As investigators closed in on him, Appleton resident Floyd Banks tipped the scales of justice in his favor.
He pulled out his checkbook.
By signing a secret agreement to "donate" $5,000 to police and court programs "as a sign of remorse," Banks, a machinist, bought his way out of being charged with a felony in 1996, according to public documents obtained by the Wisconsin State Journal. Eight others involved in the case were charged with felony perjury and convicted of felony and misdemeanor offenses for helping an Appleton man conceal $75,000 in lottery winnings in a divorce case.
The young prosecutor who approved that deal with Banks: Vince Biskupic, then Outagamie County district attorney, who last year narrowly lost a race to become attorney general of Wisconsin and still is coveted by Republican strategists as a potential candidate for high office.
The Banks case was among at least 13 in which Biskupic permitted people to avoid criminal charges after they paid from $500 to $8,000 in secret deals that raise legal and ethical concerns about Biskupic's practices, a State Journal investigation shows.During his eight years as Outagamie County's top prosecutor, Biskupic raised at least $37,000 from individuals in uncharged deals, the newspaper found.
It's legal for Wisconsin prosecutors to make deals that permit people to avoid facing criminal charges. The law leaves it up to prosecutors, elected officials who by tradition are accorded extraordinary discretion, to decide what they'd like to include in those deals - including the size of any payments and where they should go.
Former Supreme Court Justice Geske and Walter Dickey, a UW-Madison law professor who has served on three state sentencing-reform projects since the 1980s, called on the Legislature to ban prosecutors from soliciting large sums of money from uncharged people, when the money is going to a third party rather than compensating the victim of the crime.
Geske, now a Marquette University law professor, said she had never heard of the practice of striking large financial deals with uncharged individuals although she's taught sentencing courses for judges locally and nationally for 15 years.
Dickey said that because prosecutors are afforded great latitude in dispensing justice, their deals with uncharged people should be open to public scrutiny to ensure the power is used responsibly.
Unless the law is changed, Dickey said, innocent people will sign the agreements to avoid the public shame of being charged, guilty people will escape prosecution by paying money, poor people will be denied access to part of the justice system, and judges will be denied an opportunity to ensure that the agreements are appropriate.
Defense attorneys and public defenders around the state said they hadn't heard of prosecutors besides Biskupic taking in large donations from uncharged individuals. No one knows exactly how many people are involved, or how much they're paying, because there is no public accounting of the deals.
Waring Fincke, president of the Wisconsin Association of Criminal Defense Lawyers, said Biskupic had a statewide reputation for exacting large payments in exchange for agreeing not to file charges. Other district attorneys, Fincke said, typically would push for no more than $200 in such cases, and the money frequently would go to compensate victims.
Fincke said it was widely believed by defense attorneys that lawyers with close connections to Biskupic were able to obtain extra-friendly settlements to avoid the filing of charges. The West Bend attorney declined to identify the attorneys, saying, "If you were looking to seek to buy your way out of a piece of litigation, then you knew who to call."
Ethics Board is investigating
Biskupic's use of his office fund is being investigated by the state Ethics Board, which became interested in it last fall after questions were raised by journalists and the Democratic Party of Wisconsin. Ethics Board executive director Roth Judd said his agency is investigating whether Biskupic violated the state law that prohibits public officials, including district attorneys, from using their positions to provide substantial benefits to organization with which they're associated.
Biskupic, according to his own statements, had sole control over the money that flowed into and out of his calendar fund, which he closed last November.
"Whether the facts will vindicate Mr. Biskupic or lead to a different conclusion, I cannot say today," Judd said. "In any event, the Ethics Board expects to make a public accounting of the pertinent facts and a statement about how or whether Wisconsin's ethics code applies to those facts."
Prosecutors' opinions vary
District attorneys' deals with uncharged individuals are a variation of "deferred prosecution agreements," a widely used technique that permits defendants who meet certain conditions to avert a conviction. In traditional deferred prosecutions, defendants plead guilty or no contest to a charge first, then charges are reduced or dismissed and punishment withheld if defendants comply with the terms of the agreement. In many cases, the defendant avoids being convicted of the charge.
But unlike regular deferred prosecutions, deals with uncharged individuals:
The agreements contained little or no information about the alleged offense. In contrast, standard cases include detailed descriptions of the alleged wrongdoing, including when and where it happened and who was involved.
David Wambach, Jefferson County's Republican district attorney and president of the Wisconsin District Attorneys Association, is among the district attorneys using pre-charging agreements. He believes the practice will grow as the state's financial condition worsens because it reduces the costs of administering justice. Such deals make sense, Wambach said, for first-time offenders who hope to turn their lives around and who deserve a chance to remain felony-free.
Tom McAdams, assistant district attorney in charge of misdemeanor prosecutions in Milwaukee County, said uncharged deals are used very rarely in the state's largest county. McAdams said he's never heard of them involving more than about $200, and the payments usually go to victims rather than the district attorney's office or other groups.
Dane County District Attorney Brian Blanchard, a Democrat, said he wouldn't offer uncharged deals in exchange for money, and he's particularly troubled by doing so outside of the courtroom.
"Requiring potential defendants to pay money to a third party of the prosecutor's choosing in order to avoid criminal prosecution is justice for sale, and under certain circumstances, it looks like extortion," Blanchard said.
Brown County District Attorney John Zakowski, a Republican, said his office has signed deals with a small number of people who avoided charges, but none of the agreements involved substantial amounts of money to third parties. "The problem there is... you're kind of buying off your prosecution," Zakowski said.
Sauk County District Attorney Pat Barrett, a Democrat, said she opposes uncharged deals because they jeopardize the rights of victims to have a say in the punishment. Also, if a person reneged on a deal, it could be difficult to reconstruct a case a year or two after the offense, she said.
