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"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
The case: State v Pierson Leske
Case no.: 24AP565
Filed in: District IV Court of Appeals
Circuit Judge: Vicki Clussman, Waupaca County
Filing Attorneys: R. Rick Resch, Dean Strang, William Grau
Law firm / agency: Strang Bradley
Filing Attorney: Bradley Priebe
Law firm / agency: Priebe Law Office
This appellate brief has an one of the more intriguing footnotes I've seen:
Although (Pierson) Leske still is culling statewide data from CCAP, Wisconsin prosecutors seem without exception to charge only the male in a male-female drunken sexual encounter, when — as here — either or both could be charged if in fact the encounter happened. That equal protection and selective prosecution concern ... will arise in the circuit court on remand but is not at issue here.
Pierson Leske and a young woman, both 18, had been drinking as they celebrated their 2022 graduation from Oshkosh High School at a lake cabin.
Leske was charged a month later with second degree sexual assault for having sex with the woman while she was too drunk to consent, according to the brief. In October, as the case neared resolution, an attorney for the woman filed a notice of appearance. The next day, on Nov. 1, District Attorney Kat Turner amended charges to third-degree sexual assault and substantial battery.
Eventually, the state and defense reached a plea agreement. Leske would plead no contest to both counts. The court would withhold sentencing on the third-degree sexual assault charge in favor of a deferred prosecution agreement and the state would recommend the judge impose and stay a jail sentence with probation on the substantial battery count. If Leske successfully completed probation, the sexual assault count would be dismissed and the battery count would remain, subject to expungement, which the state would not oppose.
As her own lawyer’s November 7 letter confirmed, the complainant was aware of the offer, had participated in a victim conference, and “does not want this matter to be rescheduled or postponed” (italics in original), even though the complainant knew her lawyer was not available to attend the Nov. 9 change of plea and sentencing hearing.
By the sentencing hearing two days later, however, the young woman had changed her mind. Now she opposed the agreement because it did not include jail time.
She acknowledged that she was aware of the plea agreement before the hearing but said, “I don’t think I fully understood it, though.”
Judge Clussman said she would reschedule the hearing because she wanted the woman's lawyer to be present, the lawyers wrote. Later that day, Clussman sent a note saying she was "unwilling to accept the current plea agreement unless I hear from the alleged victim or her attorney that her position has changed.”
Three months passed. Then the woman's lawyer asked the judge to appoint a special prosecutor.
Two weeks later, Clussman wrote a letter "raising a number of concerns related to the district attorney."
DA Turner responded to those concerns and Clussman acknowledged the response.
That same day, the circuit court also entered a form order appointing a special prosecutor under Chapter 978. The trial court checked the box asserting that it was appointing a special prosecutor on its own motion. But it did not check any box on the form giving a reason for the appointment. It did not otherwise provide an explanation of reasons.
The order appointing the special prosecutor was not made on the usual template, but instead contained six paragraphs, the brief said.
Five of the paragraphs say that “[t]here have been allegations made” about the complainant and District Attorney’s Office’s relationship. And the sixth says that Leske would not be harmed by the appointment of a special prosecutor.
Clussman erred in several ways, the brief says.
No statutorily proper reason was given for appointing a special prosecutor. Thus, the order appointing a special prosecutor was invalid.
State law and Supreme Court precedent defines the circumstances that allow for appointment of a special prosecutor, the lawyers said. The appointing judge also must submit an affidavit to the Department of Administration stating that one of the nine conditions apply, the brief said.
Those conditions are:
There is no DA for the county.
The DA is absent from the county.
The DA, or a deputy or assistant DA, is on parental leave.
The DA has acted an at attorney for a party accused in relation to the matter of which the accused stands charged and for which the accused is to be tried.
The DA is near of kin to the party to be tried on a criminal charge.
The DA is unable to attend to duties due to a health issue or has a mental incapacity that impairs ability to perform duties.
The DA is serving in the U.S. armed forces.
The DA is charged with a crime and the governor has not acted under 17.11 Wis. Stats.
The DA determines that a conflict of interest exists regarding the DA or the DA staff.
The circuit court’s letter filed on the same day as its first order appointing a special court and its second order imply that it appointed a special prosecutor because of the district attorney’s relationship with the complainant and the complainant’s family in the prosecution of Leske’s case.
That is not enough to trigger the conflict provision, the lawyers said.
The district attorney did not conclude that she had a conflict of interest. And she hasn’t been removed by the governor or the legislature. The district attorney is therefore available to prosecute Leske’s case.
Leske's position that a judge must cite one of the specific conditions in naming a special prosecutor was upheld by the Supreme Court in Three Unnamed Petitioners v Peterson, the brief said.
Clussman's order also violated the separation of powers implicit in the state constitution, the brief said.
Here, an officer of the judicial branch purported to decide on its own motion who the executive branch prosecutor should and should not be. In doing that, it went beyond insisting that one assistant district attorney rather than another appear in court, or that a supervisor in the district attorney’s office answer for the misconduct of a subordinate in that office. Rather, it removed control from the entire district attorney’s office, indeed from an executive branch agency altogether. Without statutory basis, it appointed an unelected, private lawyer to take control of a public prosecution. According to wisbar.org, the judge’s selected private lawyer does not even maintain her office in the same county. This is a Waupaca County case; the special prosecutor appointed, Veronica Isherwood, appears to keep her office in Portage County. Without any apparent authority, the judge handed executive prosecutorial powers to an out-of-county private actor. ...
Leske has found no case supporting the proposition that the judicial branch has the power, outside the circumstances that the legislature provided expressly by statute, to remove the executive branch, specifically an elected district attorney and her office, from ordinary prosecutorial functions in a criminal case after an initial probable cause determination. More, nothing Leske has discovered allows the judicial branch even to hamper those prosecutorial functions by inserting a private lawyer as special prosecutor, without statutory grounds.
The appeals court doesn't have to decide the constitutional issue, however, the lawyers wrote.
Leske’s point is only that there would be a glaring constitutional problem here if the circuit court’s action withstood scrutiny under the statute and clear case law.