Fall Newsletter 2012

Director's Welcome

Dear Friends,

Since May, I've been serving as Interim Director of the Remington Center. Many of you probably already know that Meredith Ross has retired as our Director, though she is continuing to teach Substantive Criminal Law to 1Ls in the Fall semester. There's not enough space here to even begin to sum up Merry's contributions to the Remington Center. I hope Michele LaVigne's short tribute gives at least a flavor of what Merry has meant to us. She will be hugely missed, personally and professionally.

Another stalwart of our program retired in August. Many of you over the years met and worked with Diane Collins, our long-time office manager. After a remarkable 33 years of serving the Remington Center, Diane is starting a well-deserved retirement. We wish her the best. Peter DeWind's short tribute to Diane acknowledges all that she has done for the Remington Center.

We have begun the process of replacing both Merry and Diane. We hope to have a new Director of the Remington Center on board soon. Walter Dickey will continue in his role as Faculty Director of the Remington Center. In searching for Merry's replacement, we fully intend to continue our tradition of educating law students, serving clients and the prison system, and developing knowledge that can improve the criminal justice system.

By Byron Lichstein, Interim Director

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Featured Articles

News and Updates: Remington Center Updates, Missing Meredith, A Fond Farewell to Diane, New Immigrant Justice Clinic Launched: Does the “I-Word” Matter?, New Collaboration between the Wisconsin Innocence Project and the State Public Defender, The Remington Center and Conflicts of Interest: In House Clinics

Student Articles: Sometimes the Law Is Not Enough, Death by 1,000 Cuts: Municipal Costs and Forfeitures, Staring at the Phone

Remington Center Updates

A few other comings and goings in the Remington Center and the law school also warrant brief mention:

Greg Wiercioch has joined us as a Clinical Assistant Professor in the Criminal Appeals Project. Greg comes to us from a distinguished career as a death penalty appellate lawyer in Texas and California. He replaces Kimberly Alderman, who left the Remington Center in April.

Lanny Glinberg has joined us for one year as a clinical instructor in the Wisconsin Innocence Project. Lanny comes to us on loan from the Dane County District Attorney's Office, where he has been a prosecutor for almost five years after graduating from our law school (and several of our clinical programs). Lanny is serving a one-year term with WIP to cover the caseload of Keith Findley, who has moved to the regular faculty. Keith remains as co-Director of WIP, but will not directly supervise casework in his new role. Lanny will return to the Dane County DA's Office after finishing his year with WIP.

Elyce Wos joined us as a supervising attorney in LAIP this summer. Before law school, she served as a probation and parole officer in Milwaukee. She then came to our law school and was a student in two of our clinics, LAIP and the Criminal Appeals Project. After graduating, she spent five years as an associate at Quarles & Brady in Madison. We are delighted to have her back at the Remington Center.

Jeremy Newman graduated from our law school this May. He was a standout student in LAIP during his time in law school. He is supervising LAIP students for a year, as a replacement for Meredith Ross, while we begin our search for a new Director of the Remington Center.

Peter Moreno, who currently serves as one of our grant-funded Clinical Assistant Professors in WIP, will leave WIP in December. Peter and his wife have accepted faculty positions at the University of Washington in Seattle. Peter will be working with the "other UW" innocence project, the Innocence Project Northwest (IPNW), which like WIP is one of the oldest and most successful innocence projects. We will miss Peter's kindness, intelligence, and cool head.

Stacy Taueber, an already well-respected immigration attorney, has joined the Remington Center as Director of the new Immigrant Justice Clinic. Stacy and her students will represent immigrant detainees on a variety of immigration and criminal law issues.

Meg Gaines (a former supervising attorney in the Remington Center, now the Director of the Center for Patient Partnerships), has been appointed by Dean Margaret Raymond to serve as the law school's Associate Dean for Academic Affairs and Experiential Learning. We congratulate Meg on this exciting new opportunity, and look forward to continuing to work with her.

DOC Secretary Gary Hamblin announced recently that he will be leaving his post as Secretary, partly due to health reasons. We commend Secretary Hamblin on his excellent service to the State, and we wish him well with his recovery.

