1468 R140 Chief Deputy Kent L. Lovern, Deputies James J. Martin, Patrick J. Kenney, Lovell Johnson, Jr., Jeffrey J. Altenburg June 2, 2014 OFFICE OF THE DISTRICT ATTORNEY 9V1 szau?ee County JOHN T. CHISHOLM District Attorney Sheriff David Clarke Milwaukee County Sheriff?s Department Safety Bldg, Rm 107 821 State St Milwaukee WI 53233 Dear Sheriff Clarke: In your May 30, 2014 letter to Judge Kremers and me, which was preceded by a May 27 press release, you ask that the District Attorney?s Office and all branches of the Circuit Court temporarily suspend the use of deferred prosecutions, plea negotiations, read-in charges, and imposed but stayed custodial sentences for all Part 1 offenses, pending an independent study of the effectiveness of such practices. Your practice of issuing press releases prior to discussing issues with fellow public safety officials certainly raises the appearance that you are engaged in election-year politics (this was sent the day your re-election campaign officially began), but I will respond to your proposal in good faith. First, let?s clarify that, as a policy of my office, no defendant is eligible for deferred prosecution if he or she is alleged to have engaged in a violent or assaultive offense or is alleged to have used a firearm in the commission of a crime. There are very rare occasions, generally but not exclusively in child sexual assault cases and domestic violence offenses, where victim cooperation is complicated in the context of the adversarial system. In such cases, we must make a difficult decision between offender accountability and the risk that the perpetrator goes free without any control because the victim is unable or unwilling to go through the trauma of trial. This office has averaged approximately 20,000 criminal and child protection cases annually over the last five years. An average of 600?800 people per year are eligible for early interventions. I ask you to explain how Milwaukee can have the highest incarceration rate in the country if the prosecutors and courts are not ?tough on crime"? The challenge is to intelligently discern when a full system response is appropriate and effective and when it is not. Let?s look at the facts. In our Homicide Unit, four prosecutors have, since 1992, prosecuted 2,491 defendants with a conviction rate of 95.80%. The most experienced prosecutor, Mark Williams, has successfully prosecuted over 580 homicides in Milwaukee County. There are no deferred prosecutions in these numbers. In fact, Mr. Williams probably considers deferred prosecution to mean it's a cold case waiting to be solved. Homicide prosecutions, as you are well aware from your experience as 3 Milwaukee Police Detective, depend on a number of factors. These include the strength of the investigation, the cooperation of witnesses, and the ability to prove the accused?s responsibility for the offense with evidence beyond a reasonable doubt. There is no statute of limitation on homicide but, once we charge a case, we only get one chance to prove it. Often, the witnesses themselves are involved in criminal behavior and the ability to prove the case can change even after the case is SAFETY BLDG., RM. 405, 821 W. STATE STREET, MILWAUKEE, WI 53233-1485 PHONE: 414-278-4646 FAX: 414-223-1955 Gale G. Shelton Gary D. Mahkorn David Robles G. Brown Norman A. Gahn Steven H. Glamm Mark S. Williams John M. Stoiber Thomas L. Potter David Feiss Rayann Chandler Carole Manchester Warren D. Zier Timothy J. Cotter Steven V. Ucata Brad Vorpahl Paul Tif?n Miriam S. Falk M. DeCarvalho Dennis P. Murphy Bruce J. Landgraf Denis J. Stingl Janet C. Protasiewia DeAnn L. Heard Patricia A. McGowan Irene E. Pan?hum Karen A. Loebel Ronald S. Dague Lori S. Kornblum Karine O'Byrne James W. Frisch Kurt B. Benkley James C. Grif?n William P. Pipp Joanne L. Hardtke Christopher A. Liegel Megan P. Carmody Laura A. Crivello Shawn Pompe Kevin R. Shomin Beth D. Zirgibel Karen A. Vespalec Paul C. Dedinsky David T. Malone Kelly L. Hedge Rachael Stencel Mary M. Sowinski K. Sarner Daniel J. Gabler Sara P. Scullen T. Christopher Dee Jacob D. Corr Joy Hammond Katharine F. Kucharski Elisabeth Mueller Grant I. Huebner Stephan Eduard Nolten Michelle Ackerman Havas Claire Starling Rebecca A. Kiefer Matthew J. Torbenson Katryna L. Childs Anthony White Antoni Apollo Nicole D. Loeb Erin Karshen Lucy Kronforst Michael J. Lonski Paul M. Hauer Sara Beth Lewis Jenni Spies Amanda Kirklewski Renee Heinitz Karl P. Hayes Holly L. Bunch Heather Miller Megan M. Williamson Sarah Sweeney Christopher J. Ladwig Kimberly D. Schoepp Nicole J. Sheldon Dax C. Odom Maureen A. Atwell Christopher W. Rawsthorne Jennifer L. Hanson Patricia I. Daughtery Marissa L. Santiago Meghan C. Lindberg Ann R. Lopez Peter M. Tempelis Matthew G. Puthukulam Jeremiah C. Van Hecke Randy Sitzberger Karyn E. Behling Nicolas J. Heitman Chad Wozniak Estee E. Hart Kristin M. Schrank Francesco G. l-?Iineo Jane Christopherson Tyrone M. St. Junior Hanna R. Kolberg Joshua M. Mathy Antonella Aleman M. Davis Jesica A. Ballenger William M. Levins Matthew R. Westphal Catelin A. Ringersma Sara Volden Schroeder Abbey Manick Molly M. Schmidt Jay R. Pucek Danielle E. Chojnacki Kaivon Yazdani Kristian K. Lindo Benjamin T. Lindsay Nicholas 5. Cenvin Michael