A Dane County judge currently under investigation for alleged disrespectful conduct toward defendants has seen twice as many requests from defendants as her peers to move cases out of her courtroom.

Part of the reason Circuit Judge Ellen Berz has seen 427 so-called substitution requests since 2020 is that she’s been assigned solely to criminal cases since before then, and in Wisconsin, defendants under state law are entitled to one judicial substitution per case without having to provide a reason for asking.

Berz

AMBER ARNOLD, STATE JOURNAL ARCHIVES

Still, the two other judges who have been solely assigned to criminal cases since 2020, John Hyland and Nicholas McNamara, have seen far fewer such substitution requests — five and 185, respectfully — and state law also allows both defendants and plaintiffs in civil cases the same one-time, no-questions-asked substitution, meaning the potential for such requests is double that in criminal cases.

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Berz did not respond to requests for comment for this story.

It’s difficult to know why defendants in Berz’s courtroom are asking to have her taken off their cases at a disproportionate rate, largely because criminal defense attorneys are wary of criticizing a judge who could decide their clients’ cases.

One of the attorneys who asked for a substitution in Berz’s courtroom, and who asked not to be identified, said the request was less about Berz than it was about the chance to get a different prosecutor if the case was moved to a different courtroom.

Nine other attorneys who have recently asked to have Berz removed did not respond to requests for comment, nor did the State Public Defender’s office.

UW-Madison clinical associate law professor John P. Gross, a former criminal defense attorney, said that typically when a criminal court judge sees a lot of requests from defense attorneys to move cases out of a courtroom, it’s because the judge has developed a reputation for being “particularly harsh when it comes to sentencing.”

Other reasons could include that an attorney has disagreed with some of the judge’s past rulings, that a client has said something seen as inflammatory that upsets the judge, or that the judge has a poor judicial temperament, he said.

“If you’ve got 17 options for a judge and you’re seeing one particular judge with an outlier rate at substitution requests … that means that that judge has got a reputation as somebody who is an outlier in terms of sentencing or conducts trials in a way that might be hostile toward the defense or is reluctant to grant suppression motions or any of the above,” he said.

Dane County’s chief judge, Julie Genovese, said she didn’t “have any personal knowledge of why people are substituting on certain judges,” and that one would have to ask the attorneys making the requests to find out.

She said she hadn’t been aware of Berz’s unusually high number of substitution requests before the Wisconsin State Journal requested the data. Asked if she would bring the matter up with Berz, she said “maybe,” but she declined to comment on specific judges.

As elected officials, judges aren’t subject to any kind of formal employee review process by the chief judge or any other official or body, although complaints can be filed against judges with the Wisconsin Judicial Commission. The commission reviews complaints and decides if there is probable cause to send it to the Wisconsin Supreme Court, which oversees all state judges, and the high court can decide to appoint a panel to recommend any discipline of the judge that it thinks the high court should impose.

‘You’re not playing that game’

According to the commission’s complaint against Berz, the judge likely violated four rules requiring judges to be unbiased and have “high standards of conduct,” and to treat people they come into contact with as part of their duties “with patience, dignity and courtesy.”

It points to two incidents in particular:

At a May 31, 2019, hearing in a child sexual assault and bail jumping case, Berz warned that “this court will not forget” defendant Richard H. Harrison’s request for another delay in his trial if Harrison were ultimately found guilty, which he was by a jury on all counts on Nov. 22 of that year.

“You’re not playing that game anymore after this,” Berz told Harrison, according to transcripts. “Go to the prison and talk to them about all the games you can play. We’re done here. Clear? Mr. Harrison, clear?”

The two then got into a brief back-and-forth in which Harrison told Berz “your sarcasm is extremely clear” and Berz retorted, “Good. I thought it would be. That’s why I’m saying it to you that way, because I thought you would relate with that.”

In the second incident, on Dec. 13, 2021, Berz ordered a bailiff to leave her courtroom to go arrest defendant Noah A. Hodges, who was facing drug-related and bail-jumping charges and who didn’t show up that day for his trial because, his attorney told Berz, he was in the hospital.

When the bailiff said he could not leave the courthouse to make the arrest, Berz said she would do it herself and set out with Hodges’ attorney in her own car in the direction of the hospital.

“Judge Berz also stated that, if something happened to her when she went to pick up the defendant, they would hear about it on the news,” the complaint alleges.

The complaint says “Hodges’ attorney told the judge that this trip was a bad idea, as the judge is to be the neutral decision maker in the case.”

