Amendment ASA1-AB359

LRBs0504/1

MGD:cjs:rs

2005 - 2006 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2005 ASSEMBLY BILL 359

February 13, 2006 - Offered by Representative A. Williams.

AB359-ASA1,1,7 An Act to renumber 979.04 (2); to amend 20.455 (1) (a), 758.19 (5) (a) 5., 979.01 (1m), 979.025 (1), 979.04 (1), 979.04 (3), 979.05 (1), 979.05 (2), 979.05 (3), 979.05 (5), 979.05 (6), 979.06 (1), 979.06 (2), 979.07 (1) (a), 979.08 (1), 979.08 (5), 979.08 (6), 979.09, 979.10 (2) and 979.11; and to create 979.04 (1m), 979.04 (2) (b), 979.05 (1m) and 979.05 (1r) of the statutes; relating to: inquests into deaths caused by law enforcement officers in certain counties and making an appropriation.

Analysis by the Legislative Reference Bureau

This bill changes how inquests are ordered and conducted when a person's death is caused by an act of a law enforcement officer that occurs in a county with a population of 500,000 or more (currently only Milwaukee County).

Current law

Current law provides for inquests into the cause of death of a person if there is reason to believe from the circumstances surrounding the death that a homicide may have been committed or that the death may have been due to suicide or unexplained or suspicious circumstances. A district attorney may order an inquest if he or she has been given notice of the death of a person under any of these circumstances, but uses his or her discretion in deciding whether to do so. In addition, a coroner or medical examiner who knows of the death of a person under any of these circumstances may request the district attorney to order an inquest. If the district attorney refuses to order the inquest, the coroner or medical examiner may petition the circuit court to order an inquest, and the court may order an inquest if it finds that the district attorney has abused his or her discretion in not ordering one.

An inquest is held before a jury of six persons unless the district attorney, coroner, or medical examiner requests that the inquest be conducted before the court without a jury. The judge or circuit court commissioner conducting the inquest may order that proceedings be secret upon the request or with the approval of the district attorney. The district attorney appears for the state and presents all evidence which may be relevant or material to the inquiry of the inquest. However, the court may appoint a special prosecutor under certain circumstances, such as when the district attorney has a conflict of interest or when the district attorney is physically unable to attend to his or her duties and there are no other prosecutors employed by the state who can assist in handling the district attorney's duties.

At the request the district attorney, the court must issue subpoenas for witnesses to appear at the inquest. The court may also subpoena witnesses at the request of the coroner or medical examiner. In addition, the court and the district attorney may subpoena expert witnesses, including physicians, surgeons, and pathologists, for the purposes of examining the body, performing scientific and medical tests connected with the examination, and testifying as to the results of the examination and tests. Any witness examined at an inquest may have an attorney present during the examination of that witness, but the attorney may not examine or cross-examine his or her client, call or cross-examine other witnesses, or argue before the court holding the inquest. If a person refuses to testify or provide evidence before an inquest on the ground that the testimony or evidence may tend to incriminate him or her, the court may, at the request of the district attorney, compel the person to testify or produce evidence. A person who testifies or produces evidence in response to the court's order is not subject to any forfeiture or penalty for testifying or producing evidence, except for perjury or false swearing committed when testifying.

When all of the evidence has been received, the court instructs the jury on its duties and on the law regarding the issues in the inquest. If a reasonable jury might find probable cause to believe that a crime was committed, the court must instruct the jury regarding the elements of that crime. The jury then reaches a verdict on whether the deceased died by natural causes, accident, suicide, or an act privileged by law or whether the deceased died as the result of the commission of a crime. If the jury determines that the death was the result of a crime, the verdict must also indicate the specific crimes committed and the name of the person or persons, if known, who committed the crimes. The verdict delivered by an inquest jury is advisory and does not preclude or require the issuance of any criminal charges by the district attorney.

