Attorney General Schimel’s Support for Senate Bill 656

Late last month, Wisconsin Attorney General Brad Schimel joined law enforcement officials at a press conference to announce his support for a bill that would offer amnesty for underage drinkers who report incidents of sexual assault (whether reporting as claimants or bystanders).   The bill (Senate Bill 656) would assure that someone could report an assault without worry of being cited for drinking, a possibility that might deter a claimant or bystander from contacting the police.

He was not alone in his support – SB 656 has support from both sides of the aisle, with both Republican and Democratic co-sponsors.

Once again, as with his meeting with sexual assault survivors (despite a refusal of UW-System officials to do likewise), one sees that A.G. Schimel understands that respect for individuals requires that their claims be heard.  Whether their claims are meritorious is a matter to be determined after they’ve had a chance to offer a claim –  failure to hear them out is deciding a matter a priori, a failure that would be inimical to the principles of a society based on individual rights.

(Those who are accused deserve and must have due process – that due process requires taking and processing a claim, not rejecting or pretending that claims have not been made.)

One alternative to hearing claims and offering due process to all individuals is a crude act utilitarianism in which university officials – in the name of protecting an organization’s reputation but truly to protect their own reputations – bury claims, ignore claimants, and ruin the careers of those who report incidents.

The UW System – and UW-Whitewater officials in particular – are accused by multiple claimants of burying claims (1 and 2), contending falsely that publicly-paid bureaucrats cannot speak to claimants, and insisting self-servingly that claims can only be presented one way.

A.G. Schimel’s support for SB 656 is support for the view that being heard can and should legitimately trump the circumstances surrounding when and how one makes oneself heard.  His support further undermines the unpersuasive, risible contention that the Telfer Administration at UW-Whitewater acted on principle in these several matters.

There’s no serious choice in this:  one can embrace the reasoned view of a well-educated, experienced prosecutor who has (sadly) seen many cases of assault in his career, or one can side with the flimsy, self-protective claims of lightweight administrators and their press flacks.

Contrasting Wisconsin Attorney General Brad Schimel and Media Relations Director Sara Kuhl

In December, Laura Dunn, Esquire and four of her clients, all with experiences within Wisconsin as sexual assault survivors, met with Wisconsin’s Attorney General, Brad Schimel, to discuss their concerns about how the UW System is addressing sexual assault complaints. SeeUW sexual assault survivors meet with AG, seek meeting with UW system leaders @ Channel 3000.

(One of Ms. Dunn’s clients appearing on camera is from UW-Whitewater; at least one other client of hers, to my knowledge, is also from UW-Whitewater.  That second client gave an audio interview to WISC-TV on 3.19.15, but was not part of the December 2015 video interview.)

Repeatedly, officials at UW-Whitewater and in the UW System have insisted that they cannot speak with the assault survivors who have pending federal Title IX claims against UW-Whitewater (there are now two) or the UW System (there are at least three more against other UW System schools).

This is simply absurd as a matter of law.  Not simply absurd, but manipulatively, mendaciously absurd.  There is no general prohibition whatever, in law or in legal practice, against talking or meeting with adversarial or potentially adversarial claimants.  In fact, these kinds of meetings and discussions happen commonly between opposing sides in all sorts of legal matters.

To believe otherwise, one would have to believe that Brad Schimel, Attorney General of the State of Wisconsin, a graduate of the University of Wisconsin-Madison School of Law, an accomplished county prosecutor having conducted over one-hundred fifty jury trials, who has chaired the Wisconsin Crime Victim Council and Sexual Assault Response Team, somehow has a weaker grasp of the law than Sara Kuhl, a university public-relations woman and sometime proprietor of 2Kuhl Public Relations.

(Now I’m libertarian, not a Republican, so A.G. Schimel and I would likely disagree over points here and there.  Nonetheless, there is simply no imaginable circumstance in which I would reject Mr. Schimel’s assessment of what’s legally possible for Ms. Kuhl’s view.  In fact, to take the measure of Ms. Kuhl’s position, in her view the request of Laura Dunn, Esq. [University of Maryland Law and Adjunct Professor at that same school] for a meeting is, also, unjustified in legal practice. That’s absurd, too.)

Ignoring these claimants is contrary to conventional legal practice, perpetuates a response of collective silence in the face of individual grievances, and asks the community to reject the views of accomplished, qualified attorneys for the sake of shallow sophistry.

The Hon. Alex Kozinski on Good Science

The Hon. Alex Kozinski is a judge on the United States Court of Appeals for the Ninth Circuit.  The Ninth Circuit has jurisdiction over most federal appellate matters in the western continental United States.  Judge Kozinski is nationally know among members of the bench, and served as chief judge of the Ninth Circuit for many years (2007-2014).

One of his finest accomplishments (and at sixty-five he’s still busy as judge and legal scholar) is his thoughtful defense of exacting standards for expert studies at trial.

To be a defender of exacting standards requires that one be an opponent of junk science, crackpot theories, and shoddy studies.  That’s the Whitewater aspect of this: Americans can and should do better than the low standards local publications set for policymaking and policy studies.

In the audio clip above, Judge Kozinski speaks (last fall) to the Cato Institute about the need for sound reasoning in criminal matters.  Early in the clip, he mentions a motion – a Daubert motion, following Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) – used to exclude expert testimony that falls below an acceptable standard as Federal Rule of Evidence 702 requires.  Daubert was a civil case, and it’s Judge Kozinski’s point that in criminal matters a Daubert standard in favor of reason – and against junk science – hasn’t been applied as often it should be.

We could use a Daubert standard for local government projects around here; even Daubert-lite would be a big improvement.

4 Points About Public Records Requests

So a local paper complains that a local school superintendent won’t comply with a public records request, won’t put the paper on a media contact list, and simply ‘must’ improve communications.  