Schindhelm Page 2 June 2, 2014 Sheriff David Clarke charged because witnesses become uncooperative, are intimidated or evidence degrades over time. There is truth to the adage ?justice delayed is justice denied? and therefore it is the responsibility of every prosecutor to weigh the cost of accountability if a case is delayed too long. The suggestion that we suspend all plea negotiations in such cases is legally, ethically and practically irresponsible. It would lead to the permanent loss of witnesses and evidence. Plea negotiations often allow us to assure the incapacitation of violent offenders, and the loss of that practice would instead result in these individuals' being freed in the community because backed?up court dockets violate defendants? Speedy trial rights. You were here in the early 19903 when this was a reality. Police budgets on homicide cases alone would be decimated, as we would have to pull detectives and officers off the streets to sit in court for week-long trials, even when the defendant is willing to plead to the charge. Unfortunately, criminals and crime do not stop to wait for a jury verdict. Despite the rhetoric coming from certain law enforcement officials about ?plea bargaining,? the same officials privately complain to me that they can not afford to have their officers and detectives in court trying cases, testifying in motions and preliminary hearings, and also do the work necessary to follow up on these most serious of offenses and investigate the new ones. In recent years, we have seen a serious decline in clearance by charged offense in homicides, and this is often attributed to a significant lack of investigative resources. I know this does not affect you. Your agency does not investigate homicides, nor does it have the capacity to do so after long years of neglect at your hands. Nevertheless, such measures would directly detriment the budgets of every other major police department in the county, which do investigate and help us prosecute violent offenders. My seven sexual assault prosecutors currently have 372 open felony cases pending. Each one represents a real person who has been violated in unimaginable ways. Every single day of every week they are engaged in what any professional in this system knows are the most brutal and complicated cases, requiring the highest degree of professional skill, stamina, courage and compassion. The victims are often children, vulnerable adults, sexually exploited teens, domestic partners and women who are violently assaulted by strangers. These prosecutors have to rely on the heroic work of victim advocates and witness protection just to get victims to court, and they must master skills ranging from scientific DNA expertise to explaining why a vulnerable victim may not have reported the crime, or why the victim may be reluctant to testify against a family member. The suggestion on your part would have the practical effect of telling my prosecutors not to consult with victims on their desires related to the case, and would demand that they try every case without consideration of the best interest of the victim and community. That would be a travesty. Again, the dockets would be backed up for three to four years, violent sex offenders would be released, and victims would stop being cooperative. You talk about cruel experiments. Your proposal would result in a cruel reality. You should know this from your time as an administrator in the Milwaukee Police Department, but again, your office does not investigate these cases nor does it have the skill to do so after years of neglect at your hands. Nonetheless, the agencies that do the work to protect victims of sexual assault know that my prosecutors are among the best in the State of Wisconsin and they understand that they must have the flexibility to do what is right and just, to the best of their ability, in each case. Page 3 June 2, 2014 Sheriff David Clarke My felony domestic violence prosecutors tried 464 aggravated assaults last year, with a 71% conviction rate and a trial conviction rate of 85%. There were no deferred prosecutions offered to felony domestic violence offenders. This is in addition to the thousands of misdemeanor DV prosecutions they prosecute. And just to be clear, 71% is an extraordinary conviction rate in DV cases. The result of a policy of no plea bargains would again cause even further delays in the prosecution of DV offenders, loss of victim cooperation, and a dramatic decrease in our community?s safety. You should be aware of these facts, as well, given your experience as a Milwaukee police officer. Again, it does not affect you as Sheriff because you neither investigate nor arrest domestic violence offenders. My Firearms Enforcement Unit has prosecuted over 300 felony gun offenders just this year. This includes felons in possession of firearms and what are arguably the most difficult cases of non? fatal firearm shootings, where crime-involved individuals are often engaged in gun battles with each other. Because these prosecutors make tough offers to defendants, they are in trial constantly. As invite the general public to do, visit Judge Watts' courtroom and see for yourself the effort my prosecutors put into removing these dangerous