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.

PHOENIX — A total of 17 judges and attorneys have put in their bid to be the first Supreme Court justice appointed by Gov. Katie Hobbs.

But if precedent is any indicator, whoever the governor picks to replace Republican Justice Robert Brutinel, who is retiring, will be a Democrat like her. And that effectively would knock four of the applicants out of the running even if any of them are on the final list of nominees eventually submitted to Hobbs by the Commission on Appellate Court Appointments.

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The post 17 judges, attorneys bid to replace retiring AZ Supreme Court Justice Brutinel | News appeared first on Attorney Legal Counsel.

Twelve days after a jury convicted him, Joseph Bongiovanni on Tuesday asked for new lawyers to represent him, citing an irreparable breakdown in his relationship with his current legal team.

“I’m stunned by this,” U.S. District Court Judge Lawrence Vilardo said of the retired Drug Enforcement Administration agent’s request.

“I thought the lawyering in this case was superb on both sides, and I don’t say that lightly,” Vilardo said during a court proceeding Tuesday.

Vilardo said he received an affidavit from Bongiovanni concerning the request. The affidavit was not publicly available. 

Former DEA agent Joseph Bongiovanni, middle, arrives for a hearing on June 21, 2023, at the Robert H. Jackson U.S. Courthouse with his lawyers, Parker MacKay, left, and Robert Singer. Bongiovanni has asked a federal judge for new lawyers following his conviction this month on seven of 11 counts.

Derek Gee, Buffalo News

Bongiovanni wants to replace defense attorneys Robert Singer and Parker MacKay, who were appointed by the court on May 17, 2023, to represent him and compensated by the government after he was financially unable to retain counsel when his initial retained lawyers left the case. 

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Singer and MacKay represented Bongiovanni in his trial earlier this year, when a jury deadlocked on most of the counts, but convicted him of two charges, and in the two-month retrial that concluded earlier this month with guilty verdicts on seven of the 11 counts he faced in U.S. District Court.

When asked to explain his request, Bongiovanni asked to meet with Vilardo separately to disclose his reasons and help the judge “understand this better.”

“It’s too late to save the relationship, at this point,” Singer said.

Singer said interference from John J. Gilsenan, a Rochester lawyer who had helped the legal defense team during the two trials, fractured the relationship between Bongiovanni and his two defense lawyers.

Former DEA agent Joseph Bongiovanni, 60, faces 11 charges as his retrial gets underway, many related to his dealings with Peter Gerace Jr., th…

“We unknowingly allowed a fox in the hen house,” Singer told the judge.

Gilsenan assisted Singer and MacKay during the trial, but did not cross-examine government witnesses or make any legal arguments before the judge. 

Singer said Gilsenan was terminated from the case shortly after the Oct. 10 verdict.

The suggestion another lawyer undermined the relationship between a client and his lawyers “is very, very distressing to me,” Vilardo said.

Gilsenan did not attend the court proceeding.

The special agent in charge of Homeland Security Investigations in Buffalo confirmed an investigation remains ongoing. 

When asked for comment by The Buffalo News, Gilsenan said, “I’ll do my speaking in the courtroom and through my filings.”

“My primary focus is on protecting Mr. Bongiovanni’s interests,” Gilsenan said.

The legal work that remains in Bongiovanni’s case includes motions to the district judge to set aside his felony convictions, and if those fail, to review and comment on a presentence report prepared by probation officials, to prepare a sentencing recommendation to the judge, and to appeal the guilty verdicts to an appellate court.

Bongiovanni has a lawyer in mind to represent him, although he did not name him in open court, and he also wants Gilsenan appointed as co-counsel.

“It’s not how this works,” Vilardo told Bongiovanni.

A replacement would come from the Criminal Justice Act – or CJA – panel of private attorneys who accept appointed cases.

“If you want to take your chances with another lawyer, you can do that,” Vilardo said. “But you don’t get to pick one.”

Assistant U.S. attorney Joseph Tripi asked Vilardo to reject the request. 

Tripi said Bongiovanni’s legal representation improved after the appointment of Singer and MacKay, who he said are “clearly in the upper tier” of the skilled defense lawyers he has faced off against as a federal prosecutor.

Tripi said the two defense lawyers distinguished themselves by the legal issues they raised, their focus on the issues and their tenacity.

The heist might have been just a chucklesome story in the annals of Western New York crime – if not for whose house John McDonald burglarized and whose ring was inside the safe.

“Perhaps Mr. Bongiovanni doesn’t like the result of the trial,” Tripi said.

Vilardo agreed to a meeting with Bongiovanni, Singer and MacKay later this week, but declined to meet with Bongiovanni alone. 

Jurors in Bongiovanni’s retrial convicted him on four counts related to the Ronald Serio and Michael Masecchia marijuana trafficking organization: conspiracy to defraud the U.S; conspiracy to distribute controlled substances; and two counts of obstruction of justice. Bongiovanni’s three other convictions were related to Pharaoh’s Gentlemen’s Club owner Peter Gerace Jr. – two counts of obstruction of justice and one count of false statement to a U.S. agency – for internal DEA memos he wrote and for what he told investigators about his past contact with the Cheektowaga strip club owner.

The jury in Bongiovanni’s first trial found him guilty on one count of obstruction of justice and one count of lying to federal agents over a case file kept in his home after his retirement.