A few points —

1.  Compliance with a public records request isn’t a ‘communications’ issue; it’s a legal issue, of rights of residents under Wisconsin law.  

2.  Perhaps there would be a greater willingness of public officials to comply with the Public Records Law (Wis. Stat. §§ 19.31-19.39) if newspapers hadn’t made clear that they’re too weak or too miserly to challenge officials’ non-compliance at law.

3.  A newspaper can say all it wants that it’s the ‘leading media company’ of its area, but that doesn’t mean much in a diverse media environment in which newspapers are doomed (as almost everyone knows them to be).  

In any event, social media messaging in many communities – by itself – vastly outstrips the reach of any media company.  Sorry, gentlemen, there is no ‘leading’ force anymore.  

4.  When a resident or publisher thinks about pursuing an issue in which a public records request might be needed, he or she should consider what might be next if officials slow-walk, respond only in part, or simply deny the lawful request.  One would prefer that local officials felt a duty other than self-interest disguised as public interest.  What one would prefer describes – less and less – the environment in which we live.

Residents, bloggers, and community groups that seek information under a public records law should be prepared to defend that request at law.  One hopes that won’t be necessary, but rights are more than hopes, and so one should think ahead, even before a request is submitted: what’s next at law if officials obstruct this request?  See, along these lines, Steps for Blogging on a Policy or Proposal.

That’s a big commitment, but a commitment one should be prepared to see through.  

The Nature of the Federal Title IX Complaints Against UW-Whitewater

The two, separate federal complaints that sexual assault survivors have filed against UW-Whitewater are complaints against that institution for the failure to comply with lawful requirements for handling these alleged survivors’ claims (regardless of the underlying facts in any given claimant’s case).  

(That’s why, when Title IX complainants seek federal recourse, they say that they have been assaulted twice – once from an assailant, and a second time when they feel they have been denied the required Title IX support from their own campuses.  A federal Title IX complaint is against a school for failing to respond as required to the request for local assistance.)

These complainants allege that, apart from the underlying facts of each assault, UW-Whitewater and one of her principal administrators failed to provide the standard of care and responsiveness that the law requires.  Both women allege not merely that UW-Whitewater’s Dean of Students, Mary Beth Mackin, was deficient in her response, but that she was unlawfully so.  The second complaint, pointedly, claims that UW-Whitewater acted in a sexually discriminatory way, itself an additional violation of the law.

More seriously, these two women allege that UW-Whitewater has actually and effectually obstructed  the required processing of their complaints.

The inescapable legal issue here is how UW-Whitewater processes complaints, and whether that institution has done so as the law requires.  The practical issue is that failure to treat all complaints as the law requires will dissuade future sexual assault survivors from coming forward.

If officials oppose applicable federal laws, the  legitimate response is to petition for an amendment or repeal of those laws.

No one employed at the University of Wisconsin-Whitewater, regardless of his or her role, has a right to disregard existing legal requirements.  It does not matter how much those in the administration might wish to balance the law against other (often self-interested and self-protective) reputational considerations.

The law does not allow that balancing.  No official is above – nor any individual below – the law.  It does not matter how important officials believe they are, how much other work they feel has gone well, etc.  

The legal question is how public officials, receiving public funds, bound by federal law, complied with that federal law (regardless of the underlying facts in any given claimant’s case). There is neither a legal (nor an ethical) escape from this fundamental question.  

Practically, the most important question is what actually happened to sexual assault survivors, and the well-being of those survivors and future ones.

The nature of these Title IX complaints, as matters under law, concerns how an institution has addressed the requests for assistance that it received from those within its care.

See, concerning these two claims:

How UW-Whitewater Treated a Sexual Assault Victim

A Second Sex-Assault Survivor Files Federal Complaint Against UW-Whitewater

The Four-Dog Defense

Readers familiar with organizational or political excuse-making are likely familiar with the four-dog defense.  The provenance of the defense is uncertain, but Acronym Required describes its four points nicely, citing a story from the St. Petersburg Times:

  • First of all, I don’t have a dog.
  • And if I had a dog, it doesn’t bite.
  • And if I had a dog and it did bite, then it didn’t bite you.
  • And if I had a dog and it did bite, and it bit you, then you provoked the dog.

Variations along these lines are commonly used to explain away mistakes, errors, or injuries, often in cases of negligence.

The Public Records Law Still Stands

After a push to alter Wisconsin’s Public Records Law (Wis. Stat. §§ 19.31-19.39), we’re now secure with the original law intact.  

Below one will find a recording of Wisconsin A.G. Brad Schimel’s Open Government Summit, held earlier this week at the Concourse in Madison.  

J.B. Hollen, Schimel’s immediate predecessor, started strongly in favor of the Public Records Law but was less supportive in his second term.  A.G. Schimel’s approach is better for the public, although it’s disadvantageous for public officials seeking to conceal information from the very residents to whom they are legally obligated.

(It’s also helpful that support for the law is widespread, and not confined to the party in opposition.  Two of the key opponents of gutting the law have been the MacIver Institute, a conservative think tank, and Rick Esenberg’s Wisconsin Institute for Law and Liberty, a conservative-leaning public interest firm.)

But one has this problem, that has grown worse over these last few years: too many officials, in cities, towns, and universities, have decided that they can reply to a public records request however they’d like.  Replies like this are dares: will you go to court over this?  Alternatively, will you accept what we’ve supplied, however inadequate in reply it so obviously is? 

Some denials may be over fair questions of interpretation; that’s not what I’m describing.  Many denials are a test of one’s citizenship, of one’s rights in a free, well-ordered society: can someone successfully compel others to accept less than their rights require, consigning them to an inferior position in disregard of the law?

There’s no way to know how a requester will respond to an insufficient reply until the need arises, of course.  It’s helpful, though, to state plainly a path one will follow.  Having stated as much, officials will not be able to say they’ve been blindsided.

