Wisconsin State Journal

Humphrey went after witnesses who didn't show up at hearings he had canceled
DEE J. HALL
608-252-6132
October 1, 2007

When witnesses to crimes are subpoenaed to testify in court, they're legally obligated to come to the courthouse. But what if the trial is cancelled or postponed? Must the witnesses still come to the empty courtroom?

If you talk to Dane County Assistant District Attorney Paul Humphrey, the answer is: Yes.

Three times over the past six years, Humphrey sought to arrest or criminally charge witnesses who didn't show up for hearings that Humphrey himself had cancelled.

Dane County District Attorney Brian Blanchard privately reprimanded Humphrey in one of the cases, calling it "an abuse of your authority" that, if repeated, could lead to firing. Blanchard's reprimand made no mention of the earlier incidents.

In fact, by the time of that 2004 reprimand, Humphrey had already filed criminal charges against the two other witnesses for failing to appear at a trial that wasn't held.

In another case, Humphrey charged a woman for being late to a hearing that she was never officially notified she had to attend, an action he now concedes was "a mistake."

In an interview last fall, Humphrey said in the cases he prosecuted, he thought the witnesses had decided to skip out. His attorney, Lester Pines, said Humphrey believes that a subpoenaed witness must appear, even if the hearing or trial ends up cancelled or postponed.

"The system relies on people coming for subpoenas and telling the truth in court," Humphrey said. "The system can't work if we subpoena somebody who's a buddy for the defendant and they just say, 'Pfft, they ain't coming.' "

UW-Madison Law Professor Frank Tuerkheimer said Humphrey may be technically right — but his actions are flawed. Charging subpoenaed witnesses who are no longer needed in court is "an absurd execution of prosecutorial discretion," Tuerkheimer said.

"No self-respecting prosecutor ... would file contempt charges against a person for not coming to hearings that are not held or are set over," he said. "That's why we have brains. That's why we have judgment."

Tuerkheimer, former U.S. attorney for the Western District of Wisconsin, said such conduct should lead to firing.

"If I were the DA (district attorney) and one of my assistants did something like that, I'd say, 'Arrivederci.'"

Called 'harassment'
In the 2004 letter of reprimand, Blanchard blasted Humphrey for seeking to have witness Kevin McCoy arrested for not showing up for an Oct. 28, 2003, trial for Adam Raisbeck that the prosecutor himself had postponed, calling his actions "harassment."

According to a Dane County Sheriff's report, McCoy said he didn't come that day because he knew Raisbeck's vehicular-homicide trial had been put off. Humphrey cancelled the warrant after the then-18-year-old explained to a sheriff's deputy serving the warrant why he didn't go to the trial.

Raisbeck's attorney, Joseph Sommers, said he believed Humphrey's actions were aimed at pressuring the young man to testify against his friend, Raisbeck, who eventually was acquitted by a jury in 2005.

"He kept trying to get McCoy to say Adam had told him he was speeding," Sommers said. "McCoy kept saying, 'I don't know nothing about nothing.'"

In a letter, Blanchard notified Humphrey that his handling of McCoy "potentially undermined the reputation and credibility of this office."

Efforts to reach McCoy, who has been deployed with the Army in Iraq, were unsuccessful. But his father, Thomas McCoy, remembers the incident well.

"I don't understand why that district attorney was going after my son," said McCoy, of Madison. "They were trying to subpoena him — he didn't know nothing. Adam (the defendant) never said anything (about speeding.) "

Humphrey said he sought to have McCoy arrested because the young man was a reluctant witness and he didn't think McCoy knew the trial was postponed. Asked whether he disagreed with Blanchard's allegation that he had abused his authority, Humphrey replied, "Yes."

Plea deal involved
In a similar case, the veteran assistant district attorney in 2001 filed criminal contempt-of-court charges against Monica Williams and Armando Ruiz. The two didn't show up for the trial of their friend, James Frutiger, after Frutiger told them that it was cancelled by a plea deal Humphrey had offered that morning.

Ruiz ended his case by pleading guilty to the contempt charge as part of a deal to resolve other criminal charges pending against him.
But Williams — who was eight months' pregnant when branded a criminal by Humphrey — decided to fight. The struggle to clear her record dragged on for four years.

Humphrey said he charged Williams because her failure to show up on July 19, 2001, forced him to offer Frutiger a plea deal. But that's not what he told Judge Angela Bartell the morning of the plea. When the judge asked whether Humphrey had all of the witnesses he needed to prove his case, the prosecutor answered, "Yes, your honor, absolutely."

