Transcript of Oral History Interview with SARAH B. O'BRIEN for Dane County Bar Association

Date of Interview: 11-1-2015

Location: Ground Zero Coffee Shop, Madison, WI

Transcribed by: Ann Albert

Today is November 1, 2015, and this is Teresa Kobelt. I'm at the Ground Zero Coffee Shop in Madison, Wisconsin to interview Sarah O'Brien on behalf the Dane County Bar Association Oral History Project. This interview will be recorded and transcribed and made available for people interested in the evolution and development of the practice of law in Dane County.

Q            Sarah, do I have your permission to record you and have a transcript prepared?

A            You do.

Q           First I would just like to get a little bit of background, your full name, where you live, tell me about your family. We picked a sunny spot on a chilly mid-February day, and it's warm already. Maybe that's a good sign.

A            My name is Sarah Beth O'Brien. I live on the far east side of Madison. My partner, Cindy, and I celebrated 25 years together yesterday.

Q           Oh. Congratulations.

A            I have a daughter, and we have a grandson, and they live in London, England.

Q           Really?

A            So he just turned two years old.

Q           Oh. That's wonderful.

A            So we spend a lot of time commuting to London these days.

Q           Twenty-five years. That's quite an accomplishment.

A            Thank you.

Q           Congratulations.

A            Thank you.

Q           And you're retired?

A            I retired about four years ago.

Q           And how do you keep yourself busy besides traveling to London to see your daughter and grandson?

A            I really have been surprised how busy I am. I do a little bit of reserve judging. And I've been fortunate to be able to do that in several different counties, which has been really interesting after being a Dane County judge for years to see the similarities and differences in the way the courts work in other counties. Because I was a treatment court judge, I've been able to fill in in several different treatment courts, and I really like that.

I don't have a formal mediation practice, but I do some of the medical mediation panels. I'm not sure if you're familiar with those, but those are very interesting. I've always been interested in the intersection between medicine and the law. And I think we can be helpful in those panels too, if not settle the case, at least do some healing.

I'm pretty passionate about volunteering at my neighborhood school. I've done tutoring in second and third grade for the last four years. I have a particularly stubborn student right now who I am determined to see reading by the end of this year. So check back with me and see how that goes.

Q           I'm going to stop briefly and just make sure that this recording is coming through.

A            Okay.

Q           All right. This is a continuation of the interview of Sarah O'Brien. We just got through the first part where we were talking about her current activities, and she was talking about tutoring at her local school and a really difficult, hesitant reader. So we're going to pick it up from there. Can you tell me where you were born and when?

A            I actually was born in Stevens Point, but I was raised in Appleton, Wisconsin. I was born in 1951, 65 years ago.

Q           Tell me about your parents, your grade school.

A            My parents were unusual in Appleton because they were liberal. They had six kids. We went to Catholic school and Catholic high school. My father was in advertising. My mother raised the kids and did everything that a stay-at-home mother does until we were about in high school, and then she returned to her former practice, which was social work. I always thought it interesting that no matter what my brothers and sisters and I did, we always sort of ended up being a little like my mother. So I practiced law. I did a lot of guardian ad litem work, which some people compare to social work. I had a brother that was a nurse, a sister that was a social worker. I have a sister that's a CPA, but she's always worked in Human Services. And my other sister worked weekends in group homes for teen-agers. So               we've all kind of gravitated to that, I think, in response to the way we were raised by my parents, but especially my mother.

Q           And you said you went to a Catholic school. Was that through high school?

A            Through high school.

Q           Okay. Where did you go to college?

A            So I graduated from high school in 1968. And at that time the antiwar movement and sort of a social revolution was occurring across the country, and especially in Madison. So, it was an easy choice for me to move 100 miles south and go to college in Madison. It was all I wanted at the time was to join the "revolution." And I did. I was pretty active in the antiwar movement.  I wasn't any sort of a leader, but I was an active participant. When I started thinking about going to law school, one of my goals was to be what we called a "movement attorney," representing people in the antiwar movement. By the time I finished law school, there was no movement anymore and no need for movement attorneys! So I was left unsure where to go with my career.

Q           What was your undergrad degree?

A            Psychology.

Q           And UW Law School, I'm assuming?

A            It was.

Q           So what did you do after law school?