This summit was long, I know, and time is precious.  Still, there’s much in here, useful for thinking about government, on one’s own, rather than relying on officials’ superficial, self-serving declarations.  

Former Coach Tim Fader Files Notice of Intent to Sue UW-Whitewater Officials

Tim Fader, formerly an award-winning wrestling coach at UW-Whitewater, was subjected to non-renewal of his contract (effective dismissal) with no satisfactory explanation, and with reason to think that UW-Whitewater had fired him for reporting a sexual assault allegation directly to the police. Fader’s termination came during a time – still ongoing – when UW-Whitewater was under federal investigation for its handling of other sexual assault complaints.

WISC-TV 3, Channel 3000, now reports on Fader’s Notice of Claim, in a story published online this evening:

Former University of Wisconsin-Whitewater wrestling coach has notified the state’s attorney general of his intent to sue a number of officials at the university for “improperly” dismissing him from his position and for continuing to stymie his efforts to find work.

Tim Fader failed a “Notice of Claim” this week, alleging that he was not renewed as the school’s wrestling coach in the summer of 2014 because he reported an alleged sexual assault committed by one of his recruits earlier last year directly to Whitewater Police and not to his supervisors on campus, per university policy. Fader asserts he’s been made a “scapegoat” because his situation arose shortly after the Office for Civil Rights (OCR) of the U.S. Department of Education announced UW-W was one of 55 schools nationwide being investigated for how it handled sexual assault or harassment allegations

(Our law requires that one file a notice of intent to sue any state officials 60 days before legal action can begin. I have embedded the Notice of Claim below, so that one may read it in full.)

Attorney Stan Davis, a former UW System Regent, represents Fader. Attorney Davis observes that when Fader spoke to the police, he prevented UW-Whitewater’s officials from crafting a description of events at a time, and a pace, of their own choosing:

“He was the Division 3 Wrestling Coach of the Year and he is now unable to find a job,” said Fader’s lawyer, Stan Davis, a former UW System Regent. “It seems as though he’s being punished here for not giving the University the opportunity to decide how they were going to address, spin, handle this matter and that’s problematic.”

See, Former Coach Takes Step to Sue UW-Whitewater Officials @ Channel 3000.

Needless to say, in each case there may be people who are injured. That matters most, of course. Nearly as important as handling present injuries is inhibiting future victims or third-parties from reporting allegations for fear of doing so.

Attorney Davis sees this fundamental truth clearly:

His lawyer believes the impact Fader’s jobless situation could have on campuses throughout the state is why this remains so important.

“The chilling effect this could have on other faculty members who may be afraid to go to the police now if they become aware of something because Tim went to the police and he ends up losing his job,” Davis said. “It suggests (UW-W) didn’t want an outside agency to be aware of this until they decided what, if anything, they were going to do about it.

“Making a scapegoat of one person who actually handled the situation the way I think most people would have… does not do anything to help address this problem in the future.”

In fact, it’s hard to believe that reasonable people, aware of the importance of encouraging reporting, and genuinely believing in open reporting would not see as much.

I’ll have updates as this matter develops.

I would encourage readers to donate to the It’s On Us campaign, and to support these and other efforts to prevent sexual violence.

Those who have experienced sexual assault will find resources of support at www.notalone.com.

See, below, NOTICE OF CLAIM AND CLAIM PURSUANT TO 893.82, WIS. STATS:

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Post updated 7.2.15 with video interview.

What the Victim’s Mother Told Walworth County Judge Carlson

It’s both a pity and a disgrace that a fourteen-year-old victim’s mother had to plead with the Hon. James Carlson to sentence to jail the men who assaulted her daughter:

ELKHORN—The mother of a 14-year-old girl sexually assaulted by three men in an Elkhorn basement in 2013 pleaded with judges Tuesday to send two of the men to prison and require sex offender registration.

At the final man’s sentencing Tuesday, the mother’s frustration boiled over when the judge ordered no prison and no sex offender registration.

“This has got to stop,” the mother told Walworth County Judge James Carlson. “We’re not setting a good example for other children in our community. They think this is OK, that all you’re going to get is a slap on the hand.”

About two hours after the mother’s pleas, Carlson sentenced Braden D. Mann, 19, of W5244 County ES, to nine months in jail and five years probation….

See, Elkhorn men get jail, probation for sexually assaulting same 14-year-old girl @ Gazettextra.com (subscription req’d).

It is – and should be – deeply unsettling that a layperson displays a better sense of justice than those who ostentatiously wear the black robes. 

UW-Madison Now Joins UW-Whitewater Under Federal Title IX Investigation

In the Wisconsin State Journal this morning, one reads that a second Wisconsin school is under investigation for its handling of sexual assault complaints.  Dan Simmons writes that

UW-Madison is now the second university in the state to be included in a growing probe of possible violations of federal law over the handling of sexual violence and harassment complaints, according to the U.S. Department of Education.

The investigation now targets 101 schools, including UW-Madison and UW-Whitewater. The initial investigation was launched last May and included 55 schools, Whitewater among them.

See, in full, UW-Madison under federal investigation for handling of sexual violence complaints @ State Journal.

Investigations of this sort can involve either how a university reports incidents of sexual assault, or how it treats those who are trying to report allegations of sexual assault. 

One should be clear: federal law does not mandate – needless to say – that there will be no crimes on campus.  Federal law simply requires that, following allegations of sexual assault, universities that receive federal money will process complaints thoroughly and treat those involved in complaints fairly.

One would hope for campuses without violence; these present laws simply require that institutions taking federal public money should address allegations of assault to the high standards of which America is capable. 

There are thousands of four-year colleges in America; each one should be able to meet existing reporting and procedural requirements. 

That’s not asking too much; it’s asking only for the fundamental fairness and thoroughness our society deserves. 

