Wisconsin Supreme Court candidate was blistered for ruling in 'standing while black' case

State Supreme Court candidate Rebecca Dallet was once issued a stinging rebuke by an appellate court for finding police could legally pat down a black man who was simply lingering by a convenience store for a few minutes before heading to a bus stop.

Dallet, a circuit judge in Milwaukee County, signed off on the pat-down — which turned up a handgun — after a police sergeant claimed the man looked suspicious because he was wearing dark clothing in a high-crime neighborhood on Milwaukee's north side.

“With limited exceptions, people have a right in this country to go about their lives, to stand around, to hang out — all without having to submit to police interrogation,” wrote then-Appeals Judge Ralph Adam Fine, a conservative on law enforcement issues, in 2013.

The case marks a split between Dallet, who is running as a moderate, and Madison attorney Tim Burns, a self-described liberal, on how to deal with questions about Fourth Amendment protections from unreasonable searches. The two are increasingly going after each other as they head into next month's primary, while the conservative in the race, Sauk County Circuit Judge Michael Screnock, mostly remains quiet.

Burns suggested Dallet's ruling would have justified police pat-downs for African-Americans singled out for "standing while black."

"It shows an utter insensitivity to the historic plight of people of color,” Burns said in a statement. “Can you imagine if another court ruled that an older white man was subject to search for standing outside a gas station for 5 minutes? We would have a rebellion in this country."

Dallet's campaign manager said the Milwaukee judge "appreciates the appellate court’s clarification of the standard in this case."

"Illegal guns are a huge problem in our community and, as an advocate for public safety, Judge Dallet took these charges very seriously," campaign manager Jessica Lovejoy said in a statement.

Dallet campaign aides noted she has heard thousands of cases during her decade on the bench and most of those that have been appealed have been upheld. Lovejoy also took a shot at Burns' record.

"Mr. Burns is a high-priced corporate lawyer who refuses to tell voters which interests he represents," Lovejoy said in her statement. "He is on the record saying that he has very little experience in the criminal justice system, and it seems he’s had only a handful of cases in our Wisconsin courtrooms."

The Feb. 20 primary will narrow the field to two for the April 3 general election.

RELATED: Rebecca Dallet out-fundraises opponents in Wisconsin Supreme Court race

RELATED: Bice: Supreme Court poll shows all candidates losing to 'undecided'

In September 2010, Ryan Erik Diggins and a companion were leaning against the wall of a gas station at the corner of N. 35th St. and W. Silver Spring Drive when they were seen by a sergeant in an unmarked police car. After about five minutes, the pair crossed the street and sat down at a bus stop.

The sergeant and other officers interviewed Diggins, patted him down and found a .22-caliber pistol in his coat pocket. As a result, Diggins was charged and convicted of being a felon in possession of a firearm because at the time he was on probation for assault in Minnesota.

He argued the search was illegal. The sergeant contended he stopped Diggins because he was loitering and said in his view people wearing black clothing in high-crime neighborhoods are “either committing armed robberies or … dealing drugs.”

Dallet found the search was acceptable because Diggins was leaning against the wall for five minutes “with no real obvious purpose for being there.” She sentenced him to two years in prison and two years of extended supervision.

The District 1 Court of Appeals unanimously threw out the ruling in 2013, finding prosecutors’ claims that there was reasonable suspicion of drug dealing “beyond thin.”

“More than mere presence (i.e. hanging out) in a public place is required for reasonable suspicion that criminal activity is afoot,” Judge Joan Kessler wrote for the court.

She was joined by Judge Kitty Brennan. Fine agreed but wrote separately to underscore the importance of the ruling.

Fine invoked Atlantic correspondent Ta-Nehisi Coates and anti-Communist novelist Aleksandr Solzhenitsyn in criticizing Dallet's ruling about the use of stop-and-frisk strategies with minority populations.

“Many folks will be out of their homes on a Fall evening, not drinking or smoking, perhaps chatting with a friend, perhaps just walking, perhaps just standing around, perhaps even looking up at the sky to see the stars — and they have every right to do so without being asked by the police to explain themselves,” wrote Fine, who died in 2014.

Dallet admonished

In another case, the appeals court scolded Dallet for missing “blazing red flags” and not holding a hearing on whether a cognitively limited man had voluntarily entered a no-contest plea.

At issue was Matthew Allen Lilek’s 2010 plea to second-degree sexual assault and aggravated battery of a 75-year-old woman. After asking him a series of questions, Dallet accepted his plea and sentenced him to 20 years in prison and 15 years of extended supervision.

Lilek then sought to withdraw his plea, contending he hadn’t made it voluntarily and knowingly.

Writing for a unanimous court in 2013, Fine found that Dallet had to do more than ask Lilek “yes” and “no” questions given that he had had two partial lobotomies and a range of mental disabilities.

“Lilek’s non-responsive answers, together with the history of his severe and significant cognitive disabilities were blazing red flags that should have triggered the circuit court’s extra vigilance to make sure Lilek really understood what was happening and that he was not just repeating what he either believed or was told he should say,” Fine wrote in a ruling that was joined by Kessler and then-Judge Patricia Curley.

The ruling also took issue with Dallet writing that Lilek had said he would ask his attorney if he didn’t understand something when he had actually said that he would direct his questions to an intern.

“We admonish the circuit court” for that phrasing, Fine wrote.

The appeals court ordered a hearing on whether Lilek’s plea was voluntary. One was later held with a different judge and Lilek’s plea was found to have been valid by that judge and later the appeals court.

Dallet's campaign manager emphasized that Lilek's initial plea was ultimately upheld.

"One can scrutinize the language in the decision, but the end result was the same: The defendant is rightfully serving time for brutally raping a 75-year-old woman," Lovejoy said in her statement.