A            Ah, I finished law school when I was 23 years old. I had sort of run through a lot of school in a short time and I was disenchanted in a lot of ways, politically and in other ways. I was not ready to start practicing law. The first thing I did was I went to Nebraska and South Dakota and worked on the defense of American Indians who had been arrested taking over their own reservation at Wounded Knee. It was fascinating. I met some famous defense attorneys, like Bill Kunstler, Mark Lane, and Leonard Weinglass. And we had a team of young lawyers that did sort of all the prep work, and then the lawyer would fly in and try a case, and we'd assist.

Q           How did you get on that?

A            Well, it goes back to Karl Armstrong. So back when I was in law school in 1973 or '74, Karl Armstrong was arrested for the bombing of the Army Math Research Center, which had occurred on campus in 1970, when I            was a student at UW. He was charged with murder because a man working in the building was killed in the explosion. And other law students and myself            volunteered to help out his defense. He was extradited from Canada. And eventually, Kunstler also was on that case, along with Mel Greenberg, who was a Public Defender here, and Bob Kellerman, who was a Canadian lawyer who defended his extradition from Canada and then followed him here. Eventually, he decided to plead guilty to the charges in state court, but to hold a mitigation hearing to explain his motivation in carrying out the bombing. And I think it took something like 23 days with Judge Sachtjen. And part of the plea agreement was that the defense could do what they wanted to with this sentencing hearing. And so –

Q           That's very interesting; isn't it?

A            It is. I don't know that a transcript of it exists, but I would love to read a transcript of it now because people came from all over the country to testify sort of on his behalf about the war and his motivation in an attempt to reduce the sentence. He ended up getting, I believe, a 23-year sentence under old law, which meant you were eligible for parole after serving a quarter of the sentence and entitled to mandatory release after serving two-thirds. So while I was busy doing that, the people in South Dakota sort of somehow heard about us and came and recruited some of us to come start working out there on the Wounded Knee cases. So we did that also during law school and then after I graduated.

Q           How long did you do that?

A            Well, it was a few months. It wasn't a very long time. We lived in a barracks in Lincoln, Nebraska, an abandoned Air Force barracks. I don't know if it was abandoned, but it was unused by the Air Force. And largely Native Americans stayed there together with people like me volunteering. And we lived on food stamps, and there was a security committee protecting the premises, and the FBI was watching us. And that's probably not paranoia. They probably were. It was a unique experience, to say the least.  But eventually I moved on from that, and I sort of traveled around and just did odd jobs. I sold flowers on the street in Atlanta, Georgia, and I was a nanny. And eventually, I made my way back to Milwaukee, and I was a legal secretary, which was odd because I was a licensed attorney. But the lawyers I worked for didn't know that. I think I was a pretty good legal secretary. You can imagine how happy my parents were about what I was doing! 

And I guess I just needed a -- you know, in England they have a gap year between high school and college. I think I needed a gap year. And then eventually I followed my law school friend, Michael Davis, who had gone into private practice, and said “Can I join you”, and he said “yes.” I came back to Madison and started working about a year after law school graduation.

Q           And where was that job?

A            It was above the karate school, which was a couple blocks from us here on Wilson Street. The building's not there anymore. And Scott Herrick worked there. There were a couple other lawyers. I'm blanking on who. Scott was a big help to me in learning how to practice law. Michael had a year's head start on me. Ah, we sort of had a general practice. Both of us were interested in criminal defense at the time, and we ended up being instructors at the law school in the Legal Defense Project, which I think turned into the Criminal Defense Project, and then it's part of the       Remington Center now is how it evolved.  We had a Professor Steve Herzberg, who was very –

Q           You knew Steve?

A            Yep. I guess a role model. And he energized that clinic, and it was a very fun place to work. Eric Schulenburg worked there. We had a rule that if the students had a motion and they could get one of us to agree to sign our name to it, they could file it. But if none of us were willing to put our name on it, they couldn't file it.  They always went to Eric last because he had the most creative defensive mind, so he was more likely to agree to their whacky ideas than the rest of us. So I guess when I was first practicing law, it was very hand-to-mouth. I also had a part-time job as a legislative aide for maybe a year or something just to help pay the bills.

Q           Do you remember what you earned back then?

A            Almost nothing.

Q           Probably pretty (UNINTELLIGIBLE).

