One-Hundred and First Regular Session
TUESDAY, January 22, 2013
The Chief Clerk makes the following entries dated Friday, January 18, 2013.
Introduction, First Reading, and Reference of Proposals
Senate Joint Resolution 4
Relating to: creation of a department of transportation, creation of a transportation fund, and deposit of funds into the transportation fund (second consideration).
By Senators Petrowski, Carpenter, Lazich, Darling, Farrow, Gudex, Harsdorf, Kedzie, Lasee, Leibham, Moulton, Olsen and Schultz; cosponsored by Representatives Ripp, Kahl, Bernier, Bies, Brooks, Czaja, Danou, Doyle, Endsley, Honadel, Jacque, Jorgensen, Kaufert, Kerkman, Kestell, Klenke, LeMahieu, T. Larson, Marklein, Murphy, Mursau, Nerison, Nygren, A. Ott, Petersen, Petryk, Pridemore, Schraa, Smith, Spiros, Stone, Steineke, Strachota, Tauchen, Thiesfeldt, Tittl, Tranel, Weininger, Zepnick and August.
hist1089To committee on Transportation, Public Safety, and Veterans and Military Affairs
Read first time and referred:
Relating to: regulation of ferrous metallic mining and related activities, procedures for obtaining approvals from the Department of Natural Resources for the construction of utility facilities, making an appropriation, and providing penalties.
By Senators Tiffany, Gudex, Darling, Farrow, Kedzie, Lasee, Lazich, Leibham and Vukmir; cosponsored by Representatives Suder, Honadel, Williams, August, Ballweg, Bernier, Bies, Born, Craig, Czaja, Endsley, Hutton, Jacque, Jagler, Kapenga, Kaufert, Kerkman, Kestell, Kleefisch, Klenke, Knodl, Knudson, Kooyenga, Kramer, Kuglitsch, T. Larson, LeMahieu, Loudenbeck, Murphy, Murtha, Nass, Nygren, A. Ott, J. Ott, Petersen, Petryk, Pridemore, Ripp, Sanfelippo, Schraa, Severson, Spiros, Steineke, Stone, Strachota, Stroebel, Swearingen, Tauchen, Thiesfeldt, Tittl, Vos, Weatherston and Weininger.
hist1093To committee on Workforce Development, Forestry, Mining, and Revenue
The Chief Clerk makes the following entries under the above date.
Introduction, First Reading, and Reference of Proposals
Senate Joint Resolution 5
Relating to: fiscal estimate requirements for bills containing penalty provisions.
By Senators Taylor, T. Cullen, Risser, Carpenter, Lehman and Harris; cosponsored by Representatives Bies, Kahl, Hebl, Johnson, Pasch, Barnes, Kessler, Goyke, Berceau, C. Taylor, Bernard Schaber and Hintz.
hist1098To committee on Government Operations, Public Works, and Telecommunications
Read first time and referred:
Relating to: the publication and effective dates of acts.
By Senator Grothman.
hist1097To committee on Judiciary and Labor
Petitions and Communications
State of Wisconsin
December 26, 2012
Enclosed is the report of the State Claims Board covering the claims heard on December 12, 2012. Those claims approved for payment pursuant to the provisions of s. 16.007 and 755.05 Stats., have been paid directly by the Board.
This report is for the information of the Legislature. The
Board would appreciate your acceptance and publication of it in the Journal to inform the members of the Legislature.
GREGORY D. MURRAY
STATE OF WISCONSIN CLAIMS BOARD
The State of Wisconsin Claims Board conducted hearings at the State Capitol Building in Madison, Wisconsin, on December 12, 2012, upon the following claims:
Claimant Agency Amount
1 .Marion Lynette Workforce
2. William Damon Innocent Convict Avery Compensation $30,000.00
3. Forest Seaton Innocent Convict
Shomberg Compensation $102,500.00
4. Beth Reeves Innocent Convict
5. David R.
Turnpaugh Innocent Convict
The following claims were decided without hearings:
