Wisconsin State Journal


Burning questions: Trial, conviction — justice or frame-up?

May 17, 2011

MONTELLO — Although they’d investigated it for a year, authorities still couldn’t say who they thought lit the fire that destroyed J.J.’s Pub.

Witnesses said Joseph “Joey” Awe was nowhere near Harrisville when the Sept. 11, 2006, blaze started. Awe and wife, Irene Florman-Awe, lived in Friendship, 34 miles away. Kean Fravel, who lived next to J.J.’s Pub, called Awe at home to alert him to the fire sometime after 4 a.m.

Investigators and Marquette County District Attorney Richard Dufour theorized that Awe, a disabled veteran of the Persian Gulf conflict, hired someone to torch the bar. Dufour and police adopted the hypothesis that the arsonist kicked or punched a hole in a wall, then held a flame inside the wall until it burst into flames.

The theory, which rested on the discovery of a deeply charred spot and a V-shaped burn pattern in the bar’s storeroom, formed the basis of the prosecution of Awe in December 2007 on the charge of being party to the crime of arson.

On the opposite side of the storeroom from the charred hole had hung the bar’s electrical panel. Although it also was badly burned, the panel and wiring likely were attacked by the fire, not the source of it, electrical engineer Chris Korinek concluded.

Investigators apparently didn’t consider reports by Awe of electrical problems he said plagued the 130-year-old building. Fravel, among the first to come upon the scene, told investigators he first saw flickers around the video gambling machines along a back wall — the same wall that held, on the opposite side, the bar’s electrical panel.

What the judge, Awe and his attorneys didn’t know was the state’s experts — Korinek Korinek and Rich Relien, a private fire investigator — were being paid not by the state or Marquette County but by Mt. Morris Mutual Insurance Co., the Coloma company that stood to save at least $200,000 if Awe were convicted.

Conspicuously missing from the four-day trial was Justin Kohel, a police informant who told Marquette County Sheriff’s Detective Sgt. Joseph Konrath that Awe mentioned “many times” his plans to burn down the bar to collect the insurance money. Kohel was a star witness at the July 10, 2007, preliminary hearing to determine whether Awe, then 36, should go to trial.

A few weeks before the preliminary hearing, Dufour quietly dropped six pending traffic cases and a felony drug case against Kohel. He also gave Kohel a break in another felony drug case. Kohel, then 30, walked away from the eight cases with no jail time and a $754 fine, court records show.

Dufour said the deal was tied to Kohel’s work as a police informant, not his testimony against Awe.

At the preliminary hearing, Kohel was not the slam-dunk witness Dufour may have hoped for. On the stand, he repeatedly said he couldn’t remember or contradicted information he’d given Konrath. Kohel had to be prompted by Dufour to recollect his claim that Awe said he would burn down J.J.’s Pub for the insurance money.

But Kohel said he was sure of this: A large photo of Awe and his buddies during the war that hung above the video gambling machines was removed sometime before the fire.

Spoliation of evidence.  Investigators with the state, Marquette County and private investigators hired by Mt. Morris Mutual Insurance Co. comb through the fire debris at J.J.’s Pub. Working together, the investigators declared the 2006 fire was intentionally set, despite reports the building suffered from persistent electrical problems.
Marquette County Sheriff’s Department photo


In an interview, Dufour said he didn’t use Kohel during the trial because his extensive criminal history could have weakened the state’s case. Kohel didn’t respond to a certified letter sent to his last known address.


At trial, Kohel’s claim about the picture came in indirectly through Deputy State Fire Marshal Joseph Siehelr, who testified the poster-sized photo — which he described as having “extreme sentimental value” and being costly to replace — was removed before the fire.

Siehelr testified there was no “protected area” where the framed poster would have been. He said he assumed the picture also would have been behind glass, and no glass was found in the rubble of the fire.


Competing theories
Awe’s attorney, David Grace of Wisconsin Rapids, relentlessly challenged the state’s witnesses. But when it came time to put on his defense, Grace called just two people: Terry Schroeder, an electrical engineer from Mosinee, and Awe.

Schroeder, whose experience included four fire investigations, was outgunned by the veteran fire experts who testified they collectively probed more than a thousand blazes. He stuck to his opinion that the likely cause of the fire was electrical.

Schroeder theorized the wall cited by the state as the point of origin actually caught fire after the roof collapsed and a burning beam was thrust into it.

