Making a Murderer-related Legal Developments Shine Light on Indecent Zeal Against Innocents

One hopes for justice against dirty cops
such as Manitowoc County Sheriff'
Lt. James Lenk. Lenk infamously
"found the (incriminating) keys to
(murder victim) Halbach's vehicle inside
Avery's bedroom in plain view after
officers from Calumet County,
the state Division of Criminal Investigation
and Two Rivers Police Department
apparently did not see them in previous
searches," (Appleton Post-Crescent).
Now, a "'never-before-seen video'
shows that evidence against
the subject of the hit documentary
Making a Murderer must have been
planted or fabricated, defense
attorney Kathleen Zellner tells
Newsweek."

Police and prosecutors routinely lie

Madison, Wisconsin—The 2015 Making a Murderer film series, (Ricciardi, Demos), is graphic and shocking to the millions who binge-watched this profound chronicling of the criminal justice system.

Even rightwingers who watched east-central Wisconsin cops and prosecutors consciously pursue the conviction of two innocent people, Steven Avery and Brenden Dassey, acknowledge two points made in the powerful documentary, Making a Murderer.

One truism is former Calumet, (Wisconsin), District Attorney and sex offender, Ken Kratz, is human garbage who ought not to be practicing law. Kratz is still practicing law in Wisconsin.

Secondly, 16-year-old  Brendan Dassey is an innocent who was pursued by cops who with malice aforethought, and who presented a murder confession they know to be false.

This month Dassey lost a federal appeal overturning a federal court's decision to free him in a bitterly decided four-to-three opinion. Dassey's last hope is the United States Supreme Court hears his case. Notes Judge Ilana Kara Diamond Rovner, in her dissenting opinion on the Seventh Circuit: "Even under our current, anachronistic understanding of coercion, Dassey’s confession was so obviously and transparently coercively obtained that it is unreasonable to have found otherwise."

Unreasonable-and-indecent is the nature of the American criminal justice system. It is a horror show and it never ends as a depoliticized public tunes out and becomes a collective by-stander.
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A new development in the legal appeal for Steven Avery by criminal defense attorney, Kathleen Zellner, comes before Christmas 2017.

Zellner filed several videos with the Wisconsin Court of Appeals, District II on Dec. 15, 2017. The second state appellate district is composed of three rightwing judges, (and one honest judge), who can be expected to rule against innocent defendants like Avery. This is Wisconisn.

Reports Newsweek Magazine:

One of the videos shows an experiment where Zellner tried to re-create the chain of events police and prosecutors said led them to find a key belonging to Avery’s victim near a bookshelf in his bedroom after they had searched the room multiple times. Another of the videos shows a blood spatter experiment, during which Zellner and her team dripped blood on and inside a car to disprove a central prosecutorial theory.

'It shows the case is a complete fraud,' Zellner told Newsweek, referring to the bookshelf experiment. 'I don’t know how long this case will take me, but it’s going to fall apart.'

Justice does not exist. People like Zellner and many others impose it.

Judge Alex Kozinski on Prosecutorial Misconduct

Judge Alex Kozinski of the U.S. Court of
Appeals for the 9th Circuit, (official photo).

Did the government react in horror at having been caught with its hands in the cookie jar? Did Justice Department lawyers rend their garments and place ashes on their head to mourn this violation of their most fundamental duty of candor and fairness? No way, no how. Instead, the government argued strenuously that its ill-gotten conviction should stand because boys will be boys and the evidence wasn’t material to the case anyway.
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Eugene Volokh in the Washington Post offers remarks on the most American of derangement and inhumanity: the Police-prosecutor state.

Prosecutors from the United States Attorneys' offices to county district attorneys to municipal attorneys' offices are left unchecked with near-absolute power to cite with civil citations, prosecute, financially ruin and destroy lives under the color of law.

This near-absolute power does tend to corrupt nearly always.

Critical reading; notes Volokh:

... I began serializing “Criminal Law 2.0,” a new article by Judge Alex Kozinski — for whom I clerked 20 years ago, who is one of our nation’s most prominent appellate judges and has long been seen as on balance a libertarianish conservative (appointed by President Ronald Reagan). The introduction gave 12 reasons to worry about our criminal justice system; Wednesday’s post discussed wrongful convictions; yesterday’s post discusses the jury system, and ways to improve it; today’s post discusses prosecutorial misconduct; and I’ll post other parts of the article in the days to come. I’ve added some paragraph breaks and removed the footnotes (which are available in the PDF version), but otherwise this is as Judge Kozinski wrote it. [Writes Kozinski]:

Prosecutors hold tremendous power, more than anyone other than jurors, and often much more than jurors because most cases don’t go to trial. Prosecutors and their investigators have unparalleled access to the evidence, both inculpatory and exculpatory, and while they are required to provide exculpatory evidence to the defense under Brady, Giglio, and Kyles v. Whitley, it is very difficult for the defense to find out whether the prosecution is complying with this obligation.

Prosecutors also have tremendous control over witnesses: They can offer incentives — often highly compelling incentives — for suspects to testify. This includes providing sweetheart plea deals to alleged co-conspirators and engineering jail-house encounters between the defendant and known informants.

Sometimes they feed snitches non-public information about the crime so that the statements they attribute to the defendant will sound authentic. And, of course, prosecutors can pile on charges so as to make it exceedingly risky for a defendant to go to trial. There are countless ways in which prosecutors can prejudice the fact-finding process and undermine a defendant’s right to a fair trial.

This, of course, is not their job. Rather, as the Supreme Court has held, '[A prosecutor] is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.'

All prosecutors purport to operate just this way and I believe that most do. My direct experience is largely with federal prosecutors and, with a few exceptions, I have found them to be fair-minded, forthright and highly conscientious.

But there are disturbing indications that a non-trivial number of prosecutors — and sometimes entire prosecutorial offices — engage in misconduct that seriously undermines the fairness of criminal trials. The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.

Prosecutorial misconduct is a particularly difficult problem to deal with because so much of what prosecutors do is secret. If a prosecutor fails to disclose exculpatory evidence to the defense, who is to know? Or if a prosecutor delays disclosure of evidence helpful to the defense until the defendant has accepted an unfavorable plea bargain, no one will be the wiser. Or if prosecutors rely on the testimony of cops they know to be liars, or if they acquiesce in a police scheme to create inculpatory evidence, it will take an extraordinary degree of luck and persistence to discover it — and in most cases it will never be discovered.

There are distressingly many cases where such misconduct has been documented, but I will mention just three to illustrate the point. The first is United States v. Stevens, the prosecution of Ted Stevens, the longest serving Republican Senator in history.

Senator Stevens was charged with corruption for accepting the services of a building contractor and paying him far below market price — essentially a bribe. The government’s case hinged on the testimony of the contractor, but the government failed to disclose the initial statement the contractor made to the FBI that he was probably overpaid for the services. The government also failed to disclose that the contractor was under investigation for unrelated crimes and thus had good reason to curry favor with the authorities.

Stevens was convicted just a week before he stood for re-election and in the wake of the conviction, he was narrowly defeated, changing the balance of power in the Senate. The government’s perfidy came to light when a brave FBI agent by the name of Chad Joy blew the whistle on the government’s knowing concealment of exculpatory evidence.

Did the government react in horror at having been caught with its hands in the cookie jar? Did Justice Department lawyers rend their garments and place ashes on their head to mourn this violation of their most fundamental duty of candor and fairness? No way, no how. Instead, the government argued strenuously that its ill-gotten conviction should stand because boys will be boys and the evidence wasn’t material to the case anyway.

It was only the extraordinary persistence and the courageous intervention of District Judge Emmet Sullivan, who made it clear that he was going to dismiss the Stevens case and then ordered an investigation of the government’s misconduct that forced the Justice Department to admit its malfeasance — what else could it do? — and move to vacate the former senator’s conviction. Instead of contrition, what we have seen is Justice Department officials of the highest rank suffering torn glenoid labrums from furiously patting themselves on the back for having 'done the right thing.' ...

I have never heard a prosecutor of any variety say of the wrongfully convicted, the wrongfully fined: Something must be done, an innocent has suffered.

Proven Sex Offender: Ken Kratz

Ken Kratz, an ethics-free attorney fit for the movies. Kratz's
unprofessional behavior didn't stop after he sexually harassed an
abuse victim in 2009, (Long, She Knows.com). Image Netflix

Ken Kratz to a domestic abuse crime victim: "Are you the kind of girl that likes secret contact with an older married elected DA . . . the riskier the better?"

On October 22, 2009, Attorney Kratz sent S.V.G. eight more messages, telling her that she was "beautiful," "pretty," that "I'm the atty. I have the $350,000 house. I have the 6 figure career. You may be the tall, young, hot nymph, but I am the prize! Start convincing," and that "I would not expect you to be the other woman. I would want you to be so hot and treat me so well that you'd be THE woman.  R U that good?"