A            Building a practice is very difficult, as people who might someday read these words probably know. I think someone told me it would take five years to be self-sufficient. And I think that was true. And by the time five years was up, I was married and a mother.  I got married in 1978, same year I had my daughter. And she would come to the law school with me at times. We had a crib there. And one of the law students, who was also named Sarah, had a child, a son, the same time, and so these two babies sort of became adopted by the law students so that she didn't have to be in daycare full-time.

Q           That's nice.

A            Yeah. It was very nice.

Q           How difficult was it to have a child during law school?

A            It was after law school.

Q           Oh. After law school?

A            Yeah.

Q           I'm sorry. That's when you were teaching.

A            Yeah. And had my practice, yeah.

Q           Okay. I see. Getting my dates mixed up already. Was that just a -- how many attorneys were in that firm?

A            Eventually, we moved to 222 South Hamilton Street, still a house of lawyers, I think. Jim Doyle and Mike Nowakowski were upstairs. Michael and I were downstairs. And we shared a secretary up and down the stairs.  And then some years later we moved to a big old house on Wilson Street, 145 West Wilson, I believe.  It was owned by an old lawyer, Otto Zerwig, who was a real estate lawyer. We renovated the office, tore the wallpaper off the walls and the carpets off the wood floors. And we had a very cozy office. Bill Schmaal worked there. Mary Prosser worked there. Glenn Reynolds.

I would say Glenn Reynolds and Mike Davis and I probably were the longest occupants. We all started a general practice with some criminal. I would have liked to stay in criminal defense, but it was very hard to support yourself doing that. You had to get Public Defender appointments that pay almost nothing, or you could be one of the real hotshot criminal defense lawyers like Steve Hurley or Charlie Giesen or Jack Priester, and they could command the big fees. But I couldn't. So eventually, I switched to family law and started doing a lot of guardian ad litem work in family law.

Q           What came after that?

 A           In 1985 there were two new branches of the circuit court created, 13 and 14. And Judge Nowakowski was elected to Branch 13. I don't even remember who he ran against. Jack Sweeney, I think. And I ran against Judge Northrup for Branch 14. George at that time was a court commissioner and, like later court commissioners that did initial appearance work, knew practically everyone in Dane County and had given them all a good deal. So it was a difficult race. And he whipped me. We, however, became good friends. At that time I was 34 years old. And looking back now, I'm glad I wasn't elected at that time because I think being a judge is a good place to end your career.  But I realized that the area where I was lacking the most expertise was in civil law. And so I started trying to learn more, practice more in the area of civil law and handled some medical malpractice cases on the plaintiffs' side.

Q           With an eye toward eventually going to the bench, trying again?

A            Yes.

Q           You had a long game.

A            By then I did. You know, I think, like many people, I never -- I never had a goal. I went to college. I studied psychology. I wanted to be a child          psychologist. By the time I was in my junior year, I had abandoned that as a goal, didn't know what I wanted to do. My brother-in-law talked me into taking the LSAT. I got an early admission to law school in my senior year of college, using the same credits towards a BA and a JD. It was a great deal, so I did that.  I got out. I never thought of being a judge. In 1985, a friend, Stu Mondschein, talked me into running. And then it did become a goal. I knew I wanted to do it, but after losing that year I waited.  And in 1992 there were two new branches opened up, 15 and 16. Stu Schwartz was elected in 15 and I was elected in 16. So I've had unsuccessful -- an unsuccessful election and a successful contested election. You learn from both of them.

I do a lot with kids, not just the tutoring, but I do a lot of other stuff with kids, and I like to tell them about losing that election because I think you really -- everybody is going to have bad times, everyone's going to have times when they feel like a loser or feel like they've been made to look foolish in the eyes of others. And I think understanding that everyone goes through that and there's ways to cope with it I think is important. So, you know, looking back, it was a good experience. At the time, not that much.

Q           Just looking at my outline, it would ask about professional organizations such as the State Bar, Dane County Bar Association, or any other special organizations. I'm not sure that's really very pertinent to you. But prior to being on the bench, were you involved in a lot of things with the Bar?

A            You know, I always belonged to the Dane County Bar Association. I always belonged to the Women Lawyers Association.  Can I go back and tell you another story about law school?

Q           Of course.

