STATE OF WISCONSIN

CIRCUIT COURT

WALWORTH COI.TNTY

STATE OF WISCONSIN,

Plaintiff
V.

Flt-ED
Case No.

GfiSUre'ourr

12-CF-447

DANIEL WHITE,
ntrrk

NOv 0

5 2013

Of C6urts, Watworh Co' OefUda*t'emann, DePutY Cterk

NOTICE OF MOTION AND MOTION TO CHANGE VENUE ON THE GROUNDS OF POLICE INTIMIDATION OF JURY MEMBERS

PLEASE TAKE NOTICE that the Defendant, Daniel White, appearing specially by his
attorneys Kuchler & Cotton, S.C., by Attorney Anthony D. Cotton, will move this Court, the Honorable David Reddy, presiding, at the Walworth County Judicial Center on

the

day

of

_,2013
requests that
a

at

.M., or as soon thereafter as counsel may be heard, for a change of

venue to a non-adjacent Wisconsin county for all charges filed in the above matter and further

jury of that county be empaneled

to judge the merits of this case and that the case

be tried in that same county and not in Walworth County. Due to egregious intimidation

of

jurors, witnesses and parlies associated with this case by members of Walworth County SherifPs
Department during the prior trial, substantial evidence exists demonstrating that Mr. White cannot get a fair trial from
a

jury that fears interacting with these State agents in the future. As a

basis for this motion Mr. White offers sworn affrdavits offered LINDER SEAL by jurors in the

previous trial asserting that members of the jury were intimidated by the conduct of Walworth

County Sheriff

deputies. In addition, Mr. White offers a sworn affidavit by Atty. Donna

J.

Kuchler, attorney for Mr. White at the prior trial, who further attests to conduct calculated to intimidate and coerce the jury and parties in this case.

Mr. White brings this motion pursuant to Wis. Stat. $ 97l.22,the

5th, 6th, and 14th

Amendments to the United States Constitution, and arlicle 1, sections 6,7 , and 8 of the

Wisconsin Constitution. FACTS

Mr. White was previously tried at the Walworth County justice center for the same
offenses alleged in the instant case. The trial took place from September 9th through the 13th, 2013 before the Hon. Judge Race, before whom this motion is also brought. The trial resulted in
a

mistrial on the charges again before the court.

The nature of the charges relating to an alleged assault by Mr. White of a member of the

Walworth County Sheriff s Department caused an abnormal interest on the part of law
enforcement. In addition, defense counsel asserted that the Sherifls Department had engaged in
a violent physical assault of abuse.

Mr. White and had later sought to cover up the existence of this

During the trial members of the Walworth County Sheriff s Department engaged in activities calculated to intimidate members of the jury as well as witnesses. Based upon swom
statements

ofjury members the tactics worked

and had a significant impact on the proceedings,

leading to a mistrial. Conduct of law enforcement included:

1) Bringing drug dogs to the parking lot and subjecting

vehicles in the parking lot to

drug sniffs, deliberately targeting vehicles belonging to the defendant and to his legal
counsel.

2)

Packing the gallery with fully uniformed deputies who scrutinized the jury throughout
the trial.

3) Maintaining as many as 10

to

12

fully uniformed deputies in the corridors

and near

exits while jury members were transported to and from the courtroom. This conduct
even included positioning about a dozen uniformed officers outside the courthouse

when the jurors were finally dismissed from their first day of deliberations between
10

& 10:30 PM on Thursday, September 72,2Al3,long after their presence could

have any effect beyond coercion.

4) Contacting Attorney Flitcroft, the attorney of a woman alleged to have been in an

extramarital affair with Mr. White and instructing him to have his client present at
every day of the trial without any purpose. This person was not subpoenaed or kept

from the gallery under a sequestration order. Her name did not appear on any witness

list. However, this person's

presence in the courtroom was calculated to intimidate

and coerce the testimony of Mr. and Mrs. White and, indeed, could have had no other purpose.