Anything that Kratz says today should considered in light of who he is, an ethics-free attorney so bad even the Office of Lawyer Regulation recommended a suspension of his license to practice law and a $ five-figure fine:
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The Special Prosecutor Ken Kratz (former Calumet County (WI) DA) who was part of the unsavory bunch in law enforcement who railroaded Steven Avery and Brendan Dassey is a piece of work.

Below is an excerpt from the June 6,  2014 opinion of the Supreme Court of Wisconsin (Wisconsin Office of Lawyer Regulation, Complainant): "In the Matter of Disciplinary Proceedings Against Kenneth R. Kratz, Attorney at Law." The opinion reads in part (with emphasis added): 

"¶5 The disciplinary complaint before us, filed by the Office of Lawyer Regulation (OLR) on November 30, 2011,1 involves allegations that Attorney Kratz sent inappropriate text messages to a domestic abuse crime victim, S.V.G., while serving as the prosecutor of the perpetrator of the domestic abuse crime.  The complaint further alleges that Attorney Kratz made inappropriate verbal statements to two social workers with the Calumet County Human Services Department, S.S. and R.H.  This course of behavior served as the basis of six counts of misconduct, to which Attorney Kratz has pled no contest.

¶6 The OLR's complaint included an additional five counts of misconduct.  One of those counts concerned Attorney Kratz's text messages to S.V.G.; the remaining four counts alleged that Attorney Kratz engaged in inappropriate behavior toward two additional women, J.W. and M.R.  The OLR moved for, and the referee granted, the dismissal of three of these five counts on June 14, 2012, a few days before the start of the disciplinary hearing on June 19, 2012.  The OLR moved for, and the referee granted, the dismissal of the other two counts at the outset of the disciplinary hearing.  Attorney Kratz entered no contest pleas to the remaining six counts. 

¶7 Of the six counts of misconduct to which Attorney Kratz pled no contest, three counts concern S.V.G. According to the OLR's complaint, on August 12, 2009, Attorney Kratz, while serving as Calumet County District Attorney, filed a felony criminal complaint against S.R.K. of Kaukauna, Wisconsin. According to the complaint, S.R.K. beat and strangled S.V.G., a former live-in partner and mother of S.R.K.'s child. The complaint charged one felony count of strangulation and suffocation (pursuant to Wis. Stat.  § 940.235(1)) and one count of disorderly conduct (pursuant to Wis. Stat. § 947.01).

¶8 Shortly after the preliminary hearing in this matter, S.V.G. met with Attorney Kratz alone in a conference room at the district attorney's office.  S.V.G. requested the meeting, exercising her right to consult with the district attorney "concerning the disposition of a case involving a crime of which he or she was a victim . . . ."  See Wis. Stat. § 950.04(1v)(zm) (2009-10). 

¶9 During the meeting, S.V.G. volunteered personal information to Attorney Kratz, stating that she did not have a current boyfriend, that she suffered from low self-esteem, that she lived with her mother, and that she was struggling as a single mother. 

¶10 According to S.V.G., she understood during her meeting with Attorney Kratz that he would be prosecuting S.R.K.  S.V.G. also relayed details of her relationship with S.R.K., and indicated that S.R.K. had previously abused her, including beatings and strangulation.  Attorney Kratz asked S.V.G. if she objected to reducing the felony charge to a misdemeanor.  S.V.G. objected to the suggestion.  At the conclusion of the meeting, Attorney Kratz and S.V.G. exchanged cell phone numbers. 

¶11 After S.V.G. left Attorney Kratz's office, Attorney Kratz began texting S.V.G. from his personal cell phone.  Attorney Kratz sent her three messages on October 20, 2009, the same day they met, his last message stating, "I wish you weren't one of this office[']s clients.  You'd be a cool person to know!" 

¶12 On October 21, 2009, Attorney Kratz sent S.V.G. 19 messages, including asking her: "Are you the kind of girl that likes secret contact with an older married elected DA . . . the riskier the better?  Or do you want to stop right know [sic] before any issues?" 

¶13 On October 22, 2009, Attorney Kratz sent S.V.G. eight more messages, telling her that she was "beautiful," "pretty," that "I'm the atty.  I have the $350,000 house.  I have the 6 figure career. You may be the tall, young, hot nymph, but I am the prize!  Start convincing," and that "I would not expect you to be the other woman.  I would want you to be so hot and treat me so well that you'd be THE woman.  R U that good?" 

¶14 According to S.V.G., Attorney Kratz's personal overtures were unwelcome and offensive, and she was concerned that if she failed to respond to Attorney Kratz, he might take action with respect to the case against S.R.K. that could potentially adversely affect S.V.G. 

¶15 On October 22, 2009, S.V.G. reported Attorney Kratz's text messages to the Kaukauna Police Department. 

¶16 After photographing the text messages on S.V.G.'s telephone and taking S.V.G.'s statement, the Kaukauna Police Department referred the matter to the State of Wisconsin Department of Justice (DOJ). 

¶17 After reviewing the text messages and the report of the Kaukauna Police Department, the DOJ determined that there had not been any criminal activity.  Nonetheless, DOJ representatives strongly suggested to Attorney Kratz that he step aside from the prosecution of S.R.K. and self-report his conduct to the OLR. 

¶18 Attorney Kratz facilitated the appointment of a special prosecutor to take over the S.R.K. case.  Attorney Kratz also agreed to resign as chairman of the Wisconsin Crime Victims' Rights Board. 

¶19 In a December 4, 2009 letter to the OLR that included the transcribed messages to and from S.V.G., Attorney Kratz admitted that he sought a personal "friendship" with S.V.G.  He expressed regret and embarrassment for his conduct and admitted that he had violated S.V.G.'s trust.  Attorney Kratz also noted that he was undergoing therapy "to answer why a career prosecutor, with a spotless record and sterling reputation, would risk his professional esteem on such a disrespectful communication with a crime victim." 

¶20 On September 15, 2010, the Associated Press published a story regarding Attorney Kratz's text messages to S.V.G.  Attorney Kratz issued a statement admitting that he sent the texts and was embarrassed at his lack of judgment. 

¶21 On September 17, 2010, the executive committee of the Wisconsin District Attorneys Association issued a letter to Attorney Kratz calling for his resignation. 

¶22 After then-Governor James Doyle initiated removal proceedings against him pursuant to Chapter 17 of the Wisconsin Statutes, Attorney Kratz resigned his position as Calumet County District Attorney on October 4, 2010. 

¶23 Two counts of the OLR's complaint involve Attorney Kratz's verbal statements to S.S., a social worker with the Calumet County Human Services Department. 

¶24 In October of 2009, Attorney Kratz prosecuted a termination of parental rights case in which S.S. was a witness. Prior to testifying, S.S. commented to Attorney Kratz that she was nervous about testifying. In response to S.S.'s concerns, Attorney Kratz stated to S.S. that he "won't cum in your mouth." Later that day Attorney Kratz remarked to S.S. that he wanted the trial to be over because he was leaving on a trip to Las Vegas, where he could have "big boobed women serve me drinks." 

¶25 One count of the OLR's complaint involves Attorney Kratz's verbal statement to R.H., also a social worker with the Calumet County Human Services Department.  During a court proceeding, Attorney Kratz commented in court to R.H. that a reporter had "big beautiful breasts." 

¶26 On the first day of the scheduled disciplinary hearing in this matter, Attorney Kratz entered pleas of no contest to six counts of misconduct stemming from his behavior toward S.V.G., S.S., and R.H.  The referee found that an adequate factual basis existed on each of the six counts, and accepted the no contest pleas. 

¶27 The referee concluded that, by seeking a personal relationship with S.V.G., a domestic abuse crime victim and witness, while serving as the prosecutor of the perpetrator of the domestic abuse crime, thereby creating a significant risk that the representation of the State of Wisconsin would be materially limited by his own personal interests, Attorney Kratz engaged in a concurrent conflict of interest in violation of  SCR 20:1.7(a).2 ...
SCR 20:1.7(a) Except as provided in par. (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: 

(1) the representation of one client will be directly adverse to another client; or 

¶28 The referee also concluded that, by seeking a personal relationship with S.V.G., a domestic abuse crime victim and witness, and by sending her text messages carrying sexual overtones, while prosecuting the perpetrator of the domestic abuse crime, Attorney Kratz engaged in offensive personality, in violation of SCR 20:8.4(g)3 and SCR 40.15.4 

¶29 The referee also concluded that, by sending  deliberate, unwelcome, and unsolicited sexually suggestive text messages to S.V.G., a domestic abuse crime victim and witness, while prosecuting the perpetrator of the domestic abuse crime,

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. 

3 SCR 20:8.4(g) states it is professional misconduct for a lawyer to "violate the attorney's oath; . . . ." 

4 SCR 40.15, "Attorney's oath," states, in pertinent part: 

 The oath or affirmation to be taken to qualify for admission to the practice of law shall be in substantially the following form:  

. . . .  

I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; . . . . 