Claimant Agency Amount
6. Kelle &
Brian Dorn Health Services $6,638.25
7. Thomas Barbian Correction $37.00
8. Trammel Starks Corrections $228.93
9. Antonio D.
Johnson Corrections $168.00
The Board Finds:
1. Marion Lynette of Antigo, Wisconsin claims $80,000 for worker’s compensation death benefits, lost hours towards pension earnings, and funeral costs for the claimant’s father, Alvin Tillman. Mr. Tillman was working as a plumber at a jobsite in March 1973 when he collapsed and died. The claimant states that on the day of his death, her father was responsible for carrying 125 lb. sections of pipe and placing them in a ditch. She alleges that two weeks before his death, he told his wife that his supervisors were “trying to kill [him].” The claimant alleges that her father’s physician stated that he did not have a pre-existing heart condition. Upon her father’s death, his wife filed a claim for worker’s compensation death benefits, however, the claim was denied on the grounds that the death was due to a pre-existing heart condition, which was not aggravated by the work Mr. Tillman was performing at the time of his death. The denial of benefits was affirmed by the Department of Labor Industry and Human Relations (DILHR) and again reviewed and denied by Dane County Circuit Court in 1975. The claimant states that she was unaware that the attorney she hired to pursue the worker’s compensation claim had lost his license three times in the past. The claimant points to the fact that the physician who declared her father’s death to be due to a heart attack had never examined him while alive. She believes the court should have therefore given less weight to his testimony than that of her father’s physician, who had stated there was no pre-existing heart condition. The claimant also alleges that several of her father’s co-workers were not truthful at trial because they were afraid of losing their jobs. The claimant believes that her mother did not receive justice and requests payment of this claim.
The Department of Workforce Development (DWD, formerly DILHR) recommends denial of this claim, which has been fully litigated before DILHR and DWD, and reviewed upon appeal. DWD notes that the denial of worker’s compensation benefits was upheld by DILHR in 1973 and Dane County Circuit Court in 1975. DWD points to the circuit court decision, which notes that there was conflicting testimony by two doctors, one testifying that the strenuous work performed by her father contributed to his death and one testifying that the work activities were not unusually strenuous and did not cause his death. The court decision stated that “the long recognized general rule is that where there are conflicts and inconsistencies in the medical testimony this is a matter for the department and not a reviewing court to resolve.” DWD also notes that the claimant filed a new claim with DWD in 1996 alleging her father’s death was due to occupational disease. This claim was dismissed by an administrative law judge in 1997 and that dismissal was upheld by the Labor and Industry Review Commission in 1998. DWD notes that although the claimant’s attorney was disciplined for the handling of probate matters, none of these disciplinary proceedings involved her father’s case and that it appears that Dane County Circuit Court was satisfied that the attorney had vigorously argued Mr. Tillman’s case. DWD believes there is no evidence of negligence by any state agency and no equitable basis for payment of this claim.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one with the state should assume and pay based on equitable principles.
2. William Damon Avery of Milwaukee, Wisconsin claims $30,000.00 for Innocent Convict Compensation pursuant to § 775.05, Wis. Stats. The claimant states that he served 6 years for a murder that was later connected to Walter Ellis, a Milwaukee man convicted of killing seven prostitutes in Milwaukee over a 21-year period. In February 1998, the body of Maryette Griffen, a drug-addict and prostitute, was found strangled on North 7th Street in Milwaukee. The claimant, who at the time ran a nearby crack house, voluntarily spoke with police about the case. The claimant alleges that he never confessed to the murder and that the police fabricated his confession. The claimant was not originally charged with Griffin’s murder at that time, but he was charged with and convicted of drug dealing and sentenced to 10 years in prison. Later, in 2004, the Milwaukee County District Attorney’s Office charged him with reckless homicide in Griffin’s death, based on the statements of three prison inmates that they had heard the claimant confess to killing Griffin. The claimant maintained his innocence throughout his trial but was convicted in March 2005 and sentenced to 40 years in prison. The claimant continued to maintain his innocence after his conviction and in 2010 requested DNA testing on evidence from the crime scene. The DNA tests excluded the claimant and matched the profile of Walter Ellis, an accused serial killer. Two of the inmates who had testified against the claimant recanted their testimony, stating that they were coerced by police to testify against the claimant. One of the inmates who recanted, Jeffrey Kimbrough, also stated that the third individual who testified against the claimant (Kimbrough’s cellmate) had told Kimbrough that he was lying about the claimant in order to get a reduced sentence. The claimant was released in May 2010 and his conviction was vacated in September 2010. The claimant requests reimbursement for his wrongful conviction at the statutory rate of $5,000 per year.
The Milwaukee County District Attorney’s Office declined to respond to this claim.
