Waupaca County judge finds violations in altered report

By Robert Cloud

A trespassing complaint, an impounded vehicle, a warrantless search and 10 missing words from a report have led to conflict between Waupaca County’s district attorney and sheriff.

During a Feb. 21 hearing, Judge Raymond Huber found the sheriff’s office, “as a whole from the sheriff on down,” was involved in a Brady violation.

In criminal proceedings, the Brady rule requires prosecutors and law enforcement to disclose any evidence that could benefit the defendant.

In a motion filed by behalf of her client Peter Klotzbuecher, attorney Kate Frigo Drury argued that Detective Capt. Julie Thobaben had removed information from a report before it was filed with the district attorney’s office.

The information was evidence of a warrantless search, according to Drury.

Vehicle searched

On Aug. 31, 2020, Deputy John Stephens was dispatched to Riske Road in rural Manawa in response to a complaint that Klotzbuecher had trespassed on his brother’s property.

Klotzbuecher’s vehicle was on the property and subsequently impounded.

Stephens conducted an inventory search, a routine procedure that protects the owner’s property while the vehicle is in police custody, protects law enforcement against claims of stolen or lost property and protects officers from any dangerous materials in the vehicle.

Warrants are not required because inventory searches are not intended to be part of a criminal investigation. Officers are not supposed to be looking for evidence.

While searching the vehicle, Stephens located pawn store receipts consistent with a pending burglary investigation.
According to the report sent to the district attorney’s office, “It was also decided that Peter’s red Pontiac would be towed and taken to the Manawa evidence garage to be inventoried and searched.”

Drury learned Stephens’ original report had read that the vehicle was searched “for any possible evidence related to past thefts with Peter.”

According to Drury’s motion, when the defense counsel’s investigator attempted to interview deputies associated with the case, they were told that law enforcement would not participate in any interviews.

“Klotzbuecher is aware that gag orders prevent law enforcement from discussing this case with District Attorney Veronica Isherwood or her office,” Drury said.

Isherwood’s letter

On Feb. 24, Isherwood sent letters to 79 attorneys with clients who are currently facing criminal charges in Waupaca County.

“I am hereby advising you that the State is aware of and in possession of certain evidence which indicates that Waupaca County sheriff’s Captain Julie Thobaben altered a report authored by a deputy which resulted in the removal of exculpatory evidence,” Isherwood said in the letter.

Isherwood noted that the practice was done “regularly” at the sheriff’s office and that evidence of any changes were not preserved.

“At this point in time my office has no way to tell if an investigative report in your pending case was altered, if exculpatory information was removed or if extraneous ‘evidence’ may have been added,” Isherwood wrote.

“We want to make sure you are aware of this so that you can have an appropriate discussion with your client prior to and during the determination whether to proceed to a plea and/or sentencing hearing,” she said in concluding the letter.

Court hearing

Isherwood’s letter followed a Feb. 21 court hearing before Huber.

The Waupaca County Post obtained a partial transcript of the hearing. Below are excerpts from that transcript.

At the hearing, Stephens testified that he did not make the change and was not aware that his report had been changed until after it had been submitted to the district attorney’s office.

“We don’t change reports. We correct them,” Sheriff Tim Wilz testified.

“We correct reports all the time,” he said.

Drury then began questioning Wilz about a phone conversation between her and the sheriff on Nov. 16, 2021.

Drury: And you also told me that you don’t employ any Brady officers?

Wilz: Correct.

Drury: And that I had gotten bad information?

Wilz: Correct.

Drury: And that the district attorney, you know, was sticking her nose where it didn’t belong?

Wilz: Correct.

Drury: You offered those comments, not in response to anything I said, just to provide some friendly advice?

Wilz: Inform you.

Drury: You haven’t had conversations like these just with me; you’ve also had conversations indicating that you’re upset that individuals exceeded the chain of command and informed the district attorney’s office about the changes that were made in the case?

Wilz; Yes.

Drury: You have told individuals that as soon as you find out who the so-called whistleblower is, that you intend to fire that person?

Wilz: Never called him a whistleblower.

Drury: You told individuals that if you find out who the individual was, you would fire that person?

Wilz: Yes.

Drury: And you would fire that person because they went outside the chain of command?

Wilz: No. They are spreading bad information, creating a toxic work environment.

Drury: And that bad information, just so I understand, is what?

Wilz: That Captain Julie Thobaben changed a report illegally, unethically or whatever the district attorney explained to me.

Wilz testified that the sheriff’s office disciplined two officers over this matter, Detective Sgt. Pat McClone and Detective Sgt. Peter Kraeger.

Although Wilz did not testify regarding each officer’s discipline, he said one “was written up for harassment,

insubordination and lying. And he accepted that agreement” through arbitration.

The other “was given a day off without pay. And he was suspended a short time. And both were given 30 days patrol to distance themselves from the captain,” Wilz said.

Drury: And when you find out who told the district attorney, you’re going to fire that person?

Wilz: No.

Drury: Is that inconsistent with your testimony previously?

Wilz: I told Roni Isherwood in a meeting with my captains that I would. Part of it was to flush out the person.

Isherwood’s summation

“This has not been an easy day for the State obviously,” Isherwood said. “And I think the court now has an indication of what I’ve been going through since August 31st of 2020.”

Isherwood asked the judge to find that there was a Brady violation by Thobaben.

“I mean that exculpatory information was removed from a report,” Isherwood said. “It was submitted as a truthful report to my office.”

Isherwood noted that “basically every County prosecution that the District Attorney’s office has right now is in jeopardy based on what was testified to as the policy for changing reports.”

‘Dirty hands’

“I guess I’m not at this point in time necessarily inclined to identify an individual in the Sheriff’s Department who was involved in a Brady violation,” Huber said after noting that Brady violations do not need to be intentional. “I’m inclined to find the Department as a whole from the Sheriff on down.”

Huber said members of the sheriff’s office believe they can change reports contrary to the department’s written policy.
The department’s written policy is, “Reviewed reports that have no yet been submitted to the Records Division may be corrected or modified by the authoring employee.”

“There could be lots of dirty hands here,” Huber said. “But I will find there has been a Brady violation.”

Wilz statement

On March 3, Sheriff Wilz sent a press release indicating that he wanted “total transparency.”

“Prior to the report being submitted to the District Attorney’s office, the report was reviewed for accuracy, according to the policies and procedures of the Sheriff’s Office,” the press release said. “This particular report was corrected to accurately reflect the intent and actions of the reporting officer in draft form before distribution to the District Attorney’s office. The officer was made aware of the correction to the report and was in agreement with the correction.”

Wilz noted that his office had contacted an outside agency to review the case, which found, “There was no willful deceit or any other improper purpose in changing the report. As such, there are no Brady/Giglio issues.”

Wilz said his office has requested that the state Department of Justice conduct “a full review of the operations of the sheriff’s Office and the District Attorney’s Office.”