At least 8 of the
the

12

jurors made statements indicating they believed that the Deputies had

jurors' names, addresses, phone numbers, or license plates, and some even believed they

were having their vehicles tracked via GPS. These beliefs were a product of the intimidating conduct of Sheriff s Deputies that was independently viewed by jurors, infecting deliberations
and making members of the

jury reluctant to issue a verdict in favor of Mr. White. As any

verdict for Mr. White under the circumstances of the trial would create an inference that
members of the jury believed that V/alworth County Deputies engaged in violent, abusive and

corrupt practices, jurors feared that a not guilty verdict would cause them to be subjected to the
same types of abuse that Mr. White alleged.

Only a jury empaneled outside the jurisdiction of the Walworth County Sheriffls
Department, and free of the prospect of ongoing threats and intimidation can render an impartial

verdict in this case, free of unconstitutional prejudice against Mr. White.

LEGAL STANDING A "defendant may move for

a change

of the place of trial on the ground that an impartial

trial cannot be had in the county. The motion shall be made at arraignment, but it may be made
thereafter for cause." Wis. Stat. S 97I.22(l). Mr. White has good cause for not filing this

motion at arraignment as the cause for the action did not manifest until the first trial on these
charges.

"The motion shall be in writing and supported by affidavit which shall state evidentiary
facts showing the nature of the prejudice alleged." Id at sub. (2).

"If the court determines that

there exists in the county where the action is pending such prejudice that a fair trial carurot be had, it shall order that the trial be held in any county where an impartial trial can behad." Id. at
sub.

(3). "The judge who

orders the change in the place of trial shall preside at the

trial."

Id.

The right to a trial before a fair and impartial tribunal is a basic requirement of due

process. In re Murchison,349 U.S. 133,136 (1955) (Internal quotations omitted). Failure by a coutt to engage in a reasonable inquiry and examination of facts supporting a motion to change
venue under this statute is an abuse of discretion. State v. Mendoza, 80 Wis.2d 122,145 (1977).

Mr. White need not demonstrate actual prejudice against him in order to be entitled to a change
of venue, even though the affidavits before the court show that actual prejudice existed at his

prior trial sufficient to effect the deliberations of the jury. See Thomas v. State,53 Wis.2d 483 (1972). Mr. White is entitled to relief by establishing
necessary to secure a verdict absent prejudice.
a reasonable

probability that such relief is

Id. at49l.

Here, the change ofvenue requested is

the only means of insuring that jurors and witnesses are not intimidated by the actions of

Walworth County Sheriff s Deputies. ANALYSIS While challenges to venue under the statutes cited are somewhat common in cases where
the media has potentially poisoned
a

jury

against a defendant, challenges based upon the type

of

misconduct alleged here are not. That is due, in no small part, to the high standards to which this
state holds its professional law enforcement. We do not anticipate that the type of organized,

coercive, vindictive actions by law enforcement seen here will be used to invade the solemn proceedings of a feiony jury

trial. However, whete law enforcement perceive a threat to one of

their own, there can be a natural urge by officers to engage in activities that they would not
otherwise engage

in. This urge is compounded where a defendant seeks to expose

abusive law

enforcement actions to scrutiny. Law enforcement is not above reproach, nor is it beyond the
scope of reasonable defenses for

Mr. White to

assert that law enforcement acted

in a way that

violated his rights. Where such defenses are raised, they must be raised in an environment free from the egregious types of interference employed by law enforcement at the prior trial. Where law enforcement engages in these types of activity that violate the right of a defendant to have a

fair trial, the court has a duty to protect witnesses, jurors and the defendant from the types of
coercion the affidavits indicate.

1) While the jury was deliberating, in plain view of anyone

who could view the parking lot, including witnesses who may testify at the upcoming trial, and potentially including jurors using the facilities, Attorney Kuchler witnessed a targeted use of a Walworth County drug canine to sniff her own vehicle, as well as the vehicle of Mr. and Mrs. White, both of whom were potential witnesses at the time.
The use of the drug canine to subject defense counsel's car to a search while it was

lawfully parked in the coufihouse parking lot is the type of coercive intimidation one would

more likely expect from state actors in an authoritarian country than at an American couthouse.

