September 15, 2017 at 3:47 p.m.
Bloom explains Martinson decision
Judge calls sentencing 'difficult, unpleasant task'
Bloom explains Martinson decision
After taking approximately 20 minutes to explain the reasoning behind his original sentencing decision, Bloom stood firm. He acknowledged Ashlee Martinson's attorneys posed legitimate legal questions but found the defense failed to show he abused his discretion in the matter and denied a motion for a reduced sentence.
Martinson was sentenced June 10, 2016, after entering guilty pleas three months earlier to two counts of second-degree intentional homicide.
At the plea hearing March 11, 2016, Martinson's attorneys Thomas Wilmouth and Amy Lynn Ferguson filed a 26-page document outlining the mental abuse Martinson allegedly suffered at the hands of Thomas Ayers and the sexual abuse she endured over her young life at the hands of other men involved with her mother. This document, which district attorney Michael Schiek agreed to put into the record, argued Martinson had "adequate provocation" when she shot her stepfather twice with a shotgun and then stabbed her mother over 30 times.
As part of a plea agreement, Schiek agreed to argue for no more than two 20-year prison sentences, to be served consecutively, followed by 20 years of extended supervision. Wilmouth and Ferguson argued Martinson should serve only eight years in prison, with a significant period of extended supervision upon her release.
At sentencing, both Schiek and Bloom made mention of the cycle of sexual, physical, emotional and mental abuse laid out in "Appendix A" of the defense document. Witnesses were called to testify as to Thomas Ayers' history of abusive behavior and his criminal record was introduced into the record. Under questioning from Wilmouth, Ayers' sister Sandy Rumore admitted her brother "wanted to control people."
While she was pursuing a possible NGI (not guilty by reason of mental disease or defect) defense, Martinson was evaluated by mental health experts Brad E.R. Smith and Sheryl Dolezal who both diagnosed her as suffering from major depressive disorder as well as post-traumatic stress disorder. They concluded she likely had been suffering from some level of depression symptoms off and on since about age 8, and the symptoms became noticeably more intense at around 15 when her mother moved in with Thomas Ayers.
Before pronouncing sentence, Bloom reviewed all of the information presented at earlier stages of the case, including the defense document. He then went through the sentencing considerations that must be taken into account in every case and noted that the seriousness of the offense, was of "paramount concern" to him.
There were "two diametrically opposed forces at play in this case, neither could be ignored," he said, referring to the brutal nature of the crime and the ongoing abusive environment Martinson had lived in up until March 7, 2015.
He agreed with Smith and Dolezal's assertions that the murders were not planned in advance and noted that the information in Appendix A "would make any individual feel some sympathy for Ms. Martinson."
"But sympathy must give way to the truth. And in this case, the truth is that two people are dead," the judge said. "The most important factor to be taken from these proceedings is yes, the defendant had a choice."
That last statement by the judge, along with the information in Appendix A and the mental health evaluations, formed the basis for Martinson's motion for post-conviction relief before Bloom Wednesday.
In the motion, filed July 26, Martinson's appellate attorney Mark A. Schoenfeldt argued Bloom "erroneously exercised his discretion" by placing on Martinson "an obligation to perceive and make rational choices at a time when, as a matter of law, she was incapable of perceiving and making rational choices" because she had "adequate provocation," a mitigating factor that led Schiek to reduce the charges in the first place.
Schoenfeldt emphasized that Bloom's statement that Martinson "had a choice in the matter" was the foundation of the appeal.
"By nature of the statute, when this case was reduced from a first-degree intentional homicide to a second-degree intentional homicide, that takes into consideration the affirmative defense of adequate provocation," Schoenfeldt said. "The adequate provocation, in definition, is a person completely lacked self-control in an ordinarily constituted person."
He said the statute defines "provocation" as something the defendant "reasonably believes the intended victim has done which causes the defendant to lack self-control completely at the time of causing death."
"I think when the court said that Ms. Martinson had a choice, that is completely negated by the statute, that she was completely out of control at this particular time and this particular day," Schoenfeldt said. "That she did not have the control to conform herself to what the court had made mention of a 17-year-old, given the circumstances of a normal 17-year-old, that she could have controlled herself. She could not and because she could not control herself that completely negated any choice that she may have had on this particular day and particular moment in time of her life."
Bloom mentioned all the facts stipulated to in the document that made Martinson's life "a horror story," but then went on to "pigeon-hole her into a life of a normal 17-year-old," when she was not a normal teenager, he argued.
