Speedy Trial Rights Remain a Top Concern for Milwaukee County Court System as It Recovers from the Pandemic’s Effects

Public officials within the Milwaukee County and statewide judicial branches revealed they have not kept track of the number of speedy trial requests they’ve received and denied within the last five years but insist they have tried to avoid infringing upon citizens’ Sixth Amendment right to a speedy and public trial.

According to Milwaukee County Chief Judge Mary Triggiano, the courthouse does not have a record of how many speedy trial requests have been received since the start of the coronavirus pandemic.

“I can say it this way: we started keeping track of the speedy trial demands early on,” she said in an interview with Media Milwaukee. “There’s so many different nuances to it that I hesitate to even tell you the number because it’s not really exact.”

Triggiano gave an estimate of 500 to 550 speedy trial demands being open at any point in time and said that although the county hasn’t kept track of the aggregate numbers, it had kept track of speedy trial demands on a weekly basis for a time after the summer of 2020.

Darrell Brooks’ case before the Waukesha Christmas parade attack was one of the many affected by the consequences of the pandemic.

Milwaukee County Judge David Feiss, who set the low bail of $500 on Darrell Brooks’ case prior to the Waukesha Parade attack, said that that he tolled Brooks’ speedy trial demand because he found that the COVID backlog was causing the county’s inability to try him when asked about the situation that made him determine to lower the bail.

Feiss recalled that the second time Darrell Brooks’ case came up in his docket, there was another older, more serious case that Feiss had tried in front of Brooks’. There were also multiple speedy trial hearings scheduled that date, so Brooks’ trial couldn’t be held because there were no other courts to hold the proceeding.

“You actually make the argument that the error I made was requiring him to post cash bail,” Feiss said. “You can make the argument that since we’ve been unable to accommodate his speedy trial demand, he should have been released without bail.”

The Sixth Amendment right to a speedy and public trial entails exactly what it implies; defendants and plaintiffs in criminal prosecutions are guaranteed a fast trial in the presence of an impartial jury. Wisconsin State statute 971.10 also guarantees speedy trials for the state’s citizens. The statute states that misdemeanor trials should commence within 60 days of the defendant’s initial court appearance, or 90 days from the date demanded by any party in writing or on record in the case of felony trials.

“We saw the number steadily going down as we continued to do jury trials,” said Triggiano. “The last I looked before I said they didn’t have to keep track of that anymore was around 250 [speedy trial demands open at a time].”

However, she warned that there a lot of caveats regarding the uptick of speedy trial demands open at one time. One of her biggest footnotes being that many of those speedy trial demands had been withdrawn for a variety of reasons. She cited one of those reasons being that some defense attorneys will file a speedy trial demand then decide to withdraw it, as a strategic decision.

Triggiano said that before the past six months she knew that there were legal mechanisms being used to try to honor speedy trial demands, but she also could not provide a number of the amount of demands that couldn’t be honored.

Wisconsin Director of State Courts Randy Koschnick echoed that he didn’t have any aggregate numbers of speedy trial requests made over the past five, even two, years.

“I know generally what the backlog numbers are because we do keep track of them week by week,” said Koschnick. “But I don’t know specifically how many speedy trial requests have been made.”

Triggiano said that the issue that the county prioritized was that anytime a speedy trial demand was requested, they wanted to be able to accommodate it without having to adjourn the trial or reduce bail and “let somebody out” because the county couldn’t honor the request.

Koschnick said one way to honor due process and speedy trial rights is to release defendants in custody whose speedy trial demands cannot be met in time and keep them on pre-trial monitoring.

Triggiano also said that the county was able to accommodate speedy trial demands in most instances over the last year by finding different judges available to hold a trial for another judge that might be booked with another speedy trial demand case the same day. She explained that some judges will schedule a trial carrying a speedy trial demand within a month before the expiration of the demand to try to get it done with, and if they don’t “have some wiggle room” to fit it into their schedule, to adjourn it to do another day.

Feiss said that at some point during the pandemic, he felt the court’s inability to meet people’s speedy trial demands was not due to court congestion, but rather due to restrictions caused by the pandemic. According to Feiss, the law says that a court cannot hold someone’s speedy demand if the delay is due to court congestion, and at some point, the county court system needed to make decisions about whether its inability to meet speedy trial demands warranted a required release of defendants in custody.

During an interview, Wisconsin State Public Defenders Office Official Liaison Adam Plotkin told Media Milwaukee that Milwaukee County’s inability to meet speedy trial demands is still a big concern despite the claims that judges have lowered bail and released defendants to comply with speedy trial rights. Plotkin said that the offers that were “coming in” got worse during the pandemic.

“We thought because of having to make the adjustment, maybe they’re going to be a bit more willing to make a good offer that gets the case done and out the door,” said Plotkin. “It is absolutely a concern when cases don’t move forward.”