Bongiovanni was also acquitted on several charges. Jurors at his retrial found Bongiovanni not guilty of accepting a bribe from the Serio-Masecchia drug-trafficking organization. They also acquitted Bongiovanni of two corruption charges and a drug count related to accusations that he protected Gerace and his Cheektowaga strip club from narcotics investigations. Jurors at his first trial acquitted Bongiovanni, 60, of obstruction of justice for deleting data on his DEA-issued cellphone when he retired. And before the start of his retrial, U.S. District Judge Lawrence Vilardo acquitted him on the charge he was paid an undetermined amount by Gerace to help him and his Pharaoh’s Gentlemen’s Club avoid federal narcotics investigations.

Patrick Lakamp can be reached at plakamp@buffnews.com

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The mother of Irvo Otieno on Monday renewed her call for justice for her son, who died while in custody at Central State Hospital in March 2023.

A Dinwiddie County jury this month acquitted former hospital employee Wavie Jones, one of three defendants in the trial. In footage from the hospital, Jones is seen restraining Otieno, who was in shackles and handcuffs, while leaning over his upper body. Jones was charged with second-degree murder, but had those downgraded to involuntary manslaughter in May.

Caroline Ouko, Mark Krudys, and Monica Hutchinson pose with a banner outside the federal courthouse in Richmond on Monday. Ouko is the mother of Irvo Otieno, who died while in custody at Central State Hospital in March 2023.

Luca Powell

On Monday, Otieno’s mother Caroline Ouko held a press conference outside Richmond’s federal courthouse and called the prosecution in Jones case weak. She said she was retraumatized as defense attorneys painted a “racist narrative” about her son.

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“The defense was permitted to portray my son as a dangerous, aggressive Black man who needed to be restrained. He was paraded by the defense like an animal in a cage,” Ouko said. “That feels then and now like a racist narrative.”

Lawyer Mark Krudys, who is representing Ouko, listed what the family says are failures on the part of Dinwiddie County Commonwealth’s attorney Amanda Mann.

Chief among those was Mann’s failure to develop Otieno’s character, but also a sense of unpreparedness and a lack of “vigor,” he said. Krudys said that was apparent when Mann allowed her junior attorneys to handle closing arguments and important cross-examinations.

Otieno

Ben Crump Law

“She should have been the face of this thing,” Krudys said.

He also said Mann missed a window to object to the racial composition of the jury, and critiqued the ease with which Jones’ defense attorneys struck jurors who had sympathy for mental illness or who had tangential connections to the group “Black Lives Matter.”

‘The time for the DOJ to get involved was 18 months ago’

Otieno, 28, lived for 10 years with severe mental illness, Ouko said. She said he was previously able to manage his episodes, with long years of remission in between, she said. 

The critiques came with another call for the U.S. Department of Justice to try Otieno’s case under federal civil rights law, which has been done in other prominent law enforcement death cases, including the 2020 murder of George Floyd in Minnesota.

Mann

The family sent a third letter to the office of U.S. attorney Jessica Aber, who has previously resisted commenting beyond saying that her office was monitoring the case. Ouko and Krudys also sent letters when the former Dinwiddie County Commonwealth’s attorney announced she was leaving the office and when charges were dropped against five other defendants seen on video restraining Otieno.

Aber’s office did not return a request for comment on Monday morning. The Dinwiddie County Commonwealth’s attorney‘s Office also did not return calls seeking comment.

The gun was equipped a weapon-mounted laser, extended magazine and a machine gun conversion device that made it capable of automatic gunfire, authorities said. 

“The time for the DOJ to get involved was 18 months ago,” said Krudys, a former federal prosecutor. “In the past, there’s been a recognition that local district attorneys just don’t have the know-how to get these cases done.”

Ten Henrico County sheriff’s deputies and hospital workers were initially charged in the case. Video surveillance from inside the hospital shows Otieno being pressed to the floor for about 11 minutes by employees and law enforcement.

Defense lawyers for those charged have said they were trying to restrain him. 

Jury deliberated for 20 minutes

Last month’s trial lasted four days, concluding with jurors taking just 20 minutes to deliberate. They ultimately acquitted Jones.

Much of the trial centered around testimony of Dr. Jennifer Bowers, the Richmond medical examiner who first announced Otieno’s cause of death to be asphyxia. Asphyxia is an umbrella term for a lack of oxygen.

Defense attorneys accused Bowers of “reverse-engineering” her cause of death finding. They then proceeded to put on their own experts, including a cardiologist, a pulmonologist and their own forensic pathologist.

In closing arguments, defense attorney Doug Ramseur stated that Otieno’s heart was a “ticking time bomb.”

“And that bomb went off at Central State Hospital,” Ramseur said.

Krudys called that argument “an absurd notion” that might have been rebutted had prosecutors called their own cardiologist at Jones’ trial.

Monica Hutchinson, president of the Henrico County Branch of the NAACP, called the defense strategy a distraction from the circumstances of Otieno’s death at Central State.

Hutchinson said anyone with high blood pressure should be “very afraid” at the license it gives law enforcement to mistreat Black men.

“That just sounds like an excuse to give an out to law enforcement should they kill another Black man,” Hutchinson said. “None of us should accept that. If any of you has those underlying health conditions, you should be afraid, you should be very afraid, because what the defense is saying is that having those underlying health conditions means that if (law enforcement) kill you, they’re gonna blame that.”

A judge in September approved an $8.5 million out-of-court wrongful death settlement reached between Otieno’s family, the state, Henrico County and the county sheriff. 

Irvo Otieno died March 6 at Central State Hospital. Seven Henrico County deputies and three hospital workers have been charged with second-deg…

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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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