A            This reminds me of it.  So, as I said, it was still -- the Vietnam War was probably winding down. I don't remember what year it ended, but by the end of law school. But it was a very politically active time in Madison and elsewhere in a way that you just can't even imagine today.  The Law School had a bookstore, and the profits from the bookstore went to fund student organizations.  And so our third year of law school, some of the more politically active people looked around and thought, hey, we could get this money. So the Black Lawyers Association, the National Lawyers Guild, and the Women Lawyers Association ran a slate of candidates and took over the State Bar Association. I was the vice-president. The president was a guy named Stan Miller, who ended up being a Milwaukee County judge, a colleague of mine. It was ironic. Judges Dave Flanagan and Mike Nowakowski were in that law school class also. And we were able to funnel the Law School funds into our political activities.  So anyway, I was an early member of the Women Law Students Association and then also the Women Lawyers Association. But I was never particularly active. I was never a board member or officer or anything.  Appreciated the organizations, but didn't actively participate.

Q           What do you enjoy most about being a lawyer?  I'm going to flip this on the second part and say what did you most enjoy about being a judge, if you want to separate those two.

A            Well, I think the part of my -- I really liked doing criminal defense. It was interesting, it was challenging, and the clients were incredibly appreciative if you could do any little bit of good for them.

Family law, I liked the practice of family law.  The clients tended to be unhappy. They were going through a very difficult time in their life, and it was much harder -- the relationships with them were much more difficult. Again, they were appreciative if you could help them, but because they were so unhappy, it was -- it sort of takes a toll, I guess, over a long period of time.

I really liked representing children, and I did a lot of guardian ad litem work, both in juvenile and family court. I guess that's what I liked the best.

Q           What about as a judge?

A            Ah, I was just flashing on it. I had a family -- I was guardian ad litem for a bunch of kids in a family in Stoughton. A woman, just smart, she had too many kids, and the house was just a really gross disaster. And I was involved with that family for a long period of time.

And the first time I ran for judge in '85, I had yard signs that had my photo on it, and I went to visit the house one day, and they had put the yard sign up and used it as a dartboard.  The oldest in the family came to see me after I was a judge and talked about what the experience was like for him and was appreciative, he was for my presence. But his mother certainly wasn't. But that was kind of a neat experience when he just showed up one day.

I liked drug court the best as a judge. I started in juvenile court. I did three years in juvenile court. My daughter was in high school at East High by then, and I had a lot of clients -- or parties from East High. I think she sometimes played it as, you know, my mom's the judge, be nice to me, you know, I could help you out or something, although I cautioned her not to do that. She certainly never knew who was in my court unless they told her. But it was a little too close for comfort while she was in high school. 

I was very confident my first three years in juvenile court. I thought I knew exactly what I was doing, knew all the right answers. And when I went back to juvenile court probably eight years later, I was struck by the fact that we don't have a clue what we are doing. I don't know where the humility came from. But the act of taking a child from its family and putting it with -- in a home with strangers is so detrimental that unless you are positive that the rewards are going to outweigh that damage, you really shouldn't be doing it. And it just struck me the power I had, which I wanted to use for good, but could so easily be damaging to children further. Not only did I lose all my confidence about the options available in juvenile court. I didn't think anyone else had a clue either. 

You know, about that time we started talking about evidence-based practices in juvenile court and criminal court, so I was a -- I really wanted to know what the evidence showed. You know, I practiced – I was a judge for 20 years and I still don't know something so basic as whether going to prison increases recidivism or reduces it.

Q           When you were first in juvenile -- I know I don't practice in that area at all -- but there has been a lot of talk about the development of the juvenile brain and decision-making. Was that at all even on the radar when you were first there?

A            I don't remember that. In those days there was a lot of focus on "crack babies" who had been damaged in utero by their mother's use of cocaine. I do remember it when I was in drug court, becoming aware of adolescent brain development. I mean, there was some base of child development stuff that we knew, that there are certain ages when it's particularly damaging to remove a child from a parent and to try to avoid, you know, doing it at that time.  You know, there's a popular feeling in juvenile court that if a child attaches once, they can attach again. And that just always, I think even since I was a mother, it just always seemed unbelievably cruel to me to say, okay, you've lived with this person for so long, you love this person, you depend on them, but you couldn't -- we'll get you a new parent and that'll work the same way.

