A prosecutor accused
By DEE J. HALL
September 28, 2007
— Twice pursued vehicular-homicide charges using speed estimates his own experts told him were inflated.
One of those cases was Humphrey's failed prosecution of Adam Raisbeck, a 17-year-old from Marshall. Humphrey's actions in the case prompted a blunt reprimand from his boss, and the misconduct findings that are headed to the Supreme Court.
A lot of power
The position of prosecutor is an important one — it plays a key role in a court system that is designed to protect the public from criminals, and the innocent from wrongful prosecution.
Because prosecutors are given so much power — they can order arrests and bring charges that can lead to imprisonment and financial ruin — court rules insist on honesty, fairness and good judgment.
The lawyer who served as referee at Humphrey's two-day disciplinary hearing in July said Humphrey had a reputation for honesty. But he also found that the evidence showed that Humphrey "deliberately misled" a Dane County judge twice about his failure to provide crash-scene photographs — the key evidence in the vehicular homicide case — to a defense attorney. Humphrey also violated the code of conduct by withholding a witness statement the defense needed to prepare its case, hearing referee Russell Hanson found.
Hanson said that Humphrey's combativeness during the hearing and his refusal to acknowledge his earlier statements made under oath appeared to be "a deliberate attempt not to cooperate in an effort to find the truth." Added Hanson: "It must be noted that absolutely no contrition was expressed by the respondent."
Hanson recommended that the state Supreme Court reprimand Humphrey. The court also has the power to suspend or revoke a lawyer's license, but such sanctions are unusual. Humphrey has said he plans to appeal Hanson's finding. If the Supreme Court sanctions Humphrey, it would be his first discipline from the court. It would be just the 26th time the high court has disciplined a prosecutor in Wisconsin, according to a search of the Office of Lawyer Regulation's database.
Humphrey, 50, is a 1989 graduate of the UW-Madison Law School. He is praised as hard-working by his co-workers in the district attorney's office, including his boss, District Attorney Brian Blanchard. On the eve of his disciplinary hearing in July, all 24 of his fellow assistant district attorneys wrote a letter to the State Journal saying Humphrey approaches his job "with passionate devotion."
"It is hard to watch him held up to public censure for possible missteps in a tiny fraction of those cases, rather than evaluated fairly for the overall hard work and dedication to the public good, and to justice for victims of crime, which he has displayed day in and day out for many years," the letter said.
Humphrey, a compact man, can often be seen striding quickly through the Dane County Courthouse hefting large numbers of multi-colored files. A former retail security officer and retired Marine reservist, Humphrey appears serious and purposeful as he makes his way from courtroom to courtroom in the eight-story justice building.
He has worked in the District Attorney's Office for 18 years. Although he worked on felony cases in the mid-1990s, Humphrey has mostly returned to the type of work he did when he began at the district attorney's office, a caseload dominated by hundreds of criminal misdemeanor and traffic cases.
Blanchard — who is known for prosecuting Wisconsin's top Republican and Democratic lawmakers and aides in the legislative caucus scandal — declined to discuss why Humphrey has returned to handling lower-profile prosecutions. But he praised his work ethic, echoing Humphrey's colleagues who described him as someone who "works his heart out" and keeps pursuing a case even when it becomes difficult.
"Paul works extremely hard ... and he's respected for that," Blanchard said. "Paul is (also) very good about stepping up and helping other people (in the office)."
Praised by victims
Humphrey also gets high marks from crime victims who say he aggressively advocates for their right to justice.
"Part of why I do what I do is for victims," he said during a lengthy interview last fall. "One of my jobs is to fight for victims because they are unrepresented, by and large, in the criminal-justice system.
"It's not just justice for a defendant or the system or me or the state, but it's also justice for victims."
Two years ago, as Humphrey continued to absorb public criticism from Raisbeck's defense attorney in the wake of the 2005 acquittal in the vehicular homicide case, supporters wrote to Blanchard to praise the prosecutor.
"Paul is one of the most hardworking attorneys I have worked with during my tenure with the office," said Suzanne Beaudoin of the Dane County Victim-Witness Office. "I have witnessed first hand his ability to organize and present a case in court while tending, in the most compassionate way, to the needs of families."
Kate Nolan, whose daughter was killed by a drunk driver and who now works to prevent drunken driving, echoed similar sentiments.
"I know that his caseload is crushing, but he is one of the consistently best-prepared prosecutors that I've seen," Nolan said in a 2005 letter to Blanchard. "Paul is doing an outstanding job of representing the state, and he does it without hotdogging or forgetting the victim families that he deals with."
A 2004 reprimand
On Jan. 20, 2004, Blanchard privately hit Humphrey with a reprimand for actions he'd taken in the Raisbeck case.
With the reprimand, obtained by the State Journal under the state open-records law, Blanchard criticized Humphrey for withholding a police report from Raisbeck's attorney — the same action that prompted one of the three Office of Lawyer Regulation complaints. Blanchard also cited him for seeking to have one of Raisbeck's friends — who gave conflicting stories to police — arrested for not showing up for a trial date that had been postponed.
Blanchard didn't mince words in his reprimand of Humphrey. "Your actions and your omission have the potential to diminish the confidence of the courts, defense counsel, law enforcement and the public that this office plays fair, does not harass witnesses, and does not hide the ball," Blanchard wrote.
