Homicide ... or Tragic Accident?
By DEE J. HALL
September 30, 2007
"In my opinion, maintaining the 30 mph speed through the turn is very dangerous and would be nearly impossible," Madison police officer Chad Joswiak wrote in his July 24, 2003, report. "I don't believe the speed could be maintained without causing the vehicle to either overturn or to run up onto the sidewalk on the east side of South Fairchild."
Madison police officer Jamie Grann, who also worked on the test, said in his report that the tires of the test SUV squealed at speeds faster than 25 mph, and none of the eyewitnesses had reported hearing squealing.
"It was necessary to quickly apply the brake and decelerate the vehicle to approximately 20 mph before completing the turn," Grann wrote.
Five days after the test, during a preliminary court hearing to determine whether he had enough evidence to proceed to trial, Humphrey made no mention of the police reenactment, instead focusing on the defendant's statements after the crash and estimates given by witnesses.
"The defendant (Ledezma Martinez) drove her SUV through a red light at 30 miles an hour," Humphrey told Dane County Circuit Judge Michael Nowakowski. "This behavior of going 30 miles an hour through a red light when there is rush hour traffic, pedestrian traffic and one particular pedestrian, Grete Merz, is criminal negligence."
Saying the evidence was "overwhelming" that Ledezma Martinez was running a red light and driving "at a high rate of speed," Nowakowski ordered the woman to stand trial.
Humphrey's boss, Dane County District Attorney Brian Blanchard, said he would be concerned if Humphrey had known before that hearing about the slower speed estimate developed by police. Pines said the prosecutor doesn't recall when he got those reports.
Grann, however, said Humphrey knew police planned to conduct the test and was told of the results soon after it was finished — but Grann said he has "no personal recollection ... (of) a specific date that I turned the report over to Mr. Humphrey."
Deputy District Attorney Judy Schwaemle disagreed with Blanchard. She insisted the evidence wasn't clear, since tire squealing can be caused by factors besides speed and different cars handle speeds differently. In any case, Humphrey wasn't required to present the police findings at the preliminary hearing, she said, because such hearings are designed to determine if there's "minimally sufficient evidence to continue the case."
The Wisconsin Supreme Court has said that a judge at a preliminary hearing is required to determine whether the prosecutor has presented "a believable or plausible account of the defendant's commission of a felony."
Law professor's view
UW Law School professor Walter Dickey, who helped write the state's vehicular-homicide law, said the police re-creation was highly relevant evidence that Humphrey should have considered in his decision whether to prosecute Ledezma Martinez — and should have promptly shared with the defense. Pines countered that Humphrey believed since the videotapes weren't produced by trained accident reconstructionists, they would not be admissible as evidence.
Dickey acknowledged that when it comes to a charge of homicide by negligent operation of a motor vehicle, a prosecutor has great discretion in deciding whether a driver's actions created "a substantial and reasonable risk of death or great bodily harm."
But, said Dickey, "going under the speed limit is not negligent and is not contemplated as a crime in Wisconsin." He said a judge or jury presented with such evidence likely would opt for acquittal.
He added that the other factors cited by Humphrey — allegedly running a red light and not paying attention — probably would not be considered criminal negligence.
The Raisbeck case
A similar controversy surrounded Humphrey's prosecution of Adam Raisbeck, who was represented by attorney Sommers. In 2001, Humphrey accused the Marshall 17-year-old of driving nearly 89 miles an hour before a fatal crash, even though his own expert, Robert Krenz, has said in a sworn deposition that he notified Humphrey before the preliminary hearing that estimate was too high. Humphrey said he never read Krenz's deposition and doesn't recall when Krenz told him the initial speed estimate was wrong.
Krenz was barred from testifying after Dane County Circuit Judge Daniel Moeser found in 2004 that Humphrey had given Sommers "quite misleading" summaries of Krenz's anticipated testimony. Discovery rules require the defense and prosecution to share summaries of what their experts' testimony will be. Raisbeck was eventually acquitted by a jury in 2005.
The Wisconsin Supreme Court is considering discipline against Humphrey in that case for allegedly withholding from Sommers crucial crash-scene photos that contradicted the speed estimate cited by Humphrey.
Supreme Court referee Russell Hanson is recommending "at least" a public reprimand for Humphrey, alleging the veteran prosecutor made misleading statements in a sworn affidavit and in statements to Dane County Circuit Judge Paul Higginbotham about where the photos were and his efforts to keep them from Sommers. Hanson also found Humphrey withheld a witness statement he was obligated to turn over to the defense.
Raisbeck's attorney said he filed the complaint against Humphrey for his handling of the Ledezma Martinez case because the issues were similar to those raised in Raisbeck.
"He (Humphrey) hid the measurements (in Ledezma Martinez) for the same reason he withheld the photos (in Raisbeck)," Sommers said. "Because he knew this particular piece of evidence would show the whole case was bunk."
Wisconsin Supreme Court rules require "timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense."
