Friday, June 6, 2014

Texting Former Prosecutor Suspended, Disciplinary Process Called Into Question

A four-month suspension has been imposed by the Wisconsin Supreme Court of a prosecutor for inappropriate text messages to a crime victim and comments to others

On October 21, 2009, Attorney Kratz sent S.V.G. 19 messages, including asking her: "Are you the kind of girl that likes secret contact with an older married elected DA . . . the riskier the better?  Or do you want to stop right know [sic] before any issues?"

On October 22, 2009, Attorney Kratz sent S.V.G. eight more messages, telling her that she was "beautiful," "pretty," that "I'm the atty.  I have the $350,000 house.  I have the 6 figure career. You may be the tall, young, hot nymph, but I am the prize!  Start convincing," and that "I would not expect you to be the other woman.  I would want you to be so hot and treat me so well that you'd be THE woman.  R U that good?"

According to S.V.G., Attorney Kratz's personal overtures were unwelcome and offensive, and she was concerned that if she failed to respond to Attorney Kratz, he might take action with respect to the case against S.R.K. that could potentially adversely affect S.V.G.

And

In October of 2009, Attorney Kratz prosecuted a termination of parental rights case in which S.S. was a witness.  Prior to testifying, S.S. commented to Attorney Kratz that she was nervous about testifying.  In response to S.S.'s concerns, Attorney Kratz stated to S.S. that he "won't cum in your mouth."  Later that day Attorney Kratz remarked to S.S. that he wanted the trial to be over because he was leaving on a trip to Las Vegas, where he could have "big boobed women serve me drinks."

One count of the OLR's complaint involves Attorney Kratz's verbal statement to R.H., also a social worker with the Calumet County Human Services Department.  During a court proceeding, Attorney Kratz commented in court to R.H. that a reporter had "big beautiful breasts."

Costs were imposed because

In every stage of these proceedings, Attorney Kratz has employed a tooth-and-nail litigation approach.  He denied all misconduct in his answer to the OLR's complaint and raised various constitutional, jurisdictional, and procedural defenses.  He accused the OLR of operating under a conflict of interest and of unethically leaking information.  He moved to dismiss the OLR's complaint on nine separate grounds; the referee later rejected the motion as "replete with bare assertions of fact" which were "not properly before the referee and may not be considered."  He engaged in vigorous discovery practice, including propounding over 125 interrogatories, filing discovery motions, and attempting to compel the production of documents from third parties.  He raised arguments that ranged from the incredible (e.g., disputing his text messages to S.V.G. contained sexual overtones); to the hyper-technical (claiming the OLR complaint was barred by the civil doctrines of issue and claim preclusion because an OLR investigator initially declined to forward S.V.G.'s grievance for formal investigation); to the inconsistent (denying any recollection of making inappropriate comments to S.S. but claiming credit for having recognized their inappropriateness and apologized); to the puzzling (arguing that he could not have told R.H. that a reporter had "big beautiful breasts" because the reporter in question was beautiful, but not large breasted).

Justice Prosser concurred and dissented, expressing concern about the politicization of the case and the OLR prosecution

The Kratz case underscores the need for a thorough review of OLR practices and procedures.

 First, OLR closed the investigation against Attorney Kratz without the knowledge of the OLR director, Keith Sellen.  How did that happen?

Second, after reopening the investigation, OLR took 13 months to file a complaint against Attorney Kratz.  What is the justification for this lengthy delay?

Third, after a long investigation, OLR filed three sensational counts against Attorney Kratz that it later dismissed for lack of proof.  Why did OLR's Preliminary Review Committee permit these counts to be filed?  Is the Preliminary Review Committee serving its intended purpose of screening out improvident charges when it approves 98 percent of the OLR staff's recommendations?

Fourth, OLR expects Attorney Kratz to pay all costs related to the prosecution of its improvident charges and its harsh desired level of discipline.  Should a respondent attorney be expected to pay OLR's costs for charges that are not proven and a level of discipline sought but not imposed?

Fifth, OLR appears to be unwilling or unable to drop charges it has filed unless it acknowledges that the charges cannot be proved.  It could likely have settled the Kratz matter much sooner if it had been able to bargain for something less than unconditional surrender.  Should OLR have the authority to plea bargain with respondents?  If so, under what conditions?

No doubt other questions could be raised about OLR's handling of the Kratz case.  But apart from this single case, there are many reasons for this court to launch a thorough——strictly objective——review of the agency.  If that review is undertaken, something useful may yet come out of this unfortunate tragedy.

Chief Justice Abrahamson concurred in Justice Prosser's suggestion of the need to study and reform the disciplinary process in Wisconsin.

I welcome Justice Prosser's support for an impartial, objective, thorough review of OLR practices and procedures, support he gave at the open rules petition conference in October 2013.  For a history of a proposal for such a review, listen to the open rules petition conference of October 25, 2013, in connection with proposals for change in OLR's practices.   

The question of instituting such a review will come before the court again.  I hope it will get four votes.

The 2010 OLR letter dismissing the complaint is linked here.

An article in the Milwaukee Wisconsin Journal Sentinel that followed the dismissal expressed concern about the situation. (Mike Frisch)

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