"These constitute abuses of your authority as a prosecutor to, in the first instance, avoid unnecessary harassment of witnesses and, in the second instance, comply fully with both the spirit and the letter of our discovery obligations." Discovery rules require prosecutors to allow defense attorneys to examine certain evidence and police reports in order to prepare their defense.
"If you repeat either of these forms of abuse of authority, the full range of discipline would be available to me, including termination of your employment."
In a response, Humphrey asked Blanchard to remove the letter from his file within a year in deference to his long tenure with the office.
"I have not had any prior discipline despite making judgment calls hundreds of times a week," Humphrey said. "I am proud of the job I have done as a prosecutor, striving to protect the rights of all of our citizens and ensure that justice is done."
Blanchard declined to remove the letter. He said in an e-mailed response to Humphrey that the prosecutor's "inappropriate conduct" was the worst he'd seen since taking office in January 2001.
In the District Attorney's Office, assistants such as Humphrey are responsible for laying out cases for the office's three deputy district attorneys, who then make most of the charging decisions. Once a case has been charged, "assistant district attorneys have very large discretion to handle their files," Blanchard said.
Prosecutors are bound by court rules to be honest in their dealings, and to reveal evidence that might lessen the culpability of the accused or point to their innocence.
"(Under Supreme Court rules) a prosecutor is expected to be a minister of justice and not simply ... an advocate," explained Milwaukee attorney Mike Berzowski, who teaches legal ethics to members of the State Bar of Wisconsin.
Berzowski said courts are supposed to be "a forum before which will be examined real, truthful facts. To the extent that somebody distorts the facts, you come out with a warped result."
Some of the judges and district attorneys who've worked with Humphrey have criticized him harshly for actions reflecting on truthfulness and judgment.
In a pretrial hearing during Humphrey's prosecution of Raisbeck, Dane County Judge Paul Higginbotham pointed to several instances in which Humphrey's statements were at odds with the facts. The judge, who now sits on the Wisconsin Court of Appeals, described Humphrey's "style of lawyering" as "stretching the true facts beyond recognition." Higginbotham also charged that Humphrey "has always operated on the edge ethically."
Humphrey rejects the characterization that he's untruthful or unethical. But he acknowledged he's "more careful" over the time that's passed since Higginbotham made those assessments. He declined to elaborate.
2 ex-bosses mum
Of the four district attorneys who've supervised Humphrey since his hiring in 1989, two declined to talk about his performance.
Dane County Circuit Judge William Foust, who was district attorney for a decade from 1988 until 1997, said he was uncomfortable discussing Humphrey since he often presides over cases brought by the long-time prosecutor. Madison defense attorney Brian Brophy. who briefly was district attorney in 2000 until early 2001, also declined to discuss his former employee.
However, Brophy's opinion of Humphrey is reflected in correspondence he sent to Blanchard in 2004 complaining that the assistant district attorney had made false representations to a judge about his contacts with a witness in a child-abuse case. Brophy later filed a complaint with the Office of Lawyer Regulation.
In response to the complaint, Humphrey argued that the dispute amounted to interpretation, and after an investigation, the regulatory office said it found no merit in the complaint. Said Brophy: "My grievance has been aired."
Dane County Circuit Judge Diane Nicks had some positive comments about Humphrey, whom she supervised when she was district attorney between 1997 and 2000. Nicks said her recollection is that Humphrey often handled a heavier-than-average caseload, which she said could "play a role in the number of mistakes someone makes."
Nicks also has raised questions about Humphrey's judgment. As district attorney, Nicks said she recalls having to tell Humphrey to reduce charges against one defendant, whom Humphrey wanted to slap with 32 counts of bail jumping.
"It wasn't anything unethical," Nicks said, "but it was too unwieldy, unmanageable and unnecessary."
As a judge, Nicks has been less kind.
In 2005 she dismissed a disorderly-conduct case after chastising Humphrey. Humphrey failed to turn over to the defense the contact information for the alleged victim, even after Nicks had ordered him to do it.
On the morning the trial was to begin, Humphrey sought a delay, saying he wasn't ready. Defense attorney Paul F.X. Schwartz argued for a dismissal, saying the prosecutor had misled him five days earlier when he assured him he was prepared for trial. Schwartz also said Humphrey still hadn't turned over the information as ordered by Nicks.
The judge granted Schwartz's motion and dismissed the charge, citing Humphrey's "apparently misleading statements" about being ready for trial and his stubborn refusal to turn over information even after Nicks ordered him to do it. "The record in this case," Nicks said," is egregious."
Four years ago, during the Raisbeck prosecution, Higginbotham said Humphrey had "played very fast and loose, if not recklessly with the true facts" in his handling of the case.
Hal Harlowe, whose term as Dane County district attorney ended around the time Humphrey was hired, said his experience in handling cases opposite Humphrey is that he sometimes makes "misstatements."
"He'll say stuff that's absolutely contradictory to what he's written," the Madison defense attorney said. "I don't think it's intentional. I think he's not careful.
"He would do better for himself and be a more effective attorney if he recognized the importance of his word. People question that about Paul. They don't trust him like they do other people over there (at the district attorney's office)."
Raisbeck's attorney, Joseph Sommers, who battled Humphrey for years before winning the acquittal for his client, has a harsher judgment: "The guy (Humphrey) is just nasty on little people."
"He goes after little, tiny people, and he squashes them."
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