The Northwestern

May 18, 2002
Review: Drunken driving charges reduced despite strong evidence 
Judge skeptical of reduced charges in OWI 

By Alex Hummel 
of the Northwestern 

An Oshkosh Northwestern review of Winnebago County drunken driving cases where charges were reduced raises a question for one circuit court judge: Did prosecutors ignore potentially damning police evidence in striking plea agreements with defense attorneys? 

Judge Robert Haase said Friday heís skeptical. Heís conducting a review of the drunken driving cases that have passed by his bench, not unlike The Northwesternís review of 25 drunken driving cases from 1996 to 2000. 

The Northwestern chose that time frame because three cases, the subject of alleged bribery in the last week, were heard in court during those four years. The 25 amended-charge cases are among more than 1,300 drunken driving cases during that time. 

But charges in the 25 cases, all operating while intoxicated violations, were reduced -- often to reckless driving and endangering safety. Thatís despite the fact that, according to The Northwestern review, 12 of them included documented police-administered alcohol breath tests or blood tests registering concentrations higher than the stateís 0.10 limit. 
Jail time was almost always avoided, and fines typically didnít surpass $500. 

"Youíre finding some of the same things I am," Haase said, referring to his own review and adding that some of the written stipulations in the files are not true. 

"This is absolutely a public issue that needs to get out and in the open," he said. "The public has to have confidence in their court system. ää Quite frankly, in some instances, that confidence is shaken at the moment." 

Haase said his review of old cases is casting doubt on whether prosecutors are presenting trustworthy information when they approach judges with stipulations for amended charges. A stipulation is an agreement to the facts by both sides in the case. 

Haase is the chief judge in Wisconsinís second circuit, which includes Winnebago County. 

District Attorney Joseph Paulus said Friday each drunk driving case that reaches the prosecutorís office has unique circumstances. Some may warrant prosecution. Others can be disqualified because of testing concerns or shoddy police reports, Paulus said. 

He said scrutiny of his office since allegations of bribery came out last week has escalated into a "witch hunt." This week, he fired Assistant District Attorney Edmund Jelinski, a DA candidate, and Jelinskiís campaign manager, Assistant District Attorney Thomas Chalchoff, countering their allegations of wrongdoing were politically motivated. 

"People are starting to look under the bed sheet for everything that comes out," Paulus said. "As I said from day one, I welcome a full review of all cases because at the end of the day, it will be determined nothing inappropriate took place." 
Jelinski has alleged that there is a pattern of wrongdoing under Paulusí watch in which prosecutors take a dive in court for certain defense attorneys. He said he isnít sure whether money or political favors are changing hands. 

A state Department of Justice spokesman said that the FBI has contacted its criminal investigation division about the matter, but the department hasnít confirmed an ongoing FBI investigation. 

Jelinski said Friday The Northwesternís findings are similar to what caused him to originally question Paulusí ethics and seek office. 

"When you couple those (cases) with rumors of defendants paying money through defense attorneys, bragging about it later on how they got off, thatís serious," Jelinski said. "Now whether or not itís all true remains to be seen." 

Altered charges 
Among the cases reviewed by The Northwestern is one involving a Neenah man who was arrested for drunken driving twice in two months. In January 1997, Charles Sheppardís drunken driving charges were reduced after his defense attorney, now-Assistant District Attorney Milton "Mitch" Schierland, argued no alcohol breath test was taken by police until three hours after an alleged hit-and-run. 

Schierland argued he had grounds for a "blood alcohol curve defense," or that his clientís blood-alcohol content increased while Sheppard was in custody. The prosecution, based on that argument, filed a motion to amend charges citing "proof problems." 

The Northwestern review found however that police tested Sheppardís blood-alcohol content not once but twice within an hour of his arrest, according to reports filed with the court. Those reports show alcohol levels of 0.126 and 0.122  ? both above the stateís 0.10 standard. 

Jelinski called it a "rock solid" case, but said the blood alcohol curve argument can give way to a prosecutorial gray area. 
Paulus said the levels were "relatively low" to guarantee a successful prosecution. 

Ultimately, Sheppard pleaded no contest to a civil forfeiture reckless driving charge and paid $500. A month later, he was again charged with drunken driving and had his charges reduced to reckless driving because of a low 0.06 blood-alcohol level. He pleaded no contest and paid $500, with Schierland representing him. 

Schierland did not return a phone message to his home Friday. A receptionist at the district attorneyís office said he would return from a vacation on Monday. 