Attorney Kratz harassed S.V.G. on the basis of her sex, in violation of SCR 20:8.4(i).2 

¶30 The referee also concluded that, by stating to S.S., a Calumet County social worker and witness in a termination of parental rights case, that he "won't cum in your mouth" and that he wished the trial to be over because he was traveling to Las Vegas where he could have "big boobed women serve me drinks," and by making these comments while acting in his capacity as Calumet County District Attorney, Attorney Kratz engaged in offensive personality in violation of SCR 20:8.4(g) and SCR 40.15. 

¶31 The referee also concluded that, by stating to S.S., a Calumet County social worker and witness in a termination of parental rights case, that he "won't cum in your mouth" and that he wished the trial to be over because he was traveling to Las Vegas where he could have "big boobed women serve me drinks," and by making these comments while acting in his capacity as Calumet County District Attorney, Attorney Kratz harassed S.S. on the basis of her sex, in violation of SCR 20:8.4(i). 

¶32 Finally, the referee concluded that, by making a comment during a court proceeding to R.H., a Calumet County social worker, that a reporter had "big beautiful breasts," and by making this comment while acting in his capacity as Calumet County District Attorney, Attorney Kratz engaged in offensive personality, in violation of SCR 20:8.4(g) and SCR 40.15. 

¶33 At the June 19, 2012 disciplinary hearing, the referee heard testimony and received exhibits on the issue of the appropriate discipline.  The referee also received post-hearing briefing on the subject. 

¶34 In its post-hearing brief, the OLR argued that 

Attorney Kratz's license should be suspended for six months.  The OLR emphasized that Attorney Kratz's conduct involved multiple women, all of them in vulnerable or subordinate positions.  The OLR argued that Attorney Kratz did not intend to remove himself as prosecutor in the S.V.G. matter until DOJ officials asked him to do so after S.V.G. reported his actions to the police.  The OLR also argued that Attorney Kratz refused to take responsibility for his offensive statements to S.S. and R.H.  The OLR further argued that because Attorney Kratz blamed his misconduct on various addictions yet offered no competent medical testimony that he had recovered from his addictions, a six-month suspension would be appropriate given that it would require him to petition the court for reinstatement under 

SCR 22.28(3).3 

¶35 In his post-hearing brief, Attorney Kratz argued that a public reprimand was warranted.  In support of his argument that a license suspension was not warranted, Attorney Kratz downplayed the seriousness of his misconduct toward S.V.G., S.S., and R.H. 

¶36 Regarding his texts to S.V.G., Attorney Kratz admitted they constituted wrongful behavior, but "disagree[d] with the OLR's characterization that the messages contained 'sexual overtones' (as no message included one single sexually explicit term, nor was any sexual conduct or sex act ever suggested)."  

Attorney Kratz also described his conduct upon learning that S.V.G. objected to his texts as praiseworthy.  He wrote: 

Shape[U]pon even the hint of a conflict of interest, or reports of unsettling reaction by [S.V.G.], immediate steps were taken to eliminate even the perception of continued violation; timely self-report to the OLR for imposition of sanction (if required); and aggressive steps to ensure this stupidity never, ever repeated itself.  That is the attorney response that this Court should praise, rather than punish. 

¶37 Regarding his verbal comments to social worker S.S. that he "won't cum in [her] mouth" and looked forward to having "big boobed women serve [him] drinks," Attorney Kratz wrote that he "recognized the disrespectful phrase used, and apologized to the Social Worker at the first opportunity." 

Shape¶38 Regarding his statement to social worker R.H. that a "reporter"4 had "big beautiful breasts," Attorney Kratz wrote in his post-hearing brief that this comment "never occurred."  Attorney Kratz argued that "the reporter referred to, although admittedly beautiful, does NOT have large breasts . . . this single important factor has been relied upon by Respondent to conclude the comment never was made, or at the very least, [was] misinterpreted by [R.H.]."  Attorney Kratz conceded, however, that "given the posture of this case, the tribunal is free to include the facts of the [R.H.] comment, and provide it such weight in the sanctions recommendations as deemed necessary." 

¶39 As a mitigating factor, Attorney Kratz wrote in his post-hearing brief that at the time of the events in question, he "suffered from the combination of Sexually Compulsive Disorder (SCD) and prescription drug dependence"——conditions for which he has sought treatment.  He also claimed that he wanted 

"to settle the case" early in the disciplinary process, but the OLR refused to do so, in part because it is "apparently more concerned with how 'they look' in the zealous pursuit of an attorney 'pelt,' rather than what result 'should' be reached." ¶40 On July 30, 2012, the referee filed a report and recommendation.  In considering the appropriate discipline, the referee weighed various aggravating and mitigating factors. 

¶41 The referee noted as aggravating factors that Attorney Kratz acted with a selfish motive; that S.V.G. was a vulnerable victim; and that Attorney Kratz's misconduct was particularly inexcusable in light of his considerable legal experience and his previous leadership on issues pertaining to victims' rights. 

¶42 The referee assigned neutral weight to 

Attorney Kratz's self-report to the OLR of his misconduct involving S.V.G.  The referee wrote that "at the time of the respondent's self-report, the cat was already out of the bag, so to speak.  S.V.G. had gone to the police, the police had contacted the Wisconsin Department of Justice, and that agency urged the respondent to self-report to the OLR."  The referee found that these circumstances "significantly undercut any claim of virtuousness by self-reporting." 

¶43 The referee noted a variety of mitigating factors, which, in summary fashion, are as follows:  Attorney Kratz has no prior disciplinary history; he apologized to S.S. for his vulgar comment shortly after making it; he has never attempted to justify or defend his conduct toward S.V.G.; he cooperated with the disciplinary proceedings; he previously enjoyed a good professional reputation and engaged in significant volunteer activities within the legal profession; he has been diagnosed with and sought treatment for narcissistic personality disorder and sexual addiction; he was abusing the sleeping aid Ambien, the painkiller Vicodin, and the anti-anxiety drug Xanax at the time of the misconduct; he subsequently sought treatment for his substance abuse issues; he voluntarily obtained a mentor attorney through the State Bar's Wisconsin Lawyer Assistance 

Program (WisLAP), who reported being impressed with Attorney Kratz's character and commitment to recovery; and he had suffered substantial collateral consequences from his misconduct, including considerable negative publicity, the loss of his district attorney position, and significant financial difficulties. 

¶44 After weighing these aggravating and mitigating factors, the referee recommended that Attorney Kratz's license to practice law should be suspended for a period of four months.  In support of his recommendation for a lighter sanction than that proposed by the OLR, the referee emphasized the number and weight of the mitigating factors in this case.  The referee also suggested that a four-month suspension was consistent with the discipline imposed in two cases that he believed were particularly analogous to this case. In re Disciplinary Proceedings Against Beatse, 2006 WI 115, 297 Wis. 2d 292, 722 N.W.2d 385 (assistant district attorney publicly reprimanded for having spent numerous hours viewing pornography on his work computer, lied about the source of the pornography and the extent of his viewing, used the state's e-mail system to send and receive sexually explicit e-mail messages, and made inappropriate comments to a county employee in a work environment); In re Disciplinary Proceedings Against Ridgeway, 158 Wis. 2d 452, 462 N.W.2d 671 (1990) (assistant state public defender suspended for six months for having initiated and engaged in sexual contact with a client he was representing as a public defender, and for having encouraged that client to violate the terms of her probation by providing her with alcoholic beverages). 

¶45 No appeal has been filed, so this matter is submitted to the court pursuant to SCR 22.17(2).5  We affirm a referee's findings of fact unless they are found to be clearly erroneous. 

In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 2d 71, 740 N.W.2d 125.  We review the referee's conclusions of law on a de novo basis.  Id.  We determine the appropriate level of discipline given the particular facts of each case, independent of the referee's recommendation, but benefiting from it.  In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. 

¶46 After reviewing the record, we conclude that the referee's factual findings are supported by the record, and we adopt them.  We also adopt the referee's conclusion that Attorney Kratz committed the six counts of misconduct described above. 

¶47 With respect to the appropriate level of discipline, we agree with the referee that a four-month suspension is necessary discipline for Attorney Kratz's misconduct in this matter.  Attorney Kratz's conduct toward S.V.G. was appalling.  Through a series of wheedling text messages, Attorney Kratz attempted to convince S.V.G., a domestic abuse crime victim and witness, to enter into a sexual relationship with him while he was prosecuting the perpetrator of the domestic crime.  S.V.G. felt leveraged by Attorney Kratz's sexual entreaties; she feared that if she failed to respond to him, he might take action in her domestic abuse case that could potentially adversely affect her.  This was exploitative behavior, harassing behavior, and a crass placement of his personal interests above those of his client, the State of Wisconsin.  Attorney Kratz's comments to social worker S.S. while she served as a witness in one of his cases——that he "won't cum in [her] mouth" and looked forward to "big boobed women" serving him drinks in Las Vegas——crossed the line separating the unprofessional from the acutely offensive and harassing.  Attorney Kratz's statement to social worker R.H. during a court proceeding, in which he voiced approval of a reporter's "big beautiful breasts," was sufficiently boorish as to constitute misconduct.  In short, whatever his qualities and accomplishments as a lawyer, Attorney Kratz proved himself during the period in question to be sanctionably sophomoric. 

