Judges Protasiewicz and Dorow: An Appellate Comparison

Recent news reports—and social media flamethrowing—have focused on a court of appeals decision in State v. Shirikian that rebuked circuit court Judge Jennifer Dorow for imposing a lenient sentence on a defendant convicted for the fifth time of drunk driving.[1]  The court of appeals specified that the law required a sentence of at least one year of confinement, rejecting Judge Dorow’s decision to limit the defendant’s punishment to probation.  Commentators have raised various issues prompted by this dispute, but not, to my knowledge, the question of how Judge Dorow’s rulings have fared in other criminal cases that reached the court of appeals.  So, let’s have a look.

A Nexis Uni search turned up 13 criminal cases involving Judge Dorow and subsequently heard by the court of appeals.[2]  In these cases, the court of appeals reversed Judge Dorow twice, both times on appeals filed by the state—in State v. Carini as well as State v. Shirikian.  In Carini, the court of appeals ruled that Judge Dorow had wrongly granted the defendant’s motion to suppress the results of a breathalyzer test after a police officer smelled intoxicants on Carini’s breath following an automobile accident. 

Altogether then, we have two reversals in 13 criminal cases.  In light of the ongoing election campaign to fill a vacant seat on the Wisconsin Supreme Court, one might ask how these figures for Judge Dorow compare with those for her most prominent liberal opponent, Judge Janet Protasiewicz.  To be sure, this cannot be an “apples to apples” assessment, for the two judges serve in different circuit courts, and appeals of their decisions are heard, for the most part, in different districts of the court of appeals (District Two for Judge Dorow and District One for Judge Protasiewicz).

Nevertheless, given that Judge Dorow is regarded as a conservative and Judge Protasiewicz a liberal, we might anticipate certain distinctions between the two judges’ appellate records in criminal cases.  As it turns out, there is a difference, but not what the labels would predict.

A Nexis Uni search yielded 61 cases involving Judge Protasiewicz that led to appeals—all of them by a defendant (not the state) in a criminal case.[3]  In seven of these cases the court of appeals[4] reversed, at least in part, the circuit court’s rulings.  Other circuit court judges handled some portion of the trial and postconviction proceedings in five of the seven cases, and in two of these it was their rulings—not Judge Protasiewicz’s—that were overturned.[5]  This leaves five cases in which the court of appeals reversed a ruling by Judge Protasiewicz, and in all five instances the court of appeals declared that Judge Protasiewicz should not have denied a motion by the criminal defendant.[6]

Conclusion
“Liberal” and “conservative” labels may well be accurate indications of how Judge Protasiewicz and Judge Dorow would vote on certain issues—including abortion and gerrymandering, I’d wager—but they cannot guide us in comparing the two judges’ rulings in criminal cases that led to appeals.  Judge Protasiewicz almost invariably ruled against defendants in postconviction proceedings, and on the rare occasions when the court of appeals reversed her, the judges found that she should have granted the defendant’s motions.  In contrast, when Judge Dorow was reversed, the court of appeals decided that she had improperly favored the defendants with a ruling and a sentence.

A fuller exploration of this matter requires scrutiny of the two judges’ decisions in criminal cases that were not appealed, but I doubt that such an investigation would eradicate the general impression outlined above.  Nor would I predict with confidence how sharply Judge Protasiewicz and Judge Dorow might differ in handling criminal cases if either candidate took a seat on the supreme court.  However, our samples of their circuit court cases suggest that the “soft on crime—tough on crime” distinction often applied to liberals and conservatives does not fit so far.

[1] Daniel Bice, “Sparks fly in Wisconsin Supreme Court race after Jennifer Dorow’s sentence is overturned as too lenient,” Milwaukee Journal Sentinel, February 13, 2023.

[2] In eight of the 13 cases, other circuit court judges also participated in one or another aspect of the trial and postconviction proceedings, but Judge Dorow presided alone in the two cases where the court of appeals reversed the circuit court.
In State v. Joda, an OWI case, it was unclear to me whether this was a civil offense (first conviction) or a criminal offense (at least a second conviction), so I did not include it in the set of 13 criminal cases.  Joda was convicted, and the court of appeals affirmed.
Two of the 13 cases were ultimately decided by the supreme court.  In State v. Mattox (certified to the supreme court) the justices affirmed Judge Dorow, and in State v. Sanders they affirmed the court of appeals and Judge Dorow.  Justice Rebecca Bradley authored the majority opinion in State v. Mattox, and Justice Gableman did so in State v. Sanders.

[3] The 61 cases do not include County of Milwaukee v. Romenesko and State v. Fischer.  At one point, Romenesko was scheduled to be heard by Judge Protasiewicz, but it was then rescheduled to the court of a different judge. Fischer amounted to two trials—the first, presided over by Judge Protasiewicz, resulted in a mistrial.  Other judges handled the second trial.
From the set of 61 cases decided by the court of appeals, State v. Grandberry was accepted for review by the supreme court.  Justice Gableman’s majority opinion affirmed the court of appeals and Justice Protasiewicz.

[4] District One in all instances except for State v. Davis, which was District Two.

[5] The two cases are State v. Jennings and State v. Robinson.  In both cases the circuit court judges denied the defendants’ motions and were subsequently reversed by the court of appeals.

[6] The five cases are State v. Davis (2019AP1400), State v. Davis (2016AP1416), State v. Casper, State v. Morris, and State v. Anderson.
State v. Young is the only case in which the court of appeals arguably reversed, indirectly, a portion of a ruling by Judge Protasiewicz that favored a defendant.  Here, Judge Protasiewicz entered postconviction orders vacating DNA surcharges and a domestic abuse surcharge.  Later, one of her circuit court colleagues, Michael Hanrahan, reinstated the DNA surcharges (but not the domestic abuse surcharge).  The court of appeals subsequently affirmed Judge Hanrahan, which might conceivably be viewed as a roundabout reversal of part (the DNA surcharges) of Judge Protasiewicz’s only ruling that granted at least a portion of a postconviction motion.

About Alan Ball

Alan Ball is a Professor of History at Marquette University in Milwaukee, WI.

alan.ball@marquette.edu

SCOWstats offers numerical analysis of the voting by Wisconsin Supreme Court justices on diverse issues over the past 91 years.

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  1. […] a history professor at Marquette University who keeps his eye on the state supreme court, recently reviewed the 61 criminal cases in which Protasiewicz’s rulings or sentences were heard by the court of […]

  2. […] cases cited were not aberrations but “representative” of her sentences overall. (Actually, one review of Protasewicz’s appeals court rulings and sentences identified several instances where higher […]

  3. […] of those she knew would attack her by alleging she is soft on crime—which, one recent review showed, is actually untrue. And sure enough, Kelly and the groups backing him aired ad after ad […]

  4. […] of those she knew would attack her by alleging she is soft on crime—which, one recent review showed, is actually untrue. And sure enough, Kelly and the groups backing him aired ad after ad […]

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