One of the most interesting, difficult cases I had as a criminal judge involved Native American twins, a boy and a girl. And when they were removed from their parent’s home, they were placed in several foster homes, I assume because they didn't have a home for both of them. And the little girl went to a Dane County single mother and lived there about three years, maybe four years. She might have been around four years old, and the tribe found a Native American family that wanted to adopt both of them.

And so I had to decide whether she would stay with the woman that had raised her, who also wanted to adopt her, or be reunited with her brother in a Native American family.  Interestingly, Pete Anderson (later a Dane County judge) was the attorney for the State Department of Health and Social Services that wanted the Native American adoption to go through. And he and I when we were colleagues on the bench talked about this case several times because he lost. I ended up keeping the little girl where she had been raised and let the mother adopt her. She made a lot of promises about keeping in touch with her brother and, you know, facilitating the little girl learning about her Native American roots. I don't know what ever happened.  It's one of the hard things as a judge. You never know the rest of the story, but --

Q           Those have to be tough decisions. You don't have a crystal ball.

A            Right. Right.

Q           Have you done any cases that haunted you?

A            The homicides that I did. I sent a number of teen-agers to prison for life, two of them in a homicide that took place again which is located in a central location because it was right up the street on Williamson Street. And I've actually checked on them from time to time to see how they're doing in prison. They're both doing fairly well. They too would be eligible for parole, although nobody gets paroled anymore.

 A younger kid I sent recently to prison for life for a homicide, he's doing terribly. Again, I checked on him.  I had the -- I always tell people most of the defendants in criminal court are not evil.

I've only seen a few truly evil people in my courtroom, and one of them was a man who raped and killed a mentally ill woman that lived in his apartment building, smoked a cigarette and then opened a can of food and sat next to her body and ate the food. He was very difficult in the courtroom. And in the jury trial at one point he threw a pen at the police officer that was testifying and started screaming at him, and the jury had to be removed. And at another point -- he was in shackles by the time the trial ended. You try to cover that up from the jury, but he had been so disruptive. He stood up in the shackles and turned the whole table over with everything on it in front of the jury. And I'm just there going to the jurors, "Out, out, out."  So I followed him for a while, and he actually got I think cancer and died in prison. But he was one of the truly evil, conscious-less people that I saw. But there's not many of them.

Q           When you say you checked on these younger ones, do they know you're checking on them?

A            No.

Q           Okay. You just kind of looked at their record?

A            Yeah. The Department of Corrections gave me information.

Q           That's nice.

A            Yeah. You know, you send someone to prison for life, you send someone to prison, period, it's -- there's sort of a connection there in an odd kind of way. I mean, I don't think any judge does that lightly, and I certainly never did. I mean, there were some people I thought I was probably saving them by sending them to prison because their lives were in such disarray and they were so addicted or whatever. But it's never an easy decision.

Q           So looking back, starting in law school and your early career and moving to the bench, how would you describe the evolution of practicing law? Kind of a broad question, but --

A            Well, one thing that jumps out is that I think there are fewer trials. I know a lot of people have talked about that. It extends across all areas of law.  Criminal law, sometimes I don't know why more cases aren't tried because there are some surprising outcomes at trials. And I think sometimes defense attorneys settle on a plea agreement when they might be able to do better.

Civil law, I think a number of things have happened. One is the limits on damages. It's hard for attorneys to take certain cases if they can't recover enough to make it worthwhile, which operates to deprive possibly injured parties of the right to a trial.

But on the positive side, I think a lot more cases get mediated and settled. And that's probably good. There were judges who never wanted to try a case.    [  ], for example, never saw a case he didn't think he could settle, even as a judge. And I just thought people had a right to a trial. And trials were kind of a nice change of pace for the judge, so I really didn't mind having trials. I think it is a legitimate way to resolve differences.

Q           Did you ever take an active role in trying to mediate or settle cases when you were a judge?

A            Yes. I mean, certain cases just stand out. If they just simply were not worth trying, the people got so embedded in their dispute and their hatred or their emotions towards the party on the other side that they lost track of the fact that they were spending a fortune they could ill afford to spend.

