for March 31, 2019

Cynthia “Cyndy” Adams

Robert M. Atwater

John R. Brzezinski

Curtis M. Cornellier

Gladys M. Fielder

Roland “Rollie” V. Freund

Marvin S. Golz

Patrick James Joyce

William C. Kerr

Jeff Pomije


Anthony Wahl 

Jordan Majeed has been named The Gazette’s 2018-19 area boys basketball player of the year.


Local
20 years after van crash killed traveling sales workers near Janesville, a parent still fights for change

TOWN OF MILTON

It has been 20 years since a van crash March 25, 1999 left seven young, traveling door-to-door magazine sellers dead and scattered across the southbound lanes of Interstate 90/39 near a rest stop north of Janesville.

In Verona, Phil Ellenbecker, now 70, still grieves bitterly over the death of his daughter, Malinda Turvey.

Turvey was 18 when she left home to sell magazines after seeing a newspaper advertisement for Y.E.S., an Oklahoma-based magazine subscription sales company who beckoned her with promises of a $500-a-week “blue jean job!” that offered “fun in the sun!”

Two days after she started work in traveling sales out of a Y.E.S. crew van, Turvey was killed.

The sun was hours from rising when just after midnight March 25, 1999, Turvey and 11 of her young co-workers were thrown from a green Dodge crew van with no license plates after it rolled over at 81 miles per hour on I-90/39 north of Janesville.

The van’s driver was trying to switch seats with a passenger to avoid earning a speeding ticket, police said.

Along with its death toll, the 1999 van disaster left five others maimed. Details of the crash and the circumstances under which it happened live in stark relief in volumes of police, state and federal labor commission and department of justice reports, and criminal court documents—a tome that details illegal and abusive labor practices by magazine-subscription-seller Y.E.S. that put young people—some of them minors—in jeopardy.

Ellenbecker, who now is an activist who exposes illegal operators in the traveling door-to-door sales industry, said young people in that industry continue to die.

The most recent deaths, Ellenbecker said, came Feb. 16 in a two-car crash in Montgomery County, Indiana, that happened after a vehicle occupied by three traveling door-to-door sales crew lost control on a freeway overpass.

The Montgomery County Sheriff’s Department could not immediately provide The Gazette details on the crash, but it killed two people, according to local media reports.

“They were all working for a magazine (subscription) sales company,” Ellenbecker said.

In the moments leading up to the 1999 van crash near Janesville, the van’s driver, Jeremy Holmes, 20, of Clinton, Iowa, was trying to switch seats with a passenger after a local police officer stationed at an emergency turnaround was attempting to pull the van over for speeding.

Holmes, a Y.E.S. employee, had multiple driving violations in Iowa and was driving on a revoked license, according to reports.

Most of Holmes’s 14 co-workers in the van were asleep after spending hours on the road.

The late John Conger, then a town of Milton police officer, was pursuing the speeding van the night of the crash.

He watched as the van veered on and off the highway and then overturned, sending 12 passengers flying out the windows. Conger was the first officer to arrive on the grisly scene, where bodies lay all over the road. Authorities had to set up four helicopter landing zones to transport the victims, according to reports. Six of the victims, who ranged in age from 16 to 25, were killed immediately.

“Those kids were just thrown. Their bodies hit the highway at 81 miles per hour,” Ellenbecker told The Gazette in a phone interview late last week.

Holmes, who limped from the crash with bumps, bruises and scratches, served four years in prison after pleading guilty to seven counts of negligent vehicular homicide and five counts of causing great bodily harm to others hurt in the crash.

Y.E.S. was found guilty of negligent vehicular homicide after an investigation by the state Department of Justice and was ordered in 2000 to pay fines of $132,000 and restitution to the van crash victims and their families.

Subscriptions Plus, a sister company of Y.E.S., was fined $15,050 by the U.S. Department of Labor in 2000 labor violations involving a survivor of the crash who was paralyzed.

Ellenbecker has been fighting since 1999 to get laws passed to crack down on the traveling sales industry. His nonprofit, Dedicated Memorial Parents Group, canvasses the U.S. daily for new cases of abusive and exploitive labor practices within traveling door-to-door sales, which often involve sales of magazine subscriptions or spray cleaners.

It took 10 years and a fight against lobbyists for Wisconsin to crack down on a sales industry that Ellenbecker and others say lures young people, sometimes minors, into a world of low-paying and abusive work that can subject them to physical abuse and sexual assault and pay them in illegal drugs.

Ellenbecker, who works in tandem with advocacy groups that monitor human trafficking, said bad actors in the traveling door-to-door sales industry operate as “organized crime.”

In 2009, lawmakers, including Wisconsin Sen. Jon Erpenbach, pushed Malinda’s Law, which was named after Ellenbecker’s daughter.

The law requires employers who recruit or use traveling sales crews in Wisconsin to register with the state Department of Workforce Development.

The law also requires traveling sales crews be paid regularly, and all traveling sales crew vehicles must meet state code certification.

Conger, the town of Milton cop who witnessed the van crash, worked with Ellenbecker to press for the law changes.

Conger died in 2013 from an apparent suicide, according to police investigation reports. The Gazette was unable to reach Conger’s family at home for comment on Conger’s work on Malinda’s Law.

In Wisconsin, Ellenbecker said, Malinda’s Law has eliminated crimes and deaths related to door-to-door traveling sales.

“For the last 10 years, we haven’t had a single door-to-door magazine and spray-cleaner sales crime in Wisconsin,” he said. “They just don’t come here anymore. It’s because of the rigorous laws passed here.”

In some other states, traveling door-to-door selling continues to operate with little regulation. An Alabama company that Ellenbecker said had two traveling salespeople killed Feb. 16 in Indiana has had 52 complaints registered through the Better Business Bureau in the last three years and has a “F” rating by the trade advocacy group.

Ellenbecker said it would take his group “100 years” to get law changes similar to Wisconsin’s Malinda’s Law passed in every other state in the U.S. Ellenbecker’s nonprofit is now working to use the Wisconsin law to craft a federal Congressional bill that would regulate door-to-door traveling sales, possibly under the First Amendment.

In a park at the southbound rest stop along I-90/39, there remains a memorial parents have set up under two trees to honor the seven killed in the 1999 van crash.

Late last week, the site was decorated with stuffed dolls and figurines. One stuffed doll, a toy monkey, was clad in a small t-shirt that read “Explore.” The doll’s fur and plastic eyes were desiccated and faded by the elements.

Ellenbecker said he hasn’t been to the memorial site since 2015. Every year, it gets harder for him to revisit the place where Malinda Turvey’s future, her ability to explore the world, and her life, were stripped away forever.

Turvey would been 38 years old now. But for Ellenbecker, she’ll always be an 18-year-old who lives only in photographs.

Ellenbecker said he’ll never stop fighting for his daughter.

“I promised her when she died, I bent over and kissed her forehead. And I told her, I told her I’ll stop these people for the sake of other kids,” he said. “And that’s what I’m doing. And I will continue to do that until the day I die.”


Zeke Wiedenfeld