¶48 Attorney Kratz has rationalized his poor behavior by confessing to various addictions:  to Ambien, to Vicodin, to Xanax, and to sex, though he fails to point to either medical records or expert medical testimony that would explain the exact nature and severity of his conditions, or how they may have affected his ability to conform his behavior to ethical rules.  But regardless of how we view Attorney Kratz's behavior——as an involuntary byproduct of addiction, or as a willful blindness to professional standards——the ugly picture painted by the record remains the same.  The recommended four-month suspension is deserved.6  

¶49 We turn next to the issue of costs.  The OLR filed its statement of costs on August 20, 2012, listing $23,904.10 in costs.  Supreme Court Rule 22.24(2) required Attorney Kratz to file any objection to the OLR's statement of costs within 21 days after service——or on or about September 10, 2012.  On November 14, 2012——over two months past the deadline—— Attorney Kratz filed an objection to the statement of costs, along with a motion asking the court to accept his late filing.  

Attorney Kratz offered no explanation for the lateness of his filing. 

¶50 We reject Attorney Kratz's unexcused late filing.  Our deadlines are not mere suggestions.  Filing documents with this court over two months late with no semblance of a reasonable excuse has its consequences.  As the Seventh Circuit has explained: 

We live in a world of deadlines.  If we're late for the start of the game or the movie, or late for the departure of the plane or the train, things go forward without us.  The practice of law is no exception.  A good judge sets deadlines, and the judge has a right to assume that deadlines will be honored. 

ShapeSpears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir. 1996). 

¶51 Even if we were to consider Attorney Kratz's objection to costs on its merits, it falls well short of convincing us to impose anything other than full costs.  If anything, Attorney Kratz's untimely objection to costs hurts more than it helps his cause. 

¶52 In his untimely objection, Attorney Kratz insists that he should pay no costs whatsoever.  The OLR asks us to impose full costs consistent with our standard practice under 

SCR 22.24(1m).7 ..."

Person of Interest Hits Wrongfully Convicted for Serving in U.S. Military

Update: Shortly after this post appeared Glenda Johnson took down her comments in a Facebook response (Dec. 15; 7:01 p.m.) to a WKOW-TV (Madison) report. Ms. Johnson's over-heated response indicates a person who really wants this case closed for good, and she remains a suspect whose home the victim was heading before her body was found some two weeks later.
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The day after a press conference this week announcing a $10,000 reward for information leading to the conviction of the person responsible for the 1994 killing of Sarah Gonstead in Madison, a person of interest in a private investigator's probe has come forward and stated she is "100% positive the right person is behind bars."

Glenda Johnson said she bases her certainty in part on the fact that Penny Brummer, the wrongfully convicted, served her country in the United States Armed Forces.

Writes Johnson in a Facebook response (Dec. 15; 7:01 p.m.) to a WKOW-TV (Madison) report by WKOW journalist, Matt Cash: "She [Penny] had her share of issues when she lived in California. She was in the military... A MP. Plus.... I am 100% positive the right person is behind bars ... ."

Penny Brummer did enlist in the Air Force right out of high school in 1987, and after basic training was transferred to Castle Air Force Base in California assigned to base security. She was honorably discharged in 1993, (Berry, p.14).

The full Facebook post by Ms. Johnson reads: "Well lets just say this... The facts on the [WKOW] page/link are wrong. They never made it back to the east side of Madison... Timeline doesn't add up. Last place they were seen together was 1.5 miles from where her body was found... Penny was a very controlling person.. She had her share of issues when she lived in California. She was in the military... A MP. Plus.... I am 100% positive the right person is behind bars. How many times do kids... Even adults lie to their parents. It's a ploy for money because the police have closed this case.... And Penny's mom says ... Penny wouldn't do it."

A reply to Johnson by a co-author of a detailed book on the homicide, by Sheila Berry, reads in full: "Glenda Johnson We have the police reports and the transcripts of everything -- initial appearance, preliminary, motions, trial and sentencing. It is clear from police reports that YOU raised the hue and cry that Sarah never made it to your house, before anyone knew she was missing. Did the police get that wrong? How about that 3 hour gap after you left work -- so upset -- but didn't go home? That's the same time frame when an independent witness saw someone dumping a bright pink "bundle" that turned out to be Sarah's body. As Shakspeare said, methinks the lady doth protest too much."

Why Glenda Johnson—who lived in the home to which Ms. Gonstead was last reported to have been intent on visiting—is so vested to see Penny Brummer behind bars and affirm the integrity of a clearly faulty police investigation is interesting, certainly pertinent to the 1994 criminal investigation.

The police quickly developed their theory and declined investigating leads disconfirming or not supporting their theory, (tunnel vision in the vernacular of criminal justice), and barely questioned Ms. Johnson. The Dane County District Attorney's office went along for the ride.

Sarah Gonstead was last seen on March 24, 1994. Her body was recovered on April 9, 1994 in Pine Bluff, an unincorporated community west of Madison. "In less than a week authorities had zeroed in on 24-year-old Penny Brummer. The last person to admit to seeing Gonstead alive after their night of binge drinking [together]," (Pabich, WMTV (Madison).

Notes author and attorney Sheila Berry on her website:

Witness David Zoromski, who reported seeing a suspicious man standing by the open passenger door of a parked pickup truck exactly where Sarah's body was later found, was told by a Dane County Sheriff's Deputy, 'What you saw is all very interesting, but we have a suspect and it doesn't fit.' The man seen by Mr. Zoromski matched the description of the person Penny said she saw Sarah talking to near the Taco Bell at East Washington Avenue and North Oak Street in Madison, after she dropped her off that night. Police identified him and knew he was a convicted felon with a long history of violence toward women -- but they never followed up on this lead.

The blood alcohol level in Sarah's liver suggests a time of death several hours after Penny was back at her Spring Green home, watching TV. 

The dearth of evidence and many facts do not fit, and do not support a conviction, and Penny Brummer remains in prison serving a life sentence.

Wisconsin Wrongful Conviction and a $10,000 Reward for At-large Killer

Advocates for Penny Brummer - Wrongfully Convicted in 1994

"Investigators can prematurely arrive at conclusions that are incorrect and then focus on information that supports those plots and conclusions and disregard other information that comes in that does not support those conclusions. That's a process called 'tunnel vision.' And it can and it does lead to conviction of the innocent. Penny [Brummer's] case features many of these same features."
—John Pray, Co-founder of the University of Wisconsin-Madison Innocence Project

Advocates of Penny Brummer are working to correct a 21-year-old injustice in the wrongful conviction of Penny Brummer.

Penny Brummer was convicted of killing Sarah Gonstead in 1994 despite no weapon, no forensic evidence, no motive, and literally no evidence of any kind tying Brummer to the undetermined crime scene.

The police investigation was replete with anti-lesbian bigotry playing a big part in Penny's conviction, and is a case study of confirmation bias. Several jurors expressed disapproval of lesbian and gay relationships in jury questionnaires.

Police investigators questioned Penny's co-workers about her body language, 'how she carried herself at work;' her persona apparently appearing unladylike behavior in an atavistic conception of gender types.

A $10,000 reward has been offered for information leading to the arrest and conviction of the killer of Sarah Gonstead murdered in 1994 for which Brummer was convicted and given a life sentence for first-degree intentional homicide.

Madison, Wisconsin media—WISC-TV (Madison), WKOW-TV (Madison)—and advocates for Brummer heavily covered the news of the $10,000 reward as a private investigator, Rikki Glen, continues an ongoing investigation

Rikki Glen, Penny's mother, Nancy Brummer, and John Pray of the Wisconsin Innocence Project held a press conference yesterday in front of the Dane County Courthouse.

"The evidence [in the Brummer case] was beyond, beyond thin," said Ms. Glen at the press conference.

The reward for the 21-year old conviction in Brummer v. Wisconsin comes as Dane County has made strides in combating LGBTQ bigotry, and after the win-convictions-for-reason-of-advancing-careers dynamic in the legal community in Wisconsin and Dane County resulted in incarcerations that shamed the criminal justice system.

"Today, we are a more enlightened community than 20 years ago, and Nancy Brummer, and advocates are optimistic that champions for truth will come forward and our community, police and prosecutors will stand up for truth and free Penny Brummer," said Glen.

