Reporters note: Considering the inefficiencies in Winnebago Countys criminal justice system, which has led to costly litigation and jail overcrowding, the following article about Dane Co., Wis., offers a case study in inefficiency that may be valuable to readers.
Outsiders often view Madison, Wis., and Dane County as a bastion for liberal and progressive-minded individuals who show a great concern for justice. However, observers of a complicated negligent homicide case argue events surrounding a one-car crash in 2001 may provide a window into questions about prosecutors view of justice in Dane County.
Defense attorney Joseph L. Sommers, who is representing Adam Raisbeck, recently submitted affidavits that allege the Dane County District Attorneys office has withheld evidence, fabricated an affidavit, issued a fraudulent bench warrant and subordinated perjury to force a plea bargain or trial against Raisbeck.
Raisbeck, 17 at the time of the incident, drove a vehicle off Missouri Road and rolled it into a soybean field in rural Dane County during the early morning hours of Sept. 1, 2001. The vehicle was discovered about six hours later by a passing motorist.
Sommers said Raisbeck was not under the influence of alcohol or drugs at the time of the accident.
During the past four years, Dane County prosecutors three accident reconstruction analysts have given at least five different estimates of the vehicles speed at the time of the crash. The estimates range from 62 to 74 miles per hour in May 2004, to 88.87 miles per hour in September 2001.
Prosecutors allege the speed of the vehicle at the time of the accident contributed to the death of Jerry R. Pageloff II, 33, who had relatives in Rockford. Another passenger in Raisbecks car, Andrew Ross, 16, was injured during the accident.
According to Sommers, Ross gave conflicting versions of what happened the night of the crash, which led prosecutors to not use him as a witness. Ross initially informed investigators he was not awake when the accident occurred. He later changed his story sometime after retaining a personal injury lawyer from a major Milwaukee-based law firm.
Whether Raisbeck applied the brakes before the car left the road is central to Sommers defense of his client. Sommers alleged in an April 12 affidavit that the District Attorneys office interfered with his subpoenas for photographic evidence, which would have proved that Raisbeck had been bound over [for trial] on a fraudulent basis.
Sommers based his affidavit on testimony at an April 8 deposition of accident reconstruction analyst Robert Krenz, who was one of three experts prosecutors cited during different stages of the case.
Sommers argued Raisbeck should have never been held for trial because fraudulent evidence was used by Dane County Assistant District Attorney Paul Humphrey on Feb. 15, 2002, to persuade Circuit Judge Angela Bartell there was sufficient reason to proceed toward trial.
Specifically, Sommers alleged Dane County Deputy David Gnacinski utilized an inapplicable formula to calculate his speed estimate, which was based on the assumption Raisbeck had not applied the brakes before leaving the road.
However, Sommers said after Krenz reviewed photos of the accident scene three days earlier on Feb. 12, 2002, Krenz concluded Gnacinskis speed estimate was invalid because the brakes had been applied. Although that information was communicated to Humphrey by Krenz, Humphrey did not reveal Krenzs opinion in court on the day Judge Bartell ruled Raisbeck should proceed toward trial.
The failure of Humphrey to reveal the conflicting opinions of Krenz and Gnacinski at the Feb 15, 2002, hearing resulted in what Sommers characterizes as a miscarriage of justice. In other words, Sommers argues Raisbeck shouldnt be facing trial, which is scheduled to begin April 18.
As an example of prosecutors failure to reveal all exculpatory information, Sommers said Dane County officials never fully complied with two subpoenas demanding accident scene photos that would have revealed braking before the crash. Instead, Sommers alleged he received cropped photos of the tires from Humphreys office. He discovered the photos had been cropped during his own investigation, not as part of the subpoena.
According to Sommers, it is standard procedure for the District Attorneys office to provide cropped photos to defense attorneys. Representatives from the Dane County District Attorneys office could not be reached for comment about Sommers assertion regarding cropped photos.
As to the alleged fabricated affidavit and subordinated perjury charges, Sommers said both involve Krenzs testimony at the April 8 deposition. The allegations involve the photographic evidence and Krenzs April 7, 2003, testimony that Sommers said contradicted Krenzs deposition statements given April 8, 2005.
To complicate matters, Sommers alleged a fraudulent bench warrant was issued to hold and pressure Kevin McCoya friend of Ross and Raisbeck. Sommers alleged the bench warrant was issued Nov. 12, 2003, to pressure McCoy to inform investigators Raisbeck told McCoy he was traveling at a high speed at the time of the accident.