This conduct was viewed by potential witnesses in the case, and shows a willingness on the part

of Walworth County law enforcement to subject anyone associated with the defense to
unreasonable, heightened scrutiny.

Attorney Kuchler witnessed the canine unit as it was directed down a line of cars, and
around her vehicle, then directly towards Mr. White's vehicle. The dog was directed around Mr.

White's vehicle, multiple times. When Attorney Kuchler went to confront the canine officer to
determine what,

if

any basis that officer had for investigating a vehicle belonging to a tenured

member of the Wisconsin bar in good standing, the officer left. Much can be deduced from this

flight, including an awareness on the part of law enforcement that there was no basis (or
probable cause) to suspect that either Mr. White's vehicle, or the vehicle of his attorney, contained drug evidence. The more reasonable interpretation of this conduct was not that it was designed to serve a

legitimate investigative purpose, but was instead intended to demonstrate law enforcement's

ability and wiliingness to subject those aligned with Mr. White to enhanced scrutiny. Any juror
viewing the display could have deduced the clear purpose and intent of the actions as

intimidating and taken that deduction with them in to the jury room.
Taken in conjunction with other law enforcement conduct present at the prior trial and

likely to be repeated at the future trial it is clear that

a reasonable

likelihood of prejudice exists.

2)

The Sheriff s Department packed the gallery and/or hallway with fully uniformed deputies who scrutinized the jury throughout the trial While attendance by friends and family of alleged victims is not unusual at criminal

trials, the exhibition of force by law enforcement at the previous trial, likely to be pursued again
at the future

trial, is materially different in the context of this

case.

First, the fi'iends and family of most victims do not include a full department of uniformed law enforcement officers, draped in offrcial vestiges of authority. The message sent by a dozen 01'more law enforcement officers, staring at jurors as they hear evidence about potential police brutality is decidedly different than the presence of ordinary individuals whose
connection to the case is not immediately apparent to jurors. The deputies maintained their presence outside the court's exit doors well in to the night, after the fact finding portion of the trial had concluded. The deputies were still present after 10:30 pm in the exact location that jurors had to exit after the jury had been given the case for

deliberation.
The expressed intense interest of those who have enofinous discretion in their day to day

interactions with members of the jury pool presents a great threat of prejudice to the defendant.

In order for a jury to acquit Mr. White of these charges, the jury may be required to manifest in
open coutt, subject to verbal polling, a belief that the very 1aw enforcement officers who they

will be interacting with in their daily lives are capable of violent

abuse of individuals such as

themselves. These same jurors may also be required to state a belief that these same state agents
are capable of acting in concert with each other to bring criminal charges against innocent

people. Future Walworth jurors may also fear that law enforcement will have access to potentially intimate (or personal) details of their lives, and that those officers may use that information in
a

punitive or retaliatory manner against them.

Law enforcement presence in the court is enough to coerce the jury, even absent disruption or violation of court decorum. The manner in which officers are assembled, their body language, the looks they direct towards jurors during the trial and during recesses, all
independently and collectiveiy impose prejudicial pressure upon the jury.

Fudher, ifjurors do believe Mr. White's allegations of law enforcement abuse, then they
may believe that those officers would engage in the same physical threats and violence towards

them and their families. Any such inference poisons the ability of a jury to consider the evidence in this trial in a fair and imparlial manner. Attached, there are two sworn statements indicating
that jurors were "afraid of retaliation by the deputies." Ex. 1 and

Ex.

2.

Therefore, this courl should move the trial to have no such fear of law enforcement reprisal. This

jurisdiction where the citizen jurors will

also make it more

will

difficuit for law

enforcement to assemble a near constant quorum of deputies to affect the proceedings.

