Day Four of Judge Dugan's Trial: The Defense Rests After 45 Minutes of Witnesses (Update: Convicted!)

AP Photo/Andy Manis

Today's is day four of the trial of Judge Hannah Dugan. Yesterday, the prosecution rested its case after calling 19 witnesses. My conclusion yesterday was that Judge Dugan seems to be in deep trouble. Yesterday ended with court reporter Joan Butz who clarified what she and Judge Dugan were saying in a whispered conversations about going out the non-public hallway. Specifically, Butz was concerned the attorney and her client might accidentally go out the "wrong" door. This video sums up her testimony pretty well.

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The problem for Judge Dugan is that the whole plan to sneak Eduardo Flores-Ruiz out and down the stairs was caught on tape. So no one can deny what was said.

Today the defense will present its witnesses. The word yesterday was that there would be just four witnesses for the defense so this should be over fairly quickly. First to take the stand today was Milwaukee County Judge Katie Kegel. She was asked about an email she had sent about federal officers making arrests inside the courtroom.

“People have been snatched out of my gallery," she wrote.

On cross-examination, Kegel said those arrests were in a drug case. Her testimony was brief.

Next up was Judge Laura Gramling Perez. She testified about an online training class held by Chief Judge Carl Ashley which related to ICE arrests in the courthouse.

Gramling Perez, in her email, said key takeaways of the training included that ICE can legally conduct enforcement in public areas of the courthouses and that there are "statutory and policy limitations" to such enforcement. She wrote she "would strongly advise" the courthouse develop a court-wide policy governing ICE actions – including requiring that ICE agents check in with the chief judge before conducting any enforcement. 

So this defense witness confirmed that ICE could make arrests in the hallway but wanted some policy to be issued. However, no policy was issued. I'm not sure how this is helping Judge Dugan. Next to take the stand was Public Defender Maura Gingerich. She is the person who was taking photos of the arrest team in the hallway.

Asked why she did so, Gingerich testified she wanted to show the photos to her manager and head of the public defender's office, who could ask the chief judge for further guidance.

"It was stressful to see what I thought were a number of law enforcement agents on the sixth floor, not wearing uniforms," Gingerich testified.

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The public defender is a progressive. Not a shock. But she testified she never spoke to Judge Dugan so, again, I'm not sure how this is helping Dugan's case. The defense is just calling people who didn't like ICE being in the hallway. But none of them are saying that ICE wasn't allowed in the hallway, only that they felt stressed by it. That's not a defense obviously.

Next up was former Milwaukee Mayor Tom Barrett. He testified as a character witness. He was not in the courthouse on April 18 when the incident took place.

Barrett said he's known Dugan for "well over" 50 years, and they first met in high school. He said he would spend time at the Dugan home, and described the Dugan family as "close-knit."

The former mayor testified he and Dugan have stayed in touch throughout the years, in both personal and professional capacities. 

Barrett described Dugan as "extremely honest" and someone who "will tell you how she feels."

Okay, it's not much but at least this witness is helping Dugan in some tangible way. But that's it. Judge Dugan will not testify in her own defense

Dugan won't take the stand. Her attorney, Steve Biskupic, said they've discussed the decision for months and it was Dugan's decision.

The sum total of the testimony of the four defense witnesses lasted less than an hour. And again, I'd argue only one of those witnesses helped her case. The defense rested and, after an early break for lunch, closing arguments began before noon.

Assistant U.S. Attorney Kelly Brown Watzka began her closing argument saying that judges aren't above the law.

“No judge may deem that her personal beliefs matter more than the law itself,” she said.

She acknowledged that immigration enforcement was a polarizing issue but said Judge Dugan wasn't on trial for her beliefs but for her actions.

Brown Watzka argued that evidence showed Dugan knew why federal agents were at the courthouse when they said they had a warrant. She also argued that Dugan took "affirmative, physical action" to harbor or conceal Flores-Ruiz from authorities in two ways – when she ordered the federal arrest team out of a public hallway, and when she directed Flores-Ruiz and his attorney through a restricted hallway.

Dugan intended to prevent Flores-Ruiz's arrest, Brown Watzka argued. Her argument included that the events involving Flores-Ruiz's case, which unfolded in the judge's courtroom, were unusual – calling it a "rush job." She also argued Dugan intended to "sneak (Flores-Ruiz) out a back door" into a restricted hallway and down the stairs. She said there is "no way to spin" and "no logical explanation" for Dugan's discussion involving stairs. 

Brown Watzka argued that the fact Flores-Ruiz and his attorney went out the "wrong"door does not make Dugan not guilty. She said the "stairs discussion" proves "beyond a reasonable doubt," that Dugan intended to prevent Flores-Ruiz's arrest.

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She also argued that Judge Dugan interfered with the arrest team and that she knew what she was doing was wrong.

 Brown Watzka also pointed to audio of Dugan saying "I'll do it…I'll get the heat," and "I'm in the doghouse with (Chief Judge) Carl (Ashley) because I tried to help that guy." The attorney argued those were the words of someone who knew she was doing something wrong.

She wrapped up her argument by saying "no one is above the law." The entire closing argument lasted about 45 minutes. It was followed by a closing argument from Dugan's attorney, Jason Luczak.

Luczak called this an "unprecedented trial" and said the government has "the power to crush someone."

“They are trying to make an example of Hannah Dugan,” Luczak said. “They are trying to besmirch her honest reputation."

