The Milwaukee Journal Sentinel Online

Coroner's mistake haunts campaign

Testimony about error contradicts what Paulus was told in 1990 meetings, documents show

of the Journal Sentinel staff
Last Updated: Sep. 1, 2002
District Attorney Joseph Paulus had a problem.

Rumors were flying about Michael Fitzgibbon, who'd been found dead under the ice in Lake Butte des Morts near Oshkosh. A confidential informant said it was murder. Then a member of the Zodiacs biker gang came forward to say two of his associates shot Fitzgibbon in the head.

But there was no body. The coroner had ruled the death a drowning without doing an autopsy. Two days after police fished Fitzgibbon out of the lake in March 1990, he was cremated.

The coroner had made a mess of things, and both he and the district attorney knew it.

"It's my screwup," Winnebago County Coroner Michael Stelter told Paulus and two police officers at a meeting that May that was later described in sworn affidavits. " . . . I should have had an autopsy. I didn't. I just (screwed) up."

At a second meeting a week or so later, Stelter went even further, according to the affidavits.

"I never looked at the back of the head," the coroner said, clasping his hands behind his own head. "I never looked at the back of the head."

Despite the mistakes, Paulus convicted two men of Fitzgibbon's murder. During what has become a difficult primary campaign, his supporters have cited the case as one of Paulus' greatest accomplishments.

But his critics focus on the fact that the coroner said one thing in private meetings and another in court as another reason to question Paulus' professional ethics.

Later this month, Winnebago County voters will decide whether Paulus should be their Republican candidate for district attorney despite an FBI investigation into his handling of drunken driving cases, an inquiry by the state's Board of Lawyer Regulation and the embarrassing release of sexually explicit tape recordings on which he describes an encounter in his office.

Republican challengers include Edmund Jelinski, a fired assistant district attorney who secretly recorded the sex tapes, and William Lennon, an assistant prosecutor in neighboring Waupaca County whom Paulus accused at a political debate last month of being a drug dealer. Lennon denies the allegation.

The winner will face Democratic candidate Brad Priebe, an assistant in Paulus' office for the past eight years.

Political observers call it one of the nastiest campaigns in the state's history.

Paulus has denied wrongdoing and blames political enemies for his troubles. At public appearances, he tries to keep voters focused on his experience and his accomplishments.

Meanwhile, Mark Price serves a life sentence for Fitzgibbon's murder. He hopes documentation of the confidential May meetings obtained by the Journal Sentinel will lend credibility to his version of events, and perhaps gain him a new trial.

Price, 43, of Oshkosh, doesn't claim to be innocent. He admits he was there when Fitzgibbon was murdered but insists he wasn't the triggerman.

"I'm not an angel. I was doing stuff," he said. "But I'm not a murderer. I'm not some nut case they're making me out to be."

Icy grave

According to Price in an interview, the trouble started late on the evening of Dec. 22, 1989, in an apartment over the Flyer bar in Oshkosh. Price and about half-dozen other men - including Todd Crawford, Richard M. Pease Jr. and Fitzgibbon - were partying, drinking and using drugs. Price had a pistol, which he hoped to sell or trade for drugs. When Fitzgibbon started nagging their dealer for more drugs, Price stepped in.

"Why are you asking for more when you can't even pay for what you've got?" Price asked.

"It's none of your business," Fitzgibbon replied.

"I'm making it my business," Price shot back, and slapped the other man in the face.

There was a scuffle. Price pulled his gun and fired a shot into the wall. Pease grabbed the weapon from him and defused the situation.

After the fracas, Price, Crawford, Pease and Fitzgibbon were kicked out of the apartment. They piled into Pease's car and drove out to the frozen lake - Price says he doesn't know why. He says the other two men dragged Fitzgibbon behind the car while he waited in the front seat. Then he heard three shots.

Price says he helped Pease and Crawford load the body into the trunk. They drove to an acquaintance's nearby home, where they picked up snowmobile suits for themselves and a chain saw.

"I'm thinking, 'Oh my God, they're gonna' cut this guy up,' " Price said.

But when they returned to the lake, he said, they used the saw only to cut a hole in the ice so they could slip Fitzgibbon's body into the frigid water below.

