Last week, nearly two months after being asked, the Madison Police Department released to Isthmus records of its internal investigation into a 2006 incident involving then-26-year-old Jacob Bauer, the culprit in a bar assault.
The investigation's conclusion was already known. The MPD deemed allegations that two Madison cops used excessive force in subduing Bauer were "not sustained." No discipline or other corrective action ensued.
But the released records do shed light on the case's most critical aspect the investigative process. And what they illuminate is hardly reassuring.
As Isthmus reported, the incident happened in the early morning hours of Dec. 29, 2006, at State Street Brats in Madison. The city of Madison later quietly paid the man $27,000, without his even having to sue (see "City Paid Off Man Injured by Cops," 8/20/10).
The 30 pages of newly released material (PDF) show that multiple witnesses with no ties to Bauer reported seeing a shocking level of police violence. To wit:
State Street Brats employee Elissa Parker, who called 911 on the cops after screaming at them to stop, told a supervisor who responded that police were "beating this guy and kicking him repeatedly in the head."
Lt. Pat Malloy, then the department's head of internal affairs, never met with Parker but did get additional information from several other bar employees who reported seeing Bauer brutalized as he lay on the ground.
Bouncer Adam Pischke, in an email, told Malloy that one of the officers "stomped on [Bauer's] head about five times." In an interview, Pischke added, "It was clear that he was intentionally stomping on his head with the bottom of his foot."
Another bouncer, Max Michalski, said that after the head kicks this officer identified as Steve Heimsness "began taking full swings punching the man in the back of the head," followed by "very hard" knee kicks to his face. Heimsness then purportedly pressed his knee into the back of Bauer's head "and drove his face into the floor."
Officer Heimsness, no surprise, denied intentionally kicking Bauer in the head, saying he was aiming for other places. He also claimed Bauer's head was covered by his jacket until after he was subdued. This was pointedly contradicted by an array of witnesses, who said Bauer's profusely bleeding head was uncovered nearly all the time.
The other cop, Corey Urso, pulled a Sergeant Schultz ("I know NOTHING!"), insisting that from his vantage point inches away he never saw Heimsness kick or punch Bauer. "I guess I wasn't looking," he told Malloy. Good guess.
Two bar employees, manager Nathan Quella and assistant general manager Tyler Kneubuehl, proved to be the officers' strongest advocates. Both felt police used appropriate force, although Kneubuehl did see an officer strike Bauer in the head with his knee.
How did Lt. Malloy, since retired, process all this into a finding that police did nothing wrong? My answer: Inevitably and correctly, for reasons that merit further discussion.
Malloy, in his thoughtful analysis, noted Bauer's history of violence and his unprovoked attack on a fellow patron, for which he was convicted of substantial battery. He said Bauer was by various accounts belligerent and "resisting at a very, very high level." And while he admits being troubled by the disparity between what officers reported and others observed, Malloy concludes that the use of force was likely justified.
What happened here happens all the time in probes of questionable conduct on the part of police and prosecutors. The standard for corrective action is extraordinarily high because the remedies are punitive.
In most cases, the question isn't, "Did this person handle this situation the best possible way?" but, "Did he or she break the rules so clearly and severely that we can sustain disciplinary charges, through layer after layer of process in which the accused will have the best legal representation that money can buy?"
And, usually, the answer is "No."
This same dynamic applies to cases involving the use legal force, as in last week's fatal shooting of a 25-year-old man in the town of Madison by a Dane County sheriff's deputy. (According to the State Journal, a neighbor reported hearing "one gunshot followed by a four- or five-second pause, [then] four or five more gunshots in quick succession [and] after another pause of about two seconds ... a final shot.")
In deeming this shooting justified, the Dane County District Attorney's Office and Sheriff's Office didn't focus on, "Was there some way this deputy could have avoided opening fire?" but, "Was this a prosecutable violation of law or policy?" Maybe this is an appropriate standard to apply. Maybe not.
Consider, too, the shocking failure of the Office of Lawyer Regulation to find anything unethical about Calumet County District Attorney Ken Kratz sexually harassing the victim of a violent crime whose assailant he was prosecuting. The office wasn't thinking: This is how we want prosecutors to behave. It was thinking: If we go after this guy, a world-class jerk deeply committed to denying he's done anything wrong, can we make it stick?
All of this ties back, in my mind at least, to the story of Patty, the visually impaired Madison woman who was raped, then repeatedly savaged by the local justice system, because the detective assigned to her case, Tom Woodmansee, turned against her.
As is documented in my book "Detective saw letter, sought charge," 03/26/04) was never disciplined, and in fact was later honored and promoted, to lieutenant.
While the city of Madison, Police Chief Noble Wray and the Dane County DA's Office have all apologized to Patty, Woodmansee has never had the decency to do so, or to in any way publicly acknowledge or atone for his tragic missteps.
This reemerged recently when Paula Zahn, the former CNN anchor who now has a show on Investigation Discovery, wanted to do an hour-long program on the case. Woodmansee, who had no problem appearing on the network when it ran a program about how Madison cops solved the murder of Joel Marino, refused to be interviewed, according to Liz Brown, one of the show's producers.
Here Woodmansee had yet another chance to show some class and help heal the wounds his actions caused; again, he didn't. (Even more egregious was that this made the show lose interest. After wooing Patty it gave total control over whether to highlight the grave injustice done her to the chief perpetrator. Thus Paula Zahn joins a long line of people who have taken turns re-victimizing Patty.)
Tom Woodmansee has demonstrated his lack of character time and again. Unfortunately, the Madison Police Department doesn't have any rules against that.
Bill Lueders (contact) is news editor of Isthmus. His new book is Watchdog: 25 Years Of Muckraking An Rabblerousing.