Prosecutor Avoids Ethics Questions: Special Prosecutor Requested


MILWAUKEE (Legal Newsline) – Milwaukee district attorney John Chisholm, a Democrat, has criminally investigated Wisconsin Republican Governor Scott Walker and his political allies since 2012.

The so-called “John Doe investigation” – coming on the heels of an earlier, similarly sweeping, two-year investigation of Walker and his staff – has been accompanied by highly unusual court-approved “gag orders,” barring the leaders of 29 conservative groups and other Walker associates from speaking out.

One of those activists, Eric O’Keefe, and the Wisconsin Club for Growth, which he runs, filed a federal civil rights lawsuit saying that the entire investigation is a political vendetta designed to deny conservatives freedom of speech.

O’Keefe won a strongly worded decision by U.S. District Judge Rudolph Randa in May, but a federal appeals court in Chicago recently set aside Randa’s ruling on federalism grounds. Expressing no view on the merits of the dispute, the three-judge panel found that O’Keefe had ample remedies available in Wisconsin courts.

An investigation by the American Media Institute, a non-profit news service, found Michael Lutz, who says he was a longtime friend of both the district attorney and his wife.

In 2011, Lutz served as an unpaid “special prosecutor” in Chisholm’s office, where he was told by the district attorney “he felt it was his personal duty to stop” Walker from curbing the powers of public sector unions. Chisholm allegedly said these things while also relating the views of his wife, Colleen Chisholm, a shop steward for the teachers’ union, whom Lutz has described in an email as “very opinionated about her hate for the gov.”

Colleen Chisholm, Lutz says the district attorney told him, was often moved to tears of anger by Walker’s successful 2011 legislative push to limit the authority of public sector unions including hers. It appears to be undisputed that she joined boisterous demonstrations against Walker.

Chisholm also allegedly forbade Lutz from campaigning for Wisconsin Supreme Court Justice David Prosser, because Chisholm wanted to “stay away from these Republicans” and he did not want Prosser on the court when it ruled on Walker’s legislation.

In a formal request for a special prosecutor filed Sept. 26 and made public Monday, O’Keefe alleged that Chisholm should be criminally investigated based on evidence (mostly Lutz’s allegations) that he had abused his prosecutorial powers in pursuit of political and financial gain in his so-far fruitless case against Wisconsin conservatives.

O’Keefe’s petition was based largely on the American Media Institute’s reporting – two long articles that were repeatedly cited in that document and attached as appendices. Before AMI began investigating and publishing on this subject, no mainstream news organization had questioned the independence or integrity of the Milwaukee County district attorney or, for that matter, reported on Colleen Chisholm’s union position.

So far, the district attorney has refused to confirm or deny a single one of Lutz’s allegations, apart from vague, general denials to this reporter and perhaps others. Chisholm and his personal lawyer, Samuel Leib, have repeatedly ignored requests from this reporter for responses to specific Lutz allegations.

Since the questions may provide valuable information about a contentious public issue, AMI presents below the text of an email, including a complete list of questions, submitted by this reporter to District Attorney Chisholm and his lawyer (with copies to Lutz and others) this past Friday. At this writing, neither Chisholm nor Leib has responded.

Dear Mr. Chisholm and Mr. Leib:

I am preparing to write one or more follow-ups to the two articles that I have written about the John Doe investigation, and in particular about Michael Lutz’s allegations.

As far as I know Mr. Chisholm has never — apart from a vague, general denial — specifically denied any of Mr. Lutz’s published statements.

Hence this email, which poses some questions that I hope you might answer by noon on Tuesday, September 30, unless you need more time.

My questions are divided into two groups: those regarding the alleged “death threat” and others.

The alleged “death threat”:

1. In a September 12 article by Dan Bice, the Milwaukee Journal Sentinel said that Mr. Leib “said Thursday that Lutz had left a message threatening to kill Chisholm and his family in the past year. He did not provide audio of the voice mail.” Was this an accurate and complete report of what Mr. Leib said to Mr. Bice, and of what Mr. Chisholm told Mr. Leib?