Said John Pray of the Wisconsin Innocence Project at the press conference: 

It's been over 20 years since Penny Brummer has been convicted of the murder of Sarah Gonstead. It's a very long time and it's been a very difficult 20 years for Penny, for the family, and for her friends and many supporters. In 1994 when Penny was convicted this country was at the beginning of a revolution in the criminal justice system. This revolution was brought about by the first uses of DNA which led to the formation of the Innocence movement. At that time, for the first time, we all became very aware of the indisputable fact that it is possible to convict people of serious crimes—murder, sex assaults—and be completely innocent. We've also learned that this happens a lot more than we are comfortable with and a lot more than we ever thought was possible. In the years since then, we've seen 100s of examples where DNA evidence has proved beyond any doubt the system has grievously erred and that the wrong person was in prison. A number of those people are from Wisconsin. Wisconsin is not immune from that. Some of those people served decades in prison before they were proved innocent. In many of those cases DNA led not only to the release of the innocent person but to the arrest and conviction of the actual murderer or the actual perpetrator who have, by the way, gone on to commit other serious crimes because they have been let free.

We learn from these exonerations what went wrong with the system. And for the most part it isn't because there are evil police and prosecutors who are trying to get it wrong. They're generally good people, they're trying to solve crimes and serve justice. But even when people are acting in good faith there are still many ways that things can go tragically wrong: Eyewitness identification is often unreliable. Witnesses' memories are prone to mistakes. Investigators can prematurely arrive at conclusions that are incorrect and then focus on information that supports those plots and conclusions and disregard other information that comes in that does not support those conclusions. That's a process called 'tunnel vision.' And it can and it does lead to conviction of the innocent. Penny's case features many of these same features.

[Note: Since covering the Brummer case, several jurists, advocates and other well-informed sources have told me on background coverage of this case here has on some occasions borders on ad hominem regarding the presiding judge of Brummer v. Wisconsin, Patrick Fiedler. They point to Fiedler's well-regarded status in the Wisconsin legal community, his CV (ballotpedia), attest to Fiedler as an honorable jurist and brilliant intellect, his swift exoneration of Forest Shomberg in the 2011 wrongful conviction case, and currently his work as an effective defense attorney working to defend the rights of the citizenry of Wisconsin. These assessments are often informed by those who have worked directly and closely with Fielder. This site is indexed in Lexis-Nexis and Bloomberg's Westlaw as a legal research document, and thorough commentary and analysis ought note the above facts.]

Below is the statement on Penny Brummer read by private investigator, Rikki Glen at the press conference held yesterday:

I'm Rikki Glen, a Wisconsin licensed private investigator retained by advocates challenging the wrongful conviction of Penny Brummer.

I am going to read a short statement about why we are here today, followed by statements from Penny's mother, Nancy and John Pray from the UW Innocence Project.

If you have questions we will be glad to try and answer them after we have finished.

Twenty years ago, Penny Brummer was convicted of killing Sarah Gonstead despite no weapon, no forensic evidence, no motive, and no evidence of any kind tying Brummer to the undetermined crime scene. It has long been asserted that anti-lesbian bias played a large part in Penny's conviction.

When I was asked to help with this case, earlier this year, I had a vague recollection of what transpired. As I was reading through the police reports I was shocked and bothered by some of the things that I read.

For instance, there was an alternate suspect. After Penny dropped off Sarah she saw her talking with some people. Penny remembered seeing an old gray van with distinctive bug eye windows. A few days later, Penny was looking for the van when she spotted it not far from the 3054 Club and Taco Bell. Penny gave the license number to her friend's mother, who turned it over to police. The license traced back to a person who had a long record of felonies against women. He admitted he frequented the area where Penny saw him talking to Sarah, and he said that he was the only one who ever drove his vehicle. His driver's license was revoked at the time, so it was a crime for him to drive, but police didn't seem to notice that. He was interviewed briefly, told them he wasn't at that location on March 14th, and that ended the interview.

Police clearly had 'tunnel vision' in building a case against Penny, another common feature in wrongful convictions.

Another example a witness came forward and reported seeing a suspicious man standing by the open passenger door of a parked pickup truck exactly where Sarah's body was later found. This suspicious man matched the description of the person Penny said she saw Sarah talking to near the Taco Bell at East Washington Avenue and North Oak Street in Madison. He also noticed what looked to him to be a pink duffle bag on the ground next to the truck. Sarah was wearing a pink jacket when she disappeared. The police told the witness 'This is all very interesting, but we already have a suspect, and this doesn't fit.'

Today, I announce that a $10,000 reward has been established for information leading to the arrest and conviction of the killer of Sarah Gonstead. Advocates have set up a new toll-free number, (800) 407-1178, for tipsters seeking the $10,000 reward.

A decent and honest district attorney's office, we believe, will not defend this prosecution, because today we are a more enlightened community than 20 years ago, and Nancy Brummer, and advocates are optimistic that champions for truth will come forward and our community, police and prosecutors will stand up for truth and free Penny Brummer.

"Hope springs eternal in the human breast," said Alexander Pope in his An Essay on Man (1734).

For Penny Brummer, her family, her extended family of supporters and in the name of justice for Sarah Gonstead, one hopes truth is soon realized.

Police-Prosecutor State Must End

Updated - "The sentencing reform bill introduced in the Senate on Thursday falls far short of what is needed, but it is a crucial first step on the long path toward unwinding the federal government’s decades-long reliance on prisons as the answer to every ill," notes today's New York Times.

It's not just prison sentences for the guilty, it's the insane police-prosecutor state composed of individuals who have no remorse and blind ambition in arresting, prosecuting and imprisoning innocent Americans.

Every day in Dane County former District Attorney Brian Blanchard (2001-2010) (now a state appellate judge) and former Dane County (Wisconsin) Judge Patrick Fiedler, (now a partner with Hurley, Burish & Stanton, S.C.), draw a level breath one wonders how much the innocent Penny Brummer they convicted weighs on their minds.

Brummer is a lesbian, served in the armed forces, and hence must be guilty of murder. That's the size of their case in 1994. Imbecilic police work, bigotry and careerism.

Can this happen in America? This is America, "a leviathan unmatched in human history," (Loury, Boston Review).

And Blanchard and Fiedler are sleeping fine.

To understand the character of Blanchard and Fiedler, consider this is the same prosecutor-judge combo—so desperate for career advancement—they prosecuted the late, eminent UW-Madison historian Stanley Kutler, (1934-2015). Kutler's charged crime? Yelling at his health insurance company, and opining the bureaucrats' company should be blown up.

This brought a Class B misdemeanor charge filed by Blanchard in 2005, ridiculed across academic circles and among jurists, and ultimately settled with a $149.00 fine.

Fiedler didn't toss the case, Blanchard didn't drop the case.

Blanchard and Fiedler got their headlines.

Kutler emailed and called me a couple of years later after reading some pieces about then U.S. Atty Steven Biskupic's prosecutions of a veteran on a trumped-up "wire fraud" charges, numerous 'voter fraud' charges and the infamous Georgia Thompson prosecution.

Kutler suggested in good humor that Blanchard should consider taking 30 days and reading up on Robert Jackson and his disquisitions on prosecutorial discretion.

The current Dane County District Attorney should do the same, and consider the proposition that apropos to Penny Brummer, and every citizen, the law can afford to be just. And there is no imperative to protect a wrongful prosecution, emphatically when the innocent Ms. Brummer has been sitting in prison for 19 years.

If you have any information that could lead to the arrest and conviction of the person/persons responsible for the death of Sarah Gonstead or the death of Kelly Nolan, please contact: sheila0326@gmail.com. 

Center for Prosecutor Integrity—Needed Here

An innocent woman, Penny Brummer, remains behind bars (in Fond du Lac county), a 1994 prosecution presided over by District Attorney Brian Blanchard's office (2001-2010) for reasons of careerism and bigotry against Lesbians

As the police continue to target black men and women in Dane County, the need for civil liberties checks on the police and the prosecutor is apparent.

One such check is the Center for Prosecutor Integrity (CPI).

When an innocent loses decades of his life, then is exonerated in Wisconsin, what happens? Does the press pound for an explanation? Do police self-evaluate? District Attorney's office?

Nothing happens, careerism and passive compliance remain the order of the day.

At CPR, the mission remains in part:

The Center for Prosecutor Integrity is the nation’s only organization with a sole focus on enhancing prosecutorial ethics.

Three major areas:Addressing Over-Criminalization, Ending Wrongful Convictions and Restoring Equal Treatment Under Law. ...

Our Prosecutor Integrity Registry help tell the story and address the very real problems in our Justice System today.

These are just some of the systemic problems.

Self-conscious malicious prosecutions and prosecutorial misconduct are common, common is Wisconsin.

Penny Brummer

Here in Dane County, for example, an innocent woman, Penny Brummer, remains behind bars (in Fond du Lac county), a 1994 prosecution presided over by District Attorney Brian Blanchard's office (2001-2010), and an injustice District Attorney Ismael R. Ozanne (2010-present) has refused to revisit, though the case lacks evidence of any kind—forensic evidence, eyewitness,  murder weapon, nothing but bigotry and what attorneys call "confirmation bias"—the rest of all call it bullshit.

