Milwaukee County Circuit Court Judge Hannah Dugan has her last hearing in federal court Nov. 26 before her case potentially goes to trial.
Dugan was indicted in May for allegedly helping an immigrant evade Immigration and Customs Enforcement agents. The case against Dugan has become a flashpoint in President Donald Trump’s sweeping immigration crackdown.
In recent days, federal prosecutors have said they’re offering Dugan plea deals. She can accept a plea deal all the way up to the date of trial. Lawyers for Dugan say their client is innocent and will be going to trial next month. If the trial happens, it is scheduled to start Dec. 15.
To find out more, WUWM's Maayan Silver spoke with Wisconsin criminal defense attorney Tony Cotton, who is not involved in the case.
This interview has been edited for length and clarity.
Maayan Silver: What do you see as the strengths and weaknesses of the government's case against Dugan?
Attorney Tony Cotton: The video is the strongest piece of evidence that the government has. The weakness is clearly not knowing what's in a person's head. I mean, I think it's as simple as that. The strength of the government's case comes from the video that demonstrates exactly what she did in the hallway. It's a very clear video. You can see exactly what Judge Dugan did. The difficulty the government is going to have is getting a jury ... to get inside Judge Dugan's head and reach a conclusion about what her intent was. It's always difficult to get a jury to understand what a defendant's intent is if they haven't said it.
And how does intent play into the conviction of her?
Because a person has to intend to obstruct the police or law enforcement. And one of the elements of the crime for the other count is that she has to intend to conceal a person from arrest. So, her intent is what the entire case will come down to. And Dugan has argued that she has done nothing wrong, she did nothing wrong and that she has complete authority over movement in her courtroom.
"Her intent is what the entire case will come down to. And Dugan has argued that she has done nothing wrong."
What do you see as the strengths and weaknesses of her case?
I think she has another very strong argument that I've seen her attorneys try to advance, which is a public authority argument — essentially that Judge Dugan was following chief judge orders on — and I don't know if it's true or not that there was such an order — but essentially she's been claiming that what she was doing was simply following the protocol that had been set forth by the judiciary in Milwaukee County.
How would that play into defending herself?
Because if she is [following protocol] it goes right to the heart of the intent. If what she was doing was explaining to the agents that there's a different protocol that needs to be followed and she was permitting the immigrant to use a different door, not to obstruct the police, but to reduce the confrontation in the courtroom, then it would bear on what her intent was.
So I think that's why she's trying to advance that argument is to say, 'Hey, look, there was some sort of directive that was in place. Judges were told A, B, and C. I was simply approaching these agents to explain to them that there's a different way of going about this. My goal here was not to prevent the immigrant from being apprehended.'
Former Wisconsin Attorney General and State Supreme Court candidate Republican Brad Schimel was recently appointed as U.S. Attorney for the Eastern District of Wisconsin. That's who's prosecuting the case against Dugan. Do you think he's likely taking orders from top officials at the U.S. Department of Justice on how to handle negotiations in this case and how could that impact a possible resolution?
That's a really, really fascinating question that I just don't know the answer to. I've never been a prosecutor. Obviously, U.S. attorneys on a local level are, they act ... at the will of the president. So, certainly, to some degree, there are marching orders that are always given from higher up. In a case like this, there will be, I have no doubt, close attention paid to it by Mr. Schimel's supervisors within the Department of Justice. But I couldn't tell you what they've said to him or how they're influencing him.
This case, of course, has already been very political. Democrats have accused the Trump administration of trying to make an example of Dugan. FBI Director Kash Patel posted a photo on X of Dugan being led out of the courthouse in handcuffs. And the U.S. Department of Homeland Security posted on X that Dugan has taken the term, "activist judge" to a whole new meaning. How could this whole background impact the process of finding an impartial jury?
I mean, so it's always difficult to find an impartial jury on any case. I can speak from experience, having handled any number of high-profile cases, that those cases in particular become even harder. I think the attention that this case has generated will make it difficult.
"The prosecutors have been quiet, but the government officials haven't, and that is going to taint the jury pool for sure."
I think the posts you describe by people on the prosecution side are inappropriate. In fact, it's usually the reverse. It's usually the defense that I see in other cases making comments publicly. Ninety-nine percent of the time the prosecution is totally tight-lipped, ironclad silence. Here, it's been sort of the opposite. The prosecutors have been quiet, but the government officials haven't, and that is going to taint the jury pool for sure.
Is jury nullification possible in federal court?
It is, but you can't explicitly argue it. So, it's one of those things where, for those who may not know, jury nullification is the idea that a jury can do whatever it wants.
And sometimes a jury will vote not guilty, even if the evidence supports guilt, because jurors don't feel that this defendant should be prosecuted with this crime. I don't see the Judge Dugan case as one where nullification would ever happen. It won't happen. There's zero chance that would happen. You're not going to get 12 jurors who are pro-Hannah Dugan supporters who are going to just nullify this jury. You might get some, but you got to have all 12 in favor of acquittal or not or guilty. And I don't see that happening on a nullification angle.
In order to convict or acquit Dugan, you need a unanimous jury. Do you anticipate that, or do you think that there could ever be a hung jury in this circumstance?
This won't be a case of a hung jury, in my opinion. I mean, obviously any case could be, but I don't see that happening here. I think this is one where they're going to strike a plea deal and plead it out. But if they don't, I think you're just going to have the jurors being able to make a decision here with the evidence that they're presented with. It doesn't appear to be a complicated case where I could see the jurors having a lot of doubt about what happened.
So, Wednesday [Nov. 26] is going to be the final pretrial in the case. Until when do you think the parties could strike a plea deal?
They could strike a plea deal up to the morning of trial, and that does sometimes happen even in federal court. I think more likely than not, this is not going to be like a last minute, you know, day-of-trial negotiation. This is one where I think you'll have an idea by the final pretrial if it's going to settle.