2. Mr. Lutz has said in response that while he may have used harsh or even inflammatory words, he never said anything that he intended or that Mr. Chisholm interpreted to be a threat to harm anyone. Does Mr. Chisholm challenge this statement by Mr. Lutz?

3. If Mr. Chisholm does challenge it, how does he explain his failure either to prosecute Mr. Lutz or to report him to appropriate authorities for making a death threat, which would have been a crime?

4. And what, if any, steps did Mr. Chisholm take to protect himself and his family from Mr. Lutz? Armed guards? Moving his family to a safe location? Having Mr. Lutz tailed? Anything at all?

5. Mr. Lutz has explained the alleged death threat roughly as follows: He feared on the basis of one or more phone conversations that his best friend and former police partner, Jon Osowski (also the brother of Mr. Chisholm’s wife) was in trouble, and perhaps suicidal, so that he (Mr. Lutz) requested help in urgent phone calls to the Chisholms, expressing increasing and agitated concern, and possibly saying something that might be twisted out of context as threatening. Finally, Mr. Lutz has said, says, Mr. or Mrs. Chisholm or both went out into the night to help Mr. Osowski. Does Mr. Chisholm deny the accuracy of this account?

6. Mr. Lutz has also said that Mr. Chisholm has played the recording for him and that the two of them “laughed about” the episode the next day. Does Mr. Chisholm deny this?

7. In light of the evidence that is now available, will Mr. Chisholm or Mr. Leib or both retract and apologize for accusing Mr. Lutz of making a death threat?

8. If not, will you repeat that you believe that Mr. Lutz made a genuine death threat, and thereby show that you are not concerned about possible liability for libeling Mr. Lutz?

Other questions

I list below some of Mr. Lutz’s other statements, and related questions, with a request that Mr. Chisholm or someone speaking on his behalf admit, deny, or otherwise respond to each of them individually:

1. As far as I know, neither Mr. Chisholm nor anyone else has ever suggested a motive for Mr. Lutz to lie about Mr. Chisholm. Do you maintain that he had a motive to lie and, if so, what was it?

2. Mr. Lutz has said that his motive for making allegations of bias against Mr. Chisholm was and is that “I don’t like what he has done in regard to political speech that he disagrees with.” I am not aware that anyone has challenged the truthfulness of this statement. Do you challenge it?

3. Mr. Lutz has said that at least before this September, he had been friends with John and Colleen Chisholm for more than a decade. Do you deny that?

4. He has added that has visited the Chisholms’ home several times and gone to dinners, after-work functions, and other outings with one or both of them over the years. Do you deny that?

5. He has also added that he gave $200 in August for a Chisholm campaign fundraiser. Do you deny that?

6. When Mr. Lutz went into private practice, Mr. Chisholm wrote a memo (of which I have a copy) to him dated July 27, 2011, saying that his service “has been exemplary,” that his “dedication and hard work … have proved to be invaluable,” and that “I am extremely grateful for the service you provided.” Do you deny that?

7. In a previous letter of recommendation (of which I have a copy), in November 2007, Mr. Chisholm wrote that Mr. Lutz had been “one of the best investigators in the Milwaukee police department” and had “removed some of the most dangerous offenders from the streets of Milwaukee” while combining “a remarkable memory with unceasing hard work and courage.” Do you deny that?

8. Mr. Lutz has said that in late 2010 or early 2011, he heard Mr. Chisholm and others in the DA’s office express anger at the newly elected Scott Walker, who Mr. Chisholm said had backed away from an agreement to support statewide stepped pay raises for DA’s and their assistants. Do you deny that?

9. Mr. Lutz has added that Mr. Chisholm complained that Mr. Walker had “lied to my face” about stepped raises. Do you deny saying anything like that?