He did his best to ring the Trump bell.

“Make no mistake,” he said. “This went all the way to the top.”

Dugan’s defense team has said the Trump administration is trying to make an example of the judge amid increased enforcement on illegal immigration.

And he suggested the audio recording from the courtroom was "manipulated."

Luczak claimed audio recordings from inside Dugan's courtroom on April 18 were manipulated and "melded together." He argued those recordings and accompanying transcripts were incomplete, hard to hear, confusing and not very good evidence.

And the bottom line is that the defense is still arguing this is a no harm, no foul situation because Eduardo Flores-Ruiz went out the wrong door.

 Luczak argued Dugan did not conceal Flores-Ruiz from arrest, because he appeared in the same public hallway where agents planned to arrest him.

After this, the government got a rebuttal argument. U.S. Attorney Richard Frohling called the defense case a series of "red herrings." And that was it. At 2pm the judge read instructions to the jury and they began their deliberations just before 2:30 pm.

Could we get a verdict today? Honestly, this case seems so lopsided that I'm not sure why it would take more than an hour or two to decide. But there have been suggestions all along that the defense might be hoping for some jury nullification so maybe one juror will turn this open and shut case into a circus. 

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Stay tuned. If there is a verdict today, I'll post it here.

Update: OMG! Even the judge is mocking her. After an hour of deliberating, the jury sent the judge a question. He had to return to his courtroom to read it. On the way in he made a joke.

He walked in where the public comes and goes. 

"Came in the public entrance," the judge quipped, an apparent reference to the issue of how Eduardo Flores-Ruiz left Dugan's court. 

The comment drew laughter from the attorneys. Dugan did not appear to laugh.

The note asked if the jury could review an ICE policy on communicating with people regarding warrants. I can't see how this is relevant at all since every single witness agreed ICE a) had a warrant and b) was allowed to make arrests in the hallway. This seems like a bad sign they are going down a path other than Judge Dugan's culpability.

The judge told them how to access the exhibit with the policy. They then submitted another note to the judge. It's not clear yet what the 2nd one is about.

Update: Yeah, this is bad. The second note asked if Judge Dugan needed to know the identity of the person ICE had a warrant for in order to be found guilty.

Defense attorney Nicole Masnica said Dugan would have had to know that agents had a warrant to arrest Flores-Ruiz in order to be convicted, “otherwise there would not in fact be an obstruction.”

Masnica said Dugan couldn't obstruct an arrest if she didn’t know who the ICE team was trying to arrest.

But Richard Frohling, the lead prosecutor, repeatedly said she needed to just know a warrant had been issued, not the specific name of the person it was targeting.

And the judge's response was, yes, she needed to know the identity on the warrant to obstruct.

Adelman's note back to the jury said, "The defendant needed to know the identity of the subject of the warrant."

So that's probably it for the felony charge of obstruction. She could still be found guilty of the misdemeanor charge of concealment. 

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Update: There's another note with a similar question. This one relates to the concealment charge. 

So at this point, given the Judge's note saying she had to know specifically that they were after Eduardo Flores-Ruiz, it's looking like Judge Dugan could skate. She clearly tried to help him get away and admitted she had done so to her fellow judge, but did she know specifically that he was the target or just have a general idea that he might be a target? That's the question Judge Adelman has decided in a way that seems to hand this whole case to the defense.

Update: Okay, first a clarification. According to the Milwaukee Journal Sentinel's John Diedrich the earlier question was about the misdemeanor count and the later one was about the felony. That's the reverse of what I said above and I'm not sure he's right but he may be. He also reports the judge gave a more nuanced answer the second time.

His answer: "To know of a pending proceeding the defendant needed to have sufficient knowledge about the nature of the proceeding."

First Assistant U.S. Attorney Richard Frohling said that was acceptable.

She knew they were there to make arrests. She knew they had an administrative warrant. She knew she wanted to get Eduardo Flores-Ruiz out of the building quickly by the stairs to avoid ICE. How all of that could add up to an acquittal because she didn't know Flores-Ruiz's name was on the warrant is truly beyond me.

Court usually wraps up around 5pm but the jurors have ordered pizza and are staying. So maybe they think they can knock this out tonight.

Update: The jury convicted Judge Dugan on the felony count!

Milwaukee County Judge Hannah Dugan was found guilty of a felony count of obstructing federal agents seeking to make an immigration arrest outside her courtroom, a precedent-setting case that has been closely watched nationally and drawn passionate protests.

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So she's guilty on the obstruction charge, presumably for interfering with the arrest team in the hallway, but innocent on the misdemeanor concealing charge for sending Eduardo Flores-Ruiz out the non-public hallway.

She's obviously going to appeal this so we'll see if it stands but for now it's not looking very good for her career. She's been on paid leave for several months. For the moment she and her attorneys had nothing to say.

Dugan and her attorneys left the courtroom, ducked into a side conference room and closed the door without speaking to reporters.

It's a relief that this wasn't a case of jury nullifications, something observers had been saying was possible since her arrest. 

Will Dugan be allowed to go home prior to sentencing? This is a felony conviction so I'd think maybe not but I don't know. And now we have a statement from the defense team.

So, yeah, they are definitely going to appeal. I think she could have been found guilty on both counts if the jury instructions were less favorable to the defense.

Anyway, that's it for tonight. Judge Dugan won't be getting a max sentence even if this is upheld (my guess is probation and a big fine) but she could lose her job. 

No one is above the law.

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