So what happened in 1994? The D.A.'s office says: There's no case?

Of course not, Brummer was a lesbian so she likely murdered someone, so who needs evidence?

The judge was former Dane County (Wisconsin) Judge Patrick Fiedler, now a partner with Hurley, Burish & Stanton, S.C, after several decades of prosecutorial work in service to the Republican Party and his career. Fiedler, a rightwinger and typical bigot, agreed with the D.A's office.

A decent judge would have dismissed the case.

For the life of me it is incomprehensible to me why Ismael Ozanne lets this injustice stand.

"Police clearly had 'tunnel vision' in building a case against Penny, another common feature in wrongful convictions. Witness David Zoromski, who reported seeing a suspicious man standing by the open passenger door of a parked pickup truck exactly where Sarah's body was later found, was told by a Dane County Sheriff's Deputy, 'What you saw is all very interesting, but we have a suspect and it doesn't fit.' The man seen by Mr. Zoromski matched the description of the person Penny said she saw Sarah talking to near the Taco Bell at East Washington Avenue and North Oak Street in Madison, after she dropped her off that night. Police identified him and knew he was a convicted felon with a long history of violence toward women -- but they never followed up on this lead."
- From Who Killed Sarah-

To support this innocent woman, Penny Brummer.

"They didn't look at (Penny), they just looked at it as let's get another gay person off the street," said Nancy Brummer, Penny's mother (Pabich, WMTV-TV).

What is Ozanne's excuse?

Ozanne has made public statements that his office will cooperate with the Innocence Project.

This is an unusual commitment by district attorneys in wrongful conviction cases.

In light of the growing prison-industrial complex of American society and case after case of innocents behind bars, I asked Ozanne point blank when he was running for Attorney General, "how much does the imprisonment of an innocent weigh on you?"

Ozanne's response is a source of hope for Penny Brummer: "No prosecutor should want to have innocent people who have been wrongfully convicted stay in prison. If evidence is brought to the attention of the authorities demonstrating that a mistake has been made, the interests of justice demand that the evidence is carefully reviewed and the individual should be released if exonerated. As Dane County District Attorney, I have worked with lawyers from the Innocence Project, and will do so in the future. While these decisions are largely at the discretion of the DAs around the state, I would work with them as attorney general, providing resources and advice in these situations. The ultimate goal of the system is not simply to secure convictions, it is to do justice."

These words do not square with Ozanne's inaciton.

As with all the other innocents whose lives were effectively murdered, Ms. Brummer's case calls for enactment of a Conviction Integrity Unit in Dane, Iron and Milwaukee counties, independent of the District Attorney's offices, for starters. (Conviction Integrity Unit, Wrongful Convictions)
-
[A version of this piece was published in 2014.]

Pardon Don Siegelman Now, What Is Obama Waiting For?

Don Siegelman outside an Atlanta courthouse
in an earlier appeal for a malicious prosecution. 
Image Glynn Wilson

America’s Political Prisoner #1

Karl Rove engineered several ridiculous prosecutions of Gov. Donald Siegelman (D-AL) who had the audacity of being elected governor of Alabama.

Yesterday, the Court of Appeals for the Eleventh Circuit denied Siegelman a new trial for the 2006 conviction of corruption charges, promised by Rove.

Few expect justice from Alabama or the 11th Circuit, but right now President Obama can grant a full pardon with a stroke of a pen.

For more information on this malicious prosecution and wrongful conviction, see Free Don Siegelman, and see the video below.

Obama fails as a president, as a human being, every moment Siegelman sits in federal prison in an incredible 78-month sentence for nothing.

One expects Karl Rove to work as human garbage, who knew Obama would join Rove in this enterprise?

Detecting Wrongful Prosecutions

During the Bush-Cheney years Karl Rove turned the DoJ's US attorneys into a political hit squad, and human rights attorney Scott Horton and others at Harper's chronicled some of the worst instances of wrongful prosecutions amid the purging of US attorneys refusing to go along. (Taylor, McClathchy Newspapers; Horton, Harper's Magazine)

Horton used to conduct an annual seminar (after the break-up of the Soviet Union) for the State Department entitled "How to Spot a Political Prosecution" in a foreign land (Horton, Harper's Magazine).

Political prosecutions in former totalitarian societies of the USSR bear resemblances to malicious and wrongful prosecutions domestically, and as Horton noted elsewhere, prosecutions by Rove and US attorneys whose victims include Don Siegelman, Keith Roberts, and Georgia Thompson lack any semblance of public integrity and the rule of law.

Horton points out some of the elements that should be examined to determine if a political prosecution has been inflicted:

• Nature of the Charges
• Timing and Circumstances of Criminal Investigations and Charges
• Circumstances of Investigation; Arrest and Detention; Media Dealings
• Conduct of the Preliminary Investigation
• Conduct of Trial
• Interview of Prosecutors and Defense Counsel
• State Secrecy
• Parallel Public Campaigns
• Media Coverage

Writes Horton, "... you should be prepared to question the motives and conduct of the prosecutor. Is the prosecutor investigating and acting on a crime, or is the prosecutor 'out to get' an individual? The latter case is per se abusive. When the prosecutor is 'out to get' an individual as part of a political agenda, the act of prosecution is an assault on democratic institutions."

Horton cites Robert Jackson—whose wisdom and humanity informs jurisprudence today—but not in Iron County Wisconsin.

An interview with Iron County District Attorney Martin Lipske would rightfully ask Lipske to explain the volatile, arbitrary and disparate sentences Lipske sought for similar (and highly dubious) convictions because Lipske's conduct would not withstand Constitutional scrutiny or an objective and thorough ethics investigation.

Moreover, many of Lipske's prosecutions bear the hallmarks of wrongful/political prosecutions that one might expect of former totalitarian countries with no tradition of Constitutional safeguards against the state.

But this is Iron County, so I guess anything goes.

Maybe. Watch this space.

Iron County DA Martin Lipske's Misconduct on Display Again

The volatile Iron County District Attorney Martin Lipske in northern Wisconsin has struck again.

Yesterday, John Michael Kallas of Hurley, Wisconsin was found Not Guilty of "Repeated Sexual Assault of Same Child" by a jury in a criminal trial, Price County Circuit Court Judge Douglas T. Fox presiding, (notations from the Wisconsin Court System - Circuit Court Access (1st Degree Sexual Assault).

The acquittal of Mr. Kallas for an alleged incident in 2001 illustrates the pattern of DA Martin Lipske using the district attorney's office in a capricious (and corrupt) manner—filing severe criminal charges, and then filing more spurious charges in what has become Lipske's bizarre game of playing with defendants' lives—hence defendants often exercise their right for a judicial substitution [requesting a new judge per Wisconsin statute] because Lipske is widely viewed as being in political bed with Iron County Judge Patrick Madden, and Lipske's cases often end with dismissals and acquittals when judicial substitutions are requested.

Lipske likes to drag out cases, the better the process harasses and injures the defendants.

Lipske's conduct cries out for an investigation by the Wisconsin Office of Lawyer Regulation (OLR).

"Martin Lipske has run his district attorney's office in a vindictive and slip-shod fashion since he got his license to practice back. [Lipske was "Suspended for Discipline" for two years under the category of "dishonesty, fraud, deceit or misconduct" in 1990, Mal Contends] Real people have suffered. Something, and I don't know what, has to be done," said Joe Agostine, Councilor of the City of Ashland and an environmental activist in neighboring Ashland County. "Lipske has terrorized people and I always say, for years, he keeps getting away with it. He gives lawyers a bad name. I have lost my faith in the criminal justice system if something isn't done and he is not held accountable. I mean he is in office supposed to be protecting people not terrorizing them."

The sordid story of Lipske and his routine perversion of the judicial system is largely off the Wisconsin political radar screen as Iron County is sparsely populated and isolated. And the local press, specifically the Iron County Daily Globe, frequently covers for Lipske and the Hurley sex trade.

This site has spoken with numerous activists and residents of Iron and Ashland counties, none of whom will speak on the record for fear of retribution from Lipske and his associated political machine that is viewed as vindictive. (Mal Contends)

Said one activist in the region, speaking on background. "Lipske is a sick SOB. He does play with peoples' lives. It's common knowledge, and I want to live long enough to see Lipske meet with some legal reckoning. I don't know what that is, but it shouldn't be that hard to make people see what's going on."

Kallas' exoneration comes just weeks after new charges were piled on by Lipske against Kallas in a separate case.

This is the Modus operandi of Lipske: Inflict and intimidate disfavored defendants by use of public office for the purpose of harassment and obtaining an advantage over a defendant. It is also a clear and repeated act of abuse of process. 

GTAC Frontman

The source speaking on background above has had no legal or formal dealings with Lipske, and was contacted initially for his opposition to the now apparently defunct plan of the billionaire mining mogul, Christopher Cline, and Cline's subsidiary, GTAC, to slash a massive open pit iron ore mine, in Iron and Ashland counties.