offenders from our streets. We undertake this work with the close cooperation of the United States Attorney?s Office, but without the dedicated resources we once had from your office and the Milwaukee Police Department. When I was an assistant district attorney managing the Firearms Enforcement Unit, we worked with a fully staffed Gang Intelligence Division and Vice Control Division, as well as anti-gang squads at the district level working every day to identify and arrest firearm offenders. I had 18 Sheriff deputies assigned to the GRIP Unit bringing in firearm cases, along with dedicated ATF agents and DCI agents working on firearm interdiction. All were focused exclusively on identifying gun-toting, drug-dealing, gang?involved violent offenders. I attribute the success of those units, along with the close cooperation of our federal partners, in helping create the conditions that led to the lowest homicide rates in the City of Milwaukee?s last 30 years: from 2007 to 2010. All of those assets have dissipated and disbanded in recent years, a process beginning with your 2006 decision to disband your gun investigators, followed by your decision to close your drug unit and witness protection unit. Why did you take these steps? Because you said they were too expensive. On the other hand, I have never wavered in my commitment to the aggressive prosecution of gun offenders. I still have the only dedicated Firearms Enforcement Unit in the State of Wisconsin. have never, and never will, use a lack of resources as an excuse not to do everything in my power to keep this community safe. The Firearms Enforcement Unit does not offer however, like our homicide, sensitive crimes, and domestic violence units, it needs the ability to negotiate cases because, often, our primary witness is charged with a violent offense or has a serious record. Nevertheless, I never refer to the victim of a shooting as a ?knucklehead shooting a knucklehead.? Instead, I look at every opportunity to hold a violent offender accountable as a means of stopping the next shooting in which, for example, an innocent child might be caught in the crossfire. Imagine if dedicated officers and detectives had the resources to aggressively pursue the cases in which the alleged shooter in Sierra Guyton?s incident had himself been shot by other criminals. The Milwaukee Homicide Review Commission has demonstrated time and again that today's victim is Page 4 June 2, 2014 Sheriff David Clarke tomorrow's offender, and vice versa. Perhaps we could have prevented this tragedy directly, through police work, instead of pointing fingers at other parts of the system. It is the ethical obligation of every prosecutor in every case, Part 1 or not, to assess the offense, the offender and the needs of the victim in the context of the ability to prove the case. Part 1 crimes are a category used by the FBI to track law enforcement activity, but they include cases that are not violent and assaultive. You will recall I made an offer to you by letter dated February of 2013 to analyze all the Sheriff Department?s Part 1 crime referrals and compare them to other Sheriff offices in the state and country. You never took me up on that offer. So when is a diversion, a DPA, or a referral to Drug Treatment Court appropriate? The answer: when we assess an individual and determine that he or she does not have a history of violence, and his or her behavior can be addressed expeditiously so that the courts and prosecutors can put more time into the people that should not be free. Our results? Look at the June 2011 assessment done by Milwaukee?s own Public Policy Forum, studying the detention population from 2006 to 2010. Dramatic reductions in both crime and detention occurred as we expanded early intervention programs. In addition, an independent, outside audit of Milwaukee and four other Wisconsin counties by the Bureau of Justice Assistance-sponsored Measures for Justice found that Milwaukee?s DPA program had the highest success rate in the state. I ask you to show me any jurisdiction in the country that does not allow plea bargains, probation dispositions, and read-in charges for Part 1 offenses. You won't find any, because those are the legally sanctioned and authorized tools that prosecutors and courts use for the orderly conduct of the criminal justice system. You point to studies that say probation is not effective. What is your alternative? The Pew charitable trust will release a report this week, showing that throughout the country (and in this state as well) offenders are maxing out their sentences and being released back into the community with no supervision whatsoever. Does that, in any way, ensure public safety? The reality is that while recidivism rates are indeed high, tending to range from 40-60%, that means that we are successful in the other 60?40% of the cases. Do we eliminate this tool so that we go from one billion dollars per year for state corrections to two billion dollars per year? Last time I checked, you were complaining you did not have the resources to do yourjob, as limited as you have made it. Even the most right-leaning ?tough on crime? states in the country like Texas have recognized that such costs are not sustainable, and have instead