10. Mr. Lutz said the following in a May 20, 2012 email to an unidentified person, a copy of which he gave me, while saying that it accurately described a conversation he had with Mr. Chisholm in or about March 2011: When “I was a Special Prosecutor in the DA’s office and [Wisconsin Supreme Court] Justice [David] Prosser approached me to do a [pre-election] video spot about how the decision authored by him about the guy who shot me was a very important ruling for Police officers in general, DA Chisholm … stated that he couldn’t allow me to do it and he wants to stay as far away from these Republicans as he can.” Do you deny saying anything like that?

11. In the same email, Mr. Lutz added that Mr. Chisholm “went on to say how he knows that Act 10 would eventually end up in the [Wisconsin] Supreme Court and didn’t want Prosser to decide on the case.” Do you deny saying anything like that?

12. Also in the same email, Mr. Lutz added that roughly eight months after this conversation, Mr. Chisholm’s “liberal block of DA’s, 80% of them, are actively campaigning, emailing, and even verbally bashing Walker at charging conferences.” Do you deny that?

13. Mr. Lutz has said that Mr. Chisholm told him that his wife, Colleen, a teacher’s union shop steward, had been repeatedly moved to tears by Gov. Walker’s policies regarding public employee unions. Do you deny saying anything like that?

14. Mr. Lutz has said that Mr. Chisholm told him that his wife “frequently cried when discussing the topic of the union disbanding and the effect it would have on the people involved.” Do you deny saying anything like that?

15. Mr. Lutz has said that Mr. Chisholm told him that he felt that it was his “personal duty” to stop Gov. Walker from curbing public employee unions. Do you deny that?

16. Mr. Lutz has said that Mr. Chisholm told him that his wife had joined public demonstrations by one or more unions against Walker’s policies in 2011. Do you deny saying anything like that?

17. Mr. Lutz has said that Mr. Chisholm made most or all of the statements numbered 10 through 16 above while the two of them (and perhaps one or more others) were speaking in Mr. Chisholm’s personal office in or about March 2011. Do you deny that?

18. Mr. Lutz has said that in the first half of 2011 (roughly), many of Mr. Chisholm’s subordinates were very strongly opposed to Walker and his union-curbing policies. Do you deny that?

19. Mr. Lutz has said that a number of subordinates of Mr. Chisholm joined public protests in 2011 against Walker’s policies. Do you deny that?

20. Mr. Lutz has said that some Chisholm subordinates hung images of blue fists on their office walls in 2011. Do you deny that?

21. I believe that Gov. Walker’s Act 10 and perhaps related legislation or policies caused cuts in take-home pay for Mr. Chisholm and his subordinates, as for other unionized public employees, in part by requiring them to pay for previously free or inexpensive health insurance, pensions, and perhaps other benefits. Do you deny that?

22. The cuts in take-home pay for Mr. Chisholm and/or some of his subordinates were roughly 10 percent or more. Do you deny that?

23. One or more of Mr. Chisholm’s subordinates will be entitled under current law to a pension in excess of $1 million each. Do you deny that?

24. Mr. Lutz told me that Mr. Chisholm told him that as a result of Act 10, Colleen Chisholm’s union local disbanded and that she was very upset about this and the effect it would have on members and former members. Do you deny that?

25. The impact of Mr. Walker’s polices on the Chisholms’ finances also included whatever pay Mrs. Chisholm had previously received from her union. Do you deny that?

26. I have reason to believe that Mrs. Chisholm had been receiving more than $20,000 a year in gross compensation from the union. Do you deny that?

27. I have been told that after I published some of Mr. Lutz’s allegations without identifying him, the DA’s office developed a list of people who might be my source. Do you deny that?

28. I have also been told that there were as many as 10 or 12 people on that list. Do you deny that?

29. I have also been told that Mr. Lutz was not on that initial list. Do you deny that?

Finally, anticipating the possibility that you may decline to respond to these questions individually, or may not respond at all, I note that to the extent you do not respond, I will look for an appropriate way to publish all of the unanswered questions; any reason given for refusing to answer them; (and) the fact that this will not be the first time that you have refused to answer specific questions…

Sincerely, Stuart Taylor

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