Last week, I wrote on the Larry Meyer case in a post entitled, “Questions for a Reporter, and the Community.” I had two questions about coverage of the lawsuit against Larry Meyer, the now-retired investigator of the Whitewater Police Department. My questions were directed to the reporters of the Janesville Gazette, The Week, and their online editions. Below I will repost my questions, with the answers that somehow escaped the Gazette‘s reporters.
All this matters because it goes to the heart of how Meyer was led and managed, how eager city officials and others are to keep this matter confidential, or how eager some are to cast the story in a light favorable to themselves, contrary information notwithstanding.
(In any event, the very fact that the Defendant, Larry Meyer is reduced to considering settlement a worthy goal shows how weak his position really is.)
1. Why has your newspaper not reported that the settlement includes proposed confidentiality agreements involving a lawsuit against a public employee, involving a public matter, at public expense, during the exercise of public duties?
Here, from a pleading in the case, Exhibit C of Defense Attorney Braithwaite’s January 3rd affidavit, Braithwaite includes a copy of an email that the defense contends is a proposed settlement. These are the paragraphs on confidentiality, that show clearly how eager the defense and its supporters are to keep this public matter, involving public conduct, at public expense, private forever:
As a condition precedent to the performance of the promises and consideration described in this Release, all parties, hereby agree not to disclose to any media representative or any third party, including but not limited to the Association of Trial Lawyers of America (“A TLA”), Jury Verdicts Weekly, The Defense Research Institute, Trial Magazine, A TLA Law Reporter, A TLA Products Liability Reporter, Verdicts, Settlement and Tactics Magazine, The Verdict, The National Law Journal, the Milwaukee Journal-Sentinel, the Janesville Gazette, the Bar Journals of Wisconsin or any other state, or any print, broadcast and/or electronic media whatsoever, including but not limited to any Internet or Internet website, any of the terms or conditions of any paragraphs of this Release, or any dollar, sum, estimate, or characterization of the amount of the settlement embodied in this Release or any part or portion thereof. To the extent that the details of this dispute involve claims against other parties not subject to this release including but not limited to The Walworth County District Attorney’s Office, the Walworth County Sheriffs Office the Walworth County Huber Dormitory or any parties not specifically mentioned above, they are not subject to this agreement and may be discussed with violating this agreement. Stephen D. Cvicker agrees and stipulates that any failure to perform in accordance with the provisions of this Paragraph will result in the return to the released parties of the payment of $25,000, along with any attorney fees/costs incurred by the released parties in connection with such failure, will be due immediately upon the released parties’ written demand following such failure.
Stephen D. Cvicker and his attorneys shall not disclose or characterize to any third person the dollar sum, any estimate of the amount of the settlement embodied in this Release, or the negotiations which culminated in this settlement or any part or portion thereof. Notwithstanding the provisions of this paragraph, Stephen D. Cvicker and his attorneys may discuss the amounts received pursuant to this Release as may be reasonable necessary with trust and investment advisors, accountants, and other financial advisors, and may reveal the amounts received pursuant to this release as otherwise required by law. It is understood that all such advisors and attorneys must maintain the confidentiality of the information disclosed to them. To the extent that the details of this dispute involve claims against other parties not subject to this release including but not limited to The Walworth County District Attorney’s Office, the Walworth County Sheriff’s Office the Walworth County Huber Dormitory or any parties not specifically mentioned above, they are not subject to this agreement and may be discussed without violating this agreement.
If this list were any more exhaustive, America would suffer a shortage of printer ink.
The officials of our police department and city administration will talk at length about any trivial matter, but for this public matter they would apparently prefer silence.
(See my list of seven sound reasons that confidentiality in municipal litigation is bad policy in my post entitled, “Against Confidentiality in Municipal Litigation.”)
I ran a series recently on our Police and Fire Commission, in which I showed — among other matters — how little time they spend meeting. No one on that commission has ever written to me to defend any part of their work. I am not surprised; it’s a years-long exercise in embarrassing mediocrity. If they had done even a tolerable job, one can be assured that I would have received many indignant emails from PFC members. That I received no defense speaks for itself. But, as they have met so sporadically and briefly over these last years, perhaps they might put aside whatever they do in their leisure time to explain how this confidentiality agreement is good policy.
