“I don’t understand how it went from a municipal charge to a state charge to nothing,” former state Supreme Court Justice Janine Geske said after learning the facts unearthed in a Post-Crescent investigation. “I mean, that is a very strange path.”
Little of a common nature occurred with the Fyfe case, a topic of interest to the state Department of Justice, which has assigned a special agent to review it.
The case, which was opened in 1996 and closed without charges being filed, has added to the scrutiny of the prosecutorial conduct of Biskupic, a Republican who narrowly lost his election bid to become state attorney general in November. He is now in private practice in Appleton.
The state Ethics Board has launched an inquiry into whether Biskupic used his position to finan-
cially benefit organizations to which he was connected, including a crime prevention fund he established as a tax-exempt organization soon after becoming district attorney in September 1994.
Biskupic has steadfastly denied any wrongdoing and says that he has adhered to the law in his dealings with the fund.
Among The Post-Crescent’s findings:
The outcome of the Fyfe case bewilders Geske, now a law professor at Marquette University: “There are a number of things that are strange: the consent of the defendant (taking the charge) to a higher level, the fact that the victim was never contacted, that there were no records that went back to the city attorney’s office after the DA decided not to charge.
“It doesn’t look good, that’s all I can say. It clearly deserves investigation.”
‘Paperwork not found — special prosecution?’
Fyfe, a partner in the Greenville law firm of Bollenbeck, Rowland, Spaude & Fyfe, was charged with the municipal offense of disorderly conduct as a result of a reported verbal and physical assault witnessed by at least four parties on June 5, 1996, in Appleton.
According to the Appleton Police Department report, Fyfe pushed and pinned Thomas Rock, the ex-husband of Fyfe’s current wife, against a car and tore his shirt.
At the time of his arrest, Fyfe told Steven Elliott, the arresting officer, that he would “resolve the situation” by paying the $203 ticket.
Fyfe “admitted to holding onto Tom and stated that although Tom struggled to get away he continued to hold onto” him, Elliott’s report said. “Doug was very apologetic as I spoke with him and stated that he realized it was a dumb thing for him to do and that he would no longer react in this fashion in the future.”
Later, the report said, Fyfe changed his mind about paying the fine.
“It has been brought to my attention by the district attorney’s office that it is Mr. Doug Fyfe’s wish that this case be transferred to the DA’s office under a state charge of disorderly conduct,” Elliott’s report said.
Steve Dozer, a former Appleton assistant city attorney, recalls that Fyfe’s attorney and law firm partner, Richard Bollenbeck, sought to get the ticket dismissed at the city level via an informal “hold-open” agreement.
“The reason I remember it was because (the defendant) was a local attorney who got a ticket,” said Dozer, now in private practice. “Right or wrong, I would always err on the side of being more stringent.”
“I remember (Bollenbeck) talking to me about the ticket, saying, ‘What can we do?’ and me saying, ‘Look, we’re not going to make a deal better than what anyone else gets,’ Dozer said. “So if John Q. Public gets a disorderly conduct, then this guy Fyfe’s going to get a disorderly conduct, too.
“The normal course of business is that he would have gotten his (disorderly conduct) ticket, paid the $203 fine and it would have gone on his record.”
Bollenbeck did not return phone calls to The Post-Crescent over more than three weeks.
Entries on the district attorney’s internal case-management database, copies of which were obtained by The Post-Crescent, indicate the criminal case was referred to Biskupic’s office on July 26, 1996.
According to the database entries, a decision not to issue charges was made Feb. 24, 1998. On that date, a database notation was added: “PAPERWORK NOT FOUND – SPECIAL PROSECUTION???”
A follow-up notation on the database was posted Aug. 7, 2002 — nearly 4½ years after the case was officially closed. It indicated that the case was held open until Fyfe completed counseling, then closed without filing a charge.
Dozer said he was not aware of the “hold-open” decision until told by The Post-Crescent.
“We always called (that) ‘double-secret probation’ … keep your nose clean for a certain period of time,” he said.
“It is a deferred prosecution but only in very special cases, usually for kids who screw up. But when you have a lawyer who shoves someone against a car, you don’t do that.”
“You have an adult who grabs another adult, you’re not going to get a deferred prosecution agreement” at the municipal level, Dozer said. “If you shove somebody in Appleton, you’re going to get a ticket.”
The Outagamie County Clerk of Courts could not find the file pertaining to Fyfe’s referral to criminal court.
A court minutes sheet maintained in the file of the ordinance charge indicated the city dismissed the citation on July 10, 1996. The city’s disposition of the ticket, written on the back of the citation, indicated it was dismissed “to be issued as a state charge.”
After Dozer decided to leave the city attorney’s office, the case went to his newly hired replacement, Maureen Roberts Budiac, who doesn’t recall the case today. Roberts Budiac said the city would have dismissed the citation if the matter were referred to the district attorney because, “We wouldn’t have someone charged twice for the same offense.”
Schneider, Biskupic’s successor and former deputy, denied two formal requests from The Post-Crescent seeking access to the Fyfe case file. She indicated in writing that no record of a deferred prosecution agreement with Fyfe exists.