Other prosecutors said they avoid deals with uncharged individuals because they simply lack the staff to monitor whether people are complying with the agreements.
The chairman of the Assembly judiciary committee said he plans to ask Biskupic about his dealings with uncharged individuals. But Rep. Mark Gundrum, R-New Berlin, said the Legislature should "go slow" in seeking to limit prosecutors because of the state's historic separation of powers between branches of government.
The chairman of the Senate judiciary committee, Dave Zien, R-Eau Claire, declined to comment on Biskupic's practices.
Attorney General Lautenschlager, a Democrat and the former U.S. attorney for the Western District of Wisconsin who defeated Biskupic in the election last fall, said requiring large donations in exchange for more lenient treatment "is bad in terms of the public's perception of justice - that people with money have the ability to buy their way out of jail - even if technically they (agreements) fall within the confines of the law."
Joshua Marquis, a National District Attorneys Association board member from the state of Oregon, agreed. He called tactics such as those used by Biskupic "inherently corrosive to people's confidence in the justice system.
"It creates a two-tier system of justice - those with money and those without."
The system in Biskupic's office was so secretive that Biskupic's top deputy didn't know what criteria were used in offering the deals, and the longtime head of the state public defender's office in Appleton, which represents poor people, only last fall learned that some well-to-do individuals had bought their way out of court while his clients faced felony charges.
Carrie Schneider, who was Biskupic's handpicked deputy for two years before being elected district attorney in November, said she's suspending the practice of offering uncharged deferred prosecution agreements until she learns more about them. Asked to comment on Biskupic's uncharged deals, Schneider, a Republican, said she hasn't examined them and doesn't intend to.
Four assistant district attorneys who worked under Biskupic - including Mitch Metropulos, the Democratic candidate who ran unsuccessfully against Schneider in 2002 - said they oppose such uncharged deals, which Biskupic kept under wraps, even around the office.
Metropulos, who now works as an assistant district attorney in Winnebago County, echoed the sentiments of the other three former assistant district attorneys who worked under Biskupic: "I have a real problem with the practice.I think it's a real shady way to practice justice."
Money to Biskupic's office
Although Biskupic often used the deals to raise money for worthy causes, in several cases, he used them to boost the bottom line of his own office. In two cases, potential defendants agreed to pay $1,100 each for interns in Biskupic's office. The agreements allowed the two to avoid charges of soliciting a prostitute stemming from a secret John Doe investigation that Biskupic had run.
In prosecuting the perjury cases against Appleton machinist Floyd Banks and the others, Biskupic's aim was to raise money for a van for his investigator, Steve Malchow, according to Mike Balskus, a former assistant district attorney under Biskupic. Only one of the nine people under investigation Banks - accepted the $5,000 deal, said Balskus, who handled the prosecution.
"I was instructed to make an offer to all of these guys: If you come in and pay five grand ... there would be no charges," said Balskus, now an assistant district attorney in neighboring Winnebago County.
In that prosecution, eight people were charged with felonies for lying in a divorce case involving William and Estelle Moes of Appleton. Banks was not charged.
Seven, including William Moes, were convicted of felonies including perjury and false swearing, thereby losing the right to vote and to own a gun. The eighth was convicted of misdemeanor false swearing. The defendants received sentences ranging from probation to six months in jail.
Banks and his Appleton attorney, Michael Rudolph, declined to talk about the agreement. Joseph Troy, the Outagamie County circuit judge who asked Biskupic to investigate whether Banks and the others committed perjury, said he was unaware any agreement had been struck with Banks to avoid prosecution.
Biskupic initially directed that the money be sent to the vehicle fund of the Outagamie County Sheriff's Department. Later, Biskupic changed the agreement to benefit four groups, including an anti-gang organization run by the sheriff's office. Sheriff Brad Gehring, whose department got $2,000 in the deal, was surprised to learn the payment wasn't court-ordered.
"A lot of hope for Vince"
Questions about Biskupic's handling of cases are beginning to trickle down to his supporters, who remain convinced he could win election to statewide or congressional office, said Brian Murray, chairman of the Outagamie County Republican Party, and Cody Splitt, the vice-chairwoman, who's been active in the GOP for more than 70 years.
"In the state party and the county party, everyone has got a lot of hope for Vince, because they thought he was such a terrific candidate," Murray said.
Murray said he's comfortable with details he's heard of several cases in which Biskupic worked out deals with people who weren't charged after paying money. "It sounded like an expedient form of remedying the problem and making those people contribute to the very things that they may have hurt," Murray said.
"So far I'm not convinced this is an ethical smudge."
Splitt said Biskupic remains a potent political force if he ever decides to seek office again. People in Appleton, Splitt said, "think the world of him and his family."
Judges tried, but didn't slam door on price-tag justice
In the mid-1990s, Wisconsin's chief judges came up with a proposal they thought would solve the problem of defendants buying their way out of legal trouble.
Back then, a committee drawn up by the judges who preside over each of Wisconsin's circuit courts investigated whether police, prosecutors and judges were inappropriately using their power to raise money for crime-prevention groups.
The panel heard stories about defendants who avoided traffic tickets by giving money to police benevolent associations and defendants whose charges were lowered or dismissed because they gave money to groups favored by law enforcement and the judiciary.
Some judges and prosecutors defended the practice, saying it was a good way to raise money for worthy organizations.
But the committee chairman, Dane County Circuit Judge Daniel Moeser, said he and his colleagues "didn't feel it was proper to use criminal charges to pay for someone's pet projects" or that "someone with money gets treated differently than someone without money."
The chief judges pushed for a law that made it illegal for prosecutors to dismiss or amend charges in exchange for a defendant's contribution to a crime-prevention organization.