St. Croix Co. DA Delays Giving Evidence To Defense Lawyers

By Henry Redman, The Wisconsin Examiner

-

June 23, 2021

The St. Croix County District Attorney keeps certain, potentially exculpatory evidence from defendants and their lawyers for much of the pretrial process as “standard practice,” emails obtained by the Wisconsin Examiner show.

Some types of this evidence, known as discovery, are required by state law and U.S. Supreme Court precedent to be turned over when requested by defense lawyers within a reasonable time before a trial. Legal experts say the amorphous timeline may mean the St. Croix policy is legal, but does expose a hole in the law that guides the criminal justice system.

The district attorney, Republican Karl Anderson, was elected to the post last fall. Some defense attorneys in the area said they haven’t experienced any problems with the way Anderson’s office provides discovery, but his emails to attorney Sarah Yacoub show that his standard practice is to keep evidence away from defense lawyers until right before trial — even if the evidence could change defendants’ decision over whether or not they want to go to trial or take a plea deal.

Anderson is currently prosecuting a woman for misdemeanor disorderly conduct after an incident with her partner in February — though the emails show if the case goes to trial he plans to add an additional charge of battery. Yacoub, the woman’s lawyer, says she was acting in self defense against her abuser.

As part of the pretrial process, Yacoub requested discovery, which includes two previous misdemeanor convictions against the complaining witness, the woman’s ex. She also requested recordings of 911 calls stemming from those two earlier incidents.

Anderson provided the publicly available record of the man’s prior convictions from Wisconsin’s court records website, known as CCAP. But he did not provide other evidence, such as police reports, arrest records or original charges.

THE MORNING NEWSLETTER Subscribe now.

Yacoub says the failure to provide this evidence violates state law and a court precedent set by the U.S. Supreme Court in Brady v. Maryland.

“Prior unrelated criminal charges not involving this victim is not exculpatory Brady evidence,” Anderson wrote in an April 5 email. “It is completely irrelevant. But, we can send it. I wouldn’t expect any of it to come out at trial.”

After he sent only the CCAP record of the man’s prior convictions, Yacoub kept requesting the more detailed case files for these incidents.

“It is standard practice, when cases are set for trial we send the criminal record of all of our witnesses,” Anderson wrote on April 14.

“By statute, we need discovery in a ‘reasonable time before trial,’” he continued in another email that day. “If we run the criminal histories of witnesses early, then we just have to redo it again before trial to make sure there are no new convictions. No attorney, or judge, has ever had an issue with this.”

But Yacoub believes there is an issue with this. If she’s unable to fully assess the man’s criminal history, she says she can’t provide the best counsel to her client over whether or not she should take a deal or go to trial and Yacoub doesn’t know if she can prove the prosecution’s main witness isn’t credible.

“When I brought it to his attention he said, ‘You don’t need that, I don’t turn that over until it’s set for trial,’” Yacoub told the Wisconsin Examiner. “As a defense attorney you need to be able to assess the evidence, if you can’t determine the credibility of the witnesses, how are you supposed to accept an offer?”

After several more weeks of going back and forth, with Yacoub requesting items including the man’s arrest record, date of his arrests and whether any restraining orders had ever been filed against him — and after she said in an email that she’s just trying to make sure her clients’ due process rights aren’t violated — Anderson responded dismissively.

“Your lack of self-awareness astounds me,” he wrote on April 22. “File a motion and we’ll see who the judge agrees with.”

Anderson says the evidence at issue was ultimately sent to Yacoub and that he has no problems with other attorneys in the area — adding he doesn’t know why she continued to go back and forth with him instead of filing a motion to compel the evidence in court.

“We send everything on the files and anything that’s Brady evidence, anything relevant,” he says. “This whole thing with Yacoub, I don’t know if you know what her reputation is but she’s the only one I’ve had issues with.”

“It’s just frustrating when attorneys, frankly Yacoub in general, have to be so hostile from the get go,” he continues. “I had no idea what she’s talking about, instead of saying, ‘Hey can you send these cases, I think they’re relevant.’ It’s frustrating that everything’s a battle, where when other attorneys think you missed stuff, they say something and then we send it … A defense attorney and prosecutor can always disagree on what’s relevant.”

Keith Findley, a professor at the UW-Madison School of Law who teaches criminal procedure, says that Anderson is not violating the law because he only has to provide discovery within a reasonable amount of time before trial. But he also says that Anderson is taking advantage of a hole in the law that has been heavily criticized and that many other prosecutors try to avoid.

“Technically speaking, it very well could be that this prosecutor is acting within the requirements of the law,” Findley says. “Those requirements of the law have been pretty harshly criticized because they are so skimpy. They are so unresponsive to the legitimate needs of the defense. They put so much of the responsibility for determining what’s exculpatory, what’s impeaching and what’s material, they leave it up to the prosecutor, even though he’s inherently compromised.”

“It’s a very problematic standard and because of that a lot of prosecutors go well beyond what’s required of them,” he continues.

Yacoub, a Democrat who has run for several public offices in the area and has been an outspoken critic of local officials, says she’s concerned this policy will end up hurting the county in a case that is much bigger than misdemeanor disorderly conduct.

“The things going on in that office, it’s a matter of time before they steamroll the due process rights of a case that is important enough to get the attention of the state supreme court,” she says. “That’s what happens when a DA’s office gets into a habit of being sloppy and unlawful and they pull it on a case with longstanding impact.”

The Wisconsin Examiner, a nonpartisan, nonprofit news site, offers a fresh perspective on state politics and policy through investigative reporting and daily coverage dedicated to the public interest. The Examiner is part of States Newsroom, a national 501(c)(3) nonprofit supported by grants and a coalition of donors and readers.