Court denies sheriff’s petition
Wilz says his office is vindicated
By Robert Cloud
“Court of Appeals Vindicates Sheriff’s Department,” according to a May 18 press release posted on the Waupaca County Sheriff Office’s Facebook page.
District Attorney Veronica Isherwood presented that press release as an exhibit during a sentencing Thursday, May 19.
“I would note that the Decision from the Court of Appeals denying the Sheriff’s Office attempt at a Supervisory Writ is already part of this record,” Isherwood said. “The letter from the Sheriff is such a dishonest account of the Court of Appeals decision in this case that I made sure that I forwarded it to Defense Counsel as further exculpatory information.”
Sheriff Tim Wilz filed a petition asking Wisconsin’s District IV Court of Appeals to order Waupaca County Judge Raymond Huber to withdraw his “finding related to a Brady violation” in the criminal case against Peter Klotzbuecher.
Under the Brady Rule, prosecutors are required to disclose any evidence that would cast doubt on a defendant’s guilt or show improper police procedures, such as a warrantless search.
In Klotzbuecher’s case, he was accused of trespassing on his brother’s property in August 2020.
Deputy John Stephens, who was dispatched to the scene, found Klotzbuecher’s vehicle on the property and impounded it.
Stephens conducted an inventory search, a routine procedure that does not require a warrant.
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.”
Isherwood later learned that Stephens’ original report read that the vehicle was searched “for any possible evidence related to past thefts with Peter.”
Such a search would be unconstitutional and failure to report it would violate the Brady Rule.
Klotzbucher’s attorney, Kate Drury, asked Huber to suppress the evidence found during the search of Klotzbuecher’s vehicle.
At a Feb. 21 hearing, Huber found that failure to disclose the search in the report sent to the district attorney’s office was a Brady violation.
On April 12, Huber ordered that the evidence from the search be suppressed. He also clarified his ruling on the Brady violation.
“The court made a finding that there was a Brady violation,” Huber said. “I did not make it as to any particular officer, simply that there had been Brady violations within the Sheriff’s Department.”
Huber also ordered the sheriff’s office to give the district attorney all appropriate records to provide discovery to defense.
At the May 19 sentencing, Isherwood said she had not received nothing from the sheriff’s office.
Prior to Klotzbuecher’s sentencing, Isherwood amended his felony burglary charge to misdemeanor theft.
Klotzbuecher pleaded guilty to the theft charge. The criminal trespass charge was dismissed but read into the court record.
Retired Judge Philip Kirk, who was on the bench in place of Huber that day, imposed and stayed 20 days in jail and placed Klotzbuecher on one year of probation.
Appeals court decision
The appeals court released a May 6 decision on a petition that Wilz filed, seeking a supervisory writ of mandemus that would require the circuit court to withdraw the Brady finding.
“The petition fails to establish on its face the basic criteria for issuance of a supervisory writ,” the decision said in denying Wilz request for a writ of mandemus.
The decision noted that the party seeking a supervisory writ must establish four factors:
• The circuit court violated a plain duty;
• An appeal is an inadequate remedy;
• Grave hardship or irreparable harm will result if the writ is not issued;
• Relief was requested promptly and speedily.
The appellate court also noted Huber’s April 12 clarification was consistent with its interpretation of Huber’s statements regarding the Brady violation.
The decision said the circuit court did not find any particular employee of the sheriff’s office, nor did it find the entire sheriff’s department, had committed Brady violations.
“The Waupaca County Sheriff’s Office also fails to establish in its petition that grave hardship or irreparable harm will result if the writ is not issued,” the decision said. “The petition states that being labelled a ‘Brady cop’ often has negative effects on the careers and livelihoods of law enforcement officers and their ability to perform their duties effectively.”
The petition further argued that the circuit court had a duty to notify the sheriff’s office of a possible Brady finding prior to the hearing.
“However, this is not supported with legal authority showing that the court had any such duty, let alone a plain one,” the decision said.
“The petition of the Waupaca County Sheriff’s Office fails to establish that the criteria for issuance of a supervisory writ have been met,” the decision concluded.
Wilz declares vindication
In his press release, Wilz said that “Judge Huber refused to make any finding as to that specific employee, but did seem to suggest that the Sheriff’s Office was generally engaging in untruthful practices.”
Noting Huber’s subsequent clarification regarding the Brady violation, Wilz’s release said, “The Court of Appeals read Judge Huber’s clarification as making it clear that the circuit court made no finding of ‘untruthfulness’ by the Sheriff’s department.”
Jim Macy, an attorney for Waupaca County, said although the appeals court denied the petition, it still vindicated the sheriff’s office.
When asked about the lack of the word “untruthfulness” or “truthfulness” in the appellate court’s decision, Macy said the district attorney had accused a specific officer of falsifying a report and Huber’s clarification indicated that he found that no specific officer had been guilty of a Brady violation.
“It’s my understanding of the decision that you don’t need to make relief because there isn’t a finding of untruthfulness,” Macy said.
Macy said, “Every department corrects reports, but that doesn’t mean that they falsify reports.” Macy said.