3)

Law enforcement maintained 10 to 12 fully uniformed deputies in the corridors while jury members were transported to and from the courtroom which further prejudiced and intimidated jurors and witnesses.
During recesses deputies are likely to continue their pattern of occupying corridors used

for transporting jurors between the courtroom and their sequestration. This pattern advances the
same prejudice and intimidation that the officers' presence in the courtroom does, but with closer

proximity between law enforcement and the jury.

The organized assembly of law enforcement that jurors were routinely shepherded past

during four days of trial will again serve to frighten members against finding in favor of Mr.

White. It will bring jurors in close proximity of those who they know could potentially
implicated by
a

be

verdict of acquittal. A full 3/4's of the prior jury made statements about the

private details they believed these same officers had about them. Only a fear of retribution

would result in such widespread references among a swath of the jury. The jury affiants do not know each other outside of their jury experience. They have no motivation to lie, but they both
independently validate the effects that law enforcement presence is likely to have at the

upcoming trial if it is again held at the Walworth County justice center.

4) Of all the intimidating conduct

by law enforcement at the prior trial, perhaps none is so illustrative of the lengths law enforcement was willing to go to deprive Mr. White of a fair trial as the compelled presence of Erika Alvaro, who was only present at the courtroom to unnerwe and intimidate Mr. and Mrs. White.
During the investigation of the charged offenses, law enforcement came into contact with

Ms. Alvaro. Ms. Alvaro had no relevant information or testimony to offer in the instant case.
Instead, she identified herself as a woman with whom Mr. White had previously engaged in an

extramarital affair. Alvaro was not subpoenaed or kept from the gallery under the sequestration order. Her
name did not appear on any witness

list. Her

presence in the courtroom was compelled by the

State and calculated to intimidate and/or influence the testimony of

Mr. and Mrs. White. This

was corroborated by her own attorney who indicated that District Attomey Necci called him on the evening before trial, and told him to have his client sit in the courtroom during the entirety

of

Mr. White's trial.

Alvaro was the subject of her own criminal case. When approached by defense counsel
and asked why she was present at the trial, she did not

know.

She only knew that her attomey

had told her to be there, presumably in hopes that she would be given some form of leniency in

her pending criminal matter. The mere presence of this person in the courtroom under these circumstances would unnerve Mrs. White during her upcoming testimony, make her think twice about offering testimony against deputies, and cause her testimony to potentially appear less

truthful due to stress responses.

Given the lengths to which law enforcement has gone to interfere with the solemnity

of

th e previous trial, this couft can only conclude that the trial of these charges in Walworth County is reasonably likely to prejudice Mr. White.

NON-AVAILABILITY OF OTHER OPTIONS

To order a change of venue, the court must find that there is no other means of preventing
prejr-rdice. Thomas v. State,53 Wis.2d 483. Moving the trial to another venue with an out-ofcounty jury prevents prejudice in three ways. First, it reduces the likelihood of constant police
presence in the courtroom and corridors that intimidated jurors in the first

trial.

Second,

it

deprives Walworth County law enforcement of the opportunity to use its jurisdiction to engage in coercive police investigations like the use of the canine dog on defense counsel's vehicle. Third,

by using jurors outside the reach of Walworth County law enforcement, jurors need not fear the potential for retribution to the same extent as those who reside in Walworlh County. No other combination of options available to the court sufficiently addresses all three of these issues. Fufiher, options such as bringing in jurors from another county involves unnecessary
expense, and still would not address the problem. The county would need jurors to report to a
separate

jurisdiction with a suitcase packed. The county would have to pay for transportation,

activities, lodging, supervision by deputies, and 3 meals per day for each juror, and the Walworth County Sherifls Department would still be able to engage in the same behaviors that it exhibited in the last case.
For the reasons herein stated, the court should grant Mr. White's motion for a change
venue,

of

'7 I Dated this J

5l
day

of

O"*Z.G'-

,2013.

Anthony D. Cotton State Bar No. 1055106

1535 E. Racine Ave. P.O. Box 527

Waukesha, WI53187 (262) s42-4218 (262) 542-1993 (fax)

10