In the prosecution's version, Price was working as an enforcer for Pease and the Zodiacs, who believed Fitzgibbon was a police informant. After the fight over drugs, the two of them shot Fitzgibbon execution-style out at the lake. In court, Crawford said he was the bystander. He testified against Price and Pease, entered the witness protection program and was never charged.

For three months after the murder, the body stayed hidden. Then the lake began to thaw.

Fitzgibbon's body surfaced on March 21, 1990. At the scene, the coroner made these notes: "Absolutely no visible signs of trauma or struggle - All conditions consistent to drowning." He also noted that an autopsy should be done. The corpse was zipped into a body bag and transported to the Seefeld Funeral Home for storage. At first, everyone assumed the deceased was Eugene Schroeder, a snowmobiler who had disappeared on New Year's Eve. Stelter went so far as to contact Schroeder's wife, asking her about her husband's tattoos, brand of cigarettes and scars.

Then Stelter found Fitzgibbon's state I.D. on the body. After a call to the Oshkosh Police Department, he learned about reports of a jumper from a bridge over the Fox River, which passes through the lake, a few weeks before. He assumed that's how Fitzgibbon ended up in the water. No autopsy was done. The body was cremated two days later.

No one suspected murder until a female informant, and then Crawford, spoke up two months later. Price and Pease were arrested within weeks.

Coroner testifies

At the June 1990 preliminary hearing for Price and Pease, Stelter testified that he saw a contusion on the back of Fitzgibbon's head, just behind the left ear. When Paulus asked him to describe it, Stelter said: "It was obvious the skin was broken, and I thought it was blunt trauma." He said he'd spotted it on a second trip to the funeral home, as he tucked some documents into the body bag.

At Price's trial in January 1991, Paulus minimized cross-examination damage by asking Stelter up front about his mistakes. The coroner admitted he had not examined the body closely or done an autopsy, then testified again that he'd noticed the head wounds during a second trip to the funeral home.

The substance of the May meetings - between Paulus, Stelter, an Oshkosh Police officer and a Winnebago County Sheriff's deputy - is revealed in confidential affidavits filed during a subsequentinvestigation of Stelter. According to the documents, Stelter's courtroom testimony directly contradicts what he said earlier.

Although a perjury complaint against Stelter and supporting probable cause document were drawn up by special prosecutor Peter Grimm of Fond du Lac County, the charge was never filed.

Instead, Stelter was convicted of three misdemeanors: aiding and assisting in illegal cremation, resisting and obstructing law enforcement, and failure to report a suspicious death to the district attorney. He was sentenced to probation in 1992 and has since left the area. He could not be reached for comment.

Grimm, who is now a Fond du Lac County Circuit judge, said he could not recall the case well enough to talk about it.

Paulus declined to comment.

If a prosecutor knowingly uses false testimony, it's a crime called suborning perjury, said legal expert Christopher Slobogin, a criminal law professor at the University of Florida. Anyone from a citizen to the state attorney general could file such a complaint. To win a conviction, authorities would have to prove beyond a reasonable doubt that the prosecutor knew the witness would lie or was likely to lie.

If the false testimony was a surprise to the prosecutor, it becomes an ethical matter rather than a legal one, Slobogin said.

"A prosecutor's first ethical dictate is to do justice," he said. "That means informing the court and the defendant of information that is likely to lead to the acquittal of the defendant, or that a state witness has committed perjury."

For a defendant, proof that a key witness lied in court would be grounds for a new trial, Slobogin said.

Winnebago County Circuit Judge Robert Haase, who presided over Price's trial, doesn't think that's likely for either Price or Pease. Although Haase remembered talk of the May meetings only vaguely, he said he could find no fault with the way Paulus handled the case.

"He's not my personal choice, but I'll give credit where credit is due," said Haase, one of two judges who asked the State Board of Lawyer Regulation to investigate Paulus in the drunken driving cases.

"I give Joe credit on that case. I think he did a hell of a job."

Appeared in the Milwaukee Journal Sentinel on Sep. 2, 2002.


Police/Prosecutor Misconduct
How the System Works