According to the La Crosse Tribune, Attorneys for accused double-homicide defendant, Jeffrey Lepsch, are moving for dismissal or, in the alternative, suppression of video-recorded surveillance evidence reportedly depicting Lepsch inside the crime scene at May's Photo between 1:53 and 2:58 p.m. on the date of the gruesome murders.  Apparently, missing is surveillance footage after 3:30 p.m.  This footage is critical to Lepsch because a witness reportedly saw another person in the store behind the counter between 4:15 to 4:30 p.m.  His attorneys argue this deprives Lepsch of Due Process.  District Attorney Tim Gruenke opposes and is preparing a response to the motion.  Legally, the term for losing, or destroying, evidence is termed 'spoliation.'

This is not the only recent case of the La Crosse Police Department failing to preserve digital evidence.  In a recent high-profile case defended by this attorney (client agrees to my describing these events), the La Crosse Police Department failed to preserve a supposed interview of a confidential informant ("CI") who allegedly blamed my client for being involved in an armed robbery pulled off by the so-called "Get Money Boys".  Not only that, the police temporarily lost the defendant's recorded statement and admitted losing the recorded statement of a co-defendant.  Furthermore, of the several police vehicles that responded to the crime scene with their video cameras running, not one had the audio component on to record the conversations with the victims at the scene.  The microphone can be easily turned on by the officer.

Charged with Armed Robbery, my client ended up pleading no contest to two misdemeanors relative to the alleged home invasion, getting probation and a short term on electronic monitoring.  The Assistant District Attorney ("ADA") prosecuting that case blamed the very good plea deal on the destruction of the recorded CI interview.  In my opinion, the outcome of that case was justified by the overt lack of evidence against my client.   Nonetheless, I agree with the ADA that the situation created not just an embarrassing situation for the police and DA's office, but also an opportunity for suppression and/or dismissal, or at least, a very good opportunity to create doubt during a jury trial. 

The fact is, over the last several years, I and my colleagues have experienced numerous occasions of the La Crosse Police Department, the Onalaska Police Department, and other agencies, overtly failing to preserve video and/or audio-recorded evidence.  It usually happens because police officers fail to take the simple steps necessary to capture or preserve the evidence, including, failing to activate the video in the squad car, turning on the video but not the microphone, failing to point the camera in the direction of the event, or failing to properly download the audio/video files.  When the video cameras do work, it often seems very selective.  When they want the camera to work, it usually works.  

The La Crosse and Onalaska Police Departments have spent a ton of money to equip the patrol cars and officers with the equipment they need to record these events.  To be sure, this can be a very important way to protect the police.  In fact, the policies and procedures adopted by the La Crosse and Onalaska Police Departments have specific provisions requiring the officers to maintain and use the equipment to capture and preserve all pertinent audio-video evidence.  These provisions makes the officer personally responsible for doing so.  In short, there is no excuse for failing to capture and preserve this evidence, but it happens ALL THE TIME.   

Seeing is believing.   Video can be the most effective evidence in a case.  Indeed, I have tried cases almost solely based on the failure of police to capture or preserve audio-video evidence they maintain is harmful to my clients, including field sobriety tests and admissions supposedly made by defendants.  Why should the police be allowed to convict someone based on evidence they could have easily--and were supposed to--record, but failed to for no good reason?   Of course, when questioned about it at trial, the offending officer conveniently says, "'Mr. Defendant' is lucky I didn't record it, because you would see that it is exactly the way I say it was. "  No officer should be able to get away with that. 

As an OWI/criminal defense attorney, I just want to see what really happened and/or was said, for better or worse.  So, La Crosse and Onalaska police (and others): Shape up!   

The Supreme Court of Wisconsin has agreed to review  State v. Nicolas Subdiaz-Osorio, 2010AP3016-CR 
wherein the defendant was captured by police using cell phone location information they obtained without a warrant from his cell phone service provider. 

The Fourth Amendment to the United States Constitution and Article 1, section 11 of the Wisconsin Constitution generally prohibit warrantless searches and seizures by the government.  However, the courts have held that warrants are required only for situations where the person has a 'legitimate' or 'reasonable' 'expectation of privacy' in the thing or place searched (Katz v. U.S.).  Complicating matters, the courts have developed a litany of exceptions to the warrant requirement.

The question of whether a person has such an expectation of privacy has been examined in cases ranging from conversations in a phone booth, to searches of ice fishing shanties, to police rummaging through trash cans left at the curbside.  In the case of cell phone records, the State of Wisconsin will likely argue that a person has no legitimate expectation of privacy to the their cell phone location information, which is information they (usually) unwittingly provide to their cell phone company without the government being involved.  This is exactly what the United States has already argued in similar cases on the subject, for example, In re Applications of the United States of America for Historical Cell-Site Data.  The Sixth Circuit, in U.S. v. Skinner, ruled last year that there is no legitimate expectation of privacy to cell phone location information.   