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Missing Meredith

By Michele LaVigne, Clinical Professor

For as long as any of us at the Remington Center can remember, the oddly shaped office by the elevator was where you would find Meredith Ross. We all knew that office well because, up until the day she retired, we were regular visitors. It was where we’d go if we needed to straighten out our thoughts about a case, an article, teaching, or the fine points of grammar. We knew that Meredith could help us find the answer because she had an uncanny knack for cutting through confusion and verbiage, and always knew when a semi colon was preferable to a comma. Of course, we’d also stop by just to chat, because Meredith was our friend. She always appreciated a funny story, an update on the family, and yes, the occasional juicy piece of gossip.

In 2006, Meredith received the Wisconsin Alumni Award for Excellence in Leadership. The award was richly deserved, but really she deserved it every year. Meredith was truly the consummate leader.

Under her watch, the Remington Center grew exponentially. What was once known simply as the Legal Assistance to Institutionalized Persons Program has become LAIP, the Wisconsin Innocence Project, the Family Law Project, Criminal Appeals Project, Restorative Justice Project, the Prosecution Project and the Public Defender Project. Meredith also helped launch and grow the Economic Justice Institute, the law school’s thriving network of civil clinics.

Obviously the clinical faculty grew too, and not just in the numerical sense. Meredith encouraged us to broaden our horizons and find our passions, and she helped us get there. At no time did she ever pretend to be an expert in our myriad interests; rather she guided us and advocated for us. The results can be seen in the ongoing stream of exciting innovations at the Remington Center.

And as if this weren’t enough, Meredith negotiated contracts and maintained ongoing vital personal contact with the Wisconsin Department of Corrections, the Federal Bureau of Prisons and the State Public Defenders Office. Oh, she directly supervised clinical students and regularly taught a section of Substantive Criminal Law too. I often thought of her as the guy on TV who frantically ran around spinning dozens of plates on poles. Except that Meredith made it all look easy and she hardly ever broke a plate.

A few years ago, members of the clinical faculty were at dinner and we got talking about our jobs. The conversation turned to Meredith and one of our number chimed in with “we have the perfect boss.” Immediately, the rest of us agreed and marveled at how truly lucky we all were.

Admittedly, Meredith did have one foible, one that left most of us puzzled to the end: she genuinely liked meetings, which of course meant that we had them. A lot. But if that’s the worst thing that can be said about a boss, then that is the perfect boss indeed.

Meanwhile, we’re all still adjusting to Meredith not being in the oddly shaped office by the elevator. I know that from time to time I still find myself thinking “let me run this by Meredith and see what she thinks.” Fortunately, she left us with one last gift -- the tools to fill in the blanks ourselves.

Meredith Ross served as Director of the Remington Center from 1996 to 2012. She retired in May. Meredith and her husband Dave are building a house on a lake in Marquette County.

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A Fond Farewell to Diane

By Pete DeWind, Clinical Associate Professor

After thirty-plus years, the Remington Center’s intrepid office manager, Diane Collins, retired at the end of this year’s summer program. We all miss her.

From the program’s cozy quarters on three floors at the former state crime lab building on University Avenue (pre-1990), to its “distant” quarters at 212 North Bassett Street (1990-96), to its current quarters right here in the law building (1996-present), Diane (along perhaps with a few never-ending cases) has been just about the only common element.

Diane was the one we all counted on to know all the things any of us needed to know about keeping things running, and, if need be, to do those things herself. From 4:59 p.m. requests to get something into “today’s” mail, to Friday requests to get a fleet vehicle for six a.m. Monday morning, to a 2012 request to get reimbursed for a 2006 lunch on a prison trip, and to every other miscellaneous and sundry request or problem, Diane was the one we thought of, the one we went to, and the one who could deliver.

One of innumerable gold stars that Diane earned was for handling the usually thankless job of answering the program phone. Calls came in day after day, week after week, month after month, year after year, decade after decade, from anyone and everyone. Handling that burden, along with every other task, including the mail, reimbursements, fleet driver authorizations, certifications for students to appear in court, let alone trouble-shooting the invariably unpredictable photocopy machines and staplers, might have driven anyone else out after a year or three, but Diane persevered.

Not only did she persevere, she took all of us supervising attorneys under her baking wing.  She made birthday cakes, every year, for every single attorney.  As if that wasn't enough, she made every person's favorite kind of cake.  Doing so was sweeter than sweet.  The only positives to the end of that wonderful tradition are that with the ever-increasing size of our staff, we are saving ourselves the calories of twenty-five or so pieces of cake a year... and program students might not have the endure the staff's roughly bi-weekly rendering of the "Happy Birthday" song.

