Convoluted Brian

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Dirty Rotten Prosecutor Tricks

Occasionally a case of severe prosecutor misconduct rises to the top of the American attention well.

The Duke University students who were wrongfully prosecuted by Durham County, North Carolina, District Attorney Mike Nifong gathered much press attention. The big mistake that Nifong made was in attempting to railroad young men who had the financial ability to defend themselves. I’m sure that lesson will not be lost on other prosecutors.

In the short attention span of the public and press, this was treated with the shock it deserved. But, the fact that this kind of behavior is commonly applied to poor young males was ignored.

But, even experienced adults in our society get nailed with terrible behavior by prosecutors.

In 2007, behaviors of Dane County Assistant District Attorney Paul Humphrey that were below and beyond rotten were publicly exposed.

Among the actions of Humphrey were

• Keeping an innocent young man with no criminal history in jail for over a month while knowing the man had committed no crime.

• Withholding evidence and lying to a judge about the withholding.

• Undermining accused persons with false allegations (too common among prosecutors and police).

• Attempting to imprison a man for failing to pay child support a year while the man was paying support and making up arrears. The father had been forced to file for bankruptcy after a long illness.

• Arresting and charging witnesses for not showing up at canceled court sessions.

In 1992, Humphrey confiscated horses form a man who was never charged with a crime. He turned these horses over to the Dane County Humane Society. Some Humane Society members profited greatly from these gift horses. One horse died as the result of treatment by the Madison, Wisconsin Humane Society.

Humphrey was an employee not an elected official, yet the elected district attorneys overlooked his record of playing fast and loose during his employment. Dane County District Attorney Brian Blanchard defended Humphrey’s actions after these behaviors were made public.

He is not the only rotten apple in the Wisconsin prosecutor barrel.

Former Winnebago County Prosecutor Joe Paulus’ actions have repercussions that are likely to continue into the far future. His manipulations of evidence and testimony are still largely hidden partly due to destroyed files. These files were destroyed by Winnebago County Judge Thomas Gritton when he worked for the Winnibago county prosecutor’s office. Paulus has several very questionable convictions including the dubious conviction of John Maloney as part of his legacy. The Maloney case also highlights the impotence of the Wisconsin Supreme Court when it comes to right the terrible consequences of misadministered justice by prosecutors who are criminals themselves.

I found an example while researching that left me frightened and amazed. This was not only because such a blatant underhanded tactic was used by a prosecutor, but also because Wisconsin Supreme Court gave a tacit blessing to the obnoxious behavior.

This case started in 1993. John A. Lettice was charged with sexually assaulting his three‑year‑old daughter. The complaint was brought by Mrs. Lettice during divorce manipulations.

Steve Lucareli was the Vilas County District Attorney and Dennis Burgy was the defense attorney.

The minor had been interviewed by psychologist Dr. Gina Koeppl at the request of Lucareli. First, the interviews with the three‑year‑old were unremarkable. But, Lucareli insisted that the child be interviewed several more times in his zeal to prosecute a sex case. Finally, the child figured out what was wanted and stated she had been molested, but by someone other than her father.

Naturally, this was unacceptable to Lucareli. He invested his energy to get a conviction and insisted on repeated interviews with the child hoping to coerce her into becoming a victim. When he finally got something, it was not what he wanted.

Burgy asked for an in chambers review of the interviews which clearly demonstrated that his client was innocent. The judge ruled that the interviews were not confidential medical records. Burgy then moved to admit a one page of Koeppl’s report that showed the girl was molested by someone other than his client. The request was granted. Prosecutor Lucareli was present.

The Friday before the trial, which was scheduled for Monday, Lucareli served the defense attorney with a criminal complaint for disclosing medical records. Lucareli then moved to have Burgy and his associates removed from the case; thus, eviscerating the defendant.

The defendant elected to retain Burgy, and the judge refused to remove Burgy from the case.

The jury found Lettice guilty despite the lack of evidence. Burgy admitted that the felony charge against him hampered his ability to present the best case.

Two days after the trial, Lucareli dropped the charge against attorney Burgy.

Lettice filed for post conviction relief. The judge agreed that Lucareli’s misconduct deprived Lettice a fair trial and ordered a new trial. Lucareli appealed and the Court of Appeals upheld the trial court ruling; noting there was no probable cause to file the criminal charge against Burgy.

Lucareli waited three years to re‑file charges. In 1997, Lucareli brought the same charges against Lettice with the same lack of evidence in the first trial. The defense asked the charges be dismissed due to double jeopardy and the excessive delay in retrial. The trial court granted the request.