Schiek argued that Bloom was not obligated to further explain what he meant when he said Martinson "had a choice" on March 7, 2015.
"It is up to the next level (appeals court) to look back at all the transcripts, to look back at all the information the court took into consideration to determine to if your honor abused its discretion," Schiek said, adding that he believes Bloom looked at the appropriate law, the factors that must be considered, and fairly applied them in determining Martinson's sentence.
Bloom then used the remainder of the hearing to explain the rationale he used in reviewing his sentencing decision.
"The sentencing that occurred in this case was a difficult, unpleasant task for me," Bloom said. "The sentencing in this case required the court to balance what had clearly been established by the defense that Miss Martinson, at the hand of her mother and stepfather, who were the victims in this case, suffered a horrific pattern of abuse over a period of years. What that had to be balanced with was two very brutal, horrific killings, and striking that balance was, as I said, a difficult and unpleasant task for me. And I intend to speak at length to articulate my rationale for the sentence that was ultimately imposed."
Bloom conceded Schoenfeldt raised "a legitimate, serious question relative to the type of homicide that the defendant was convicted of."
"The motion is not based on case law or other authority for the proposition, other than the language of the applicable statutes," Bloom said. "The question requires me to interpret those statutes."
Bloom said the transcript of the sentencing hearing clearly establishes that he based his decision on his assessment that Martinson did have a choice.
"The question is not whether I did so, the question is whether doing so constitutes an abuse of discretion," he added.
He then explained that first-degree intentional homicide is defined by statute as when a person causes the death of another with the intent to kill that person. The statute defines second-degree intentional homicide as causing the death of a person with intent to kill the person, but with mitigating circumstances.
A subsection of the statute lists the applicable mitigating circumstances.
One such mitigating circumstance is when a death is caused while the defendant is under the influence of adequate provocation.
He then went on to say that adequate provocation is defined as being sufficient to cause a "complete lack of self-control in an ordinarily constituted person." He also said provocation is defined as "something the defendant reasonably believes the intended victim has done that causes the defendant to lack self-control completely at the time of causing death."
While adequate provocation is an affirmative defense to first-degree intentional homicide, and mitigates the charge to the second-degree form of the charge, it does not relieve the defendant of criminal responsibility for the victim's death, he added.
He also touched on the statutory concept of unnecessary defensive force, which is defined as follows: "Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable."
In the self-defense law, the state authorizes the use of force only when the actor believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another person.
"As long as both beliefs are reasonable, self-defense can constitute a complete defense, even to first-degree intentional homicide," Bloom said. "The mitigating circumstance takes hold if either of those beliefs is there, but unreasonable."
He also cited another complete defense of mental responsibility, which provides that a person is not responsible for criminal conduct if at the time of the offense they suffer from a "mental disease or defect" and lack the ability to recognize that their conduct is illegal and lacks the ability to conform to the law.
"The distinction between a complete defense and a mitigating circumstance defense for criminal charges is an important distinction for the purposes of the court's analysis relative to this motion," Bloom said. "Against a charge of first-degree intentional homicide, a class A felony requiring mandatory sentence of life imprisonment, when a complete defense is successfully mounted, the defendant is found not guilty and discharged. When a charge of first-degree intentional homicide is successfully mitigated to second-degree intentional homicide, the defendant is found guilty of a class B felony, and faces up to 60 years in prison, comprised of 40 years initial confinement and 20 years of extended supervision."
The crux of the appeal motion is that the statutes say, as a matter of law, that someone found guilty of second-degree intentional homicide on the basis of adequate provocation "did not have a choice." Bloom said there is a tension between the concept of a person acting with intent versus someone acting with adequate provocation, as defined in the various statutes, "and therefore acting with a complete lack of self-control."
"In my judgment, this tension brings an ambiguity that justifies looking at the legislative history of the applicable statutes," Bloom said.
He then went into the history of the revision of state statutes covering homicide that took effect on January 1, 1989. Those revisions resulted from work done by a special committee formed by the Wisconsin Judicial Council in 1982. The revisions were completed in the fall of 1983 and was first introduced in the state senate in 1985.
Some members of the special committee who drafted the revisions later wrote an article in the Wisconsin Law Review in 1989 clarifying some the changes to the homicide laws.
"The Wisconsin Supreme Court has held that an article in a scholarly publication by a member of a bar advisory committee who participated in the formation a broad, comprehensive piece of legislation may be treated as an authoritative statement of legislative intention," Bloom said. "According to the authors of this law review article about Wisconsin's current homicide statutes, the central problem with the prior law was the lack of clarity about the basis for liability, particularly the mental element. According to the authors, this is most evident with regard to the depraved mind murder and heat of passion manslaughter."