The Remington Center has grown by leaps and bounds over the thirty years Diane was with us, and has been a clinical home to thousands and thousands of law students, and dozens and dozens of supervising attorneys. Diane was one of the few, if not the only, employee here who became known to every single one of those thousands of law students and staff that have called the program home. I’d bet a dollar that she remembered every single one of their names, and five dollars that she remembered every single one of their dogs’ names.

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New Immigrant Justice Clinic Launched: Does the “I-Word” Matter?

By Stacy Taeuber, Clinical Assistant Professor

This past summer, a small group of dedicated and tenacious members of the Latino Law Students Association applied for and won a grant from the Ira and Ineva Reilly Baldwin Wisconsin Idea Endowment to start an “Immigrant Justice Clinic” at the UW Law School. The clinic began this fall, with six students. The clinic’s mission is to provide legal representation, education, and outreach on behalf of individuals, communities, and organizations impacted by the current policies of immigration enforcement. Through this, students will gain a thorough understanding of this complex area of immigration law and of the interplay between criminal and immigration law. Activities range from representing individuals in deportation proceedings before the immigration court, conducting “know your rights” presentations to ICE (Immigration and Customs Enforcement) detainees in the Dodge County Jail, to providing public defenders with information about the immigration consequences of crimes.

It just happened that our clinic started during the heat of the presidential campaign, and the hot-button issue of immigration was much in the news. With that came a debate about language, and the terminology we use to describe those who are present in this country without permission. Are they “illegals,” “illegal immigrants,” “undocumented people” or “aliens”? Does the language we use matter? The New York Times’ Public Editor put out a call for comment on the issue, following the launch of a campaign by journalist Jose Antonio Vargas challenging news organizations to stop using the word “illegal.” Vargas, a Philippine-born Pulitzer-prize winning journalist made headlines last year when he “came out” as an undocumented immigrant.

I asked my students to consider this debate, and to write a short essay in response. I asked them what terminology they thought was appropriate, and whether context mattered. Does it matter what we say in the clinic? In the law school? At a picnic with friends or with our families? Does it matter what words the media uses? Why or why not? Does language affect our perceptions of people and the issues? Students were thoughtful and passionate in their responses:

“The words we use have a powerful impact on our perceptions…. I believe that people should not be called ‘illegal.’ Whenever I hear this I immediately think of people crossing the border from Mexico without any papers.”

“People cannot be illegal, only their actions can.”

“Considering the United States’ historical struggles with race, we must be especially sensitive to not only the explicit consequences of the labels that we use, but the implicit ones as well.”

“‘[I]llegal immigrants’ can serve as ‘racial code’ for people of color, especially Latinos, regardless of their migratory status.”

“The language we use in the clinic does matter, and I think the language we use in the clinic should be extended to the law school and with friends. The only way to end the use of offensive terminology is to stop using it and encourage others to do the same.”

“To simply and arbitrarily label a group of people as ‘illegal,’ the media ignores the fact that these people are individuals to be respected like the rest of us.”

“[E]ven if using words such as ‘unauthorized’ and ‘undocumented’ understates the significance of the immigration issue, the media might still find it desirable to switch to these words instead of using the word ‘illegal.’ Between understating problems and inflaming hatred and discrimination, I would rather choose the former.”

“Language frames perception and the acceptance of derogatory, generalizing language makes it easy to view people as something less than human. ‘Illegal immigrants’ don’t sound like our neighbors or parents of our children’s friends from school. … But undocumented people are our neighbors. They do not have status or papers, but they are a part of our American society.”

Several students found it notable that Justice Kennedy, writing for the majority in the Supreme Court’s recent decision in Arizona v. U.S., never used the term “illegal immigrant” or “illegal alien.” Students also learned that many of those caught up in the web of immigration enforcement are not, in fact, undocumented at all. Many are lawful permanent residents – “green card” holders – who find themselves in deportation proceedings on the basis of a criminal conviction (convictions that may be many years old, and that include a whole range of misdemeanors and non-violent offenses). Clearly, this assignment touched a nerve and we had an animated in-class discussion afterwards. When we learned that Jose Antonio Vargas would be speaking on campus, most of my students chose to attend. They found his talk challenging, engaging, and motivating.

I found myself reminded of a speech by Bryan Stevenson, founder and director of the Equal Justice Initiative in Alabama, in which he said:

Each of us is more than the worst thing we've ever done. If somebody tells a lie, they are not just a liar. If somebody takes something that doesn't belong to them they are not just a thief. Even if you kill someone, you are not just a killer. And because of that, there is this basic human dignity that must be respected.

