Milwaukee judge Janet Protasiewicz didn’t have a good, or factual, defense of her decision to not send a rapist to prison.
Milwaukee judge Janet Protasiewicz didn’t have a good, or factual, defense of her decision to not send a rapist to prison.
W isconsin supreme court candidates faced off on Tuesday in the one and only debate before the April 4 election that could decide the fate of the state’s high court for years to come.
The heated debate between progressive Janet Protasiewicz and conservative Dan Kelly covered much familiar terrain in an election in which “everything” is on the line. But the debate grew most contentious as Kelly focused on Protasiewicz’s record on criminal sentencing as a Milwaukee judge.
“A man [who] raped a 15-year-old came to you for sentencing. You said no prison time at all because Covid. There is no way that Covid provides a Get Out of Jail Free card for a man who raped a woman,” Kelly said.
“I can tell you that sentences take hours — sometimes half a day, sometimes a day. There was no way I would have said in any case, you’re not going to prison — Covid. That’s an outright lie,” Protasiewicz replied.
But according to a transcript of a case involving the statutory rape of a 15-year-old girl by a 25-year-old man, Protasiewicz had in fact said: “But for Covid, I would be giving you some House of Correction time. These are strange times. . . . I’m not going to do that.”
Kelly later focused on a case in which Protasiewicz gave a lenient sentence to a man who raped his cousin while she was unconscious:
So when the young man raped his cousin and came to you for sentencing, you gave him a paltry one year and two months in prison. And then you looked at him — and this is in the sentencing transcript — after the victim had testified how she couldn’t work anymore, how she sobbed every day, how her boyfriend had abandoned her as, quote, “damaged goods.” You looked at him and said you saw a good man in him. And then you said, you didn’t think he was a danger to society. The woman was his cousin.
Protasiewicz replied: “I certainly would like to see that transcript in total. That certainly doesn’t sound like anything that I would do.”
Protasiewicz had indeed said to a man who raped his unconscious cousin: “Are you a danger to the public? I don’t think so. I mean, I don’t think that you did anything other than engage in a crime of opportunity; and hopefully you’ve learned your lesson. In regard to your character . . . there’s a lot of good things about you.”
Protasiewicz has tried to muddy the waters by equating her light sentences for rapists with a criminal-defense attorney representing accused child molesters in court, something Kelly did once early in his career. In a Protasiewicz TV ad, the narrator says:
Dan Kelly won’t keep our communities safe. As a lawyer, Kelly defended child sex predators who posed as ministers in order to prey on vulnerable young girls. They lured young children to locations they believed to be safe only to sexually assault and molest them. And Dan Kelly defended those monsters. Do you want someone like that on the supreme court? Dan Kelly: an extremist who doesn’t care about us.
Asked by a debate moderator about the ad, Protasiewicz said “that ad was meant for one reason, and that is to point out the hypocrisy of my opponent.”
Kelly countered: “What you’re telling all the people of Wisconsin is that you believe the criminal-defense attorneys only take the cases because they like the crimes their clients are accused of committing. So your response to an accurate, factual, truthful, exposé of your judgments, Janet, has been to lie and slander.”
“There’s no hypocrisy there,” he said. “I represented someone who’s accused of a crime. I handled a couple of pretrial matters.”
The debate, of course, focused on much more than Protasiewicz’s record as a judge and Kelly’s brief stint as a criminal-defense lawyer.
On abortion, Protasiewicz said she had made “no promises” to abortion advocates about how she would rule on a case and that her repeated comments during the campaign expressing support for a right to abortion are simply a matter of personal beliefs. Kelly similarly said he had not made up his mind about a case challenging Wisconsin’s pre-Roe abortion statute now in litigation.
Each candidate argued that he or she would be an impartial judge while accusing the other of being beholden to those who have financially backed their campaigns. But Protasiewicz contradicted herself on the matter of recusal and also openly prejudged a case likely to come before the court. Protasiewicz said in one breath that she would recuse herself in any case in which the Democratic Party of Wisconsin, which has transferred $2.5 million to her campaign, was a party. In another breath, she said she would nevertheless hear a case challenging the maps drawn for state and federal legislative districts.
“The [legislative] map issue is really kind of easy actually. I don’t think anybody thinks those maps are fair,” Protasiewicz said. “That dissent is what I will tell you I agree with,” she added, pointing to a state supreme court case from 2022.
“She just told you that she’s going to steal the legislative authority and use that in the courts. Fairness of the maps is a political question,” Kelly countered. “Political questions belong in the legislature — we all know that since grade school with Schoolhouse Rock.”
On balance, Kelly seemed to win the debate, but it remains to be seen how much it matters, if at all. Democrats were more energized than the Republicans were in February — when Protasiewicz and the other liberal in the primary race combined for 54 percent of the vote. The campaign is largely being conducted in TV ads, and Protasiewicz ads are outnumbering ads supporting Kelly by at least a factor of three to one. Of course, there are two recent examples of conservative underdogs pulling off an upset in Wisconsin supreme court races, so it would be wrong to dismiss Kelly’s chances.