Changes made by this bill

This bill changes how inquests are ordered and conducted in cases in which a person has died as the result of an act of a law enforcement officer that occurs in a county with a population of 500,000 or more. First, the bill eliminates the district attorney's authority to call an inquest in such cases. Instead, the bill requires the attorney general to call an inquest and to appear, or to appoint a special prosecutor to appear, at an inquest in cases of that type. If the attorney general appears at an inquest or appoints a special prosecutor to appear at an inquest in such a case, the attorney general or the special prosecutor has the powers and duties that a district attorney ordinarily has at an inquest. Second, under the bill, an inquest into a death caused by a law enforcement officer in a county with a population of 500,000 or more may not be held before the court alone but must be held before a jury of six or 12 persons. Third, the bill prohibits an inquest into a death caused by a law enforcement officer in a county with a population of 500,000 or more from being conducted in secret. Fourth, the bill allows certain relatives of a person whose death was caused by a law enforcement officer in a county with a population of 500,000 or more to be represented by an attorney at an inquest into the person's death. An attorney representing a relative may ask the court to subpoena witnesses, including expert witnesses, and upon the attorney's request the court must do so. The attorney may also examine or cross-examine any witness at the inquest and argue before the court.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB359-ASA1, s. 1 Section 1. 20.455 (1) (a) of the statutes is amended to read:

AB359-ASA1,3,4 20.455 (1) (a) General program operations. The amounts in the schedule for general program operations, including s. 165.065, and for special prosecutors appointed under s. 979.05 (1m).

AB359-ASA1, s. 2 Section 2. 758.19 (5) (a) 5. of the statutes is amended to read:

AB359-ASA1,3,9 758.19 (5) (a) 5. Fees for witnesses or expert witnesses subpoenaed by the court under s. 979.06 (1) and (2) at the request of the district attorney, attorney general coroner, or medical examiner under s. 979.06 (1) and (2), a special prosecutor appointed under s. 978.045, or an attorney for a relative of the decedent.

AB359-ASA1, s. 3 Section 3. 979.01 (1m) of the statutes is amended to read:

AB359-ASA1,4,5 979.01 (1m) The coroner or medical examiner receiving notification under sub. (1) or (1g) shall immediately notify the district attorney and, if there is any evidence that the person's death was caused by an act of a law enforcement officer that occurred in a county with a population of 500,000 or more, the attorney general.

AB359-ASA1, s. 4 Section 4. 979.025 (1) of the statutes is amended to read:

AB359-ASA1,4,15 979.025 (1) Inmate confined to an institution in this state. If an individual dies while he or she is in the legal custody of the department and confined to a correctional facility located in this state, the coroner or medical examiner of the county where the death occurred shall perform an autopsy on the deceased individual. If the coroner or medical examiner who performs the autopsy determines that the individual's death may have been the result of any of the situations that would permit the district attorney to order under which an inquest would be permitted or required under s. 979.04 (1) or (1m), the coroner or medical examiner shall follow the procedures under s. 979.04 (2).

AB359-ASA1, s. 5 Section 5. 979.04 (1) of the statutes is amended to read:

AB359-ASA1,5,5 979.04 (1) If Except as provided in sub. (1m), if the district attorney has notice of the death of any person and there is reason to believe from the circumstances surrounding the death that felony murder, first-degree or 2nd-degree intentional homicide, first-degree or 2nd-degree reckless homicide, homicide by negligent handling of dangerous weapon, explosives or fire, homicide by negligent operation of vehicle, homicide resulting from negligent control of a vicious animal or homicide by intoxicated user use of a vehicle or firearm may have been committed, or that death may have been due to suicide or unexplained or suspicious circumstances, the district attorney may order that an inquest be conducted for the purpose of inquiring how the person died. The district attorney shall appear in any such inquest representing the state in presenting all evidence which may be relevant or material to the inquiry of the inquest. The inquest may be held in any county in this state in which venue would lie for the trial of any offense charged as the result of or involving the death.

AB359-ASA1,5,8 (4) An inquest may only be ordered by the district attorney under this subsection sub. (1), by the attorney general under sub. (1m), or by the circuit judge under sub. (2) (a).

AB359-ASA1, s. 6 Section 6. 979.04 (1m) of the statutes is created to read:

AB359-ASA1,5,13 979.04 (1m) The attorney general shall order that an inquest be conducted for the purpose of inquiring how a person died if there is any evidence that the person's death was caused by an act of a law enforcement officer that occurred in a county with a population of 500,000 or more.

AB359-ASA1, s. 7 Section 7. 979.04 (2) of the statutes is renumbered 979.04 (2) (a).

AB359-ASA1, s. 8 Section 8. 979.04 (2) (b) of the statutes is created to read:

AB359-ASA1,5,19 979.04 (2) (b) If the coroner or medical examiner has knowledge of the death of any person under the circumstances described under sub. (1m), he or she shall immediately notify the district attorney and the attorney general. The notification shall include information concerning the circumstances surrounding the death.