Based on the totality of the information summarized above and presented at the hearing, the Board concludes the claimant has provided clear and convincing evidence that he was innocent of the crime for which he was convicted and did not, by his act or failure to act, contribute to his conviction. The Board further concludes that pursuant to § 775.05, Stats., the claim should be paid in the amount of $25,000.00 from the Claims Board appropriation § 20.505.(4)(d), Stats. [Member Means dissenting.] 3. Forest Seaton Shomberg of Middleton, Wisconsin claims $102,500.00 for innocent convict compensation pursuant to § 775.05, Wis. Stats. The claimant states that he spent 6 years in prison for crime he did not commit. In November 2009, his conviction was overturned based on new evidence and he was awarded a new trial. The Milwaukee County District Attorney’s Office subsequently dismissed all charges.
In the early morning hours of March 9, 2002, a UW student (S.B.) was sexually assaulted near State and Francis Streets. S.B.’s assailant dragged her in into an alley and grabbed her crotch. S.B. struggled with her assailant and he was unable to get past her pantyhose. She was able to pull his hand from her mouth and scream for help. A nearby security guard, Alan Ferguson, responded to her screams and her attacker ran off. Several days after the incident, investigating officers had S.B. and Ferguson individually work with a sketch artist to create a composite sketch of the attacker. S.B. stated that she only saw her attacker’s face once—for less than a second in the dark. Ferguson stated that he saw the assailant twice, once without getting a good look at his face, and once when the assailant looked back as he was running away. In April 2002, S.B. identified the claimant in a lineup. The claimant was convicted of attempted sexual assault after a two-day bench trial and sentenced to twelve years in prison. The claimant maintained his innocence throughout his trial. Both he and his alibi witnesses voluntarily took polygraph tests and all passed the tests. No physical evidence linked the claimant to the assault.
In 2007, the claimant requested that DNA testing be performed on S.B.’s pantyhose, given the likelihood that her attacker, who “squeezed and groped” the victim, left behind skin cells on the pantyhose. The DNA testing found male DNA on the pantyhose and unquestionably excluded the claimant as a source of that DNA. The testing also excluded four other men who participated in the trial and may have innocently left behind skin cells on the pantyhose (Ferguson, ADA Robert Kaiser, Defense Attorney Arnold Cohen, and a private investigator).
The claimant appealed his conviction based on this new evidence. He also presented evidence that had come to light since his conviction regarding the unreliability of eyewitness testimony and composite sketches. The claimant notes that since the emergence of DNA testing, eyewitness misidentification has been identified as the single leading cause of wrongful convictions in the U.S. The claimant also presented evidence showing that composite sketches can be problematic. The claimant points to the fact that S.B. stated that she did not realize her assailant was bald until she saw the final composite sketch, which was based on Ferguson’s description of the attacker as bald. The claimant believes that this suggests that S.B.’s memory of her assailant’s face was influenced by the sketch which led to her misidentification of the claimant in the lineup. In his decision overturning the conviction, Judge Fiedler, who also conducted the original bench trial, found the DNA test results to be highly probative. He also referenced the new information regarding the reliability of eyewitness identification and the use of composite sketches.
The claimant requests reimbursement for his wrongful conviction. He states that he did nothing to contribute to his conviction but steadfastly maintained his innocence throughout his trial and appeal. He requests the statutory amount of $5,000 per year of his incarceration, plus $77,500 for his appellate legal fees.
The Milwaukee County District Attorney’s Office (DA) recommends denial of this claim. The DA notes that no court has ever ruled the claimant innocent of this crime, Judge Fiedler simply found that the legal standard had been met by the defendant to obtain a new trial. The DA also points to the fact that at the original trial Judge Fiedler found both the claimant’s testimony and that of his alibi witnesses not credible regarding his whereabouts at the time of the attack. Nothing in Fiedler’s decision overturning the conviction indicates that his opinion of the credibility of those witnesses had changed. The DA points to the fact that the claimant has a long criminal history, including an additional conviction after his release. The DA also notes that the claimant’s primary alibi witness, his girlfriend, has lied to police on previous and subsequent occasions in order to protect the claimant.