“… After consultation with Mr. Fyfe, I can advise you … it was agreed that the defendant would go into behavioral counseling and have no further violations of the law…,” Schneider wrote in a letter to The Post-Crescent.
“After our office had received verification of such counseling and no further violations of the law, the (charge) was not issued.”
Biskupic: Arresting officer made the recommendation
In a brief interview Saturday, following persistent attempts by the newspaper seeking comment, Biskupic said the Fyfe case reached his office by way of the defendant and the arresting officer.
“It’s my understanding that the defendant and the (arresting) officer agreed to refer it to the district attorney’s office,” Biskupic said Saturday. “The officer did contact me to say this was a case where behavioral counseling would be appropriate.”
Fyfe’s law firm made $3,600 in donations to Biskupic’s Crime Prevention and Awards Fund, which he administered from 1994 to 2001.
Biskupic, however, said Fyfe’s firm’s contributions — $600 at the time of the arrest — to the crime prevention fund played no role in the handling of the case.
“Absolutely none,” Biskupic said. “In fact, the officer called to say this warrants behavioral counseling. He said this needs to be resolved through counseling.”
The officer, Elliott, now a lieutenant in the Appleton Police Department, refers to the police report he prepared — one disputing Biskupic’s memory of the referral — as the most reliable account of his knowledge of the case.
“I believe the report said that the DA came to us,” Elliott said. “If that’s what in the report, then that’s what happened. … If Fyfe had contacted me, then I would have put (that) Fyfe had contacted me. I did not know if Fyfe had contacted them or not.”
Elliott said he recalls cases in which officers would recommend leniency for youthful offenders.
“Sometimes we’ll have a case where we’ll have maybe a young kid who’s got a first offense and we may request deferred (prosecution), or something like that, but I don’t have any recollection of doing that in this case,” Elliott said.
The P-C was unable to interview Fyfe despite repeated attempts to reach him at his office and home over more than two weeks. Fyfe, asked in recorded messages why he asked to have the ticket elevated to a criminal case, left a recorded message at the newspaper Aug. 5.
“I just did what every client should do whenever they get a ticket,” Fyfe said. “I went to talk with my lawyer and I followed his advice. I wish I could get that through to my clients sometimes.”
Attorneys find case elements ‘bizarre’
The reported victim of the 1996 incident involving Fyfe, Thomas Rock, said he would have been a helpful witness for the prosecution, but was never asked to testify.
Rock said he and his wife, an eyewitness to the alleged assault, “actually went down to the DA’s office and tried to find out (why). … All of a sudden nobody wanted to talk to us. The person that we talked to disappeared and we were left there 15, 20 minutes (before) they just told us there was nothing on file.”
Rock said he eventually was told Fyfe received “some sort of fine.”
When informed that Fyfe avoided charges, Rock said he was disappointed but not surprised.
“The only word that comes to mind is ‘cover-up,’” Rock said. “The sharks all swim together.”
“My sole intention was to file charges against (Fyfe),” he said. “That was the only reason I let him push me around.”
Geske said Rock’s lack of notification about the case outcome is disturbing.
“I find it very unusual that if you were not going to prosecute a case that you would not even talk to the victim about it,” she said.
No less surprising to Geske and other legal observers was Fyfe’s request to have the citation elevated to a criminal matter.
“If it’s true that the defendant asked to go up, that is very bizarre,” Geske said.
“It’s so out of the norm that it looks suspicious. No one in their right mind who thinks they’re going to get charged would want a municipal offense to be moved up to a criminal (case). That’s crazy.
“It would almost seem like they knew already what the DA was going to do.”
Julie Falk, assistant litigation counsel for the state Office of Lawyer Regulation, said she could not think of a legal advantage behind a lawyer’s decision to seek to have an ordinance charge elevated to a criminal referral.
“I don’t know that our office has come across that before,” she said, adding that a “full-blown” investigation would be needed to determine whether conviction of the ordinance offense — or a criminal conviction — could jeopardize the lawyer’s right to practice.
Chapter 20 of the state Supreme Court rules defines the violation of a statute as “professional misconduct” for a lawyer. The accompanying comment from the court indicates “a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence … are in that category.”
Neenah City Atty. Jim Godlew-ski called it “incredibly unusual” that any party would seek to transfer an ordinance violation into criminal court.
“Why would somebody want to face a state charge rather than civil charges?” Godlewski asked. “I’ve never heard of that before.
“Frankly, this doesn’t even make a lot of sense to me because he’s facing more severe penalties, including potential jail for disorderly conduct, as opposed to just a fine or a forfeiture and a citation.”
Appleton City Atty. James Walsh, a 14-year veteran of the city attorney’s staff who was not involved in the handling of the Fyfe case, said the city’s scant case file implied the dismissal of the citation was based on the belief a criminal charge was pending.
“That assumption could be made,” Walsh said.
Walsh said he could see no legal advantage in seeking a more serious criminal charge. “It struck me as being out of the ordinary,” he said.
Elliott said he has never known of another case where a defendant sought to elevate a charge to a more serious charge.
“I can’t imagine that he would have wanted to take this to court,” he said.
Ed Lowe can be reached at 920-993-1000, ext. 293, or by e-mail at email@example.com
||Truth in Justice