Berz reportedly told Hodges’ attorney that “if she truly thought they should turn around, they would turn around.” The attorney said they should turn around and Berz then took them back to the courthouse, the complaint says.

Hodges in April 2023 pleaded guilty in the case to one count of fifth- or sixth-offense driving while under the influence of a controlled substance. Four other charges were dismissed as part of a deal with prosecutors.

Berz in a court filing has admitted to the allegations against her, and she and the commission have also agreed that a seven-day suspension would be appropriate punishment, but the review panel created for her case has asked both parties to submit briefs on past judicial misconduct decisions to help it better make a decision.

It wasn’t clear when that panel would complete its work and the high court impose any discipline, but the commission had until Tuesday to file its brief and Berz has until 25 days after that brief is filed to file her response.

Photos: Israelis protest proposed judicial changes

Israelis protest against plans by Prime Minister Benjamin Netanyahu’s new government to overhaul the judicial system outside the Knesset, Israel’s parliament in Jerusalem, Monday, Feb. 20, 2023. Israel’s government is pressing ahead with its contentious plan to overhaul the country’s legal system. A vote in parliament on Monday is due despite an unprecedented uproar that has included mass demonstrations, warnings from military and business leaders and calls for restraint from the U.S. (AP Photo/Ohad Zwigenberg)

Ohad Zwigenberg

Israelis protest against plans by Prime Minister Benjamin Netanyahu’s new government to overhaul the judicial system outside the Knesset, Israel’s parliament in Jerusalem, Monday, Feb. 20, 2023. Israel’s government is pressing ahead with its contentious plan to overhaul the country’s legal system. A vote in parliament on Monday is due despite an unprecedented uproar that has included mass demonstrations, warnings from military and business leaders and calls for restraint from the U.S. (AP Photo/Ohad Zwigenberg)

Ohad Zwigenberg

Israelis protest against plans by Prime Minister Benjamin Netanyahu’s new government to overhaul the judicial system outside the Knesset, Israel’s parliament in Jerusalem, Monday, Feb. 20, 2023. Israel’s government is pressing ahead with its contentious plan to overhaul the country’s legal system. A vote in parliament on Monday is due despite an unprecedented uproar that has included mass demonstrations, warnings from military and business leaders and calls for restraint from the U.S. (AP Photo/Ohad Zwigenberg)

Ohad Zwigenberg

Israelis protest against plans by Prime Minister Benjamin Netanyahu’s new government to overhaul the judicial system outside the Knesset, Israel’s parliament in Jerusalem, Monday, Feb. 20, 2023. Israel’s government is pressing ahead with its contentious plan to overhaul the country’s legal system. A vote in parliament on Monday is due despite an unprecedented uproar that has included mass demonstrations, warnings from military and business leaders and calls for restraint from the U.S. (AP Photo/Ohad Zwigenberg)

Ohad Zwigenberg

An Israeli protests against plans by Prime Minister Benjamin Netanyahu’s new government to overhaul the judicial system outside the Knesset, Israel’s parliament in Jerusalem, Monday, Feb. 20, 2023. Israel’s government is pressing ahead with its contentious plan to overhaul the country’s legal system. A vote in parliament on Monday is due despite an unprecedented uproar that has included mass demonstrations, warnings from military and business leaders and calls for restraint from the U.S. (AP Photo/Ohad Zwigenberg)

Ohad Zwigenberg

Protesters supporting women’s rights dressed as characters from The Handmaid’s Tale TV series attend a protest against plans by Prime Minister Benjamin Netanyahu’s new government to overhaul the judicial system in Tel Aviv, Monday, Feb. 20, 2023. Israel’s government on Monday was pressing ahead with a contentious plan to overhaul the country’s legal system, despite an unprecedented uproar that has included mass protests, warnings from military and business leaders and calls for restraint by the United States. (AP Photo/Oded Balilty)

Oded Balilty

Protesters supporting women’s rights dressed as characters from The Handmaid’s Tale TV series attend a protest against plans by Prime Minister Benjamin Netanyahu’s new government to overhaul the judicial system in Tel Aviv, Israel, Monday, Feb. 20, 2023. Israel’s government on Monday was pressing ahead with a contentious plan to overhaul the country’s legal system, despite an unprecedented uproar that has included mass protests, warnings from military and business leaders and calls for restraint by the United States. (AP Photo/Oded Balilty)

Oded Balilty

Israelis protest against plans by Prime Minister Benjamin Netanyahu’s new government to overhaul the judicial system in Haifa, Israel, Monday, Feb. 20, 2023. Israel’s government on Monday was pressing ahead with a contentious plan to overhaul the country’s legal system, despite an unprecedented uproar that has included mass protests, warnings from military and business leaders and calls for restraint by the United States. (AP Photo/Ariel Schalit)

Ariel Schalit

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The post Defendants want out of Dane County Judge Berz’s courtroom appeared first on Attorney Legal Counsel.