SUNY Stony Brook Failed Sarah Tubbs

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Video Link: Sarah Tubbs of Montrose talks about her ordeal after she says she was sexually assaulted at Stony Brook University, and then forced to prosecute her own attacker. Updated with video as link, 3.4.15.

Sarah Tubbs attended (and was graduated from) SUNY Stony Brook, part of New York’s state university system. It’s part of a public university system not unlike the UW System. (Commonly called just ‘Stony Book,’ the school is about twice as large as UW-Whitewater, but similar in many other respects.)

When Ms. Tubbs sought recourse under federal law after being sexually assaulted, she found that Stony Brook met her rights with an inadequate – indeed a perverse – remedy:

She’s had nightmares, flashbacks and panic attacks since being sexually assaulted last year at Stony Brook University.

Yet when Sarah Tubbs sought the university’s help to proceed with disciplinary charges against her alleged attacker, officials required her to personally prosecute him, she said. Tubbs has no legal training. Yet she had to question and be cross-examined by the man she claims sexually assaulted her in his dorm room.

Tubbs, 22, of Montrose, is suing Stony Brook, which is part of the State University of New York system, and her alleged attacker in violation of Title IX, the federal law that prohibits discrimination on the basis of gender at schools that receive federal funding. Under the law, such discrimination can include sexual harassment, rape and sexual assault.

Her lawsuit, filed last month in federal court in White Plains, seeks monetary damages and a court order abolishing the practice of having sexual-assault victims “prosecute their own cases and to cross-examine and be cross-examined by their assailants.”

The alleged attack occurred nearly a year before State University of New York campuses adopted a more comprehensive sexual assault policy in December 2014 at the urging of Gov. Andrew Cuomo. Tubbs wants the new policy broadened to specifically prohibit victims from having to prosecute their own attackers at student disciplinary hearings.

See, SUNY grad says school made her prosecute her own sex attacker @ Gannett’s Lower Hudson website.

When Ms. Tubbs submitted to a university hearing as was her right, that hearing did not even consider adequately – in a case about sexual assault – whether she had given consent:

Tubbs was granted an appeal by the university in August, based on a finding that the disciplinary board didn’t properly consider the definition of consent to weigh whether the sex was consensual.

A university official, Jay Souza, wrote in a letter to Tubbs that “he found no evidence that the Hearing Board considered the definition of consent” as spelled out in the university’s student conduct code or applied that definition to “the facts of this case,” the lawsuit says.

Souza said in the letter that Tubbs would be contacted by the university about the next steps, but Tubbs said she hasn’t heard anything, despite her own efforts to reach school officials….

There Sarah Tubbs found herself at a campus hearing – entitled by federal and state law, but by her university denied representation, and afforded a process so paltry that officials did not consider something as fundamental as lack of consent.

Sarah Tubbs has now filed a federal lawsuit against Stony Brook, but the school she attended – as a citizen with rights under state and federal law – compounded an assault with institutional indifference and further harm. For it all, she’s still resolute:

“I don’t think it’s the rape that makes the person a victim,” said Tubbs. “I think it’s the systemic failure that makes someone from a survivor to a victim. … I can honestly say I won’t stop fighting until those systems change.”

Policy Topics for the Spring

In October 2014, I wrote about Four Public Topics for the Fall.  They seemed to be the city’s prominent public policy questions, looking ahead from 10.20.14. 

Those topics were (1) the 2015 City of Whitewater budget, (2) Whitewater Schools referendum, (3) UW-Whitewater’s social relations, and the (4) City of Whitewater’s waste digester proposal.

Now, as February 2015 slips away, I’d say that some of those topics yet linger, with others emerging. (These spring topics, below, are not listed by priority.)

Whitewater School Budget Cuts. The referendum’s long passed, and still this district and others are managing budget cuts.  There’s no equilibrium in sight. 

The budget questions – however difficult – are less concerning than long-term educational priorities.  (I wouldn’t always thought this way, but the recent use of educational test data as political talking points leaves me skeptical, generally. No one owes leaders or others what amounts to junk science, with contentions for political or economic gain resting on the misuse of data.)

My promised curriculum discussion, however, can wait until after the budget is (at least) more settled.  Budget choices will, in any event, give an indication of general priorities and specific compliance with legal obligations. 

Whitewater’s School Board Election  Three candidates are contesting for two school board seats.  These candidates are nothing alike: two well-know, local insiders  a generation apart in age, and one newcomer to local politics.  The newcomer has, herself, the strongest education; the insiders have name recognition, and in one case an obvious public-policy conflict of interest. 

The election offers questions on educational policy and priorities that deserve substantive answers.  We’ll have to wait and see what we actually get.

There will be a candidates’ forum on the first Saturday in March. 

Lots on this election to read, consider, and thereafter about which to write. 

UW-Whitewater’s Budget.  Gov. Walker has proposed cuts; there are sure to be some cuts (and probably most of what he’s proposed). 

The university will face choices it’s not had to confront before.

UW-Whitewater’s Social Relations.  About this topic, I mean both relations between people on campus, and between members of the university and the community beyond.  

Budget cuts matter greatly; treatment of people, as individuals, matters far more. 

There’s reason to be more concerned about this topic now than in October. 

The search for a new chancellor will take place, too.  A more insightful leader (or at least one less obtuse) would be a gain for university and city, both.

City of Whitewater’s Waste Digester Proposal.  City government promises more information in early March.  One can wait to see what the city proposes.

These spring topics wait ahead, with additional, unexpected topics possible, too. 

Former Coach Fader Vindicated Five Times Over

It’s been over nine months since Chancellor Richard Telfer suspended former UW-Whitewater wrestling coach Tim Fader, and later effectively fired him (Fader’s contract was not renewed). 