The DA notes that the question before the Board is not whether the State has proven the claimant guilty of this crime, but whether the claimant has shown “clear and convincing evidence” of his innocence, as required by § 775.05, Stats. The DA believes that a review of the original trial transcript, as well as the claimant’s past and present conduct will show the credibility problems of the claimant and his alibi witnesses. The DA states that its decision not to retry case is not “clear and convincing evidence” of the claimant’s innocence but simply reflects the reality that the State has an obligation to only pursue cases which they are confident they can prove beyond a reasonable doubt.
The DA believes the claimant has failed to meet his burden to present clear and convincing evidence of his innocence and recommends denial of this claim.
Based on the totality of the information summarized above and presented at the hearing, the Board concludes the claimant has not provided clear and convincing evidence that he was innocent of the crime for which he was convicted and did not, by his act or failure to act, contribute to his conviction, as required under § 775.05, Stats. 4. Beth Reeves of Crested Butte, Colorado claims $161,894.72 for innocent convict compensation pursuant to § 775.05, Wis. Stats. The claimant was arrested in June 2005 and charged with theft by contractor and embezzlement in relation to three building/remodeling jobs in Lake Geneva, Wisconsin performed by the company owned by the claimant and her husband, Reeves Custom Builders (RCB). The claimant’s husband, Arthur Reeves, was also charged. The claimant states that Arthur Reeves was responsible for the day-to-day running of the business and that she served as RCB’s secretary/treasurer and bookkeeper. The claimant states that the three complainants were disgruntled customers, who became angry when RCB filed liens on their property for payment of monies owed for the building/remodeling work. The claimant states that the three complainants convinced the Walworth County District Attorney (DA) to file the charges. She notes that two ADA’s in office turned down the case because they felt it was civil, not criminal, in nature, however, a third ADA, Steven Madson, took the case. The case went to trial in January 2008. On the second day of trial, Arthur Reeves pled guilty to three counts of embezzlement. The claimant’s trial proceeded before a jury.
The claimant alleges that the ADA Madson knew well before the trial that one of the complainants committed perjury during his testimony at the preliminary hearing. The claimant states that after the preliminary hearing phase of the case, Madson, met with the complainants and told them the State could not win the case without hiring an expert accounting witness. Madson told the complainants the DA’s office did not have the funds to hire this witness and that if the trial was to proceed, the complainants would have to pay for the expert accounting witness. The claimant states that this private party payment arrangement was never disclosed to the court, the defense, or the jury. The claimant states that Madson, in fact, misled the jury by referring to the expert witness as the “State’s” witness and that the witness stated that he was “hired by the State of Wisconsin.” The claimant states that this private payment arrangement violated public policy, violated the prosecutor’s constitutional obligation to disclose exculpatory and impeaching evidence to the defense, and violated the claimant’s due process right to a fair trial by misleading the jury about the true role of the expert witness.
The claimant also alleges that the ADA did not maintain the integrity of the evidence because the financial information for the three projects was mixed together in nine banker’s boxes, which were provided to the expert accounting witness to sort out. The claimant also states that the ADA did not verify the findings of the expert witness or the complaining parties and that there was evidence in the files showing that the damages claimed by the complaining parties were incorrect.
The claimant also alleges that the subpoena obtained by Madson for the Reeves’ financial records was not supported by probable cause, was overbroad in that it demanded every financial record pertaining to RCB for a five year period, and that it improperly demanded production of the Reeves’ tax returns.
The claimant also alleges that the jury was exposed to extraneous information during deliberations, including improper statements of law by the jury foreman and the production of an unredacted, full transcript, of which only small portions had been admissible in court.
The jury returned a guilty verdict and the judge sentenced the claimant in May 2008. The claimant was placed on probation for five years and sentenced to ninety days in jail. The court did not impose a fine but scheduled a separate restitution hearing. During the first restitution hearing, the private party payment arrangement for the expert accounting witness was first disclosed by Madson. The claimant filed a post-conviction relief motion in June 2009, which was denied. The claimant filed an appeal in January 2010. The claimant notes that the Attorney General’s Office agreed with her argument regarding the private party payment arrangement and filed a brief with the court requesting reversal of her conviction. In May 2011, the Court of Appeals agreed that the nondisclosure of the private party payment arrangement was prejudicial and overturned the claimant’s conviction.
The claimant notes that, although the State attempted to re-try her for the charges in March 2012, the trial judge granted the claimant’s motion to suppress all evidence acquired from the subpoena for the Reeves’ financial records. The State then dismissed all charges against the claimant.