The Davenport woman accused of taking part in a Jan. 15 double murder has two new attorneys.

Adriana Blake, 27, is now represented by Des Moines-based attorney Christopher Kragnes of Kragnes & Associates. Austin J. Luse will serve as Blake’s second attorney as she faces a pair of first-degree murder charges in the killings of Brian L. Goodwin and Amy M. Smith.

Kragnes and Luse replace attorneys Alex Gilmore and F.M. Brown, who were appointed on March 15.

Blake and her co-defendant, Devon Braet, were slated to face a jury trial starting on Jan. 4, 2025.

Braet, 34, also faces two first-degree murder charges. Blake and Braet were staying with Goodwin in the home he rented at 5210 N. Division St. at the time of the murders.

Blake’s change of attorneys is the latest chapter in the increasingly complicated story of Blake’s requests for changes in the nature of her defense.

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A new request

On Sept. 30 Blake sent a one-line letter to the Scott County Clerk of the Court that read:

“To whom it may concern: My name is Adriana Blake and I am writing pro se seeking a motion disqualifying my counsel.”

Days later, Gilmore filed a motion to withdraw as Blake’s counsel. In that motion Gilmore said Blake ” … wants to revoke waiver of speedy trial, withdraw motion to sever, presumably refuse counsel’s intent to file a motion for a change of venue, and various other complaints.”

Gilmore added in the motion that Blake ” … wants a trial sooner than that set for January 4, 2025 and wants it jointly with the co-defendant” against Gilmore’s recommendations.

Along with the appointment of new attorneys, Blake also made a number of requests that, if granted, will change the course of the defense Gilmore outlined in a late July motion.

That motion asked for Blake and Braet to be severed as co-defendants.

‘Acted under duress’

Blake and Braet were arrested together in Davenport on Jan. 18 and were charged with the killings of Goodwin and Smith on Feb. 5. They were arraigned together, but were represented by different attorneys.

Gilmore laid out Blake’s defense against the charges of first-degree murder in the late July motion to sever. He said Blake planned to claim she “acted under duress” during the Jan. 15 murders of Smith and Goodwin.

“The ‘core’ defense of defendant Blake is that she did not fire a weapon, kill anyone, and was effectively coerced, threatened with bodily harm and acted under duress, and Braet’s acts involving the killings were not foreseeable nor agreed to or participated in by defendant Blake.”

During their arraignment for the murders, Davenport police investigator Brandon Askew testified that Blake and Braet drove to a Galesburg hotel sometime after the fire on the morning of Jan. 16. Investigators found cell phones and photos with the two posing with guns and body armor at the hotel.

Askew told the court in one of the videos Blake said, “I shot both of them.”

Gilmore’s motion addresses Askew’s testimony and other statements investigators allege Blake made after being arrested, writing that Blake ” … may specifically claim that she was supplied drugs by Braet, drug-addled” and that statements investigators allege she made were a result of Braet’s “coercion.”

Gilmore also wrote Blake would seek to introduce otherwise inadmissible evidence against Braet, including his criminal history and Blake’s knowledge of Braet’s “history of violence.”

Braet recently was charged with a plot to attack and kill another inmate at the Scott County Jail. Those charges came after he wrote a letter asking to rescind his waiver of speedy trial.

A search for an attorney

The path to Blake’s current legal representation was not an easy one and points to the difficulties courts can face when defendants with extensive witness lists and prior criminal histories need court-appointed attorneys.

After Gilmore and Brown were allowed to withdraw, the court appointed Jeffery Powell to serve as Blake’s attorney. But Powell works for Keegan Tindal & Jaeger, a private firm that represents indigent clients and another attorney had to withdraw from representing Braet months ago.

Powell cited the possible conflict and F.M. Brown was “inadvertently re-appointed” to represent Blake. Brown withdrew and Kragnes was appointed.

Blake was initially represented by the Scott County Public defender’s office and attorney Troy Smith. Gilmore and Brown replaced Smith.

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