Similarly, a person who is an “illegal immigrant” is much more than just that. The term reduces the identity of the person labeled to a single sliver of their life. Maybe they are also a hero, a teacher, a parent, a doctor, or our next-door neighbor or best friend. But language can take away their humanity, drive a wedge between us, and make them the less worthy, undesirable “other” among us. Bryan Stevenson concluded “You judge the character of a society by how they treat the poor, the condemned, the incarcerated.” I am proud of my students and honored to have the opportunity to accompany them on the journey of creating this new clinic as we reach out to this marginalized and oft-maligned segment of our community.

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New Collaboration between the Wisconsin Innocence Project and the State Public Defender

By Caitlin Plummer, Clinical Instructor 

On September 28th of this year, the 300th person was exonerated in the United States on the basis of new DNA testing. Damon Thibodeaux served 16 years on death row in Louisiana. In total, these 300 exonerees served approximately 4,013 years in prison – an average of 13.6 per person. The numbers make clear that DNA has been an exceptionally powerful tool in rectifying wrongful convictions, but also that the process often takes many years.

In an effort to shorten that timeline, the Wisconsin Innocence Project (WIP), in collaboration with the Appellate Division of the Wisconsin State Public Defender (SPD), is implementing an innovative new program. The goal of the program is to develop a proactive and systematic process for reviewing recent convictions, now on direct appeal, to identify cases where DNA testing may be able to prove innocence.

The first and most obvious benefit is that wrongfully convicted defendants will spend much less time in prison. But there are other benefits as well – benefits for the defense, the State, and courts. The factual issues are easier to investigate while the crime is still recent, it saves the time and expense of later hearings and litigation, and there is less of a concern about upsetting the finality of conviction years or decades later. More broadly, the program allows WIP to serve as a resource to appellate attorneys and grow the pool of attorneys in Wisconsin with DNA experience and expertise.

With funding from a recent Department of Justice grant, the program has been underway since April. WIP works with SPD appellate staff attorneys and private bar attorneys taking SPD appointments to review a number of different types of cases. In cases where DNA testing is deemed appropriate, a WIP attorney works with the appointed attorney to determine the best course of action. In certain cases students will be involved as well, providing them with an even more diverse clinical experience.

To date, there have been 10 exonerations in Wisconsin where DNA testing played a role. With this new program, WIP hopes to grow that number and do it earlier on – making sure justice is done sooner rather than later.

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The Remington Center and Conflicts of Interest: In House Clinics

By Ben Kempinen, Clinical Professor

Conflicts of interest affect every type of law practice. Indeed, six separate sections of the Wisconsin Rules of Professional Conduct for Attorneys are devoted to conflicts alone. SCR 20:1.7 – SCR 20:1.12. Developing the ability to identify potential conflicts, understand the controlling rules, and devise strategies to effectively respond are important skills for all lawyers. This short essay describes the Remington Center’s current approach to conflicts of interest in our in house clinics – projects where students work at the Law School under the supervision of clinical faculty. In a subsequent newsletter we will describe our approach to potential conflicts in extern clinics and situations in which students participate in more than one clinical experience.

The combination of our wide array of in house clinical offerings (seven separate projects in the Remington Center), client services, the growing popularity of our projects (more than 170 law students participate in an RC clinical project in an average year), a constant turnover of one hundred percent of our students, and a relatively closed population of prospective clients – those serving prison sentences – presents both challenges and opportunities in effectively dealing with conflict of interest issues.

Historically, when there were fewer clinical students, fewer clients, and fewer separate projects, we were able to rely on informal processes to identify and respond to conflicts or other ethical issues. As the Remington Center has grown, so has the desirability for more formalized procedures. Presently, we have a detailed procedures and practices manual for all participating students, a large part of which deals with professionalism and ethical issues. We have also developed a detailed protocol for potential conflict of interest problems. Three basic considerations have informed the development of our policies. First, we view the Remington Center, and all of its seven in house projects, as part of the same “firm”, SCRs 20:1.0(d), making the imputed disqualification rule applicable to all of our projects. SCR 20:1.10. Second, the protocol for identifying and assessing conflict cases involves both students and supervising attorneys and is a collaborative process, consistent with the “reasonable lawyer” standard incorporated in the ethical rules. SCR 20:1.7(b) (1). Third, we encourage students to participate in the dialogue and assume the ethical rules apply to them even though they are not yet admitted to the bar, to encourage a sense of ownership and responsibility for common practice issues.

