August 10, 2022 – A circuit court erred by denying a prosecutor’s request to waive a juvenile who allegedly committed a mass shooting into adult court, the Wisconsin Supreme Court has ruled.
In State v. X.S., 2022 WI 49 (June 29, 2022), the supreme court held 4-3 that the circuit court’s decision to deny the state’s request was not reasonably supported by the facts and the record.
Chief Justice Anette Ziegler wrote the majority opinion, joined by Justice Patience Roggensack, Justice Rebecca Grassl Bradley, and Justice Jill Karofsky; Ziegler also wrote a concurring opinion. Justice Brian Hagedorn wrote a dissent and was joined by Justice Ann Walsh Bradley and Justice Rebecca Dallet.
Drug Deal, Foot Chase
The juvenile, X.S., was 15 years old in 2020. During the first half of 2020, X.S., who’d been previously deemed delinquent, engaged in a series of criminal episodes.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
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In April 2020, X.S. and two friends were doing a drug deal from inside a car. A person outside the car fired a gun into the car, hitting X.S.
In July 2020, X.S and a friend were riding in car that was pulled over by police officers in St. Francis, in Milwaukee County. X.S. ran from the car and was captured after a foot chase.
When the police recovered a backpack discarded by X.S. during the chase, they discovered that it held 133 grams of marijuana. The police also discovered that X.S. and another person in the car possessed cash, a scale, and other drug trafficking tools.
Truancy and Other Non-Compliance
After X.S. was convicted of obstructing an officer, the Milwaukee County Circuit Court ordered him to participate in nine months of supervision, as well as the Running Rebels Intensive Monitoring Program. The court also ordered X.S. to attend school every day.
When school began in August 2020, X.S. missed the first several weeks. He completed the Running Rebels orientation, but only after he was threatened with being fitted with a 24-hour electronic monitor.
In November 2020, X.S. still had not attended school. He had also stopped communication with the Running Rebels program.
Shooting at Mayfair Mall
On Nov. 20, 2020, X.S. was involved in a mass shooting at Mayfair Mall in Milwaukee.
Using a handgun that he pulled from his waistband, X.S. shot at a group of four people after his friend punched one of the group. X.S. then fired off a volley after one of the group fled. Altogether, X.S. fired more than 10 shots.
X.S. shot eight people, including his friend, three members of the group that his friend confronted, and four bystanders. All eight victims survived.
After X.S. was detained, the state filed an amended petition for juvenile delinquency, charging X.S. with eight counts of first-degree reckless injury with use of a dangerous weapon and one count of illegal possession of a dangerous weapon by a person under 18.
The state also petitioned to have X.S. waived into adult court. The circuit court denied the state’s petition and the state appealed.
The Wisconsin Court of Appeals reversed the circuit court and remanded the case, ordering the circuit court to conduct a second waiver hearing. X.S. appealed.
Majority: Erroneous Exercise of Discretion
Chief Justice Ziegler began her opinion for the majority by explaining that a circuit court’s decision on whether to waive a juvenile into adult court may only be reversed if the circuit court erroneously exercised its discretion.
The circuit court had erroneously exercised its discretion in X.S.’s case, Ziegler concluded, because its decision was not reasonably supported by the facts and the record.
It was unclear from the record, Chief Justice Ziegler explained, how exactly the circuit court had applied the facts of X.S.’s case to the five criteria listed in Wis. Stat. section 938.18(5) that govern petitions to waive juveniles into adult court.
When applied to the first criteria, the seriousness of the offense, the facts supported waiving X.S. into adult court, Ziegler concluded.
“There are very few acts that are more deleterious and harmful, to individuals and society at large, than a mass and indiscriminate shooting at a place of public accommodation,” Chief Justice Ziegler wrote.
The facts when applied to the second criteria, the adequacy and suitability of juvenile disposition, also favored waiving X.S. into adult court, Ziegler explained. She pointed out that after X.S. had been deemed delinquent, he’d been caught with a large amount of drugs; he’d also violated a court order by being truant and failing to complete the Running Rebels program.
‘Nothing Short of Frightening’
Chief Justice Ziegler came to the same conclusion regarding the application of the facts to the third and fourth criteria – the personality of the juvenile and the juvenile’s prior record.
“X.S.’s escalated criminal activity and non-compliance with court orders and programming in the juvenile justice system is nothing short of frightening,” Ziegler wrote.
And while an appellate court must defer to the discretionary decision of a circuit court, Chief Justice Ziegler pointed out that that deference was not limitless.
“The facts of this case are extreme, and the circuit court’s decision is distinctly out of the ordinary: it is erroneous,” she wrote.
The supreme court ordered the circuit court to waive X.S. into adult court because it concluded that another waiver hearing was unnecessary.
Concurrence: Insufficient Reasoning
In her concurrence, Chief Justice Ziegler explained that in addition to erroneously exercising its discretion, the circuit court did not provide sufficient reasoning to support its decision.
“The circuit court provided no material analysis as to how … one criteria compared, interacted, and countered considerations of other factors,” she wrote. “No substantive discussion was provided as to how all the factors, considered and weighed together as a whole, supported denial of the State’s wavier petition.”
Dissent: Majority Doesn’t Give Due Deference
In his dissent, Justice Hagedorn argued that the circuit court had acted within its discretion in denying the state’s waiver petition.
He acknowledged that the circuit court’s analysis “left something to be desired in both content and clarity,” but argued that the majority used its own facts to decide the waiver question without giving due deference to the circuit court.
“A review of the transcript … reveals that the circuit court took care to incorporate the frightening details of the charges against Xander into its consideration,” Hagedorn wrote. “It did not ignore or minimize the seriousness of the allegations.”
Justice Hagedorn also argued that the majority’s application of the standard of review to the circuit court’s decision was too strict.
“Could the circuit court have more clearly articulated its factual findings and legal conclusions?” he wrote. “Sure. However, when we review discretionary decisions, we do not require a perfectly polished transcript or magic words … But facts – extreme or not – do not change the legal standard that we are called to apply as an appellate court.”