In April 2014, a woman alleged that a wrestling recruit assaulted her, and Fader has consistently said that he contacted the Whitewater Police Department about the incident, and that he (Fader) had someone accompany the accused recruit to the WPD at our municipal building.   

In these many months since, Mr. Fader has been vindicated in his principal claims, (at least) five times over:

1.  Fader was exonerated of any criminal wrongdoing (this never should have been even a question, truly, based on the circumstances of the allegations).

2. Fader, did, as he claimed, see that an assistant coach escorted the alleged assailant so that the accused recruit would speak with officers of the Whitewater Police Department. 

3. A university committee assembled under Chancellor’s Telfer’s direction recommended changes to the wrestling recruiting program, but recommended no sanctions or disciplinary action against Coach Fader.

4.  The National Collegiate Athletic Association and the Wisconsin Intercollegiate Athletic Conference, in reviews comprising three-hundred pages of documents, recommended or imposed no sanctions against Coach Fader or UW-Whitewater’s wrestling program.

5.  Athletic Diector Amy Edmonds, in published remarks from 2.18.15, admits that after the NCAA and WIAC reports, specific changes have not been made to recruiting visits.

So, here we are: Chancellor Telfer and A.D. Edmonds ended a career, but by Ms. Edmonds’s reported account, she made no specific changes to recruiting.

Chancellor Telfer & A.D. Edmonds rushed to suspend, and soon thereafter to terminate, and announce as much, but now? 

Now, Ms. Edmonds implicitly contends that although she effectively fired an award-winning coach, there was no substantial basis for that action. 

More concerning, here’s how Amy Edmonds, a publicly-employed athletic director at a leading UW System Division III school, describes her responsibility to open government and accountability:

“Certainly we weren’t as transparent, if you want to say that,” Edmonds said. “We didn’t have all these wonderful links and documents and such on our website. Now we’ve done that to allow anybody and everybody to take a peek at what our practices are.”

Transparency of public employees at a public school supported at public expense: you know, it’s just ‘wonderful links, ‘documents’ and ‘such’ on a website. 

Ms. Edmonds generously offers that others may now ‘take a peek’ at all this.

Honest to goodness, could Athletic Director Edmonds speak more glibly and cavalierly if she tried?

Does our university not deserve greater seriousness and commitment from an athletic director than ending a career the way Ms. Edmonds has done?

Does our university not deserve greater seriousness and commitment from an athletic director than these light and flippant remarks about open government?  

Does our university not deserve greater seriousness and commitment from an athletic director than these light and flippant remarks about providing prudently and legally-significant information about keeping students safe?

The very official at UW-Whitewater who acted promptly and practically to alert authorities to an alleged assault is a person who is no longer employed at UW-Whitewater.

That person would be Timothy Fader.

Seventeen Questions: Injustice in Walworth County Wrongly Sends a Fourteen-Year-Old to Jail

Yesterday, I posted about an appellate court decision that reversed a juvenile’s conviction and remanded the case for a new trial.  See, Injustice in Walworth County Wrongly Sends a Fourteen-Year-Old to Jail

Today I’ll post several questions concerning the decision and two published accounts about of it. 

The appellate decision (“Appellate Decision”) is online at State v. Charles C. S., Jr., No. 2014AP1045, unpublished (Wis. Ct. App. Feb. 11, 2015), available at https://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=134396;. 

The two published stories are from the Gazette, at Appeals court calls for Walworth County new trial in juvenile arson case (“Gazette 021315”) and Walworth County DA says detective, prosecutor acted correctly in juvenile case (“Gazette 021615”), subscription req’d for both Gazette stories. 

This case concerns a burglary and arson at the Bethel United Methodist Church in Sugar Creek.  Three boys – of whom Charles was just one – were suspected in the case.  The crime is serious; the legal question isn’t one of seriousness, but of culpability under the law. 

The question isn’t whether someone damaged the church – the question is whether the Walworth County District Attorney acted wrongfully to obtain the particular conviction of a particular boy (rather than, for example, one of the other two).

1.  Isn’t it persuasive that Walworth County Detective Jeffrey Recknagel gave, as the appellate court found, “demonstrably false testimony that Drake [another boy] had been honest with him ‘every time’ “? (Appellate Decision, ¶. 17.)

Here’s a portion of the transcript (from redirect examination, during the State’s exchange with Recknagel):

Q: And as a detective have you had any training on
detecting honesty?
A: Yes, ma’am.
Q: And from your interview with Drake [], did you feel
that he was being honest with you?
A: Absolutely. And I haven’t had just one interview with
Drake, I had more than one interview and I believe that
every time he was being honest with me.

(Appellate Decision, ¶. 17)

Despite his trial testimony, Recknagel later admitted in a post-disposition proceeding that “Drake lied to him at least three times.”  (Appellate Decision, ¶. 9)

2.  Do Walworth County D.A. Necci and Walworth County Sheriff Picknell think that there’s no difference between honesty every time and dishonesty at least three times? 

If so, does that mean that Messrs. Necci and Picknell get to utter at least three lies of their choice, with impunity?

3.  Gazette reporter Frank Schultz writes that “Necci said that he has read the trial transcript, which shows that Recknagel was saying that people always lie to him at first, but after the initial lies, Drake and Robert consistently told the truth.” (Gazette 021615.) How does Necci’s interpretation contradict or negate the testimony the appellate court cited in Appellate Decision, ¶. 17? 

Recknagel plainly and clearly says ‘every time’ in the trial transcript, and later admitted he, Recknagel, knew the other boy did lie to him, at least three times.

What prior testimony of Recknagel could make the actual, verbatim transcript testimony cited in Appellate Decision ¶. 17 any less false? 