One -- an example comes to mind. Someone had hired a friend to build a house for them.  Things            didn't go as they expected, and they ended up not getting the house they thought they were going to get. And, you know, a bitter feud and just litigating and litigating and litigating. And, you know, someone was going to lose, and there was no insurance to pay for it. And they were just, you know, probably way so far in debt on their litigation, it just wasn't worth it.  So a case like that, it just didn't need to be tried.            And I would try to tell the people this doesn't need to be tried.

I had a big, big case, Valerie Bailey-Rihn, who is about to become a Dane County judge, was one of the attorneys on the case, and it involved a gigantic printing press purchased by a Wisconsin printing company in Japan. And there were problems with the press. And we're talking, I don't know, millions of dollars probably at stake. But the litigation was so difficult because almost all the witnesses were going to come from Japan, and it was going to be very expensive to try, and we were going to have to have all these Japanese interpreters, and there was a lot of technical evidence. And so I suggested that -- and the attorneys took me up -- we have a summary jury trial under Sec. 802.12. So we picked a jury that didn't know they weren't really trying the case -- they were regular jurors -- and did a very abbreviated presentation of the evidence without calling a lot of witnesses and then had them go deliberate and then brought them back to the courtroom, and the attorneys were able to ask any questions they wanted of the jurors. And they ended up settling the case. It was it was a successful outcome.

Q           Have you done this any other time?

A            I'd never done it before. But it's a thing. I mean, I didn't invent it.

Q           That's interesting. I think that's a great idea.  Then neither side would be bound by it.

A            They weren't.

Q           You know, it gives you an idea of where it's going to go and how much you want to spend to get there. How do you think technology is impacting the law?

A            Well, immensely. I mean, two big things were CCAP. I started on the bench when we only had paper files. There wasn't anything electronic. And the middle years was when there was a record on CCAP of each case, the parties and minutes, things like that. And now they've gone to complete electronic files where there no longer is a paper file. So that's a huge change. Largely, it's really good.

The other really important thing I think is computerized legal research. I mean, I don't know if you ever did research without --

Q           Sure.

A            Yeah? Okay. But the idea of looking up a -- taking a book off a shelf and reading the case and then writing notes and then going to Shepard's and pulling another book down and Shepardizing the case and then going to whatever was cited there and taking that book off the shelf, it just is so time-consuming compared to how we do it now.

Q           I sometimes worry that it's getting too impersonal, that we communicate with our clients via e-mail and other attorneys, and you're just losing that human element of it. And I think that that long-term might have an effect on people's ability to resolve cases or, you know, move them forward just because you no longer have a warm body.

A            Yeah. Yeah. It's a lot harder to say “no” to somebody when you're looking at them, so --

Q           Or to interpret motives or tone –

A            Right. Right.

Q           -- in an e-mail versus the telephone.

A            Right.

Q           I think everybody (INAUDIBLE).

A            Right. I agree.

Q           One of the questions on my list here is what do you think about the current state of the practice of law, and what do you think makes a good lawyer?

A            Do you have a question about the Supreme Court?

Q           Not particularly, but we can. I mean, I think that would fit into the current state of the practice of law.

A            That's why I asked. I am horrified by the fact that justices on the Wisconsin Supreme Court accepted huge amounts of money in support of their campaigns, either directly or by issue ads, and then allowed those parties to appear in front of them and made a decision on the case. I am shocked and I'm angry and I think that in many ways it's the end of democracy in Wisconsin.  I mean, I can't overstate how strongly I feel about this. In fact, I'm helping to organize a group of reserve judges in hopes of doing something to make a change in this. But I really believe in an unbiased judiciary, and I have tried to hold myself to that standard. I've issued decisions that I had to hold my nose and put out because it's not what I personally believe, but it's what the answer was.  And the fact that it looks like our Supreme Court is no longer bound by the principle to me is just tragic.

Q           Has the Supreme Court always been this predictable?

A            No. Not only that. They issued decisions that were helpful because usually there was one decision. And if there were more than one decision, there was a short dissent that took issue with one point of law. Now you have six or seven opinions on every case. Nobody knows what the law is. And it makes it extremely difficult to try to follow precedent, which is what we're all supposed to do.

Q           Do you think that the multiple decisions – opinions are a result of differing opinions or, I mean, to -- I don't know. What's the term?