Dealing with Conflict of Interest Issues in the In House Clinics

Intake Protocol

No longer are inmate request letters to one of the Remington Center’s in house clinics channeled to the supervising attorney responsible for the particular type of case or institution. Instead, all requests for assistance are screened by Administrative Specialist Peggy Hacker. This is no small task as the RC has received more than 2500 requests for assistance since June of 2010. Each applicant is sent a conflicts screening form. This form provides the information necessary to identify and resolve potential conflict problems – the nature of the person’s legal problem(s), historical information about their underlying conviction(s) and sentence(s), and the names of any co-defendants or victims.

The completed forms are checked against the Remington Center database, a record of all contacts from prospective, former, and current clients that has been maintained since 1992. If we have had no prior contact with a co-defendant or victim the request goes in the queue for assignment to a student in the appropriate project. If there is a delay in assigning the case is re-checked to make sure no potential conflicts have arisen in the intervening time.

Protocol for Potential Conflict Problems

If there is a match, the request is next given to a Remington Center project assistant to retrieve and review the relevant files for each person involved. The project assistant prepares a factual summary of the case and transmits the records to Clinical Professor Ben Kempinen for review and preparation of a written recommendation.

This draft memorandum is circulated to the affected students and supervising attorneys, typically followed by a meeting to finalize the decision on how to proceed. A final copy of the conflict review memorandum is placed in each file and action is taken in accordance with the decision.

Discretion in Application of the Conflict of Interest Rules

The ethical rules do not always mark out a clear course of action for potential conflicts. Discretionary responses may include declining service to one or more potential clients, continuing with an existing client and declining services to a prospective client, limiting the nature of the representation to one or more clients, or obtaining informed consent from all involved parties. This challenges us to develop practices that serve the various interested involved: (1) teaching our students “best practices” in approaching, analyzing, and resolving potential conflict issues, (2) developing practices that err in favor of caution, to prevent, rather than defend, ethical problems, and (3) make our services available to as many prospective clients as possible given that for many we are the last and only option.

We keep detailed information about all of our conflict cases and periodically revisit both our procedures and substantive decisions to evaluate whether modifications should be made. This enables us to move towards consistent rather than ad hoc policies.

Looking Back: Two Years of Implementation

The process of developing our conflicts protocol began in 2009 and was fully implemented beginning in May of 2010. Of the more than 2500 requests for assistance we have received since that time, there have been thirty-eight case reviews involving an analysis of our relationships with eighty different individuals. The cases generally fell into the following categories:

* The RC formerly represented a co-defendant of the requester in the same matter in which assistance is now being sought and compiled substantial confidential information from the co-defendant, whose position was adverse to that of the requester (see SCR 20:1.9(a));

* The RC formerly represented a co-defendant of the requester on a completely unrelated matter from that for which the requester seeks assistance such that any confidential information from the former client is not relevant to the current request (see SCR 20:1.9(c));

* Multiple co-defendants sought post-conviction representation in the same case involving conflicting grounds for relief (see SCR 20:1.7(a));

* A Remington Center law student had a personal conflict related to the particular request for assistance (see SCR 20:1.7(a)(2));

* A former or current client has been or wishes to be an adverse witness against a prospective or current client (see SCR 20:1.7(a));

Following our analysis of each case a range of actions were taken:

* We declined services to one or both prospective clients in cases in which we believed the conflict was unavoidable and could not be or should not be waived (eight cases);

* We determined that representation could continue with informed written consent from each affected party where the potential for difficulties was minimal, we could implement internal screening safeguards, and the need for legal assistance was substantial (twelve cases);

* We determined that no conflict existed that would either preclude representation or require informed consent (eighteen cases);

* Because the conflict was personal to one individual screening was appropriate under the limited provisions of SCR 20:1.10(a)(1) (one case);

We believe our current approach to conflicts of interest has generated several benefits. First, our emphasis on ethics in the clinic complements the attention given to professional responsibility issues in the classroom. Exposure to both theory and practice strengthens our students’ sensitivity to ethical matters now and in the future. Second, a system that helps us avoid conflicts helps ensure that the services we provide are of a high quality and that we use our limited resources in the most effective manner. We are proud of what we have accomplished but are also mindful that improvement is always possible. We know that many of you – our alumni and supporters – have had their own experiences and approaches to conflict issues and thus invite your reactions or suggestions on any part of our system and how we might improve either our students’ educational experiences or the services we provide to those who depend on us.