4.  Although this is a case involving a juvenile, and subject to concerns of confidentiality, if D.A. Necci thinks other portions of testimony somehow rehabilitate Recknagel, then why doesn’t he seek court permission for publication of the relevant passages he’s supposed to have discussed with Gazette reporter Schultz?  For that matter, why not seek court-authorization and publish the full transcripts, subject to necessary redaction? 

5.  When Necci reportedly tells Schultz that other trial testimony somehow supports Recknagel (Gazette 021615), did reporter Schultz ask to see those transcripts? Did he see them? 

6.  When Necci reportedly tells Schultz that other trial testimony somehow supports Recknagel (Gazette 021615), did reporter Schultz even ask Necci to read aloud to him the passage that Necci says supports Recknagel? Did reporter Schultz just take Necci’s word for it? 

7. In the second published news story (Gazette 021615), D.A. Necci’s quoted as saying he has the “utmost respect” for Recknagel.  This is after the appellate court conclusion that Recknagel gave “demonstrably false testimony.” (Appellate Decision ¶. 17)  If that’s an occasion to have the ‘greatest possible amount, degree, or extent’ of respect, what would Recknagel have to do to give Necci any pause at all?

8.  Gazette reporter Schultz quotes Necci as saying that he, Necci, “just can’t agree with the notion that my prosecutor took advantage of the defense attorney” who is a licensed attorney who should know the law, Necci said.” (Gazette 021615.  As District Attorney, does Necci believe that his office has no independent duty to justice, to offer truthful testimony or sound arguments, apart from a defense attorney’s own statements?  

If Necci doesn’t believe his office has an independent duty of justice, then how does he explain SCR CHAPTER 20, Rules of Professional Conduct for Attorneys, SCR 20:3.8  Special responsibilities of a prosecutor?

9.  Does D.A. Necci believe that having a law license is justification enough to try a case – that is, once licensed, an attorney is always capable and competent? 

If he does believe that a mere license is enough, then does D.A. Necci believe that there should be no possible claim of ineffective assistance of counsel, as a matter of law?

If he does believe that a mere license is enough, then how does D.A. Necci explain SCR CHAPTER 20, Rules of Professional Conduct for Attorneys,  SCR 20:1.1  Competence?

Isn’t it clear that every lawyer is ethically obligated to know that a license is not enough, and that “[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation”? 

10.  In the 2.16.15 Gazette story, Necci contends that the appellate court decision is “over the top” and “unnecessarily inflammatory.”  What portions does he think are “over the top” or “unnecessarily inflammatory”?    

Is his objection merely to tone?  Isn’t it clear the decision (see the embedded document, below) rests on a finding of wrongful presentation and testimony, not mere rhetoric? 

By the way, if it’s all a matter of rhetoric, does D.A. Necci mean to imply that the appellate court might have been legitimately inflammatory, but then went too far, and became unnecessarily so?

That would be something like, “Please don’t unnecessarily inflame me, bro.”

11. From the beginning, wasn’t the case against Charles – a juvenile who spent over a year in jail – weak and without direct evidence?  From the uncontradicted observation of the appellate court, “[t]he State did not have any direct evidence that Charles was at the church.”  (Appellate Decision, ¶. 2.)

The DA’s case rested merely on the claims of two alleged, juvenile wrongdoers that a third person was also culpable. 

12.  How strong was the pressure to find someone – anyone – to blame and convict for a church fire?  If this crime had been against someone’s trailer, would the Walworth County D.A. have relied on a case without any direct evidence, and the testimony only of other juveniles?

13.  Does the Walworth County D.A. think that a burglary and fire in one building over another – a shack versus a mansion, for example – necessarily make the case against suspects strong or weaker?

14.  In the first Gazette story, Sheriff Picknell contends that, pending an inquiry into Recknagel’s testimony, he, Picknell would give Recknagel his “full support.”  (Gazette 021315.)  Considering that an appellate court found Recknagel culpable of “demonstrably false testimony,” what does that say about Picknell’s impartiality and neutral decision-making?

Isn’t it closer to the truth to say that Picknell’s response looks like a company-man’s wagon-circling?

If you’re Recknagel, and Picknell is your leader, don’t you and all your colleagues now have free rein to say whatever you want to a court, even under oath?

15.  In the Gazette story of 2.16.15, what message does D.A. Necci send to his assistant prosecutors and law-enforcement witnesses when he backs them publicly and wholeheartedly against even an appellate court’s judicial rebuke for false testimony and impermissible argumentation?

16.  Walworth County developed a national reputation a decade ago for having one the worst district attorney’s offices in America.  See,  A poisoned prosecution at the Center for Public Integrity.  Does Mr. Necci’s office’s handling of this case, and its response to it, provide any reason to think conditions are better now?

17.  Charles C. S., Jr., a fourteen-year-old boy, was confined for over a year, convicted through the actions of men and women found to have offered false testimony and legally-prohibited arguments.  Should that have happened to him?  If his family had been powerful or connected, would it have happened to him?

In any event, should reasonable people be confident in the fairness and thoroughness of work like this? 

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Injustice in Walworth County Wrongly Sends a Fourteen-Year-Old to Jail

On February 11, 2015, the Wisconsin Court of Appeals, District II, reversed an order of the Walworth County Circuit Court, and ordered a new trial for a minor child, identified as Charles C.S. Jr., aged fourteen at the time of his conviction. See, State v. Charles C. S., Jr., No. 2014AP1045, unpublished (Wis. Ct. App. Feb. 11, 2015), available at https://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=134396.

Charles spent a year incarcerated after an unjust conviction in which the appeals court found that

(1) a Walworth County Sheriff’s Department investigator gave “demonstrably false testimony” under oath about conversations with a witness,
(2) a Walworth County Asst. District Attorney introduced clearly inadmissible evidence and argued evidence that was not true, and
(3) Charles’s defense counsel was deficient for failing to object to the false testimony or legally-prohibited prosecution arguments.