Triggiano said the county is honoring people’s, both substantive and procedural, due process rights. She said that she thinks the justice system and all its stakeholders did “absolutely” what they could, given the public health crisis and their understanding and knowledge, that they needed to get cases back on track.

According to Mary Triggiano, the county doesn’t need to extend the timeframe of trials anymore because they have enough staff to accommodate them for now. She said in the whole month of May, the county had scheduled about 130 trials amongst the felony division judges.

Even though the chief judge is confident in her approach towards the influx of speedy trial demands, she still doubted the county’s ability to address every speedy trial demand at the beginning of the pandemic. She said one of the results of the court’s inability to meet the demands were  that defendants may have stayed in custody longer than what they would have pre-pandemic.

“I’m sure there were some [requests] that we could not accommodate early on,” said Triggiano. “But in the last year I believe we’ve been able to pretty do most, if not all, of them.”

Koschnick said that the defense might want more time to prepare for a case that carries a speedy trial demand on behalf of the prosecution, “so judges take the demands case by case.”

Judge Feiss also admitted that it was not uncommon for the county to be able to comply with people’s speedy trial demands in the first half of 2021. But he said that by the second half of 2021 the county was doing more trial dates, and he doesn’t recall having to reduce someone’s bail because the court was unable to meet their speedy trial demand since then.

According to Feiss, his biggest issue with the court system right now, is that people on pre-trial will “sometimes sit in jail for two to three months” while the public defenders office is unable to find counsel for them.

According to Feiss, the scenario that has caused the delay goes like so: The 10-day hearing comes up and the public defenders office doesn’t have a lawyer appointed to a case yet. Feiss said to address that concern, the court has been footing the bill of hiring new lawyers with the county’s money. He said that the state defenders are a state budget item but has become an “unfounded mandate” for Milwaukee County. He said he’s presiding over a case involving an individual, who doesn’t have a lawyer yet, that has been sitting in jail “on $10,000 cash” since the first week of March 2022.

“As a county we’re spending significant amounts of money to keep him in jail,” said Feiss. “As an individual with rights, he’s been held without any counsel and any ability to have his case moved forward… From my perspective, it’s more damning and more serious than any delays within the court system.”

Feiss admitted that he’s not 100% sure how the county is going to overcome that kind of obstacle, but it’s looking to hiring people and bring old employees back. According to Feiss, depending on what the bail is, defendants are entitled to a preliminary hearing within 10 days if the bail amount is set at $500 or more and they are in custody.

Adam Plotkin said he has the anecdote of attorneys who have told him that they handled a low-level misdemeanor charge that, prior to the pandemic, might have been negotiated to a non-criminal settlement or probation. Now those offers were coming in with jail time as part of the offer recommendation. He provided another example where a felony that maybe should have settled a little bit sooner just didn’t get the offer that would allow that to happen.

“I’d say another part of it is just simply the function of the pandemic,” said Plotkin. “A lot of work of the criminal justice system are those face-to-face conversations that happen in the courthouse hallways as you’re running from on courtroom to another.”

Plotkin said that one might run into the DA at the courthouse and be able to work something out between the two minutes spent between hearings. He said that without that ability to have those hallway conversations, it became more difficult to communicate.

Although Plotkin said that he doesn’t think there was any official decision on behalf of judges to start recommending subjectively worse offers to defendants, he said the trend might have been a natural outgrowth of some judges’ recent attitude toward not having a jury trial looming over them and getting to cases when they get to them. However, he said he thinks it was just a matter of circumstances and not something that came from any sort of conscious conversation.

Randy Koschnick said that it’s up to the judge to apply the law in each case to make ensure that defendants’ and victims’ constitutional rights are being upheld. He said the constitution is paramount to both judges and lawyers in every criminal proceeding, and they’re careful not to violate it, and if a party believes that the constitution is not being followed, they are free to appeal to the Court of Appeals and, ultimately, the Supreme Court.

Judge Feiss said the idea that speedy trial rights are being violated would be an incorrect assumption. However, he said that there is no clear line that defines violation of the constitution. He said that even speedy trial demand analysis is based on a few factors, so there’s no certain number of days that qualifies a situation as constitutional violation. Despite the unclear boundary, Feiss said one could make an argument that speedy trial rights were violated.

“As far as I know, the constitution has not been violated,” said Koschnick. “I hope we’re not violating the constitution, but there’s different legal opinions about what kind of violates it.”

Feiss also said that if the county had been holding a defendant illegally or in violation of the constitution, the defendant would be able to file a habeas corpus petition to be brought to court as soon as possible to determine whether their Sixth Amendment right had in fact been violated. But, according to Feiss, no one has done that yet. He said the reason defendants didn’t do that is because the petition would have to be filed through the federal court that had also not been trying cases. Feiss said that it would be difficult for a federal judge to find that the state of Wisconsin was violating people’s constitutional rights by not giving speedy trials when even the federal government, itself, wasn’t seeing people’s trials at all.