No matter how the federal courts come out on this issue, the Supreme Court of Wisconsin is empowered to interpret the Wisconsin Constitution in a manner the affords more protection to the citizens of Wisconsin, and it should do in this case.  This conduct is intrusive.  As one federal judge has pointed out, "A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts."

There are certainly competing interests at stake.  We all want criminals apprehended (unless you are one).  However, what are we willing to hand over to the government in exchange for our security?  What good is security if we have no freedom?  If I were King, the government would have to have to convince a judge that there is probable cause of criminal behavior before having access to this kind of information.  But since I am not, I will be watching this case closely.  Stay tuned.

This is one of those crime stories that seems only to come out of Wisconsin:  

Drunk (BAC .12) and high on heroin, Scott Mehtala, 23, a self-professed "vampire", assaulted a guitarist named Niki Slimp (stage name, I presume) from the band 'American Fangs' on Tuesday, May 14th, near the La Crosse Center, where the band played.  The assault reportedly occurred after Slimp confronted Mehtala for throwing a barricade through a window of the band's tour bus.   According to the La Crosse Tribune, Slimp received a chipped tooth (I sure hope it was not a fang) and needed stitches as a result of the assault.  Mehtala tried to escape but was tackled by some other guitarist.  

Mehtala claimed he was jumped by vampires who were members of the 'Hollywood Undead', another band billed along American Fangs.  He reportedly told police did not feel safe but was protected by his super-human hearing.    
Also according to the La Crosse Tribune, Mehtala also "ripped a side mirror from a car parked on Main Street and gave it to a bartender claiming vampires had forced him to damage the car" (I thought HE was a vampire).

Just another night in the lives of vampires?  It's a good thing they're immortal.  

In real life, according to CCAP Mehtala has been charged by the La Crosse District Attorney's office with Battery (Class A Misd.), Criminal Damage to Property (Class A Misd.) and Disorderly Conduct (Class B Misd.), with total possible punishment of $21,000 and 21 months jail.   Mehtala had no prior criminal history on CCAP.  Assuming that is his only brush with the law, I would expect that he eventually be proposed a disposition such as a diversion agreement or, potentially, amendment to an ordinance violation, either of which could leave him without a criminal conviction.  No blood-sucking immortal should be saddled with a criminal history.  
 

Nicole DeClute, 27, was convicted yesterday in the La Crosse County Circuit Court by pleading guilty to one count of Armed Robbery, a Class C Felony, punishable by a maximum fine of $100,000 and 40 years prison.  Ten other crimes in five other cases where dismissed and read-in for sentencing.  According to the La Crosse Tribune, she has been approved for admission to the La Crosse County Drug Treatment Court.  She awaits sentencing before another judge because Judge Scott Horne recused himself after taking her plea, citing his conversation with the victim while a customer at the dry cleaner.

A review of DeClute's record on CCAP shows that she has pretty much been a one-woman crime spree since 2003.  So, many will no doubt scream and shout when she is given probation with drug court as a condition (and I do think that is highly likely).  However, punishment and deterrence are not the only goals of a sentence; and for serious drug users, prison rarely works to steer them on the right track. 

Look at the circumstances of Ms. DeClute's case.  She apparently went into Hangers and Hems while her dad was gassing up the car next door.  She pulled out an Airsoft pistol and robbed them of $200.  This looks like someone pretty desperate for quick cash for a fix.  Indeed, much of the rest of her criminal history, thefts, forgeries, etc., also tell the story of someone committing crimes for money to buy drugs.  This pattern will likely only end if she gets real help and support for her drug addiction.  Regrettably, most people can't afford that, and for better or worse, the drug court will put her in that environment. 

The La Crosse County judges know that drug court works far better than prison to end the cycle of drugs and crime, so they bite the bullet and choose results over punishment and deterrence.  Read an article wherein the La Crosse County judges publically support the drug court against the La Crosse Police Chief's public call for harsher sentencing. 

When a person is sentenced to a La Crosse County Drug Court disposition, their sentence is usually withheld and they are placed on probation.  Drug court is made a condition of the probation.  That means they can be sentenced again if they are revoked from drug court and/or probation.  The other alternative is sentencing them now, say to five years prison, but then staying the sentence until the person completes probation/drug court.  If they are revoked from and/or drug court, they will serve that prison sentence.  Either way, the person holds the keys to the prison in their own hands. 

If Ms. DeClute is given drug court, then she will pretty much be turning herself over to the drug court team and the drug court judge.  Her probation conditions will probably include more time in the La Crosse County Jail.  The team will decide when she will get out on electronic monitoring, which is likely how she will serve the remaining portion of her jail sentence--if she has no violations.  However, the team will make sure there is plenty of jail time left available in case she fails to play by their rules.

One of the first rules of drug court is "don't use", and Ms. DeClute will be closely monitored in that regard.  If she does use, she'll get caught.  She probably be held in jail until the team and judge decide she is ready for another chance.  If she continues to use, she'll be revoked, and will probably be sentenced to prison.  It's up to her.  If she succeeds, the savings to the tax payers--not to mention her otherwise future victims--will be enormous.