AB359-ASA1, s. 9 Section 9. 979.04 (3) of the statutes is amended to read:

AB359-ASA1,6,3 979.04 (3) Subsequent to receipt of After receiving notice of the death, the district attorney or, in a case in which the attorney general believes that sub. (1m) applies, the attorney general may request the coroner or medical examiner to conduct a preliminary investigation and report back to the district attorney requester. The district attorney or the attorney general may determine the scope of the preliminary investigation. This subsection does not limit or prevent any other investigation into the death by any law enforcement agency with jurisdiction over the investigation.

AB359-ASA1, s. 10 Section 10. 979.05 (1) of the statutes is amended to read:

AB359-ASA1,6,7 979.05 (1) An inquest shall be conducted by a circuit judge or a circuit court commissioner. The inquest may be held in any county in this state in which venue would lie for the trial of any offense charged as the result of or involving the death.

AB359-ASA1, s. 11 Section 11. 979.05 (1m) of the statutes is created to read:

AB359-ASA1,6,14 979.05 (1m) The district attorney shall appear in an inquest under s. 979.04 (1) and shall represent the state in presenting all evidence which may be relevant or material to the inquiry of the inquest. The attorney general, or a special prosecutor appointed by the attorney general, shall appear in an inquest required under s. 979.04 (1m) and shall represent the state in presenting all evidence which may be relevant or material to the inquiry of the inquest.

AB359-ASA1, s. 12 Section 12. 979.05 (1r) of the statutes is created to read:

AB359-ASA1,6,18 979.05 (1r) (a) In this subsection, "relative" means a spouse, child, stepchild, parent, stepparent, grandparent, stepgrandparent, brother, stepbrother, sister, or stepsister.

AB359-ASA1,6,24 (b) A relative of a decedent whose death is being investigated at an inquest under s. 979.04 (1m) may be represented by an attorney of his or her own choosing at the inquest proceedings. The relative's attorney may request the court to subpoena witnesses under s. 979.06 (1) and (2), examine and cross-examine any witness presenting evidence at the inquest, and argue before the judge or court commissioner holding the inquest.

AB359-ASA1, s. 13 Section 13. 979.05 (2) of the statutes is amended to read:

AB359-ASA1,7,4 979.05 (2) The An inquest under s. 979.04 (1) shall be conducted before a jury unless the district attorney, coroner, or medical examiner requests that the inquest be conducted before the judge or circuit court commissioner only. An inquest under s. 979.04 (1m) shall be conducted before a jury.

AB359-ASA1,7,15 (2m) (a) If the inquest is to be conducted before a jury, a sufficient number of names of prospective jurors shall be selected from the prospective juror list for the county in which the inquest is to be held by the clerk of circuit court in the manner provided in s. 756.06. The judge or circuit court commissioner conducting the inquest shall summon the prospective jurors to appear before the judge or circuit court commissioner at the time fixed in the summons. The summons may be served by mail, or by personal service if the judge, or circuit court commissioner, or district the attorney representing the state at the inquest determines personal service to be appropriate. The summons shall be in the form used to summon petit jurors in the circuit courts of the county. Any person who fails to appear when summoned as an inquest juror is subject to a forfeiture of not more than $40.

AB359-ASA1,7,23 (b) The inquest jury shall consist of 6 jurors except for an inquest under s. 979.04 (1m), in which case the inquest jury shall consist of either 6 or 12 jurors, with the number specified by the attorney general when the inquest is called. If 6 the requisite number of jurors do does not remain from the number originally summoned after establishment of qualifications, the judge or circuit court commissioner conducting the inquest may require the clerk of the circuit court to select sufficient additional jurors' names. Those persons shall be summoned forthwith by the sheriff of the county.

AB359-ASA1, s. 14 Section 14. 979.05 (3) of the statutes is amended to read:

AB359-ASA1,8,14 979.05 (3) The judge or circuit court commissioner shall examine on oath or affirmation each person who is called as a juror to discover whether the juror is related by blood, marriage, or adoption to the decedent, any member of the decedent's family, the district attorney, any other attorney appearing in the case, or any members of the office of the district attorney or of the office of any other attorney appearing in the case, has expressed or formed any opinion regarding the matters being inquired into in the inquest, or is aware of or has any bias or prejudice concerning the matters being inquired into in the inquest. If any prospective juror is found to be not indifferent or is found to have formed an opinion which cannot be laid aside, that juror shall be excused. The judge or circuit commissioner may select one or more alternate jurors if the inquest is likely to be protracted. This subsection does not limit the right of the district attorney representing the state at the inquest to supplement the judge's or circuit commissioner's examination of any prospective jurors as to qualifications.