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Sometimes The Law Is Not Enough

By Karina Kuhrt (2L)

When I first began law school, I already had an idea of what it would be like to be an attorney. I had worked for two years at an immigration law firm as a paralegal and office manager. I thought I understood most of the challenges and frustrations of the job. That was all before I worked in the Remington Center and before I had received Ms. Smith's (name has been changed) case.

I received Ms. Smith's case around June or July. She was my first true "re-entry" case. Ms. Smith was an elderly woman who suffered from paranoid schizophrenia and a multitude of other physical and mental ailments.

Ms. Smith had been released on a compassionate release in 2008. However, because of her mental disease, she was unable to live by the conditions of her parole. There were two attempts at parole revocation, but she was found incompetent.

Therefore, from the date that Ms. Smith had been placed on a parole hold in prison to today's date, she has been held in prison. Although the DOC has only a short period of time for which they can hold someone on a parole hold, Ms. Smith has been held on a very lengthy hold because DOC cannot find housing for her and they would not, understandably, release her to the street.

My supervising attorney, Ken Streit, and I brainstormed multiple ways that we could help. We discussed a habeas corpus hearing, a Chapter 55 order, and a Chapter 51 conversion order.

Because we did not want to move Ms. Smith to the jail, we decided not to go for the writ of habeas corpus hearing just yet.

We decided that the law and the situation called for a 971.14 conversion order. A conversion order is used when a criminal defendant is found mentally incompetent (and unlikely to gain competence) to move from a criminal proceeding and moves it to a civil commitment proceeding. The Wisconsin Supreme Court has concluded that 971.14 should also be used in a case where a probationer facing revocation was found incompetent.

We filed a motion and received a hearing date. We went to the Milwaukee County Courthouse for the hearing and requested that the judge reinstate the Conversion Order for a Ch. 55 that it had issued following her last competency hearing in September 2011. (At the request and instruction of the Corporation Counsel, the judge had nullified the conversion order without a further hearing.)

It looked like we had a good case. The judge noted that he was more sympathetic to our position and looked to the Assistant District Attorney to see if he would be willing to come to a compromise. We were able to come to a compromise. We agreed to an order from the Judge to get Ms. Smith admitted to the Milwaukee County Health Facility for a Chapter 55 evaluation.

I felt elated! We had won and it had not been too difficult. I was so excited and happy for my client. Little did I know that this was just a small part of a longer process.

We left the chambers and went into the courtroom to go on record. The judge ordered that the Milwaukee County Sheriff’s Office would transport Ms. Smith to the facility for an evaluation.

Prof. Streit, myself, as well as Ms. Smith and the staff who had accompanied her, remained at the court for a couple hours, waiting for the court to get the order worded right and to get the Milwaukee County Sheriff’s office available to escort Ms. Smith to the facility.

Ms. Smith traveled in the DOC van and the Sheriff’s Office Deputy took the order.

We started back to Madison, but 30 minutes later, the Sheriff’s Deputy called to tell us that the facility had refused to let Ms. Smith exit from the van and administratively denied her a full evaluation. Milwaukee County wanted Ms. Smith to remain DOC's responsibility.

We spent the next couple hours calling DOC, Ms. Smith's parole agent, her parole supervisor, the judge's clerk and the ADA trying to figure out how to get her admitted into the Milwaukee facility, but it remained a standoff with our client deteriorating in the back of a van.

Close to four hours after we had left Ms. Smith in the hands of the Sheriff’s Deputy, we had a short, 20 minute hearing. We appeared via telephone while opposing counsel and the third party were able to appear in court.

The judge, facing the immediate problem of where our client should spend the night, ordered that Ms. Smith be returned to DOC.

It slowly sunk in as we left the parking lot that we had been camped out in for the past couple hours, we had lost. We had initially won in getting the court to issue the order. But we had not been ready for the agency that had found a way to keep Ms. Smith out of its facility. So we did not win. It was so confusing and the worst part about it was that my client suffered. Ms. Smith had spent the day in court and then in the back of a van, waiting to be placed somewhere, all to no avail.

This experience taught me a very important lesson that I will never forget. Be on your guard when implementing an order. Outside of the courtroom, the Lieutenant observed our client and said that, if the Sheriff would do the actual transporting, our client would have to go through the jail, be booked and cuffed etc. (She was in civilian clothes and not officially in DOC custody.) The Lieutenant said that the booking could be avoided if DOC took her and the Sheriff accompanied her. Having no reason at that time to believe that MCMHC staff would prevent her from leaving the van, we agreed because we did not want to burden Ms. Smith with the handcuffs and booking.