adopted the programs for which I advocate, as the rational balance between public safety and resources. The keystone is developing a system based on defined risk as opposed to rhetoric. For these practical reasons, I reject your suggestion to halt practices that, if removed, would create chaos and result in a demonstrably less safe community. Nevertheless, I will join you in your request to have any mutually agreeable outside academic entity come study our practices. The fact is that there is no jurisdiction in the country, and no prosecutor?s office in the country, that has been and is more open to outside evaluation and assessment than ours. If you participated in the Community Justice Council you would know this. Here is a list of the entities we have invited in to help us improve our system: The Vera Institute of Justice, the National Institute of Corrections, the Center for Court Innovation, the National Institute of Justice, and Measures for Justice, just to name a few. Milwaukee County is recognized by outside criminal justice professionals as a leader in justice reform, despite your refusal to participate in this progress. Page 5 June 2, 2014 Sheriff David Clarke Now, here is my counter proposal to you. Instead of creating a four million dollar deficit for County taxpayers, in part because you have your deputies collecting overtime while sitting passively in chairs watching courthouse security personnel work, you could instead assign them to work with the Milwaukee Police in the creation of a gun violence task force. We could get back to the days when we took the fight to the bad guys instead of waiting for terrible tragedies like the Sierra Guyton shooting to occur and then pointing fingers at everyone but yourself. I extend the same offer, as have for years, to Milwaukee Police Chief I will even offer to lead the effort myself, just as I did before, because I believe that aggressive, focused efforts to identify and remove gun offenders successfully reduces violence. If this requires more deputies and police officers, I will advocate for that. I will continue to work to improve our risk assessment capability for the people coming in after arrest, but I am tired of the inability of law enforcement to engage in focused efforts at getting gun offenders off the street and then blaming prosecutors, judges and state laws for increases in gun violence. Get off your high horse, Sheriff, and get your office back in the fight. Yes, it will be messy and imperfect, and would open you up to the scrutiny of the adversarial process by presenting felony cases for charging. But it would also make a difference, a difference that would be felt now, not after another study is completed. I don?t have the luxuries you have indulged at the expense of Milwaukee County taxpayers. I can?t decide to refrain from witness protection, homicide prosecution, sexual assault prosecution, gun prosecution and domestic violence prosecution because I don't have the resources. By the way, seven dedicated investigators have transformed our witness protection unit into a nationally recognized model, and have certainly generated more felony convictions per person than your previous witness protection unit. More importantly, these investigators have been the critical difference in safeguarding hundreds of successful domestic violence prosecutions. I don?t work in a fancy office, 1 don?t have a public relations department spinning out propaganda 24 hours each day, and I don?t have horses or a fat public pension waiting for me. I don?t spend my time on talk radio or 3 month southern California junkets. I?m here, on call, every day and night of the week. When bad things happen, I will be there. My office has never run a deficit in 22 years. We follow the military?s light infantry model: we fight with what we carry. also have my people on the ground with the Milwaukee Police Department and with the good citizens of this community every day. These Community Prosecutors share the same risks and challenges as the communities they serve. The same spirit goes for every prosecutor, advocate and support person in my office. I demand only one thing from our office?s employees: that they give a damn about the people they serve and prove their dedication every day. I also believe in collaboration. I know it is more fun to style yourself as the lone voice saying things no one else will say, but the things you say have all been said before, and require neither courage nor particular insight. There is nothing new about a cop saying that we should look everybody up and throw away the key. We have been there, done that, and received really bad results with a steep pncetag. The public has a right to see their elected officials are committed to solving problems not engaging in demagoguery. The criminal justice system is a complicated human endeavor that requires committed public servants to work properly. I respect differences of opinion. I don't Page 6 June 2, 2014 Sheriff David Clarke always agree with my public safety partners, and they don?t always agree with me. But I always respect that they and their employees are in the fight alongside me. Get out of the announcer booth, Coach, and get your team on the field. Chisholm strict Attorney