The case: State v Pierson T. Leske
Case no.: 24AP565
Filed in: District IV, Court of Appeals
Circuit Judge: Vicki Clussman, Waupaca County
Filing Attorney: John Flynn
Title: Assistant attorney general
Law firm / agency: Wisconsin Department of Justice
"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.
Please remember — these are generally taken from briefs and present the arguments of the parties appealing. They do not necessarily present the full story.
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I first wrote about this case in July, when defendant Pierson Leske's attorneys appealed Waupaca Circuit Judge Vicki Clussman's appointment of a special prosecutor in his case.
That post is here. Now the state has weighed in, siding with the defense in challenging the appointment. This brief is about the state's argument.
Introduction
This appeal concerns the circuit court’s authority to appoint a special prosecutor sua sponte, without enumerating which, if any, of the statutorily enumerated reasons exist.
The state charged Leske with second-degree sexual assault of a victim who could not consent due to intoxication. To resolve the case, the state offered that Leske could plead no contest to third-degree sexual assault and substantial battery, and he would be offered a deferred prosecution agreement on the sexual assault.
At the hearing, V1 told the circuit court she did not agree with the proposed resolution. The circuit court adjourned the hearing so V1 could consult with her lawyer, who was not present. V1’s attorney sent a letter to the court asking for the appointment of a special prosecutor because V1 did not believe the district attorney would try the case.
The circuit court appointed a special prosecutor on its own motion. Leske sought leave to appeal, which this court granted.
This court should reverse the circuit court’s order appointing the special prosecutor. This court should clarify the state of the law on appointing a special prosecutor. The earliest case from this court interpreting the statute on appointing a special prosecutor held that the statute requires that one of the listed reasons for appointing be present. A subsequent case, also from this court, held that when a court makes an appointment on its own motion, it need only state the cause to do so. Our Supreme Court has called that second case into question — if not overruling it. If the Supreme Court did not overrule this second case, then this court should clarify that the first case controls because this court lacked the power to modify or overrule the first case.
If the circuit court’s order withstands statutory scrutiny, then this court should hold that the appointment of a special prosecutor does not remove the elected district attorney from the case — that would be a violation of the separation of powers. The elected district attorney is accountable to the voters, and, absent a refusal to prosecute at all, a circuit court cannot remove them.
Statement of the case
Pierson Leske was charged with second-degree sexual assault of a person under the influence of an intoxicant, Assistant Attorney General John Flynn wrote. A plea agreement was reached that called for Leske to plead no contest to third-degree sexual assault and substantial battery. The court would withhold judgment, Leske would enter upon a deferred prosecution agreement, and upon successful completion, the case would be dismissed.
V1's lawyer sent the court a letter stating V1 was aware of the offer and participated in a victim conference, Flynn said.
The circuit court asked the sate for V1’s “position regarding the [c]ourt’s acceptance of this particular plea agreement.” The state indicated that it had “also spoken with [V1’s attorney], who expressed that the victim was satisfied with the agreement.”
V1, in addressing the court, acknowledged she spoke with the state. but said she did not think she fully understood the agreement at the time. She wanted jail time for Leske, she said. Clussman, after asking V1 if she would be willing to testify at a trial, rescheduled the hearing.
Clussman later sent a letter to the lawyers involved saying she would not accept the plea agreement unless V1 did.
By letter, V1’s attorney informed the circuit court that V1 conferred with the state alone and was not given a written copy of the plea agreement. V1’s attorney claimed that she had not told the state that she explained the plea agreement to V1 “in detail.”
V1’s attorney also claimed that the state, by District Attorney Kat Turner, “claimed that V1’s father had threatened to kill members of her staff and to bring a firearm to the courthouse” and that District Attorney Turner, Leske, and Leske’s counsel “had to seek shelter in the District Attorney’s Office from V1’s mother.” V1’s attorney also claimed that the state threatened to refer charges for V1’s father if another incident took place. V1’s parents denied the claims.
V1’s attorney stated she had obtained a police report “that the District Attorney’s Office had received a threatening phone call from V1’s father indicating he was coming tomorrow (2/10/23) to bang on some door and to create a disturbance.” The sheriff’s deputy wrote that the one message that had not been deleted “did not contain a statement that V1’s father was coming down to the office and in the message, V1’s father was not using vulgar words or threats.” The deputy contacted V1’s father and “[h]e stated he was really mad because he was denied to be in on a zoom meeting with his daughter in regards to a victim impact panel and that he had received information that the case was being plead down from a 2nd degree which was really upsetting to him.” V1’s father denied threatening to create a disturbance, and the emails that the deputy saw did not contain threatening language.