Dickey, the UW law professor, said evidence relating to speed would be crucial in determining whether Raisbeck and Ledezma Martinez were criminally negligent. Evidence that the two were driving slower than alleged would almost certainly be considered exculpatory — favorable to the defense — and would need to be turned over in a timely fashion to their attorneys, he said.
"Pretty clearly, the rate of speed is relevant," he said.
Cuevas said Humphrey knew or should have known before Nowakowski ordered Ledezma Martinez to stand trial that she wasn't exceeding the speed limit and that the prosecutor's allegation — that Ledezma Martinez was going 30 mph — couldn't be true.
"They knew from their own reconstruction that she couldn't have been going that fast," he said. "She was not speeding. She was going within the speed limit."
The Madison Police Department's test was confirmed months later when the Wisconsin State Patrol also concluded Ledezma Martinez was driving about 20 miles per hour at the time of the crash.
The November 2003 report also noted that a Badger Bus went through the intersection just before Ledezma Martinez, possibly obscuring her view. The State Patrol cited inattentive driving, a floral lei hanging on the rearview mirror and the "possibility" that she ran a red light as contributing to the crash. It did not mention speeding.
Humphrey received the State Patrol's final report on Feb. 17, 2004 — the day he offered Ledezma Martinez a deal equivalent to the time she'd already served in the Dane County Jail. Cuevas said he wanted to fight the charge, but his client simply wanted to go home to Mexico.
"She (Ledezma Martinez) wanted to get it over with because of her kids," Cuevas said. "She just wanted to get out of jail."
Cuevas said he found it "horrendous" that Humphrey withheld the police evidence, turning the most crucial information over only after the woman had agreed to plead guilty.
"Our contention from the beginning was she was not going very fast," Cuevas said. "She was not going over 25 miles an hour."
'Speaks for itself'
For months, with his client locked in the Dane County Jail, Cuevas tried unsuccessfully to get Humphrey to give him the videotaped re-creation and the police measurements of the accident scene, which Cuevas said were essential to estimate Ledezma Martinez's speed.
Humphrey initially denied the existence of both the videos and the measurements. In response to a demand by Cuevas for copies of the Madison Police Department videos, Humphrey wrote in an Oct. 21, 2003, letter: "There are NO videos prepared in the course of the crash reconstruction," but, he added, he had videos of vehicles driving through the intersection, but he asserted that he didn't have to show them to the defense "because I am not sure if I am going to use them."
In mid-January, six months after Ledezma Martinez was first jailed and about the time she agreed to plead guilty, Humphrey finally turned over the videotapes. The next week, in a court hearing on Jan. 20, 2004, Humphrey denied ever trying to hide the existence of tapes. "I disagree with the characterization that I said there were no videotapes."
Responded Cuevas: "The letter speaks for itself."
The Office of Lawyer Regulation complaint also focuses on Humphrey's actions regarding police measurements from the crash scene. Humphrey maintained that Madison police had discarded the measurements. After Dane County Circuit Judge James Martin ordered Humphrey to have the police re-create the measurements, the prosecutor reported back that police had located the numbers in an officer's locker.
In a response to the Office of Lawyer Regulation sent in February, Humphrey defended his actions in prosecuting Ledezma Martinez, saying all of the evidence eventually was turned over. Humphrey said he didn't immediately give the videotapes to Cuevas because "I determined that they were not accurate, and originally did not plan to use them in the case."
'The system worked'
"The system worked here," Humphrey told the Office of Lawyer Regulation. "We did not withhold evidence, or misrepresent to the Court. And there is certainly nothing that would rise to the level of an ethics violation."
Schwaemle said she believed Humphrey followed all of the rules.
"It would do him (Humphrey) and this office an unfair disservice if you stated or implied that he withheld or misrepresented evidence in this case, when it appears from the record that he did not do anything even arguably close to that," Schwaemle told the Wisconsin State Journal.
But Frank Tuerkheimer, a prominent legal scholar and former federal prosecutor, said Humphrey had no justification for withholding the videotaped evidence.
"These videos would be evidence the defendant did not exceed the speed limit," said Tuerkheimer, former U.S. attorney for the Western District of Wisconsin and a professor at the UW Law School.
Tuerkheimer said whether Humphrey planned to use the videos doesn't matter. "It's exculpatory evidence. He (Humphrey) has to turn it over."
Blanchard agreed that exculpatory evidence — evidence that would be useful to the defense — must be turned over. He confirmed that police reports, tests, videotapes and measurements — especially those that raised questions about the driver's culpability — all should've been turned over in a timely fashion.
"We do have a discovery obligation — especially any exculpatory information — right up to the plea," the district attorney said.
Cuevas said he believes the tragedy of Merz's death was compounded by he believes was a wrongful prosecution.
"Looking at this again makes me sick," the assistant state public defender said. "Even bringing the charges against my client was wrong. It's wrong because he (Humphrey) knew before the preliminary hearing she couldn't have been going 30 miles per hour."
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