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October 15, 2010
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Richard Davis, ALM Understanding Domestic Violence
with Richard Davis, ALM

The 'sexting' prosecutor: What would you do if you were in charge?

I suggested in a previous article titled Testilying that the criminal justice system favors the patrician (lawyers) over the plebeians (law enforcement officers).

Imagine that you are a chief of police. You are informed that a lieutenant who is your department’s court prosecutor had sent 30 text messages — some of them sexually explicit — during the course of three days to a victim in a domestic violence case he was prosecuting.

You confront the lieutenant and he admits that he did text the victim. In one he referred to her as a “hot nymph.” In another he asked if she was, “the kind of girl that likes secret contact with an older married police officer… the riskier the better?”

What should you do?

A. Proceed on a process to fire him
B. Proceed on a process to suspend him
C. Decide that his behavior — while inappropriate — did not amount to professional misconduct and let him continue prosecuting

Regardless if the reason is a moral stance for the integrity of the department and the victim or simply to ensure that, as chief or police, you would not be subject to the wrath of domestic violence advocates, the community, local public policy makers, the media, or the Department of Justice, would be compelled to proceed with some form of disciplinary action?

Patrician Justice
As many of you may know the above scenario is based on an actual event. In that event the accused sexter is the District Attorney of Calvert County (Wisc.). After the DA admitted he was guilty of sexting, it appears that the Wisconsin Office of Lawyer Regulation (OLR) decided that the DA’s behavior — while inappropriate — was not “professional misconduct.”

Apparently the DA also believes his behavior did not arise to “professional misconduct” and he refused to resign. However, the DA is seeking therapy for “his problem.” He seems unwilling or unable to recognize his problem is more of a problem for crime victims than him. It also appears he did not understand he had “a problem” until he was caught and he was told that his sexting behavior is particularly problematic for domestic violence victims.

It was not until the OLR began to receive more complaints from a number of other women who reported that the DA had committed similar sexist or offensive behavior towards them, did the OLR reopen its investigation.

The Calumet County Bar Association (CCBA) made absolutely no statements about the incident, nor about the initial decision of the OLR. Only after the OLR reopened its investigation because of more complaints did the CCBA release a statement claiming that it:

“..is concerned about the surprising and serious allegations against Calument County District Attorney Ken Kraz, and the impact the issue is having on the criminal justice system. We support the ongoing fact-finding process and expect that the matter will be resolved appropriately and expeditiously.

Apparently the CCBA did not think that a single re-victimization of a domestic violence victim was not surprising or serious enough for them to make a public statement, at the very least, simply condemning the DA’s behavior.

Plebeian Justice
The United States Department of Justice has used Section 14141 of Title 42 on many occasions to investigate the behavior of law enforcement agencies or individual officers. I suggest this incident might have been and in fact is still an appropriate occasion to do the same with this District Attorney’s Office.

Questions

1. How is it possible — after the DA admitted he did send the test messages, including the sexually explicit ones — that the CCBA simply ignore his behavior?
2. After the Kaukanua police department turned the information over to the Department of Justice (DOJ), the DOJ decided that “no crime had been committed.” To its credit the DOJ did take over the prosecution of the victim’s case and got a felony conviction. However, that does not excuse the DOJ for not further investigating any “inappropriate” behavior toward other victims.
3. Is it plausible to think that the OLR, the CCBA, and the DOJ believe that this incident is most likely the first time the DA ever acted “inappropriately” toward a female victim?
4. Finally, what do you think the DA and the DOJ would have done if they had discovered the accused was a Kaukanua Police Lieutenant?

Whay do you think?  What would you do if you were in charge?  Whether you are the DA, the Chief, the Lieutenant, or the FTO, we all have to make tough calls when our people do wrong.  Add your comments below to add to the discussion.


About the author

Richard L. Davis completed studies in criminal justice management at LaSalle University. He has a graduate degree in criminal justice from Anna Maria College, and another in liberal arts with a concentration in history from Harvard University.

Contact Richard Davis.





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