Judge delays felony trial
Nielsen seeks records on McClone’s firing
By Robert Cloud
Judge Troy Nielsen postponed a jury trial in response to concerns regarding the Waupaca County Sheriff’s Office altering investigative reports before forwarding them to the district attorney’s office.
The trial was scheduled to start on July 11.
Attorney David Winkel represents Devin Postel, who was charged in July 2019 with second-degree sexual assault of an unconscious victim and felony bail jumping.
Winkel filed a motion asking Nielsen to require the sheriff’s office to appear in court and either “certify that the reports were not altered or provide the defendant with evidence in the form of written reports or otherwise of what was removed or altered from the reports.”
Winkel’s motion also requested that Nielsen order the sheriff’s office to “state under oath and cross-examination why Detective Pat McClone has been fired, to make sure the firing does not involve withheld evidence in this case.”
If the sheriff’s office refuses to comply, the court should dismiss the charges, according to the motion.
In his motion, Winkel noted that staff from the sheriff’s office testified on Feb. 21 that “reviewing officers not present for the investigation routinely altered reports of the investigating officer. The changes are not merely grammatical. Rather, staff testified that the changes may be substantive. In at least one case, reviewing officers removed exculpatory information.”
Defendants “have no way of confirming whether the probable cause established through the Waupaca County Sheriff’s Office reports is truthful and accurate, manufactured, or whether obviously exculpatory information has been removed,” Winkel argued.
“I don’t think my client is going to get a fair trial,” Winkel said at a hearing Thursday, June 9.
Winkel is asking the court to review McClone’s termination because McClone was the lead investigator in the case against Postel.
While she opposed dismissing the case against Postel, District Attorney Veronica Isherwood said at the hearing she agreed with “the vast majority of the motion.”
Isherwood said that the original report she received “has a big, red stamp on it that says ‘Revised.’”
A second report from the sheriff’s office did not indicate there had been revisions, Isherwood said.
Isherwood said she wants justice for the victim, but she also wants a fair trial for the defendant.
After Nielsen read Winkel’s motion, he sent a letter to Isherwood ordering her to provide all investigative records related to Postel’s case.
McClone authored most of the documents, which included reports on contacts with witnesses and the crime lab, search warrants and chain of custody.
Nielsen said McClone may need to testify at an evidentiary hearing that will focus not on the systemic issue of altering reports, but on this specific case.
The judge also ordered the sheriff’s office and the county’s human resources office provide records regarding McClone’s termination by June 16.
Nielsen will review McClone’s records “in camera,” which means they will not be open to the public. If the records are relevant, Nielsen will disseminate them to the district attorney and the defense counsel.
In criminal cases, mental health records, school, child welfare and medical records are not shared with the public.
Due to the sheriff’s election this year, Winkel questioned whether jurors would bring their prejudices to the trial.
“Now, it’s going to be political,” Winkel said.
Although he did not issue an order to change venue or set a specific date for the trial during the June 9 hearing, Nielsen also noted the controversy in the community regarding the sheriff’s office.
“No way on earth we could pick a fair and impartial jury from this county next month,” he said.
Attorneys issue letter
Winkel’s motion to dismiss a case based on concerns that altered reports may have removed exculpatory information will not be the last.
In a June 8 letter to all three Waupaca County judges, Sheriff Tim Wilz and Isherwood, the Waupaca County Defense Bar said it will file a uniform motion in all cases involving the sheriff’s office.
The letter said Wilz testified on Feb. 21 that his department’s conduct routinely resulted in Brady violations.
“The statement was either a reckless effort to downplay the violation or an accurate description of the operations of the department,” the letter said. “Either way it cannot be ignored by this section of the bar without inviting ethical and constitutional repercussions. The sheriff’s statement is now part of the public record and as such it triggers a duty of care on behalf of our clients.”