Wisconsin State Journal

Biskupic accused of misconduct in trial

2/13/05
Dee J. Hall Wisconsin State Journal

One-time Wisconsin attorney general candidate Vince Biskupic presented false testimony and withheld evidence - including a secret deal with a prison informant - in prosecuting convicted murderer Mark Price, according to court documents filed by Winnebago County District Attorney Bill Lennon.

In 1994, Biskupic charged Price with allegedly putting out a "hit" on former Winnebago County District Attorney Joseph Paulus. But what Biskupic didn't reveal was that he had made a secret deal with star witness Darin Beverly to cut five years from his sentence - then solicited Beverly, a convicted robber, to lie about the deal under oath, according to documents unearthed by Winnebago County Assistant District Attorney Mike Balskus.

Balskus called Biskupic's actions "an abuse of the justice system of the worst kind."

"That's subornation (solicitation) of perjury right there," Balskus said. "It's in black and white - he (Beverly) lied and he (Biskupic) suborned perjury. It's clear."

Beverly, an inmate at Racine Correctional Institution, declined comment through his court-appointed attorney.

In an e-mail response to the State Journal, Biskupic said his handling of the 1994 case was upheld in December by Winnebago County Circuit Judge Bruce Schmidt, who ruled that Lennon and attorney Rod Rogahn hadn't presented any errors in the sentencing process that would lead to a lower prison term. He called Lennon's proposal to reduce Price's sentence "mistaken on the facts and on the law."

In addition to the secret deal and alleged false testimony, Biskupic hid evidence that "went directly toward the defendant's innocence," Lennon said in his request to lower Price's 14-year sentence. Among the evidence Biskupic concealed: secretly taped conversations in which witnesses said Price wasn't threatening to kill Paulus.

Balskus has launched a secret John Doe investigation into Biskupic's handling of the case and other alleged misconduct by Biskupic and his former boss, Paulus. Paulus was sent to federal prison last year for accepting bribes to fix cases in one of the biggest scandals ever to hit Wisconsin's criminal-justice system.

The Winnebago County probe will explore Price's claims that he was framed not once, but twice - first by Paulus for murder and later by Biskupic for allegedly making threats against Paulus. Price, now 46 and in prison for more than 14 years, has always maintained his innocence.

"I didn't kill Mike Fitzgibbon. I wasn't trying to kill Paulus," Price said in a telephone interview from Green Bay Correctional Institution. "I can prove with documentation that they (prosecutors) lied. They can't prove through two trials that I lied about even the smallest little thing."

Paulus, Winnebago County district attorney from 1989 to 2003, was a friend and mentor to Biskupic, his deputy in Winnebago County. Biskupic went on in 1994 to become district attorney in neighboring Outagamie County. He ran unsuccessfully for state attorney general in 2002 and is now a lawyer in private practice in Appleton. Biskupic continues to work as a special prosecutor for the state of Wisconsin.

The John Doe investigation isn't the first time Biskupic's actions as district attorney have been scrutinized. In 2003, Biskupic was rebuked by the state Ethics Board for running a secret cash-for-leniency program while in Outagamie County. Defendants who agreed to pay up to $8,000 to a fund Biskupic controlled or to local anti-crime groups avoided criminal charges including grand theft, perjury and patronizing a prostitute. The deals were outlined in a 2003 Wisconsin State Journal series.

'Win at all costs' Allegations that Biskupic hid evidence and solicited false testimony from a prison informant in the Price case are "egregious" but come as no surprise to Waring Fincke, former president of the Wisconsin Association of Criminal Defense Attorneys.

"I'm familiar with Vince's proclivities for withholding evidence - that's fairly well- known up there," the West Bend attorney said. "Paulus and Biskupic had the reputations as win-at-all-costs, the- ends-justify-the-means prosecutors."

Fincke said many "jailhouse snitches" will "say almost anything" and "sell their mothers to the highest bidder" to get a shorter sentence. By keeping the deal secret, Fincke said, Biskupic took away one of the most potent weapons Price had to defend himself - the ability to attack the credibility and motivation of his main accuser. Beverly claimed Price was offering six pounds of marijuana to kill Paulus.

Said Fincke: "It's wrong for the prosecutor to do that."

In fact, a 2004 study by the Center on Wrongful Convictions at the Northwestern University School of Law found so- called "snitch" testimony was the top cause of wrongful convictions of death-row inmates. Rob Warden, executive director of the center, said he found that 50 of 111 inmates who were exonerated were "wrongfully convicted in whole or part" by such "incentivised" witnesses - ones who got deals or escaped culpability because of their testimony.

Warden noted that just last month a federal jury awarded a former Chicago police officer $6.5 million, finding that the FBI framed him - twice. "The sole evidence against this guy was the testimony of a snitch . . . who lied all over the place," Warden said. Because such testimony is so unreliable, "its use should be strictly limited to cases in which it has been corroborated by substantial evidence," he said.

In court documents, Lennon and Price attorney Rogahn of Waukesha also alleges Biskupic hid surreptitious tape recordings made by the local drug task force in which two witnesses said Price repeatedly denied seeking to have Paulus killed. Rogahn said the defense could have used that evidence to contradict Beverly's pivotal testimony - and to reject Biskupic's plea offer. He called Biskupic's actions a "concerted effort" to hide evidence that would have helped Price.