If such testimony could be secured from McCoy, the prosecutors case that Raisbeck was negligent could persuade a jury to convict Raisbeck, Sommers said.
Circuit Judge Daniel Moeser questioned the legitimacy of the warrant at a Sept. 22, 2004, hearing. However, the court took no action to pursue sanctions concerning the issuance of the warrant.
Moeser is the father of Dane County Assistant District Attorney Matthew Moeser.
Adding to the challenges of defending Raisbeck have been Judge Moeser and Judge Paul Higginbothams criticisms of Sommers during proceedings.
According to court documents, on Aug. 22, 2002, Higginbotham asserted that Sommers believed everybody is lying and held a conspiracy world view.
One of Sommers suspicions concern conflicting stories about McCoys 13-day incarceration in November 2003days after the scheduled start of Raisbecks trial the week of Oct. 27, 2003.
However, the trial never materialized, and was rescheduled for the week of Jan. 20, 2004, which was also rescheduled.
McCoy complained in an affidavit that he was told by Dane County Detective Janet Boehnen (Anderson) he must testify in the case to be freed from jail.
Boehnen said that assertion was not true, during an initial April 14 interview. Boehnen added she couldnt comment further because the case was pending.
McCoy was picked up by police and jailed in a separate incident involving alleged outstanding citations before the warrant was issued.
In addition to McCoys incarceration, Sommers has also questioned the accident reconstruction analysis, which is based on assumptions to estimate vehicle speed. He said such reconstruction analysis is not a science, and shouldnt be used in criminal cases because speed estimates cant be reproduced, challenged or verified.
Observers of the Raisbeck case have established a Web site to detail how the case has been handled, primarily by Humphrey and his boss, Dane County District Attorney Brian Blanchard. Observers created the Web site in response to what they believe is inadequate coverage by Madison media.
Although Humphrey was removed from the case by Blanchard, Humphrey said during an April 1 interview: Nows not the time to talk about this. Humphrey added he may be willing to discuss the case after the trial.
Humphrey has been replaced by Deputy District Attorney Judy Schwaemle.
During a March 31 telephone interview, Blanchard refused to be recorded for accuracy and responded to a question of whether there may have been prosecutorial misconduct during the Raisbeck case by saying: Sounds like youre coming into this with a particular angle, and I wouldnt be interested in commenting. He added he couldnt comment on pending cases.
Even though Blanchard didnt want to be recorded or offer his opinion, former Dane County District Attorney Brian
Brophy had no such reservations. Like Sommers, Brophy is now a defense attorney in Madison.
Brophy responded to the same question of whether there may have been prosecutorial misconduct during the Raisbeck case by saying that, based on news reports: Youve got an overzealous prosecutor bolstering what is perhaps a weak case. …What should the District Attorney do about it? …No. 1, do what he [Blanchard] did in taking that prosecutor off the case.
No. 2, go back over the case. … Are there weaknesses in the case that would affect the charging decision, and determine whether or not its a case he should be prosecuting?
In light of whats gone on, redetermine the merits of the case. Thats what hes obligated to do, Brophy said.
When asked why a case such as Raisbecks would be pursued by prosecutors, Blanchard speculated: Ego. He didnt want to lose.
One of the dangers of an adversarial system of justice is that winning and losing sometimes becomes more important than achieving justice, Brophy said.
Sommers agreed with Brophys assessment, which explains why he is equallyif not moreaggressive in his defense of Raisbeck. Sommers added he believed the goal of the District Attorneys office was to force a plea agreement by financially and psychologically pressuring Raisbeck.
From the view of Sommers and Raisbecks supporters, failure to expose details of the case jeopardizes everyones rights to an unobstructed view of justice.
Without comment from Humphrey or Blanchard, it is difficult to determine the view from their window. However, its safe to assume the view is quite different from what Sommers has observed.
As Sommers wrote in an April 11 letter to the court: [T]he DA [District Attorney] Offices conduct affects not only Adam Raisbeck, but future defendants in similar predicaments.
John Benson, former Wisconsin State Superintendent of Public Instruction, supported Sommers by saying: I am sure justice is not being done in the Raisbeck case.
To view Raisbeck supporters Web site and details of the case, visit www.justicedanecostyle.com.
From the April 13-19, 2005, issue