Go ahead. If you want to be recognized as city officials, department heads, and noted commission members exercising a required public duty, then speak on behalf of this matter. I’ll publish what you write in full, uninterrupted, and reply only thereafter.
2. On Quoting the Walworth County District Attorney, Phillip Koss, in your December 22nd Gazette story, entitled, “Cvicker Decides Not to Settle Suit.” You quote D.A. Koss at length, protesting against the idea of a ‘global settlement,’ where charges in a prior criminal matter would be reduced in exchange for the settlement of the civil suit against Meyer. In Exhibit A of Defense Attorney Braithwaite’s January 3rd affidavit, Braithwaite includes a copy of an email from D.A. Koss.
Will you report on that email, and in light of it, what do you believe that it says about whether discussions of a global settlement actually took place, and Koss’s candid estimation of the merits of discussing a possible global settlement?
Here’s how Mike Heine of the Gazette carefully quoted D.A. Phillip Koss on December 22nd:
Walworth County District Attorney Phil Koss said he never agreed to a reduction of criminal charges in exchange for a settlement in Cvicker’s civil case. “If I reduced this, everyone who is unhappy with their criminal conviction is going to sue the investigating officer and then go for a reduction by going to the federal court,” Koss said. “It’s bad precedent to reward someone for suing an officer.”
Koss said it was Cvicker and his attorneys who tried to tie the reduction of criminal charges to the civil case.
“I’ve never contacted them saying, ‘Settle this, and we’ll reduce in exchange for a release,’” Koss said….
Koss agreed that kind of action would be improper.
“We didn’t do that,” he said. “We were contacted by them. They made an offer to make sure everybody was held harmless if there was a civil settlement.
“Never in all my years have I seen some sort of criminal settlement tied to a civil settlement (like this),” Koss said.
But here is what D.A. Koss wrote, to attorneys involved in a possible reduction of criminal charges in exchange for a civil settlement, in an email that is Exhibit A of Defense Attorney Braithwaite’s affidavit filed on January 3rd:
I have thought about this overnight. Frankly, I don’t think that it’s fair that the state has to give something up to help a civil case; especially when it’s not factually related to that case. It certainly has been rushed as well. I think it [sic] we reduce this we will be saying to the jury and the public that we screwed up. All I have is my integrity, and I can’t have that questioned. Therefore, I will not amend the felony to misdemeanors. I certainly can see both sides, that’s why it was a difficult decision. I appreciate the work all the attorneys have done, but this has been last minute for the criminal case. Phil
(Emphasis added in blue font.)
The District Attorney’s email is noticeably more understanding of considering the issue of a global settlement (“I have thought about this overnight”) and of the possibility of deciding in favor of a such a settlement (“I certainly can see both sides, that’s why it was a difficult decision”) than his posture in the pages of the Gazette. He writes that he’s opposed, as many others might be, but it’s a balanced assessment.
From the pages of the Gazette, one would think that D.A. Koss was railing against a proposal for cannibalism, or some other depravity. The email — now part of a public court filing — reveals a different perspective than the public posturing in a local newspaper.
(Nor can Koss reasonably contend that he was misquoted in the Gazette without a chance to respond to them, or for the Gazette to correct the story. The Gazette ran its story on December 22, but afterward, days apart, ran the same story online at the GazetteEztra.com, in print at The Week, and online at TheWeekExtra.com.)
I neither favor nor oppose a so-called ‘global settlement’ of civil and criminal matters. My concerns are against confidentiality in municipal litigation, and for what the lawsuit’s allegations of Meyer’s conduct show about the quality of police and administration leadership in our city.
Nonetheless, the Gazette has not probed deeply, and has allowed significant grandstanding about aspects of this case. They couldn’t or wouldn’t answer my questions from last week, but I expected no answer from them.
No matter; the answer’s here.