Court documents, records from Humphrey's file and interviews with Williams and her attorney, Krista Ralston, paint a picture of a prosecutor determined to exact revenge against the Fitchburg woman, who planned to testify that Frutiger had acted in self-defense in the stabbing.

Williams, now 33, said she clearly recalls the fear and dread she felt in the weeks after she was charged as the birth of her first child, Britney, closed in.

"It just made me nervous all the time," Williams recalled. "I kept thinking 'I might have this baby in jail.' I was scared. I never have been in jail. I don't want to go."

Williams, who now has three children, said she still doesn't know what she did to deserve a criminal charge. "I didn't do anything wrong," Williams said. Her friend, Ruiz, said he prefers not to talk about it.

"I just always thought he (Humphrey) was out to get us because he didn't like Jim (Frutiger) and he didn't like us because we were Jim's friends," she said.

In fact, a State Journal review of Humphrey's prosecution file revealed that the assistant district attorney took steps in March 2003 to keep the case alive, just weeks after Blanchard ordered him to drop it. Humphrey's attorney, Lester Pines, acknowledged that a document located by the State Journal in which Humphrey directs the Dane County Clerk of Courts Office to keep the case open has prompted Blanchard to warn Humphrey of a possible disclipine.

Blanchard declined to say if any disciplinary actions were in the works.

Parking ramp fight
The ordeal of the then-26-year-old Williams began in the early morning hours of April 16, 2000. Williams and her friends, Ruiz, 25, and Frutiger, 24, were walking to their car at a Downtown Madison parking ramp when Frutiger got into a fight with a group of men. Although witnesses differed about who was the aggressor — defense attorney Joseph Sommers planned to use Williams to argue self-defense — the encounter culminated in Frutiger stabbing a 22-year-old man in the stomach.

On the morning of the July 19, 2001, trial, Humphrey and Sommers agreed that Frutiger would plead guilty in exchange for a recommended four-and-a-half month jail sentence. Frutiger called his friends to tell them there would be no trial.

Soon after, Humphrey filed criminal contempt-of-court charges against Ruiz and Williams for failing to show up for the aborted trial. After a year and a half of legal wrangling, on Feb. 7, 2003, Judge Paul Higginbotham dismissed the case against Williams, saying Humphrey had failed to establish probable cause that a crime occurred.

But because the judge didn't specifically prohibit refiling, two weeks later, Humphrey again charged her with contempt of court for the same incident.

Ralston, who headed up the Legal Defense Program at the UW-Madison Law School, cried foul. She telephoned Blanchard and asked that the case be withdrawn. The district attorney agreed. In a Feb. 26, 2003, e-mail, Blanchard told Humphrey the case against Williams should be dismissed "for resource reasons."

'In 'legal limbo'
That should've been the end of it. But rather than dismissing the case as he'd been ordered to do, Humphrey continued to pursue it. He placed the case in a "filed only" status, which is normally reserved for situations, Blanchard acknowledged, in which the defendant is at large.

That action left the matter in a "legal limbo," Ralston said, because no judge was assigned to handle it. It also meant the pending criminal charge remained on the state's electronic court database for all to see. Williams said she lost at least one job opportunity when a potential employer cited the pending charge in declining to hire her.

Two weeks after Blanchard told Humphrey to drop the matter, the Dane County Clerk of Courts Office asked what Humphrey planned to do about the case against Williams. In a handwritten note from the prosecutor's office file, Humphrey replied, "Just leave this as is."

Pines said Humphrey assumed Blanchard was handling the dismissal, and that's why he told the clerk to leave the case as it was. He called the issue a "misunderstanding" between Humphrey and Blanchard.

In 2005, two and a half years after the case was to have been dismissed, Williams was again notified she had to appear in court on the contempt case. Humphrey denied he resurrected the case.

But Williams said she recalls it was Humphrey she talked to after receiving a summons to appear in court. In a phone conversation, Williams said she asked the prosecutor why he was continuing to charge her.

"I remember him saying, 'Because I can' -- something like that," Williams said.

Pines said while the prosecutor may have talked to Williams in 2005, he hotly disputed Williams' recollection of the conversation. "Paul absolutely denies that he made that assertion," Pines said.

Williams also called her lawyer, Ralston, who contacted District Attorney Blanchard. Soon after, on June 2, 2005, another assistant district attorney, Mike Verveer, withdrew the case. Verveer said he doesn't know why the duty fell to him.

Ralston said she's still puzzled about Humphrey's vigorous pursuit of her client, who had committed no crime. "There are other times where he (Humphrey) can be very reasonable, very approachable," she said.

But this case, Ralston said, "was just crazy."

"This was just a vendetta — that's what it looked like to me."

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