Appleton Post-Crescent

Posted Apr. 01, 2005

DA Lennon questions Priebe conduct

‘Red flags’ in DWI case cause DA to petition state

By Ed Lowe
Post-Crescent staff writer

OSHKOSH — Suspicions about a 1998 drunken-driving case dismissed by former prosecutor Brad Priebe have prompted an appeal for a state Department of Justice review of the case.

Winnebago County Dist. Atty. Bill Lennon said Thursday he has forwarded the files associated with the aborted prosecution of William H. Routhieaux, charged then with drunken driving-fourth offense, to Madison.

Lennon said he did so in response to “red flags” that appeared as prosecutors prepared a new drunken driving case against Routhieaux, 50, of Appleton. Routhieaux’s 1998 case was dismissed as a result of a motion by Priebe, then a Winnebago County assistant district attorney.

Priebe, appointed by Gov. Jim Doyle in September to complete the term of retired Outagamie County Judge James Bayorgeon, faces Appleton attorney Mark McGinnis in Tuesday’s Branch 1 election.

Priebe told The Post-Crescent, which anonymously received documents associated with the Routhieaux case Wednesday, that he is a victim of a smear campaign that attempts to link him to misconduct by ousted Winnebago County Dist. Atty. Joe Paulus, Lennon’s predecessor.

Paulus is serving a 58-month prison term for convictions on bribery and tax evasion charges stemming from his handling of 22 traffic and criminal cases from 1997-2000.

Lennon said he referred the case for review by state authorities after learning Priebe said Paulus directed him to file a motion seeking dismissal of the 1998 charge “with prejudice,” a stipulation that would have prevented the charges from being reissued.

Court records show Winnebago County Circuit Judge Bruce Schmidt dismissed the charge, which was filed after a standard filing deadline, but modified the order so the charge could be refiled later.

“The decision on whether this case would be reissued at all, ever, was not my decision,” Priebe said. “That’s why the motion was written ‘with prejudice.’ Judge Schmidt (revised) the motion (to read) ‘without,’ thereby leaving the decision whether or not to reissue the case squarely where it belonged, with Joe Paulus.

“It’s an unfortunate case, an example of an assistant district attorney trying to do his job under difficult circumstances,” Priebe said. “I was fighting to have this case issued and get it issued again and getting nowhere. … If I hadn’t signed that motion, I would have been brought up on a charge of insubordination” by Paulus.

A March 24 memo from Winnebago County Circuit Judge Barbara Key, who presides over the new drunken-driving case against Routhieaux, indicated she lacked information about how the 1998 case was resolved. The memo notified the prosecutor of the new case, Winnebago County Assistant Dist. Atty. Christian Gossett, that the dismissals of the 1998 case are “something that the court will want to address” at Routhieaux’s April 7 pretrial hearing.

Gossett said Thursday his knowledge of the earlier case will be limited by an “unusual” circumstance.

“Our files of the case at the DA’s office are missing,” Gossett said. “I had to get my information from the clerk of courts’ office files. Any internal documentation from our office would not be in those files, just simply what was filed with the court. We have nothing from the original DA’s office files.”

Lennon, who has made no endorsements in pending judicial elections, said it is possible Priebe would have faced retaliation from Paulus, had he refused a directive.

“At the same time, if (Priebe) felt compelled to dismiss this case of a four-time drunken driver because he was ordered to do so, he could have said something to someone rather than putting this (defendant) back in a position where he could be right back on the road again,” Lennon said.

Fear of reprisal from Paulus “could be one explanation for why Brad Priebe would have signed this motion for dismissal with prejudice, but it is not the only explanation,” Lennon said.

McGinnis said Thursday his campaign did nothing to promote any allegations of wrongdoing by Priebe and regrets their emergence in the final days of the campaign.

“I believe that Brad was a good prosecutor and I think he’s running a good campaign,” McGinnis said.

“I don’t believe that any of this is good for the election process, for the community, for the citizens of Outagamie County, or for the judiciary. I believe we have excellent judges here and I believe we have a community of legal individuals that are just superb. All this type of thing does is tarnish the reputations of all of us who work within that community.”

Priebe said the disclosure of the information is part of a “campaign of sabotage” orchestrated by “a small group of people out there that are upset that Mark McGinnis did not get the judicial appointment.”

Priebe said the case demonstrates “the struggles I had against Joe Paulus for years. There are things that happened in that office that I desperately disagreed with, a whole bunch of unsavory things that I felt needed to be corrected.

“That’s why I eventually ran against him,” Priebe said. “I think you can realize what I was up against when I did that, and I’m very, very proud of that.”

Priebe, who served on Paulus’ staff for eight years, ran as a Democrat to replace him in 2002. Paulus was eliminated in the Republican primary by Lennon, a former Waupaca County prosecutor who then defeated Priebe in the regular election.

Priebe then joined the staff of newly elected Outagamie County Dist. Atty. Carrie Schneider.

Lennon said the 1998 Routhieaux case is the latest of more than 40 suspect cases his staff has forwarded to state investigators, who are probing irregularities involving cases prosecuted during Paulus’ tenure.

Routhieaux was charged with a fourth-offense of drunken driving Feb. 23 after being stopped after a minor traffic crash in the Town of Menasha on Jan. 28.

Routhieaux, free on a $1,000 signature bond after pleading not guilty to the charge March 15, is scheduled for an April 18 trial before Key.

UPDATE:  McGinnis rules judicial race
April 6, 2005

Appleton attorney Mark McGinnis was passed over for an Outagamie County judicial appointment in September, but won it comfortably by election on April 5, 2005. 
Priebe, 37, Appleton, lost despite endorsements from a list of prominent local officials led by Outagamie County Sheriff Brad Gehring and Priebe’s former employer, Dist. Atty. Carrie Schneider. 

Late Tuesday afternoon, Schneider held a “Retain Judge Priebe” sign in front of passing motorists at the corner of Richmond Street and College Avenue in downtown Appleton.

Priebe’s fortunes might have dipped in the campaign’s final days, after public disclosures tied the one-time assistant district attorney under former Winnebago County Dist. Atty. Joe Paulus to the dismissal of a 1998 case involving an Appleton man accused of drunken driving, fourth offense.

The numbers:  McGinnis - 17,993: 66%   Priebe - 9,289: 34%

Police/Prosecutor Misconduct
Truth in Justice