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The appellate decision (“Appellate Decision”) is online at State v. Charles C. S., Jr., No. 2014AP1045, unpublished (Wis.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?