At the end of this post, I have embedded the written decision of the appellate court, as dated and filed on 2.11.15.

I’ll write more about this matter tomorrow, with a series of questions for those involved.

Today, I’m posting the appellate court decision and order. There are two reasons for posting the ruling, mostly on its own, today.

First, the court’s reasoning and ruling speak for themselves.

Second, in our area, we seldom see original documents like this published, as the pressure against the local press for displaying them causes those papers to shy away.

Americans are, and should always be, of stronger stuff than that.

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Walworth County District Attorney Clears Coach Tim Fader of Wrongdoing

The Walworth County District Attorney, Dan Necci, has sent former UW-Whitewater wrestling coach Tim Fader a letter completely clearing Fader of criminal wrongdoing of any kind, in his wrestling program or any other matter.

See, Former UW-Whitewater wrestling coach cleared of wrongdoing by DA @ Channel 3000 WISC-TV

Here’s the text of that letter:

November 6, 2014

Dear Sir or Madame:

Please be advised that, as of the date of this letter, my office has not now nor ever before been in possession of any referral or other form of documentation from any law enforcement agency which contains any allegations or accusations of criminal wrongdoing of any kind against or involving a Timothy Fader. 

Furthermore, I am not aware of any criminal investigation into or concerning the actions of Timothy Fader. 

If you have any questions or concerns please do not hesitate to contact the undersigned.

Very Truly Yours,

Daniel A. Necci
District Attorney

DAN/cjg

See, link to the letter from Walworth County District Attorney to Tim Fader.  

Readers may recall that UW-Whitewater wrestling Coach Tim Fader, who had one of the finest wrestling programs in America, was fired (his contact not being renewed) from UW-Whitewater about six months ago.

Coach Fader contends that he was dismissed for reporting an alleged sexual assault to the police rather than university authorities.

When Fader was first suspended, local accounts of the suspension sloppily (and falsely) made it seem that Fader, himself, might have been somehow criminally implicated. 

Any suggestion of that kind was careless and wrong. 

Fader reports that

the letter from Necci came after News 3 first reported in September on how the reigning conference coach of the year had lost his job.

“It goes along with what I have said this entire time,” Fader said. “Out of (the) story, I received a letter from the district attorney completely clearing my name with any illegal or criminal investigation.”

Channel 3000 also reports that

Whitewater Police meanwhile are continuing the investigation into the alleged sexual assault. Capt. Brian Uhl said the case remains open as the Walworth County DA’s office is waiting for results from the state crime lab before a final charging decision may be made.

For prior posts here at FREE WHITEWATER, see (1) Coach Fader’s Interview with WISC-TV (Channel 3000), (2) Questions on Assault Reporting, Formality, and Former UW-Whitewater Wresting Coach Fader, (3) Assault Reporting, Formality, and Former UW-Whitewater Wresting Coach Fader, and (4) Caution on Publishing About Criminal Investigations.

Gazette Thinks Janesvillians Are Too Stupid to Buy Milk of Their Own Choice

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Among the items in its ‘Monday Thumbs Up/Thumbs Down’ editorial, the Gazette argues against allowing Wisconsinites to drink organic milk (subscription req’d). 

It’s not merely that the paper’s editorial board thinks that drinking raw imprudent (pointing to illness from a recent incident), it’s that the board thinks sales should remain illegal.  

Without a law, the paper frets that some people might choose raw milk, and a fraction of those people would get sick, and that would sink Wisconsin’s dairy industry:

Thumbs down to consuming raw milk. There’s a good reason to use pasteurization, which kills pathogens by heating milk to high temperatures, a process named for the scientist who discovered it, Louis Pasteur. In Durand, 38 people, including many players, were stricken after drinking raw milk at a football team potluck Sept. 18. The Milwaukee Journal Sentinel reported that nine people were hospitalized and racked up thousands of dollars in care expenses. The team had to forfeit a game because so many players were ill. Except for limited, incidental sales, state law prohibits sales of unpasteurized milk. Still, advocates claim the law should change to give people access to fresh, unprocessed milk direct from farms. Nonsense. In America’s Dairyland, the reputation of our agriculture products is crucial. This Durand incident should dispel any notion of changing state law

This argument assumes that consumers in Wisconsin or elsewhere would not adequately distinguish between organic and raw milk from our state, and would – generally – shun all milk produced here. 

I’m not in the least persuaded that consumers locally or in other states are so undiscriminating: it’s as though consumers would be too dense or too panicked to tell whether a carton’s label said pasteurized or organic. 

Big Dairy often presents an argument of this sort: we can’t risk the reputation of Wisconsin’s pasteurized milk – but what they really mean is that they think (or want you to think) that consumers are incapable of reading a label well enough to distinguish between one that says PASTEURIZED and one that says ORGANIC.

On the contrary, shoppers are more than capable of reading a label, as they do each day when choosing between items.  Believing people little more than unthinking, this brings the editorialist to contend that regulation of a simple product, easily labeled, is vital to protect people from themselves.  

We’ve no need to ban organic milk to protect Big Dairy any more than we have to ban motorcycles on the theory that motorcycle accidents might give highway driving a bad name. If motorcycles should be riskier, that’s a choice for motorists to make when picking a vehicle.  In any event, the presence of motorcycles on the road hasn’t stopped people from buying cars & trucks. 

As has been true so many times before, the Gazette‘s editorial board erroneously writes about people as though they were dim and dull. America would not have advanced across a vast continent, and developed a modern technological society, if people were even half so dull as they Gazette depicts them.

Honest to goodness, does the Gazette‘s editorialist think that Janesville’s residents have not even advanced beyond elementary school?  He must have doubts, as he pedantically reminds the paper’s readers that pasteurization is a process that Louis Pasteur first developed.

Next he’ll remind readers that Washington, D.C. is named for George Washington, and Ford automobiles come from a company that Henry Ford founded. 