The proposed mine owners' agents at GTAC are part of the massive Scott Walker-coordinated criminal scheme that was exposed and investigated by a bipartisan group of prosecutors in a John Doe probe (now under adjudication at the Wisconsin Supreme Court) that saw Walker's campaign, Friends of Scott Walker, engage in settlement talks with law enforcement officials last year. (Fischer, PRWatch) Lipske is roundly criticized by Wisconsin environmentalists for siding with GTAC in the few cases Lipske involved his office.

Volatility

D.A. Martin Lipske protects sex trafficking in Iron County 

Lipske is criticized as well for the all-over-the-map quality of his prosecutions.

Last year Lipske covered up for a favored defendant who engaged in sex trafficking, paying $1,300 for a 14-year-old girl to be transported over 600 miles to a hotel in Mercer in Iron County in 2013. Lipske gave the man a deferred prosecution to the shock of local residents who thought this was too much for even Lipkse. (Mal Contends)

Lipkse will often charge a defendant, and then file a felony bailjumping charge without cause.

So, Lipske gets to manipulate the lives of disfavored defendants for apparent fun, political profit, and a self-conscious use of his discretionary power to obtain a dishonest advantage over disfavored defendants in repeated violation of SCR [Supreme Court Rule] 946.12(3) and Wisconsin criminal statute, (946.12 Misconduct in public office):

(3) Whether by act of commission or omission, in the officer's or employee's capacity as such officer or employee exercises a discretionary power in a manner inconsistent with the duties of the officer's or employee's office or employment or the rights of others and with intent to obtain a dishonest advantage for the officer or employee or another

Martin Lipske ought to front every daily newspaper in Wisconsin, absent that this story must be told and this site is committed to doing so as often as necessary.

Sources in Iron County say Lipske is planning on retiring soon. With justice he ought to be criminally investigated first.

US Senator at AG Nominee Confirmation Hearing: Read Licensed to Lie

Licensed to Lie by former Assistant
United States Attorney and Chief of
of the Appellate Section for the
Western and Northern Districts of Texas,
US Department of Justice, Sidney Powell

U.S. Senator Orin Hatch (R-Utah) offered an unusual comment in last week’s confirmation hearings for the proposed new attorney general of the United States, Loretta Lynch.

Hatch suggested the nominee read a book: Sidney Powell's Licensed to Lie: Exposing Corruption in the Department of Justice (Brown Books Publishing Group, 2014).

Hatch is right.

Prosecutorial misconduct is rampant in prison-state America.

Prosecutorial discretion is a quaint term we see when one reads old essays and speeches by Robert Jackson.

Violations of the Brady Rule, prosecutors’ duty under the Brady v. Maryland (1963) case to turn over to the defense exculpatory evidence are "epidemic," to borrow a term from an opinion from Judge Alex Kozinski, Chief Judge, U.S. Court of Appeals for the Ninth Circuit. (Cassens-Weiss, ABA Journal)

From small-town prosecutors in Mississippi to northern Wisconsin, from federal prosecutors across the country to the District Attorney's office in Grant County Wisconsin, too often the office of the Prosecutor has abandoned the conception of justice, in favor of careerism and convictions.

Wrongful convictions, abuse of process and malicious prosecutions are routine in the USA.

Richard Posner of the Court of Appeals for the Seventh Circuit sounds the alarm in Fields v. Wharrie and Kelley.

And locally the Dane County (Wisconsin) District Attorney has spoken out favorably of the work of the Innocence Project.

"No prosecutor should want to have innocent people who have been wrongfully convicted stay in prison. If evidence is brought to the attention of the authorities demonstrating that a mistake has been made, the interests of justice demand that the evidence is carefully reviewed and the individual should be released if exonerated. As Dane County District Attorney, I have worked with lawyers from the Innocence Project, and will do so in the future. ...The ultimate goal of the system is not simply to secure convictions, it is to do justice," said Dane County District Attorney Ismael Ozanne. (mal contends)

Sidney Powell, the author and federal appellate jurist whom Sen. Hatch recommends, wrote in response remarking of prosecutors:

Indeed, as officers of the court entrusted with the power of the Sovereign, they should be held to an even higher standard. Instead, abusive prosecutors have been promoted, gaining even more power that will make them even more corrupt.  What happened to the citizens in Licensed to Lie can happen to anyone. Just ask the teams of the Innocence Project who work tirelessly to free people who have spent decades in prison for crimes they did not commit. More than half of those wrongful convictions were the result of prosecutorial misconduct.

Powell is among the few voices in this country standing up and stating repeatedly: Prosecutors have a license to lie, and this is wrong.

Wisconsin Mining Protester Releases Statement

Katie Krow Kloth targeted by Mining
Co. and Corrupt Wisconsin DA

By Katie Krow Kloth of Citizens Concerned about the Proposed Penokee Mine

My sentence to nine months in jail in conjunction with a withheld felony sentence equating to 15 years in prison if I “step out of line” in the eyes of the “state”, was harsh and a classist attack on my beliefs and lifestyle. Judge Fox strives to kill my spirit by burying me in a dying urban hole and desires that I refrain from involvement in the anti-resource extraction struggle; I refuse to be “killed,” and I refuse the idea of coerced complacency.

The “lifestyle enforcement” aspect of my five year probation mandate (post-jail time) with full-time employment stipulation, is culturist, and out-of-touch with today’s employment landscape. Innumerable individuals work seasonal jobs for life in a responsible manner, thus Judge Fox’s ruling is based on the disappearing myth of the white American Dream that supports and enforces a destructive capitalist regime. In conjunction, Judge Fox exploited my sentencing hearing to serve as a symbolic trial for my identity as an anarchist, my appearance, and my ongoing affiliation with indigenous communities, extending to my adamant stance against industrial resource extraction- this is unacceptable, yet predictable. The judge seemingly desires to stifle dissent from all things wild and free, and may as well have based his sentence off a hypothetical book in progress entitled, “White Pride and Prejudice,” as the words fell from his mouth in a narrow, out-dated, and white-male privileged world perspective, and does not support or embrace hunting, fishing, or gathering.

Though I am not indigenous and have never claimed to be, I am grateful and touched to have been welcomed into some of those communities, and maintain that G-TAC and their pro-mine affiliates are waging extreme racist resource colonialism on the land and connected peoples and creatures with the proposed Penokee Mine, potentially the largest iron-mine world-wide, as it would negatively affect front-line indigenous communities of the northwoods bioregion, in conjunction with their traditional ways.

Though I wish no harm on Stacey Saari, a geologist hired on G-TAC’s dollar, it saddens me that she continues to despise the fiber of my being, and continues to support industrial resource extraction that in turn supports death to the poorest of peoples in rural/wilderness landscapes. The cliché’ of “just doing your job” is no excuse to participate in colonial violence via corporate resource extraction.

Exploitation of the land by rich corporate entities continues to persist whilst perpetuating persecution of dissent to such negative acts across the globe, so resistance to these destructive activities must continue to proliferate world-wide. Various incarnations of creative resistance must be embraced to succeed in the struggle against the ongoing violence against our only home, Earth.

Consequently, colonization is everywhere, so decolonization must happen everywhere.

We must “know our rights,” and practice good security culture if we are to support our comrades, and succeed in struggle.

It will do us all good to prioritize organizing as communities and individuals that value consensus and the destruction of exclusionary hierarchies, holding ourselves accountable to our own standards.

It is also important to remember who are allies are, as well as who the real enemies are… a Supreme Court recently ruled that it is NOT a police officer’s job to “protect and serve,” only to uphold the law… the law is written by the predominantly white, colonized, elite 1% ruling class, and that is who the “law” protects- not you, not the land, not people of the LGBTQ community, female-bodied folks, or minorities of any kind. Thus, the law protects G-TAC and their affiliates, and police remain the first line of enforcement against community resistance.

We must negate state repression by protecting ourselves and land-bases therein; we must not give our people up, and recognize that to be in solidarity with one another is more akin to the idea of “harmony” than “unity”. Harmony implies that we can all do different things within the same song, and still find conclusion together.

We must let go of the liberal idea and notion of “hope”; hope is a passive wish; I would rather assert myself and strive toward self determination, leaving fascist hands and ideals behind.

The message must be sent that public dissent will NOT be stifled, as we are living in the 11th hour, the seventh fire, the last grab for fossil-fuel resources… We will not live in the wake of corporate destruction and greed… the anti-police brutality struggles that originated in Ferguson demonstrate inspiring community organizing and resistance we can all learn from, in conjunction with the indigenous people’s struggles at the Unis’tot’en Camp 1,000 kilometers north of modern day “British Columbia”- they never ceded their lands to the Canadian government and kicked out large-scale resource extractors by building a traditional village in the way of a pipeline… five years strong and steady.

In closing, direct action is important, and we must all continue to organize creatively; stay aware of the harms and dangers that surveillance and social media can bring. The internet is both a blessing and a curse; spend less time obsessing over government conspiracies, be safe, and organize around tangible issues that are pertinent to your communities.