V1 said she lacked confidence in the DA's office to try the case and said she felt "alone and vulnerable throughout this process." She requested the appointment of a special prosecutor.
By letter, the circuit court could not “imagine why the District Attorneys office would require any victim (especially a young victim of sexual assault) to meet with them alone.” The court felt that, despite the allegations of threatening behavior, V1’s parents “should have been allowed to accompany their daughter.” The court called the state’s position “cruel.”
The circuit court also criticized the state’s policy that it does not provide victims with written copies of the plea agreement. It mused that “[i]t seems like a bad policy.”
The court accepted V1’s attorney’s statement that she did not tell the state that she had explained the plea agreement to V1 in detail. The court found it “particularly disturbing” because V1’s attorney appeared to be “alleging that the District Attorney’s office may have violated the rules of professional conduct.” The court considered several possibilities. The transcript of the hearing was accurate, so the error was not the court reporter’s. If the state misspoke, it asked the state to correct that. It considered that V1’s attorney could have, in fact, told the state that it had explained the plea agreement to V1, but was now telling the court she had not. It also considered the possibility that the state made a false statement on the record.
With no additional explanation, the circuit court also granted V1’s request for a special prosecutor. The circuit court filed an order appointing a special prosecutor; the form indicated that it was on the court’s own motion but did not check any of the reasons for the appointment.
The state responded in a letter to the court. The state maintained that it had not been intentionally false or misleading. The state’s recollection was that V1’s attorney, during their conversation, “indicated that she would take responsibility for explaining the plea agreement to her client.” The state “took for granted that would occur prior to the plea hearing.” The state took issue with V1’s attorney’s failure to inform the court that, after the hearing, they had spoken and came to understand their miscommunication.
The circuit court, by letter, accepted the state’s correction of the inaccurate statement made on the record.
After Leske filed his petition for leave to appeal, the circuit court filed a document explaining why it appointed a special prosecutor. It noted the allegations of threats by V1’s parents to the state, their denial of those allegations, the allegation that the state did not allow V1’s parents to be present for a conference with V1, and the allegation that the state would not provide a written copy of the plea agreement. It found that Leske “would not be harmed by having a special prosecutor appointed.”
Argument
State law, Flynn wrote, allows judges to appoint special prosecutors only under certain circumstances: to assist a DA, at the DA's request, in prosecuting a person; when there is no DA for the county; the DA is absent from the county; when the DA, deputy DA, or assistant DA is on parental leave; the DA has represented a party in a matter related to the the charge the accused faces; the DA is a close relative to the accused; the DA is physically or mentally unable to perform their duties; the DA is serving in the armed forces; the DA is facing criminal charges; or the DA determines there is a conflict of interest regarding the DA or staff. The judge or the requesting DA also must submit a sworn affidavit to the Department of Administration.
The state Court of Appeals has treated special prosecutor appointments inconsistently, Flynn wrote. First, In re Commitment of Bollig, it said that the judge could act only when one eight reasons listed above existed. Just four years after that 1998 decision, however, the appeals court said in State v Carlson that a judge could appoint a special prosecutor as an act of discretion without giving a reason.
In 2015, however, the state Supreme Court called the Carlson decision "problematic to the point of being suspect” because it ignored the criteria listed in the statute. T
That means that there are two conflicting appellate decisions governing special prosecutor appointments, the Flynn said.
When conflicting precedents cannot be reconciled, this court is obligated to apply the earlier decision, because this court had no authority to overrule the prior decision.
Clussman should be reversed because she failed to state the statutory justification for appointing the special prosecutor and because her actions violated the separation of powers, Flynn said.
With reference to prosecutorial discretion, Wisconsin case law has repeatedly held that the discretion whether to charge and how to charge vests solely with the district attorney.
District attorneys are elected officers, normally accountable only to the electorate by recall or losing reelection.
There is no mechanism in which a court can remove the elected district attorney from a case for a violation of victim’s rights. Normally, victims alleging a rights violation may make a complaint to the crime victim’s rights board. While victims have standing to assert their rights in court, removal of the elected district attorney has not been established as an available remedy.
Therefore, the appointment of a special prosecutor does not, and cannot, effect the removal of a district attorney actively prosecuting the case. Neither the court, nor the victim, nor the defendant get to choose who prosecutes a criminal case —the voters do.
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