A            Well, they certainly -- you know, they certainly expressed a different opinion and then. But I think if seven justices were working hard to reach consensus and that was the goal that they would do it more often than they currently do. I'm not sure any of them share that goal anymore. And frankly, I mean, Justice Patrick Crooks dying -- he just died in the past few months -- he was an example of a truly independent justice. And so I'm very distressed about that. 

What do I think about the practice of law? It's fine. I think what makes a good lawyer -- it's funny how, you know, in having this conversation about the practice of law in our political situation, both nationally and locally, where people are so polarized, they kind of blend together in some ways. But I think what makes a good judge or a good lawyer, frankly, is the ability to listen to the other side, to put yourself in their shoes, to understand where they're coming from. And until you can do that, I don't think you have any hope of arriving at an outcome that’s going to satisfy both parties.

And I think -- you know, I think that's a nice goal to have. It's not always possible. But I think the best lawyers are very well prepared, they're honest to the core and to their opponents. You can trust what they say. They're interesting to listen to in court. And they have a good enough relationship with their clients that they can fight for what the client needs.  You know, Denny Burke was a great defense attorney, and he could tell a story about every client that made that client look entirely different from the miscreant sitting there in jail garb. You know, he always knew his client's stories, and he could tell 'em in such a meaningful way. If Denny had one defendant and a couple other lawyers had other defendants and they were all convicted, I'd always sentence the other two first to kind of set the bar because Denny could talk me into things that nobody else could.

Judge Markson was a great attorney. You know, he was honest, articulate, well prepared, didn't talk too much. There are a lot of good attorneys.

Q           What would you want future attorneys to know?

A            I feel like the day when attorneys were respected and expected to be honest, expected to be sort of leaders in their community, is sort of past. And I wish we could get back to that.

Q           Is there anything else that we haven't covered that you'd like to talk about?

A            I know you talked to another judge about treatment court, but I guess I'd like to just say a few words about that. It is evidence-based. There is –

Q           Let me stop you.

A            Okay.

Q           Not in this forum. It was just I saw him speak at an event.

A            Oh. Okay.

Q           So tell me about treatment court.

A            Okay.

Q           I think that had a big role in your career.

A            So the concept developed approximately 20 years ago. And there were treatment courts in some other parts of the state. Judge Aulik, who was a very conservative judge in Dane County, liked the idea of it and took a team and went to I think Florida and got some training and came back and started our first treatment court.  People say that treatment courts, or problem-solving courts, as they're sometimes called, have been the most heavily-researched innovation in criminal justice ever. And there's a number of reasons for that. But one is it's fairly easy to study. It's a discreet population. And it takes a little work, but you get a comparison population, and you can see what works and doesn't work. And there are basically ten principles. And if you follow those principles, you will get the results.

I think I was the third Dane County judge, drug court judge, after Stu Schwartz. And what's really different is you work with a team, so you have a DA, a defense attorney, a mental health person, and possibly other members of the team, depending on how it's constructed. And the people in the court either have drug charges or charges related to their addiction.  So it could be a theft, a forgery, you know, ID theft, anything that they use to get money for the drugs. Or it could be a delivery or possession of drugs. And they have to have a treatment need. If they're just a cold-blooded seller of drugs that doesn't use drugs at all, they wouldn't be appropriate for this.

So before each court session you have a staffing with the team members and you talk about each person that's going to appear in court and sort of analyze where they're at and make a tentative plan for how to deal with them in court. And the plan usually includes either a reward, which could just be praise, or it could be more concrete things, or a sanction, which is usually a night or two in jail, but it also could be coming back to court more often and community service or other things.

And the, to me, really important thing about it is you develop a relationship with people. So in an ordinary criminal court, you might see 20 or 30 people in a morning. If you asked me in the afternoon how did, you know, Joe Jones do, I wouldn't remember the case and I wouldn't remember him. It's a very high-volume court. But in treatment court, I would know everything about the person, their family, their mental health, their physical health, is there domestic violence going on, are they suicidal, are they pregnant and uncertain what to do about it, I mean, very, very intimate details of their life.  And over time, they come to trust the judge. And the research shows that the relationship of the judge is actually an important factor in moving their behavior. So it's a responsibility in a different way than sending someone to prison. It's a responsibility of having a relationship with someone and responding appropriately to them where they're at on that particular day.

But almost every judge that does treatment court will tell you it's the best thing they did in their career. And I would too.