Now I wonder if we should have been tough at that point and cooperated in having the Lieutenant take her into custody despite the short term impact on our client. Ms. Smith still remains in prison. We are working on more ways to get her out, but in my gut, I still feel like we were right to start out with. However, no matter how I feel, what is best for the client is what we will do. You can be right in the law and still not be able to get an order implemented because there are more forces at play than just the law. But we will keep fighting until Ms. Smith is out.

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Death by 1,000 Cuts: Municipal Costs and Forfeitures

By Caitlin Madden (2L)

The Equal Protection clause prevents courts from imprisoning individuals unable to pay court-ordered fines due to poverty. Tate v. Short, 401 U.S. 395. But as I found this summer in LAIP, this constitutional guarantee is of little use to indigent clients caught in a confusing, never-ending sea of municipal fees and forfeitures. Without a lot of time and legal assistance, it would have been impossible for my client to assert her legal rights, and she would have ended up in jail to serve time for non-payment of a municipal forfeiture.

“Kim” was due to be released from Taycheedah in July but approached the date with some trepidation. She had several unpaid municipal forfeitures and no way to pay them, with only $62 in her prison accounts. One ticket was for theft of library materials. Kim had no idea how she had gotten this ticket. All we knew came from letters mailed to Kim in prison many months after the judgment was entered, which stated she had been adjudged a forfeiture of $1000 with a $400 prosecution fee in her absence. Because she had not paid the forfeiture that she was not aware of, the court had issued a commitment order for 27 days in jail. We were able to persuade the municipal court to stop the commitment order and to provide an opportunity to establish her indigency. When Kim was released, she went to a residential drug treatment facility with the nagging fear that she would be re-incarcerated due to forfeitures.

Since I was unable to convince the court to stay the forfeiture, my supervising attorney Mary Prosser and I decided to look into re-opening the judgment. I further investigated the facts of the case, and found that every notice sent to Kim was mailed to an address she had not lived at for months. The notice of hearing and police citation were also sent to the wrong address. By the time the library had turned the case over to the police department, Kim was incarcerated and, had she known about the hearings, would have been unable to attend. At the very least, she had not failed to return the item to the library after getting notice. In addition, we learned that the stolen library material in question was a single DVD for young children. Our client’s children were grown adults and our client was sure she had never checked out the DVD.

I wrote a motion for relief from judgment to re-open the case, arguing that Kim had not ever had an opportunity to be heard, that she was indigent, and that she had a strong claim of innocence. Kim believed a former roommate had used her library card, inadvertently left behind when Kim had moved. The municipal ordinance describing “theft of library materials” was troubling under the circumstances of this case; it stated, “The failure to return library material after its proper return date, after written notice from the library and the Village Attorney, shall be deemed theft.” At first, I had thought this case was simply absurd, threatening a woman with incarceration for failure to pay a library fine. Now, seeing the statutory presumption of guilt which Kim had been given no chance to refute, it started to look like an extreme miscarriage of justice.

When I attempted to file the motion, the clerk informed me of a $50 filing fee. Since Kim had already had her chance in court, the clerk said, it would not be fair to allow her to get “special treatment” and have a hearing without this standard fee. Kim’s case seemed tailor-made for discretion: she had never appeared in court, she had no notice of the ticket, she was unable to pay a filing fee that would exhaust her savings, and she was very likely innocent.

On a Wednesday afternoon, Mary and I drove to Milwaukee to pick up Kim, then drove another hour to the municipal court. Kim was incredibly nervous, asking if we thought they were going to “throw her in jail.” At Kim’s last municipal hearing for an unrelated violation, Kim was told that she had an hour to pay her forfeiture or she would be put in jail. She then took an overdose of her medication and, after she recovered, was revoked from probation.

The judge agreed to waive the $50 filing fee and hear our motion. I explained the standard for relief from judgment and focused on the facts that showed Kim had been unaware of the citation and of her court date and that she had never had her day in court. I did not have to point out that the ordinance’s presumption of theft after notice was sent did not square with the circumstances in this case, and perhaps in other cases. Unlike a driver’s, obtaining a library card does not carry a legal obligation to provide an updated address. Unlike having a bank account, a person who applies for a library card would not have an expectation of receiving mail from the library if they did nothing wrong or stopped using the library, nor would she necessarily notice if she left the card behind when she moved. And unlike citations for conduct that would require personal identification of the wrongdoer, the violation can readily be based on identity theft. Neither did I have to argue that a $1500 forfeiture seemed out of proportion to the loss of a single DVD. The judge granted the motion, sending us to discuss resolution with the village attorney.