In addition, for those who are interested in following the law to the tee until they die, you are a hypocrite, and you are not free; slavery was once legal, electro-shock therapy was once legal, and the nature of the proposed Penokee Mine was once illegal… be on the side of loving common-sense, as tough love takes many forms, not the side of money and fascism.

Ultimately, the Penokee Mine will never be built as it is genocide upon stolen Ojibwe land, its’ indigenous peoples and creatures, and their traditional ways. We should continue to use the land as if it does not belong to RGGS [RGGS Land and Minerals Ltd. of Houston], leased to G-TAC, as it does not belong to them. Treaties aside, if we kill the land, we kill ourselves.

Wisconsin Is Passive as Out-of-Control District Attorney Runs Wild

"The right to do what the law does not prohibit, without fear of harassment or punishment, is one of the hallmarks of a free society."—Judge Alex Kozinski, Chief Judge, U.S. Court of Appeals for the Ninth Circuit [foreword to Licensed to Lie: Exposing Corruption in the Department of Justice (Sidney Powell, Brown Books Publishing Group, 2014)]
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Updated - A January 18 snow trek through the snow-covered forest in a northern Wisconsin county is felony bailjumping (Wisconsin Statute 946.49), according to Iron County (Wisconsin) District Attorney Martin Lipske, the precise sort of prosecutor with a history of misconduct Judge Richard Posner—judge of the U.S. Court of Appeals for the Seventh Circuit—had in mind when Posner wrote his crucial opinion hitting absolute immunity for prosecutors in Fields v. Wharrie and Kelley, (2014 U.S. App. LEXIS 133) (No. 13-1195).

District Attorney Lipske routinely files felony bailjumping (and other ludicrous) criminal charges, and these charges are not the result of meticulous investigations and objective gathering of facts and evidence by law enforcement.

Two days after January 18, District Attorney Lipske decided, without an investigation, that he had no choice but to file a felony bailjumping charge the day before an environmental protester was to be sentenced for Lipske's latest abuse of process, one could even say a malicious prosecution.

Lipske just wanted more control over the life of the anti-mining activist, Katie Krow Kloth, and this despicable model of a jurist had no compunction that the actions of his office inflicted pain on the 27-year-old Ms. Kloth, and on her family and friends, hence this site's recent characterization of Lipske as a psychopath.

The District Attorney's office of Iron County in Hurley is run by a little man, Martin Lipske, animated by spite, vindictiveness, and caprice, and whose criminal charges typically are not proceeded by investigations of any kind, just a vague contemplation of how Lipske can use contrived charges to achieve his ends as he revels in his world of Iron County.

The gravity of this situation is easily overlooked by Wisconsin media as Iron County is an isolated and sparsely populated county in far-northern Wisconsin, and Wisconsin has myriad issues of the moment demanding attention of the media, the political system and the citizenry.

Martin Lipske is part of the problem.

Martin Lipske's prosecutions slip through the cracks, giving Lipske carte blanche to run his office on personal whims with appalling results, and the regulatory Wisconsin Office of Lawyer Investigation is a case study in administrative law "capture theory," a state of affairs more insidious when the purpose of regulation and the rule of law is the Sovereign embodied by the District Attorney—"the power and might of the government," as noted by an out-of-state jurist.

I have spoken with victims of Lipske's over the last several years, and the shattering trauma of these victims is common in Iron County for both the legally exonerated and the morally exonerated.

DA Martin Lipske Fronting for the Proposed Gogebic Taconite (GTAC) Mine

District Attorney Martin Lipske threw the book at GTAC mining protester, Katie Krow Kloth, for actions at a June 2013 mining protest that would have brought a civil citation of disorderly conduct in most any other Wisconsin county.

But not Lipske.

Kloth was recently sentenced to serve nine months in the Iron County jail, after being charged with four criminal offenses for these actions at a rally against the proposed mine.

Advocating for GTAC and subsequently for the criminally operating Bulletproof Securities, Inc, (Marley, Milwaukee Journal-Sentinel) Lipske defended Bulletproof at a 2013 hearing of Kloth's, a window into Lipske's mindset and corruption of the judicial process for the benefit of GTAC.

Subsequently, Lipske violated a Wisconsin Supreme Court Rule [SCR 20:3.6  Trial publicity] in his pursuit of Kloth, (Mal Contends); vis:

Wisconsin Supreme Court Rule [SCR 20:3.6  Trial publicity]: "(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

Bailjumping Charge

"Acting Judge Sam Filippo set [a $5,000 signature] bond recommended by Lipske under conditions that Kloth have no contact with the [alledged] victim, nor threatening behavior to GTAC or Idea Drilling employees," notes Ralph Ansami (Lakeland Times).

Now, Lipske on top of the four criminal charges, claims that Ms. Kloth allegedly entering the forbidden zone in the public managed forest land in the Penokee Hills last Sunday constitutes "bailjumping."

The "forbidden zone" reference is to the Republican-passed law, 2013 Wisconsin Act 81, effective January 2014 that the GOP designed for GTAC to test-drill and load and transport bulk samples (Wisconsin Public Radio). [Here is the link to Act 81's legislative history and record of committee proceedings.]

This is a not a criminal statute.

"All the right-winger media was abuzz about supposed so-called 'No Go Zones' that Muslim people have set up in cities in Europe where non-Muslims aren't allowed to go. Turns out, the real No-Go Zones are set up by the Corporate Persons in America where non-Corporates aren't allowed to go," noted Bobby L. Clark, a Wisconsin citizen in Iron County and member of the group, Citizens Concerned about the Proposed Penokee Mine.

The proposed mining zone language is basically a trespassing statute that outlines what constitutes a trespass for "Proposed Ferrous Mining Sites, (2m)," as has been widely noted by clean water advocates.

GTAC gets a 600-foot buffer in which to test-drill and transport bulk samples from its proposed iron ore mine.

Wisconsin "Trespass to law" is still the law used to enforce any alleged trespassing.

Trespassing is a civil infraction—and it is quite a stretch for Lipske to call a civil infraction, bailjumping.

No investigation

It would be silly to contend that Lipske conducted an investigation just after the hours of the alleged infraction and found that Ms. Kloth trespassed, and then conclude a felony bailjumping charge must be leveled.

Wisconsin's trespassing law requires some kind of notice. This means if the owner approaches people and says you are trespassing on land and can go no further, you will advance at your own risk.

If you are not actually told this, signage is also required, and the state trespassing law says you need each 40-acre parcel marked, ridiculous for Lipske to mesh these requirements with the "600-foot rule" that the special forbidden zone legislation created, with absolutely no investigation conducted, as Lipske has admitted.

The Trespass to land law reads in part:

(2)(am) A person has received notice from the owner or occupant within the meaning of sub. (1m) (b), (e) or (f) if he or she has been notified personally, either orally or in writing, or if the land is posted. Land is considered to be posted under this paragraph under either of the following procedures:

943.13(2)(am)1. 1. If a sign at least 11 inches square is placed in at least 2 conspicuous places for every 40 acres to be protected. The sign must provide an appropriate notice and the name of the person giving the notice followed by the word "owner" if the person giving the notice is the holder of legal title to the land and by the word "occupant" if the person giving the notice is not the holder of legal title but is a lawful occupant of the land. Proof that appropriate signs as provided in this subdivision were erected or in existence upon the premises to be protected prior to the event complained of shall be prima facie proof that the premises to be protected were posted as provided in this subdivision.

2. If markings at least one foot long, including in a contrasting color the phrase "private land" and the name of the owner, are made in at least 2 conspicuous places for every 40 acres to be protected.

Lipske would have had to investigate and first determine which 40-acre parcel the 600-foot rule affected, ensure that each 40-acre parcel has the required signage, as required by statute, and that Ms. Kloth then intentionally violated the Proposed Ferrous Mining Sites, (2m) and conditions of her bond.

Each 40-feet forbidden zone is not marked, Iron County residents have confirmed.

This Proposed Ferrous Mining Sites law merely creates a right of the owner to close off the land to the public.

Lipske likely will be informed that the state will not be able to sustain a trespass charge against Kloth, meaning there was no violation of her bail conditions in this respect (i.e., no law violated).

As far as the specific conditions of Kloth's bail forbidding her from entering a mining site on GTAC's premises, there is neither a mining site, as defined in state law, nor a premises owned by GTAC that was ventured into by Kloth or anyone else, and moreover no one was encountered Sunday, January 18, as one would expect in the middle of the forest in the middle of January in far-northern Iron County Wisconsin.

That the conditions of Kloth's signature bond were violated is at best silly conjecture accomplished with no investigation, and to file a felony bailjumping charge is an abuse of process intended to cause Kloth harm.

Lipske had operated in this manner for years, thus demanding, at the least, that every case he has prosecuted be examined by an outside agency.

Hyperbole? I wish.