Here’s an update on the lawsuit against former Whitewater Police investigator Larry Meyer. I will offer a chronology, information on the latest legal developments, and an assessment of the coverage from Bliss Communications, publishers of the Janesville Gazette and The Week. This will be a long post, with the advantage being that it will serve as a single spot for coverage of the case, and my assessment of the problems in our community lawsuit reveals.
Principal Chronology:
May 25, 2005, Whitewater resident Steve Cvicker filed a lawsuit in federal court against Whitewater investigator Larry Meyer, among others, alleging constitutional and civil rights violations. The case was assigned to federal Magistrate Judge William Callahan. Defendants subsequently answered, later amending their answer, to Cvicker’s complaint.
June 29, 2006, Defendant, Larry Meyer filed a motion for Summary Judgment (that is, there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law).
March 20, 2007, Judge Callahan denied Defendant, Larry Meyer’s motion for summary judgment regarding alleged constitutional violations of the Fourth Amendment. Cvicker’s lawsuit on those weighty grounds would continue; only his statutory claims were set aside.
May 14, 2007, Plaintiff, Cvicker submitted reports from his expert witnesses. Those expert reports included a well-experienced expert’s assessment of (1) the evasive, incomplete answers that Meyer gave under sworn deposition regarding his ‘investigation’ of Cvicker, and (2) Meyer’s unprofessional conduct and conduct in significant excess of his search warrant, involving seizure of personal items that led to the basis of Cvicker’s constitutional Fourth Amendment claim against Cvicker.
November 15, 2007, Defendant, Meyer submitted a motion to enforce a supposed settlement agreement between the parties and to dismiss the lawsuit with prejudice.
December 6, 2007, Plaintiff, Cvicker requested an extension of time to file a reply to the motion to dismiss.
December 7, 2007, Defendant, Meyer filed a brief opposing an extension of time for Cvicker to file a reply.
December 7, 2007, Judge Callahan granted an extension of time for Plaintiff, Cvicker to file a reply.
December 20, 2007, Plaintiff, Cvicker filed his brief in opposition to Meyer’s motion to dismiss.
Recent Legal Developments, Assessed:
A. Meyer’s Motion to Enforce a Supposed Settlement Agreement.
Readers recall that, before Meyer’s motion to enforce a supposed settlement agreement, I speculated in “Questions on the Settlement in the Larry Meyer Case,” that Meyer and his attorney (Ryan Braithwaite) might be seeking confidentiality as part of a settlement agreement. Here’s what I wrote:
Defendant may be insisting that the plaintiff agree not to discuss any aspect of the lawsuit as a condition of settlement. If [that] is true, then it involves worry over embarrassment to someone bigger than Meyer.
I was right. Braithwaite’s November 15, 2007 motion to enforce contains these almost cryptic words about a supposed release that Meyer wants to enforce: “The release will contain a confidentiality provision.”
Readers know that I am opposed — completely — to confidentiality in municipal litigation involving claims against public officials, during public action, at public expense, involving public matters. I wrote a post entitled, “Against Confidentiality in Municipality in Municipal Litigation,” stating seven arguments against confidentiality in this litigation.
I invite Chief Jim Coan to defend the principle of confidentiality in this matter. If he is unwilling or unable to offer a defense, he may designate anyone he thinks more capable. I will print his defense in full, and reply thereafter. I may be reached at adams@freewhitewater.com.
It’s not that Coan can’t talk, or write, at length. He does both, as I pointed out in my post entitled, “Cat Has Your Tongue?” We are regaled with any number of vain and wasteful travelogues of his adventures in cities nothing like ours. A man who receives a pricey uniform allowance to look good should be able to defend a policy matter on principle.
B. The Affidavit of the Attorney Opposing Meyer’s Motion.
You may have read that Attorney Braithwaite alleges in his affidavit there was a supposed settlement. There are opposing affidavits, though, including one from an opposing attorney in the case, who have also offered sworn statements under oath. I will offer relevant excerpts from the opposing affidavit. You’ll quickly see that Braithwaite’s account, and press accounts that follow the defense line, are either (1) disputed under oath, or (2) omit important information.