In a free marketplace of ideas and news, even the supposedly worst rumors quickly dissipate when confronted with sound analysis.  Initial concerns about infectious diseases (far different & worse than occasional nausea from milk) quickly fade when people correctly report the genuine difficulty of those diseases spreading in our society. 

People are more than capable, for themselves, of deciding which kind of milk, if any, to drink. They’re equally capable of forming an opinion about the risks from different kinds of milk without attributing the same reputation to each kind.   Government’s prohibitions aren’t required.   

That’s not nonsense; it’s the reasonableness abounding within ordinary life.

The Dean’s Drug-War Equality Argument

I’m sorry I didn’t get to this sooner, but one of UW-Whitewater Dean of Students Mary Beth Mackin’s remarks about drug busts on campus deserves a reply.  She’s offered an argument for equality of treatment on and off campus.  Her argument implies that she either misunderstands the underlying justification for equality arguments, or that she supports the Drug War no matter how Draconian in Whitewater, inner cities, or anywhere in America. 

Her remarks came during an interview with Gilman Halsted of Wisconsin Public Radio.  (See, UW Campuses Use Undercover Student Informants In Drug Busts: Students Caught Dealing Drugs Are Offered Option Of Wearing Wire In Exchange For Reduced Charges.)

In that interview with WPR, Dean Mackin offers the contention that because non-college students might be subjected to drug charges (even for small amounts of narcotics), it’s fair that college students should be, too:

She said that when students break drug laws on campus, they shouldn’t be treated differently just because they’re students.

“I think the important thing is this is not an anomaly to a college campus,” Mackin said. “It’s the same thing that happens to 19-year-old who has not come to college, who’s working somewhere out in society.”

There’s her equality argument.  On campus, off campus, wherever: the same drug policies equally enforced.

Dean Mackin, however, can only make this equality argument ethically if she believes that the Drug War is a positive one for society. 

That’s because the extension of equality depends on the conviction that what one extends is, in itself, positive.  One can virtuously seek an extension of a good thing; the extension of suffering or harsh treatment to greater numbers in the name of equality is no virtue. 

So extending the right to vote, freedom of speech and assembly, or marriage makes sense when one sees those as fundamental expressions of one’s humanity.  Equality in these cases is an extension of positive goods. 

By contrast, no one contends that equality of treatment would have justified the extension of Jim Crow laws, for example, from parts of America to the whole country. The unfairness of the laws trumps an argument from equality that they should have been extended to all fifty states.

To believe morally in the equal reach of the Drug War requires the belief that the Drug War is a social good. 

Ms. Mackin may believe that, of course. 

If she does, then she might tell those from the inner city, not just in Whitewater, that she’s committed to the equality of severe penalties and incarceration everywhere: Milwaukee, Chicago, Whitewater, wherever.

Dean Mackin might ask those many inner city residents, if she has the time, if they feel better about their treatment under the law now that she’s advocating equality of conditions on her rural campus. 

I’d guess she’d not be met with a positive or thankful response.

A Game It’s Not

There’s a story in the Gazette about a Janesville resident who’s looking for a litigation fund to support lawsuits against the City of Janesville.  See, subscription req’d, Citizens group wants to mount legal offensive against City Hall.

The story’s too funny – it’s part overwrought idea, and (I would guess) part effort of the Gazette to troll readers over a bogus, straw-man threat to local government (to which that paper’s editorial board routinely grovels). 

Litigation against a city – or anyone, really – isn’t a game or sport.  It’s a serious undertaking that requires huge amounts of behind-the-scenes work for each pleading, each moment of speaking in court, or each moment advancing one’s position with the public. 

There’s no sudden victory in something like this – there’s no point in counting on the supposed shock of a lawsuit, alone.  Looking for a reaction is an immature, and likely ineffectual, approach.

(That’s why one should advance along a deliberate set of steps, and why it’s bad form to sue a city without that deliberate approach.)

One doesn’t sue a city or government agency to get a rise out of someone, for goodness’ sake.

One sues to protect one’s rights of liberty and safety, to redress injustices, or for broad policy reasons like a defense of one’s environment, for example.   

Everything one does should be supportive of accomplishing that objective, with a practical, favorable, concrete outcome.   Before one begins, one should say: I’ll commit fully and completely to this task, prepared not for today’s headlines, but years of effort ahead, each day, so much as might be needed. 

Respite and momentary relent along the way would serve principally to bolster and refresh one’s energy for even more ahead.   

An outlook like that is worthy of the seriousness of the effort, and has another advantage, too: a person who sees things this way is the sort of man or woman who will litigate with poise and sangfroid. 

Only in this way, by approaching an effort seriously beforehand, can one be, as FDR once described Gov. Al Smith of New York, a ‘happy warrior.’  The best and most enjoyable expedition – with engaging, spirited moments for a good cause – comes with preparation and commitment. 

Happy warriors, so to speak, begin as thoughtful ones. 

Understanding America Backwards

There’s a longstanding maxim of liberty that Americans inherited from England: ‘those things not prohibited by law are permitted.’ The burden is on the state: if there’s no express ban under law, then a person is free to act. 

Since government has to enumerate restrictions if it wants to enforce them, a free society places a practical limitation against constraints on liberty.

(A companion maxim of liberty applies in reverse to the government, itself: the state may do ‘only those things expressly permitted under law.’)

It’s a tragedy of our times that so many officials, and especially small-town ones, believe and act in the opposite and worse way: they assume that action may be limited unless they expressly concede otherwise. 

Most of these same officials consider themselves proud Americans, yet they’re ignorant of even these fundamentals of liberty.  Although those of this ilk may consider themselves proper representatives of our tradition, they’re closer to the hectoring party cadres of third-world autocracies.  

Posted also @ DailyAdams.