Unhappy with the way Dane County's top prosecutor dismissed some tickets issued to Capitol protesters, the state Department of Justice took over prosecution of these civil forfeitures. The Dane County District Attorney's office, however, retained control over criminal prosecutions and is now handling the most high-profile case yet to emerge since Capitol police began enforcing permitting guidelines last fall during the noontime Solidarity Sing Along.
Dane County District Attorney Ismael Ozanne has until Sept. 12 to determine the charges against Damon P. Terrell, whose violent arrest by Capitol police on Aug. 26 was videotaped by numerous observers and protesters. Among the charges recommended by the Department of Administration were felony battery to a police officer and resisting arrest, but Ozanne said at an initial appearance Aug. 29 that more time was needed to determine the appropriate charges.
In an interview, Ozanne says that while police make arrests based on violations they think have occurred, it is up to the DA's office to make final charging decisions.
Ozanne says the charge in Terrell's case will be "whatever we feel we can prove beyond a reasonable doubt if we went to trial."
Ozanne says he could not provide a scenario of potential charges.
Multiple videos taken of Terrell's arrest show police approaching him as he stood in the center of the Rotunda. Terrell can be seen holding a camera that hangs from a strap around his neck and telling officers "this isn't illegal." The videos show Damon backing away before officers wrestle him to the floor. During a 30-second struggle officers eventually pin Terrell to the floor and then carry him away.
Stephanie Marquis, spokeswoman for the Department of Administration, issued a statement saying that Terrell "refused to leave and actively resisted officers" when placed under arrest.
When asked whether he was aware of the videos taken of the arrest and posted on the Internet, Ozanne said it was his "understanding" that they existed. He says there could be issues of "authenticity or chain of custody," but allowed that any "documentation of an incident would or could be evidence. If we had access to video we would definitely take a look at it."
Brian Brophy, a former Dane County District Attorney and a longtime criminal defense attorney, says he would be surprised if prosecutors did not review the available video.
"Why wouldn't you review any evidence you could before issuing a charging decision?" says Brophy, who was appointed Dane County District Attorney in 2000 by Republican Gov. Tommy Thompson but lost to Democrat Brian Blanchard in an election a few months later.
Brophy says he would also be surprised if Ozanne issued felony charges without any further evidence from the Capitol police.
"I saw those videos," says Brophy. "Frankly I was shocked by them. Shocked that they referred this guy up for any charge, much less battery to a police officer."
Terrell spent three days in Dane County jail before being released on a signature bond on Aug. 29. Ozanne has said he did not receive any reports from the Capitol police until two days after the incident.
Ozanne declined to release the police report to Isthmus until formal charges are announced. An open records request for the report to the Department of Administration is pending.
Although Christopher Kuehn, a criminal defense lawyer from Elkhorn, represented Terrell at his bond hearing, other lawyers are likely to join his defense team, says C.J. Terrell, Damon's brother.
"This is bigger than a one-lawyer job," says C.J., who was also arrested at the Capitol Aug. 26 and faces charges for resisting arrest and assembling without a permit. Both brothers have protested at the Capitol since the massive rallies of February 201 over Gov. Scott Walker's plan to eliminate collective bargaining rights for most public workers.
"It's so critical to get the Capitol police to stop illegally arresting and detaining people," says C.J.
While some protesters have complained of rough handling by Capitol police while being arrested, the protests and the arrests have been largely peaceful. The arrest of Damon Terrell is the exception as is the tentative charge of felony battery, which, if it stands, would be the most serious since the first police crackdown against the sing-along in September 2012.
In a probable cause affidavit and judicial determination, Capitol Police Officer James Brooks said he injured his ring finger, broke his watch and received multiple abrasions and lacerations while trying to subdue Damon Terrell, whom he says resisted arrest and tried to run from police.
But C.J. Terrell says the evidence will prove Damon's innocence. "My brother didn't do anything and the video clearly shows that."