From Attorney George Mistrioty, in a signed, sworn affidavit from December 20, 2007, Paragraph 4:
Any discussions or offers regarding resolution of the criminal case and the pending post-conviction motions were conducted between Attorney Resar and and the [Walworth County] District Attorney’s Office. I was not involved in those discussions, but was aware that Attorney Resar believed that agreement would be reached. Based on the belief that settlement would be reached, I adjourned a scheduled deposition of D.A. Koss.
From Paragraph 5:
Walworth County District Attorney Phillip Koss is a long-term acquaintance of mine. District Attorney Koss did contact me as a courtesy after September 20, 2007 and informed me that he had reconsidered a settlement proposal that he had discussed with Attorney Resar, and would not reduce or otherwise change Mr. Cvicker’s criminal convictions.
Emphasis added in blue font.
From Paragraph 9:
I have not acknowledged or told defense counsel that I believed that he is correct and that he is entitled to enforce either of the two claimed settlement agreements he has identified in his declaration to the Court.
This affidavit, and the filed brief that the affidavit accompanies, contends that
(1) there were ‘global’ settlement discussions between the D.A.’s office and Cvicker’s criminal lawyer,
(2) that ‘settlement’ was first announced to Court and the press before D.A. Koss was to be deposed in the matter,
(3) that D.A. Koss must have considered a global settlement, as he ‘reconsidered‘ it later, and
(4) it’s laughable to contend that any discussions that took place voluntarily between D.A. Koss and Attorney Resar were ‘coerced.’
The idea of coercion is a bad joke: it’s what you tell gullible people who have not read (or will not report) on this case.
What’s so important about a deposition of D.A. Koss, by the way? I don’t know, but someone might ask a question about how well-experienced A.D.A Dennis Krueger filed a sworn affidavit in which he affirmed that Larry Meyer disregarded prosecutorial direction, in which Krueger affirmed that Meyer said that he, Meyer, destroyed evidence seized.
Perhaps someone at that deposition might also ask D.A. Koss about the circumstances under which Krueger left the Walworth County District Attorney’s office shortly thereafter. (Krueger is now with the Wisconsin Attorney General’s Office — Krueger ‘fell up,’ so to speak.) They might even ask about statements that D.A. Koss made at Police Day May 2007 in which he offered personal regard for Meyer. (Ask for the video from Cable Channel 13, if they have kept it. You’ll see what I mean.)
When they’re done asking those questions, they should ask Coan and Lisa Otterbacher about Coan and Otterbacher’s leadership and management of someone like Meyer. Our community deserves better than this.
Recent News Coverage, Assessed:
I will review the latest news story on the case, from Mike Heine of the Janesville Gazette and The Week (both Bliss Communications publications). I am not sure what to make of Heine: he has broken some news in this case, but as I will show, his latest story is startlingly weak and incomplete. So much so, that I am not sure what to make of it.
On December 22, 2007, the Janesville Gazette ran a story under Heine’s byline entitled, “Cvicker Decides Not to Settle Suit.” I don’t know if Heine writes his own headlines — at many papers that’s an editor’s job — but this headline is one-sided, as you can see if you have read (1) all the briefs in the case, and (2) all the affidavits in the case.
Did Heine read all the documents in this case? I am not sure. In past stories, he has referred to court filings, but I cannot tell how much work he did for this story. He uses a dateline of ‘Milwaukee,’ but that does not tell me if went to the courthouse, and reviewed filings. If he didn’t, then he hasn’t worked hard enough. Solid reporters probe deeply. If Heine did, then I’m shocked by some glaring omissions.
Let me show you how carefully he quotes D.A. Koss:
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.
Heine omits the one question to ask, based on the sworn affidavit of Attorney Mistrioty and the latest brief in Cvicker’s lawsuit against Meyer:
Did D.A. Koss ever hold discussions with criminal Attorney Resar about a global settlement? A sworn affidavit contends that Koss did hold those discussions.
If discussions are such a bad idea, why would Koss even entertain them, if — as others allege — he did entertain these discussions? Koss never denies those discussions took place. Never. You can see it yourself, at the Gazette article to which I have linked, how carefully Koss answers, to avoid that direct issue.
Did Heine bother to ask? If he did, what answer did he get? If he got an answer, then why didn’t he report it? If Heine knows that discussions took place, why be part of a story that laughably pretends that these were ‘coerced’ discussions?
Heine’s story is incomplete and evasive to me, and it reads more like a press-release for the district attorney than solid reporting.
If you can’t bother to ask the obvious questions, you’re not serving our community.