Kim, glad to have escaped the possibility of jail, seemed eager to accept any deal better than the judgment for $1500. The village attorney first offered to allow Kim to pay the minimum forfeiture of $100 – not telling Kim, until pressed, that she would also have to pay “costs of prosecution.” I wondered if other individuals had agreed to deals like this without knowing about those extra costs. We suggested that the village was unlikely to succeed on the merits of the case. Unfortunately, the village attorney would not drop the citation. Instead, she offered dismissal on payment of restitution of $45, the cost of the lost DVD and library fine. The alternative was setting a trial date and having Kim have this hanging over her head while she tried to transition to life after prison, as well as the hours of driving and preparing to try the case. Kim accepted the deal.

Kim was glad to owe less than $1500, and glad not to be incarcerated. However, she still owes $45 that she is unable to pay, for a crime she likely did not commit. Still, this seemed lucky, because without legal representation she probably would have spent 27 days in jail.

The judge asked me the most interesting thing I learned from this case. I said it was that municipal law can be surprisingly intricate, but that was not quite true. This case demonstrated how our judicial system is stacked against certain people. How many others like Kim are stuck under $100 or $1000 fines that they cannot pay? Cycling in and out of jails, at a net financial loss to the counties, because they are unable to advocate for themselves, and never able to move out from the shadow of the courts? If Kim’s first paychecks go not to food or medication or housing, but to a municipal court for a DVD lost two years ago, what larger goals are served?

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Staring At the Phone

By Melissa Young (3L)

With my coffee in one hand, trading off with my pen to take notes, and the putty-colored landline phone receiver in the other, I (along with 70+ other students) spent my 2L year learning the art of client counseling. You could walk into the Remington Center at any time between 8am and 5pm to find row upon row of young lawyers-to-be, most with phone receivers at their ears, their voices rising in a cacophony of confusion and frustration. Why won’t they call me back? How many copies of this motion do I need? Has the mail left yet? I can’t believe they just hung up on me!

Each of us had a supervising attorney to help us navigate a sea of growing pains. Mine was Family Law Project director Attorney Leslie Shear. She edited and signed off on hundreds of client letters and pleadings, led discussion of litigation strategy, accompanied us to prison and court, mentored us on each client every week, and was available to answer our frequent questions. But from the first day of our clinical experience, it was each student’s responsibility to go through the appropriate prison staff to arrange phone calls with our clients.

Until now, I hid my trepidation, never telling my supervising attorney or my fellow students about my extreme dislike for talking on the phone. For the first month of the summer, I would stare at the phone, giving myself mini pep talks and writing a script for my conversation. I swear I would forget to breathe while I was dialing and waiting for the automated voice on the other end of the line. But as soon as I reached a person and said the magic words, “I’m calling to speak with [insert name of client],” I felt empowered to breathe once more. After a while, my anxiety dissipated while my confidence grew. Eventually, I realized that my clients also were benefiting from my new-found sense of empowerment. I was actually helping people, which was one of the main reasons I came to law school in the first place. The point being that any fears I had coming into the Remington Center diminished as I took seriously my responsibility to zealously advocate for my clients.

In law school you often hear questions like: What does it mean to be a zealous advocate? How zealous should one be? Why is zealous advocacy so important for our clients? However, my work at the Remington Center prompted a different question: How does zealous advocacy empower me?

I give the anecdote about my telephone aversion as an introduction to my realization that the obligation to be a zealous advocate empowers attorneys to overcome their own insecurities, whether they be picking up a phone and dealing with the unknown, facing stage fright, working through dyslexia, overcoming weak writing skills, speaking English as a second language, etc.

We are forever students and somewhere along the way it happens. It? What is it? “It” is what I heard from the rows of students at the Remington Center during my last few weeks: Oh! I know what form you need for that! My supervising attorney is getting lunch, but I know the answer to your question. They called me back…no, seriously, they called me back!

As we approach the cane toss at the homecoming game, our graduations in December and May, and our first real lawyer jobs, we should remember our first clients at the Remington Center and what they taught us about being lawyers. For me, the lesson will always be about becoming a zealous advocate.

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