In addition to Sheppardís case, The Northwestern review found: 

* A 1999 case in which an Oshkosh man was charged with his second drunken driving offense after an officer stopped him for reportedly driving recklessly in a parking lot. Police reports showed Robert C. Snyderís blood-alcohol content was 0.335 and stated he was evasive when asked to perform field sobriety tests. Prosecutors cited "proof problems" in lack of a probable cause to stop his vehicle, the lack of an accident, the arresting officerís uncertainty that he pulled over the right vehicle and any evidence of impaired driving. Snyder pleaded no contest to reckless driving and endangering safety and paid $209. His defense attorney was Schierland. 

* A 1999 case in which Dennis L. Nitz of Ripon was charged with his third drunken driving offense after an officer pulled him over in Oshkosh for driving erratically. Nitz registered a blood-alcohol content of 0.17 on two tests and had problems with field sobriety tests. But prosecutors amended charges to negligent use of a motor vehicle. In a transcript of the plea hearing, Paulus noted the reduced charge was a "creative" way to exact a criminal penalty on Nitz while letting him bounce back in his alcohol treatment efforts. Nitz pleaded no contest to the amended charge and paid $649. His defense attorney was Schierland. 

* A 1997 case in which an Oshkosh man was charged with drunken driving stemming from an incident at Pearl and Division streets. An initial breath test showed Michael J. Miller had a blood-alcohol content of 0.25. Police reports state Miller had difficulty balancing during field sobriety tests, and that an open can of cold beer was found in his car. Prosecutors amended charges to reckless driving and endangering safety because, they argued, Millerís performance on field sobriety tests was "acceptable" and there was a "lack of evidence of being under the influence." Miller pleaded no contest to the reduced charge and paid a $750 citation fine. His defense attorney was Robert Raymond. 

* A 1999 case in which an Omro man was charged with drunken driving after being found sleeping or passed out in his vehicle at a restaurant drive-through in Oshkosh. William Schmunk reportedly had a 0.12 blood-alcohol content. But prosecutors amended charges because of "proof problems" against Schmunkís attorney Schierlandís blood alcohol curve defense. The prosecution also cited concerns that Schmunkís alcohol content was marginally over the limit and there was no evidence of impaired driving. Schmunk pleaded no contest to reckless driving and paid $209. 

* A 1998 case in which an Omro man was charged with drunken driving stemming from a motorcycle accident in the town of Rushford. Prosecutors reduced the charge to reckless driving despite a blood test showing Jerry L. Galowski had a blood-alcohol content of 0.118 and admitted drinking eight beers, according to the police report. No reason for the amended charges was included in the case file. His defense attorney was Edmund Carns. 

In several of the cases, prosecutors amended charges because the defendantsí blood-alcohol concentrations were lower than 0.10  ? in some cases at 0.07 or 0.06. 

"This whole thing comes down to an analysis on a case-by-case basis," Paulus said. "Thatís why only a judge can make a decision about whether charges on a case are reduced." 

Faith in prosecutors 
Haase said judges look to prosecutors to truthfully bring all details behind the charges to the court. He said that trust is now in question, based on cases that have passed his bench. He said heís looked at about six cases. 

"Itís (the prosecutorsí) job to present the truth to us. And we rely on that because without that kind of trust, the system would collapse. The police report does the investigating. The district attorneys analyze the information," he said. "We assume a sworn officer of the court will tell us the truth." 

The Northwestern also ran into a 1999 case in which Oshkosh resident Connie L. Christensen was charged with her third drunken driving offense. No police report was included in clerk of court records. Christensen pleaded no contest to reckless driving and endangering safety and paid $209. 

This case was referred to the stateís Office of Lawyer Regulation for review by Circuit Court Judge Barbara Hart Key after allegations of bribery arose. Haase said Friday he, too, supported the review. Christensenís defense attorney was Schierland. 

Paulus said he thought Haaseís skepticism of the integrity of county prosecutors was inappropriate, given reports of ongoing investigations. 

"Judges are supposed to get all the facts before they come to conclusions," Paulus said. "Judge Haase is talking about a lack of trust before the facts are in. Iím very disappointed in him." 

"This whole review of our practices is an effort to take a few cases out of context and pervert them for political purposes," Paulus said. 

Haase said he has no plans to bring questionable cases back to court but will keep reviewing. 

"Iím just waiting and sitting back to see whatís going to happen with all this," Haase said. "Itís at that point where you let the investigation do the work." 

Alex Hummel: (920) 426-6669 or ahummel@smgpo.gannett.com
 




John Maloney
Police/Prosecutor Misconduct