Plotkin was confident that there are people conscious of constitutional liberty interests that are doing their best to try to accommodate people’s right to a speedy trial, and there is always a good clause exception built into official procedures if need be.

“Technically, in places in supreme court rules there’s use of the words like ‘war’, ‘pestilence’, ‘famine’…” said Plotkin. “So, that’s one way [judges] can adjust the timeline to account for a global pandemic, but that doesn’t mean that the age of the case and the amount of time it’s been waiting is any less important.”

The sample of four public officials agreed that worldwide worker shortages brought on by the pandemic also had a significant impact on the ability of a case to proceed with the required parties present.

According to Triggiano, the numbers of bailiffs, correctional office staff and the county jail staff are down by 30% of their average amount.

Randy Koschnick weighed in, explaining that a big component of the backlog is not really a shortage of judges, but a shortage of physical court rooms and other court staff like those Triggiano had identified, specifically court reporters and public defenders.

Koschnick said although the defendant can give up the right to legal counsel, they request it in most cases. However, the shortage of public defenders caused a “bottleneck” before the pandemic and was exacerbated by the by social distancing limitations making cases harder to process.

Triggiano shared her concerns for the shortage of defense attorneys, as well, saying, “The public defenders office has an inability to appoint [defense attorneys to] 30-35% of the cases that we have in the felony and misdemeanor division. That’s a problem. That exacerbates and strains the backlog that you already have.”

Feiss said that since the county resumed trials and added more trials for that fall, it is back up to where it’s trying as many cases now as it did before the pandemic. But he also made the disclaimer that a backlog remains despite the efforts of the county.

Plotkin also acknowledged that, even through the efforts to ensure a speedy trial, the backlog of cases has still not been fully addressed. One analogy he said he’s been using is that the case-flow became “like a saturated ground situation” where cases just kept coming in but weren’t resolving as quickly because of the lack of availability of jury trials during a given period and volume of cases that come through the criminal justice system.

According to Triggiano, there’s a statewide felony backlog of about 17,000 cases, and Milwaukee makes up less than 10% of that felony backlog throughout the state. Triggiano attributed the statistically insignificant amount of felony cases in Milwaukee to courthouse staff working “their tails off” with the understanding that if they let the backlog go and didn’t resume in-person trials the backlog could be triple what it is currently- or more.

Triggiano said sticking to the timeframes of cases allows judges to ensure that they’re “disposing of as many cases, or more” so that they get new cases coming into their calendar. She said that’s an equilibrium that every judge wants to work for to keep them “steady.”

She said that judges were resolving cases at a rate of as many that came in, but once the pandemic hit, even if the court went down for a month or two, there were potentially 50 to 60 jury trials a judge is not able to do.

Randy Koschnick said that although the backlog is a statewide concern, it is worse in some counties than others. Milwaukee is the focus because the backlog consists of many serious felony cases there. Koschnick said he’s working with chief justices around the state to implement plans to address the backlog, but each district is unique and require different approaches to remedy it.

“Milwaukee is, by far, the biggest effort,” said Koschnick. “And we have the most resources going to Milwaukee as opposed to other counties.”

All the public officials interviewed by Media Milwaukee praised technology’s role in revitalizing the court procedures, especially Zoom proceedings and the ease they provided for the limited number of court reporters across the state, even if it was just to a fraction of the efficiency the courthouse had before the pandemic. Officials noticed that public access was also more available with virtual proceedings, as well. However, chiseling away at the cycle involves the enactment of short-term solutions and long-term investments within court systems statewide.

According to Judge Mary Triggiano, one of those solutions is the creation of a [memorandum of understanding] to disperse $14 million in funds granted by Governor Evers from the American Rescue Plan Act to the groups of stakeholders receiving them. She said within the package, the DA’s office requested funds for 16 additional assistant DA’s, four investigators, five process investigators, six victim witness advocates and five secretarial staff to support additional courts. The public defenders office requested 16 attorneys and 11 support staff, the clerk of circuit courts requested seven deputy court clerks and the Milwaukee County Sherriff’s Office requested nine additional deputies.

Triggiano said the only things she requested within the ARPA package were about $75,000 to outfit additional court rooms with safety precautions. She said the county also plans on using money given to it to hire a court coordinator to formalize plans for a mental health treatment court the county has as a pilot right now.

She said that the only other group that is going to get a significant chunk of money from the ARPA funds is JusticePoint, the non-profit organization that oversees the pretrial supervision and monitoring. JusticePoint needs additional “bodies to monitor those who are over their original contract price,” and needs to obtain more GPS units since judges may put individual defendants on GPS trackers.

However, Triggiano is confident that the aggressive early approaches that the county took toward the pandemic was necessary to make sure the backlog didn’t grow any further were successful steppingstones toward her current decision to move forward with the county’s planned efforts to create five additional courts and pilot night court.

“I think by June, most of the stakeholders will have enough bodies to start at least two courts,” said Triggiano. “Maybe three by August.”