A Milwaukee County judge's decision to dismiss a delinquency petition against an alleged car thief because the prosecutor repeatedly missed filing deadlines was upheld Tuesday by the Court of Appeals.
The state, on appeal, also "failed to timely file its statement on transcript and docketing statement, resulting in delinquency orders. Additionally, the State filed its brief-in-chief one day late," District I Appellate Judge M. Joseph Donald said in a footnote.
Now there's some good judicial snark.
The state was represented on appeal by Milwaukee County Assistant District Attorney Anthony Moore, according to the docket for the case.
The juvenile, identified as M.D.B. in the decision, was accused of operating a vehicle without the owner's consent. He allegedly stole a Hyundai Tucson on Oct. 17, 2022.
But before the state filed the delinquency petition, it learned of an earlier car theft in which M.D.B. allegedly "left a court-ordered placement on Oct. 13, 2022, and returned in a stolen vehicle," Donald wrote.
The prosecutor wanted to charge both cases in one petition or at least at the same time "so that the matters could be resolved efficiently," Donald wrote.
But "efficiency" was not what the state actually offered.
While waiting for documents related to the Oct. 13 incident, a 20-day deadline for filing the petition in the Oct. 17 case lapsed.
The petition did get filed – Donald doesn't say exactly when – and, at an initial hearing on Nov. 30, 2022, M.D.B.'s lawyer asked it to be dismissed with prejudice due to the missed deadline.
Apologies here. Neither Donald's decision nor the appeals court docket identify the lawyers who handled the case in circuit court. M.D.B.'s lawyer on appeal was David Malkus.
Circuit Judge Nidhi Kashyap held a hearing and decided to let the parties argue it out in briefs. She told M.D.B.'s lawyer to file a brief by Dec. 7, 2022 and the state to respond by Dec. 14. She also said she would decide the issue by Dec. 20.
"As ordered, M.D.B. filed a brief on Dec. 7, 2022," Donald wrote. "The State, however, did not file a brief or any other document by the Dec. 14, 2022, deadline."
Kashyap and M.D.B. received unfiled copies of the state's brief on Dec. 20, the day the judge originally planned to issue her decision.
"The State indicated that the delay was due to the research that it needed to do," Donald wrote. "The circuit court responded that if the research was more complicated than the state anticipated, the state could have provided a letter to the court and the court would have considered extending the deadline."
Kashyap set a Jan. 6 hearing for an oral decision. She wanted to fully consider the state's arguments even though they were submitted more than a month late.
The State’s brief still was not in the court file by the Jan. 6 hearing, Donald said. Kashyap said she still had the unfiled version and the prosecutor apologized and finally filed it.
Kashyap ultimately dismissed the petition.
"I don’t think that the desire to file charges at the same time is a good excuse to miss a deadline," Kashyap said, as quoted by Donald in his decision. "The delay in the timely filing of a response by the Dec.14 deadline also makes it more difficult for me to find that the state is acting in good faith here."
"The appropriate remedy is to dismiss this case with prejudice," she said. "If I did otherwise, I would give the state a free pass to miss deadlines without regard for the juvenile’s legal rights.
"I did not take this decision lightly. I want everyone to know that. Because there’s an alleged victim here who suffered a loss, and that victim does deserve justice. But in order for that victim and other victims to get the justice they deserve, the state has got to comply with its statutorily imposed deadlines. So this case will be dismissed."
The state appealed, arguing that Kashyap erroneously exercised her discretion in dismissing the petition.
The state also accused Kashyap of " dismissing the case 'simply because there is a statutory mechanism for it,' ” Donald said.
He rejected both arguments. Kashyap properly discussed the facts of the case and considered the required elements, he said.
"Accordingly, we affirm," he said.
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