Awe’s side also lacked access to crucial evidence.

After the fire, the pub was torn down and carted off by order of the town of Harris, whose board chairman, Glenn Thalacker, is a member of the insurance company’s board. The remaining electrical evidence was in the hands of Korinek, who was working for Mt. Morris. The electrical panel was provided to the defense only “a few minutes” before he was scheduled to testify, Schroeder said.

Electrical problems
When Awe took the stand, he denied any role in the fire and said the building was plagued by electrical problems.


“Sometimes you did not want to touch a breaker with your hand,” he said. “We used to keep a pool cue there to flip them over because you could get a good shock — make your hair stand up.”

He told jurors the enlarged photo of himself as a Marine serving in Kuwait was hanging the night of the fire and burned up in the blaze. Investigators didn’t find any glass in the rubble, he said, because there was no glass on it. He said the poster, provided to him by a beer distributor, was neither valuable nor irreplaceable. (After the trial, the distributor replaced it for free.)

And Awe tried to convince jurors he and his wife were financially comfortable. He testified the couple had $26,000 in debt on their home and bar. They had enough money with Irene’s early retirement income and the $3,300 a month he got in military and Social Security disability, Awe said.

Nor were they desperate to sell the bar. He told jurors their home in Friendship and the bar in Harrisville both were for sale. If the bar sold, they planned to buy another tavern closer to home. If the home sold, they would move closer to the bar.

Awe described the tens of thousands of dollars in upgrades he added to the bar since buying it five years earlier.

Did you burn down J.J.’s Pub? Grace asked.

“No sir. I would never do such a thing,” Awe said. “I loved that building. I put my heart and soul into it, fixing it up.”

The jurors didn’t believe him. On Dec. 20, 2007, Awe was convicted.

Grounds for appeal?
On March 6, 2008, as Awe awaited sentencing, Mt. Morris filed a lawsuit against him in Marquette County Circuit Court to recover the $76,638 it spent investigating the fire. The suit revealed for the first time the extent to which the insurance company bankrolled the criminal probe.

Two weeks later, Judge Richard O. Wright, who presided over both cases, sentenced Awe to three years in prison and nine years of supervision. In an unusual move, the judge refused to impose the sentence until Awe exhausted his appeals.

“Justice is not making him serve his jail time until he’s finally determined that that’s what he’s got coming,” Wright said at a later hearing. “There are grounds for appeal here. I’m particularly bothered by the Mt. Morris connection.”

Awe got a new attorney, Robert Baranowski of Madison. They petitioned Wright, then the state Court of Appeals, arguing among other things that Grace was ineffective and Mt. Morris’ extensive involvement was improper.

The courts disagreed. Last May, the Wisconsin Supreme Court refused to hear the case, and Awe went to prison. He’s serving his three-year term at Prairie du Chien Correctional Institution.

“It was cheaper for (Mt. Morris) to send me here than to pay me,” Awe, now 40, said in a telephone interview. “They knew I didn’t do anything wrong, but they didn’t care.”

‘They framed him’
In an interview, Mt. Morris’ attorney, James Baxter, argued the company acted “like any other insurance company would in similar circumstances.”

But Baranowski said the company’s central role in the criminal investigation “is the part of the case that drives me crazy. And that’s the part of the case that the courts and the prosecution seems to think is fine.”

On Friday, he filed an appeal in U.S. District Court in Madison, challenging Awe’s conviction on multiple grounds, including Mt. Morris’ role in collecting and maintaining the evidence.

Last fall, in a case remarkably similar to Awe’s, a Massachusetts store owner was exonerated by a federal judge who ruled the government’s investigation was unscientific and seriously flawed, and the defense attorneys failed to adequately challenge the state’s case.

It was the latest in a series of court decisions in which the reliability of arson investigation has been put to the test and failed.

Schroeder, the electrical engineer, said he has spent many sleepless nights wondering how Awe, whom he believes is innocent, could be convicted.

He’s not alone.

Bonnie Ingalz, a friend of the Awes and former bartender at J.J.’s Pub, was working the day before the fire. She said the much talked-about war poster was still hanging on the wall. For his part, Fravel said there’s no way his friend would burn down the tavern knowing Fravel was sleeping just feet away.

Said another longtime friend, Jennifer Franklin: “I think what people need to understand is this could happen to any of them. He filed a claim. He had a disaster. And they framed him.”


Arson
Truth in Justice