The State again appealed, and the Court of Appeals noted that Lucareli’s course of action was to deprive Lettice of counsel simply because Lucareli believed he would lose the case. And given the timing of Lucareli’s actions, Lettice did not know of the misconduct until after the trial. The Appeals Court upheld the dismissal of charges.

The State Bar filed a complaint against Lucareli based upon his is behaviors in Lettice I and Lettice II.

An Office of Lawyer Regulation referee decided that Lucareli’s original and belated charges against Attorney Burgy were OK. Lucareli claimed forgetfulness and that was his out. The Board appealed the decision to the Wisconsin Supreme Court which upheld the referee.

The finding was bizarre. Apparently, a prosecutor can deliberately file a false charge because he “forgot” about an earlier proceeding. The Court held that Lucareli truly believed that he had a viable case against the defense attorney even thought he dropped the charges as soon as the trial was complete. If any of us mere mortals claimed forgetfulness in a criminal case, we would be pilloried by this same court. Forgetfulness is not a defense.

A concern is the attempt by Lucareli to coerce a young child into becoming a victim and a witness. The repeated interviews with the child were only to gain incriminating statements against her father. After multiple sessions, the three‑year‑old figured out what the interrogator wanted and stated some other person had done something.

And why is it forgivable for a prosecutor to forget such a key piece of exonerating evidence? For that matter, why wasn’t the case dismissed by the judge? And, the person who filed the false complaint got away with her crime.

What expectations do we have for a prosecutor? Is it reasonable that the prosecutor demand repeated interviews with a child in hopes of coercing the child into a victim? Is it reasonable behavior to prosecute fathers because a woman raises the cry of child sex abuse during custody proceedings? Is it reasonable for a prosecutor to sandbag a defense attorney because the prosecutor fears losing a case?

It is unbelievable that the Wisconsin Supreme Court blessed this kind of behavior. But, the Wisconsin legal system is heavily weighted toward conviction rather than determining truth. It was clear the Lucareli wanted to convict this innocent man without any evidence. One way is to intimidate the defense with a felony warrant for the defense attorney. This also impoverishes defendants by stealing money that was already used for their defense. And since the prosecution is responsible for presenting facts, it is simply impermissible for the excuse of “I forgot” to be a mitigating factor.

Unlike the State, most defendants do not have bottomless pockets. We mere mortals are at the mercy of predatory prosecutors. The proof of the pudding is that those defendants who have the money to defend themselves and pay for good investigators do quite well at trial. The rest of us get beaten and all too often plea to a nonexistent crime or despite innocence.

A consequence of this horrible ruling for Lucareli occurred in State of Wisconsin vs. Thomas J. Enders. In 1998 Enders was charged with one felony and two misdemeanor theft by fraud. The date of the offense was 16 January, 1999. Mary Lou Robinson was his attorney.

On the same date as charges were filed against Enders, Outagamie Prosecutor Vince Biskupic, a former employee of Joe Paulus, brought charges against Defense Attorney Robinson. There was one felony charge of theft and a misdemeanor of resisting an officer.
The charge stemmed from employees of Enders using company trucks to continue their employment. Robinson is a very good defense attorney. Too good for Biskupic’s assistant prosecutors.

Enders, with a different attorney, eventually pleaded no contest to the charges and received a five year suspended sentence.

Robinson went to trial and was found not guilty by a jury on 5 September, 2000.

In July, 2005, Winnebago County Assistant Prosecutor Michael Balskus tried a new wrinkle on this scam. After Balskus was caught withholding evidence from the defense, he moved to have the defense attorney and himself removed from the case so it could start anew. Judge Thomas Gritton denied the motion and Balskus could not meet the trial date. The case was dismissed.

It is a credit to many Wisconsin prosecutors that they have not repeated this repugnant behavior. But, if they did, the Wisconsin Supreme Court has blessed this reprehensible conduct by elected officials.

The OLR referee is presently whitewashing the actions of Paul Humphrey just as the referee in the Lucareli complaint minimized behaviors that are criminal for the rest of us. We will see whether the Justices of the Wisconsin Supreme Court continue to allow this kind of thuggery.


references

by Brian McCorkle
posted on 2 February, 2008 at 10:50 am
in category Rants

In 1993, Vilas County Prosecutor Steve Lucareli came up with a novel way to win as case. He filed felony charges against the defense attorney just before the beginning of a trial and then wanted the defense attorney removed so Lucareli could get a delay.

The Wisconsin Supreme Court condoned this.



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