Q           It must have been particularly heartbreaking when somebody wasn't successful in that program because I would imagine that you actually start to take more interest –

A            Right. You care.

Q           Yeah. Exactly.

A            It -- it was frustrating when someone wasn't successful. By the time I ended drug court, opiate addiction was increasing, but it wasn't the largest part of my caseload, my defendants. I had people who were addicted to pain pills, whereas now there is such a severe heroin and opiate problem in this community that the majority of the defendants are addicted to opiates, which would be extraordinarily more difficult to deal with in drug treatment court. But the other thing is they die. And I only had maybe two defendants die, which was heartbreaking. And now that's something that occurs more often.

Q           Really?

A            Yeah. And it's -- I just give kudos to the judges that are able and the team members that are able to keep on keeping on, despite that risk.

Q           How long did you do drug court?

A            Four years. And then I was involved in reorganizing it to conform better to what the evidence shows is effective. Ours had kind of developed into a medium-risk drug court, and the research shows that it's much more effective with high-risk people and in fact can harm low-risk people. And so we put together a team and did a bunch of research. I thought people were going to prison, especially Black people, that didn't have to go to prison who we could put into drug court and keep them from prison.  And I got the statistics to show that was true. I looked at, you know, everyone that had gone to prison on drug cases in the previous year and sort of picked apart their cases, and a lot of them were appropriate, frankly, and most of them were African American.

So it's maybe two years old, maybe three years old. We have a high-risk, high-needs drug court where everyone's convicted and on probation, and the alternative to them would be prison rather than the way it used to be where they might not even end up with a conviction and they -- they weren't on probation, but had a case worker. So we have three levels of drug court now to take into account the science.

Q           It just sounds like such a worthwhile program that it's, at least my end of the spectrum, I've just seen a really big shift in how we do treat drug offenses, you know, going from a big war on drugs and realizing it's been kind of a colossal failure –

A            Yep.

Q           -- and moving in the right direction.

A            And I think that's kind of why I think the police were very skeptical, of course, and the prosecutors. But I think over time -- I'm not saying they all love it, but I think they've come to understand it better that actually we can turn some people around and we'll be better off. So I think they changed.

Q           Good. I know something certainly needed to be done.  Anything else that you'd like to add?

A            Well, you know, I just touched on this, the problem with racial disparities. And I think it needs to be emphasized that there is a real problem in Dane County in criminal justice where too many African American men go to prison is a simple way to say it. And the easy response of some of my colleagues will say that's because they commit more crimes. But the fact is that, for example, if you survey Caucasians and African Americans, they use drugs at about the same frequency. But if you look at drug cases, there are more African Americans arrested. There are more prosecuted. There are more convicted. There are more sent to prison than whites for the same type of offense. 

And I think the flip side of that is that it might be more difficult for them to get into some of the diversion programs. And that might be because they don't have a lawyer, they don't have a good lawyer, or they don't know about the programs, they don't trust the programs. We made a very concerted effort while I was in drug court to increase the number of African Americans. And the biggest difference I think was we had a really good African American caseworker, and he was out in the community with people he was supervising all the time, and so people got to know that they could trust him and that he would help them with jobs and housing and stuff. So I think the idea of getting into drug court became more appealing to Black defendants. I saw the numbers improve.

Q           I would imagine trust would be one of the biggest barriers.

A            Yeah. Yep.

Q           In the history of --

A            Yeah. I mean, none of the others trust you when they come in. They are so used to lying, they lie about everything. They've agreed to do this court because they think it's, you know, going to be the easiest way out. It's actually quite difficult. And we just don't accept being untruthful. And we have many ways of uncovering their untruthfulness. And so they have to break down that whole way of life and turn it around to telling us the truth and taking what comes and taking the help that we offer. And it's an amazing process to see.  Not everyone makes that change, but the ones that do, it's incredible to watch.

Q           It sounds like you found it very gratifying.

A            Very gratifying. And then you come to their graduation, they bring their kids and their moms and their band members, and it's just, it's a real celebration.

Q           That's good. I didn't know about that part.

A            Yeah. It's great.

Q           Well, thank you for taking the time and sharing your experiences with me and with future readers.  We'll have a transcript prepared of this interview and send it to you for proofing before it becomes part of our Oral History Project. Unless you have something to add, I'll just note that the time is 10:40, and I will shut off the recording.