High court ruling The U.S. Supreme Court has ruled that prosecutors must turn over evidence favorable to the defense - or harmful to the prosecution - if "there's a reasonable probability that the suppressed evidence would have produced a different verdict."

The Wisconsin Supreme Court, in its rules governing prosecutors, underscores that responsibility: Prosecutors must make "timely disclosure to the defense" of all evidence or information that "tends to negate the guilt of the accused."

In the 1994 case, Lennon now alleges that Biskupic's hiding of key evidence and his solicitation of false testimony from the star witness were so damaging that, if revealed, probably would have resulted in clearing Price. Lennon and Rogahn have proposed reducing Price's sentence in the 1994 case to time served, noting that Price acknowledged arranging drug deals from behind prison bars. In an interview, Price freely admitted "selling dope" in 1994; he said he was raising money to challenge his murder conviction.

In a lengthy rebuttal to Lennon's request for a sentence reduction for Price, Biskupic said he wasn't obliged to turn over all of the evidence, especially once Price pleaded no contest in the 1994 case. Biskupic didn't address the allegations of false testimony. He added, "I don't believe that any inmate witness got consideration in this case."

But that statement is contradicted by documents recently found by Lennon's office. They show that in 1995, in exchange for Beverly's cooperation, Biskupic wrote to the Milwaukee County District Attorney's Office seeking a five- year reduction in Beverly's 20- year robbery sentence. Balskus noted the documents about Beverly's deal were missing from the district attorney's office in Oshkosh and had to be retrieved from agencies outside Winnebago County.

Biker gang Not only is the threats case against Price under scrutiny, but Paulus' prosecution of Price for murder also is under attack. According to Price's attorneys and documents discovered by the Winnebago County District Attorney's Office, Paulus withheld key evidence in that case - including photos of murder victim Michael Fitzgibbon - that cast doubt on Price's earlier conviction for first-degree murder, kidnapping, false imprisonment and reckless endangerment.

In the 1990 case, Price was convicted of killing Fitzgibbon, 30, of Neenah, a fellow member of the drug and motorcycle gang subculture in the Fox River Valley. Witnesses said Fitzgibbon was shot Dec. 22, 1989, after a night of drinking and taking drugs with Price, Richard Pease and Todd Crawford at Pease's Oshkosh apartment.

The testimony showed Fitzgibbon's body was stuffed under the ice of Lake Butte des Morts, surfacing three months later, on March 21, 1990. At the time, authorities believed Fitzgibbon drowned. No autopsy was performed, and his body was cremated. A few weeks later, tipsters told police that Fitzgibbon was murdered and that Crawford, Pease and Price were involved.

Crawford, the star witness, testified that Price brutally and repeatedly beat Fitzgibbon, pummeling his face, before Pease and Price shot him. Price testified it was Pease and Crawford who did the shooting. No phone number could be found for Crawford, who has reportedly moved out of the Fox River Valley.

In 1991, Price and Pease were convicted of murder and kidnapping and sentenced to life in prison. Although Crawford said under oath that he expected to serve five years in prison for reckless endangerment, Paulus never prosecuted him.

Paulus isn't granting any media interviews, said his attorney, Franklyn Gimbel. But he defended his prosecution of Price and Pease in a letter to the Oshkosh Northwestern newspaper in November. Paulus said the two men are using his own fall into disgrace as "an opportunistic attempt" to "escape justice for the savage slaying of Mike Fitzgibbon."

Price's attorney John Wallace III of Oshkosh alleges that the evidence now coming to light tends to support Price's version of the crime: that Price saw his two companions kill Mike Fitzgibbon, that he helped dispose of Fitzgibbon's body under the ice of Lake Butte des Morts but he never beat Fitzgibbon, as Crawford had claimed.

In court documents, Wallace alleges a newly analyzed photo of the victim indicates that contrary to testimony by star witness Crawford, Fitzgibbon wasn't beaten. Although multiple photos were taken of Fitzgibbon's body, Paulus never turned them over to the defense and used just one at trial. Recent analyses of that photo by Forensic Tape Analysis Inc. of Lake Geneva and former Dane County pathologist Dr. Billy Bauman reached the same conclusion: Fitzgibbon's face was not beaten.

UW-Madison law professor Frank Tuerkheimer, in a memo prepared for Price last May, said since multiple photos were taken but Paulus used just one used at trial, it's fair to assume the others were even more damaging to the prosecution's case. He said Paulus' withholding of the photos and other evidence leads him to believe that "if there were a new trial, the result might be different."

Price hopes the alleged misconduct by Paulus and Biskupic will become his ticket to freedom. He admits he deserved prison time for selling drugs and helping to hide Fitzgibbon's body, but Price said those sentences would have been served long ago.

"All I'm trying to is get out and recoup what's left of my life," he said.

Contact reporter Dee J. Hall at dhall@madison.com or 252-6132.


Police/Prosecutor Misconduct
Truth in Justice