He said the revised statutes replaced the term "heat of passion" with adequate provocation. He read from the article which said that the test under the new requirement that a normally constituted person loses control completely did not solve the basic problem of the standards presented in the old law. The article states that a "reasonable person is never provoked to kill but can always find some alternative course of action."
"The judicial council committee adopted the ordinarily constituted person construction instead of reasonable person to recognize that the ordinarily constituted person might be provoked to lose self-control completely and cause the death of the one who provoked him," Bloom read. "This emphasizes that the issue is not whether the homicide itself is reasonable. It is not. The reasonable person does not kill, but rather whether if there is an understandable justification for the loss of self-control. Recognizing that the ordinarily constituted person may be provoked to kill, an assigning a lesser penalty to that conduct, does not ignore the blameworthiness of the conduct."
He said this has been interpreted by the courts to mean that adequate provocation is provocation that causes a reasonable person to lose normal self-control. This makes the homicidal provocation "at least understandable" and that someone who reacts to provocation with lethal force should not be found guilty of murder, but still face some punishment if other factors don't further mitigate the offense.
He then cited a Wisconsin Supreme Court ruling that determined the difference between first- and second-degree intentional homicide is intent to kill. The opinion in that case referenced a law review article that predated the revisions to the homicide statutes and was used as a basis for those changes. It said that a person found guilty of second- degree intentional homicide on the basis of adequate provocation still "consciously and purposely took the life of another."
"And I say this, based on language in a concurring opinion written by a justice of the Wisconsin Supreme Court, that was cited with approval, in a scholarly article written by members of the committee that drafted the statutory language that I'm interpreting today," Bloom said.
Based on his analysis, Bloom found that the applicable statutes do not provide "as a matter of law" that a person found guilty of second-degree intentional homicide on the basis of adequate provocation "is absolved of volitional responsibility for their actions."
"I'm further concluding that the applicable statutes do not forego, as a matter of law, a court from considering at sentencing that a person found guilty of second-degree intentional homicide on the basis of adequate provocation had a choice," Bloom ruled. "And as such, I conclude that the court did not abuse its discretion by doing so and the motion that I did so is denied."
Following the hearing, Schoenfeldt said he will most likely appeal to the third district Court of Appeals in Wausau.
"This is the first step in the process. We feel that, at sentencing. the judge made an error in sentencing Miss Martinson to the time she got based on factors that we believe the court should not have used," Schoenfeldt said.
He called Bloom's stated reasons for denying the motion "well-reasoned" and commended the amount of time he put into researching it.
"But it is up to the court of appeals as to where it goes from here because we certainly will be appealing this case," he added.
"We have an argument that we feel is the strongest argument to take in front of the court of appeals and it needs to be taken up because I feel the court, in its reasoning, took into account all kinds of law review articles which I think the court cited to give meaning or precedent to the statute that has evolved, as the court said, over the years, in order to come up with an explanation for the statute that the court had to dig deep into the various interpretations and cited legal scholars in coming up with the decision that the court did," Schoenfeldt said.
When asked if he would consider a reduction in Martinson's prison sentence a success, Schoenfeldt demurred.
"I don't go with a sentence reduction as far as success. I never like to tip my hat as far as success," he said. "I feel confident that we can go forward as far as the court of appeals and have them make the ultimate decision in this case and, if it need be, go to the supreme court."
Schoenfeldt said it is possible this case could ultimately aid in continuing the evolution of the homicide statutes and case law, if the defense is successful on appeal.
"There is a possibility that it could. And that's how we build case law, decisions made by the appellate court, and possibly with the supreme court," he said. "And if the court makes a decision reversing or affirming, if it's a published opinion, then we'll be talking about case law."
While Bloom cited law journal articles and how the homicide laws came about in denying the motion, that isn't the final word, he added.
"The final word is the actual court making the decisions," he said. "It could be that the law may evolve after this case."
Schiek said he felt confidant going into the hearing but noted post-conviction relief hearings can be unpredictable.
"You never know what is going to happen and you obviously have to take everything seriously," he said.
Schiek said he expects the defense to appeal Bloom's ruling to a higher court.
"This is kind of the steppingstone to make that happen," he said, noting that at this point the state will take over the case and he will no longer be personally involved in the arguments.
Jamie Taylor may be reached via email at [email protected].
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