Judge Dugan Criminal Trial Delayed

Milwaukee Federal Courthouse. Photo by Mariiana Tzotcheva

The federal criminal case against Milwaukee County Circuit Court Judge Hannah Dugan will likely not go to trial in July.

Dugan has pleaded not guilty to two federal felony charges for allegedly obstructing a U.S. Immigration and Customs Enforcement (ICE) operation. Her legal team is currently seeking dismissal of the charges against her, but, if that fails, they want a trial as soon as possible.

“Typically, on the defense, we are seeking more time, but this case is different,” said Attorney Jason Luczak, who is part of Dugan’s defense team, after a scheduling hearing Wednesday. “Usually, in federal courts, the Assistant U.S. Attorney, they have their case teed up before indictment. This case was brought very quickly, and so that kind of changes the dynamic.”

During the hearing Wednesday U.S. District Court Judge Lynn Adelman was skeptical that the pretrial process over the motions to dismiss will conclude before the July 21 trial date. Instead of maintaining the trial date, the judge said the court would allow the pre-trial process to play out before setting a trial date.

The charges against Dugan stem from an incident at the Milwaukee County Courthouse on April 18 when immigration agents posted themselves outside of her courtroom to arrest Eduardo Flores-Ruiz, who was there facing misdemeanor battery charges. The federal government alleges Dugan confronted ICE agents, asking for a warrant, sent them to the Chief Judge Carl Ashley‘s office, adjourned Flores-Ruiz’s case and sent him out of a side door that leads to the public hallway where she had previously spoken with agents.

Dugan faces one count of obstruction and one count of concealing an individual to prevent their arrest. The first charge carries a maximum penalty of one year imprisonment and a $100,000 fine. The second charge carries a penalty of up to five years imprisonment and a $250,000 fine.

Dugan’s legal team has argued in motions to dismiss that she was acting in her official capacity as a judge in April and for that reason she is protected from prosecution by judicial immunity. Prosecutors counter that her actions were not official and that dismissing the charges would expand the definition of judicial immunity.

The case appeared before Judge Adelman for the first time Wednesday. Magistrate Judge Stephen C. Dries presided over the arraignment and Magistrate Judge Nancy Joseph is considering the pre-trial motions arguing for and against dismissal. Joseph will make a recommendation on the pre-trial motions to Adelman, who will ultimately issue an order deciding the matter.

Dugan did not appear in court Wednesday with her attorneys Steven Biskupic, Nicole M. Masnica and Luczak. U.S. Attorney Richard G. Frohling appeared on behalf of the federal government.

Arguments before the court were contained to the issue of scheduling. Biskupic told the court they want to maintain the July 21 trial date that has already been scheduled. Dugan has asserted her right to a speedy trial. Frohling, though, said the government would rather wait to see how the motions to dismiss are decided.

Adelman agreed with the government, noting that whatever Judge Joseph decides there will likely be objections and briefs and he will need time to go over them and reach a decision himself. He also noted that scheduling a case in his court should not pose an issue when the time comes.

“This is sort of a complicated case,” he said. “We want to get it right.”

Because the pre-trial motions are arguing judicial immunity, any decision could be appealed by the federal government or the defense, sending the question to an appellate court before the trial begins.

Biskupic said he did not mean to “diminish the motion to dismiss” but added that if the case does proceed to trial the defense would like the trial to occur this year.

Luczak told media after the hearing that the defense is ready to go to trial. The prosecution has brought the case “unusually” quickly and the defense disputes some of the facts being presented by the government. He declined to go into detail, but said, “Her actions speak louder than her words. I think that the government is trying to criminalize things that might have been said in the courtroom.”

He called the prosecution of Dugan a “huge 10th amendment problem” and “an attack on the judiciary.”

The case against Dugan has drawn national attention and become part of a larger political battle over the Trump administration’s heavy-handed immigration policy and federal authority — both of which are at issue in the pending motions for dismissal.

Dugan’s arrest and prosecution have drawn multiple protests. And recently, protests have erupted across the country in response to ICE raids and arrests of elected officials.

Before the incident on April 18, local elected officials and civic leaders had already decried previous ICE arrests in the courthouse, saying it was disrupting the judicial process, denying individuals charged with crimes their right to due process and chilling immigrant participation in the judicial process.

The highly political nature of case has led both legal teams to consider a jury questionnaire prior to jury selection.

The questionnaire proposed by Dugan’s team would explicitly ask jurors to describe their political views, as well as others that appear to attempt to gauge their politics more specifically: asking where they get their news and what sort of stickers they have on their car or water bottle.

The government doesn’t like the questions aimed at ascertaining a juror’s politics. Frohling said questions about news consumption and stickers isn’t “particularly appropriate.”

The questionnaire submitted by the government, on the other hand, doesn’t ask these questions and instead would provide details about the case including a description of the charges against Dugan, her name and the names of her attorneys

Dugan’s attorneys argued these questions could lead potential jurors to google the case, read pre-trial media coverage and begin forming opinions about what happened.

“We really think that the facts of this case are different than they’ve been portrayed in the media,” Luczak said.