Over the last week, a low-level class F felony burglary case from 2020 in Waupaca County has unraveled into the re-examination of dozens of convictions by the district attorney’s office after it was revealed that the sheriff’s department regularly alters reports in ways that could be harmful to defendants.
The fallout from the revelations is still unclear, as defense attorneys and the state public defender’s office are only beginning to assess just how widespread the alterations are. Among the changes that appear to have been made are instances of adding probable cause to a report to justify a search after the fact and deleting exculpatory evidence. It’s hard to know how many reports were changed, because the department didn’t keep records of those changes.
“It’s Earth-rattling, if not Earth-shattering, it’s a big deal,” local defense attorney Tom Johnson says. “The prosecution of many cases is dependent upon the contents of the sheriff’s report, and if the sheriff’s report doesn’t accurately reflect what the deputy on the site actually wrote, the district attorney has no awareness of what actually happened.”
Last week, Waupaca County District Attorney Veronica Isherwood sent a letter to dozens of defense attorneys across the state with active cases in her courthouse, warning them that their cases may involve a report which was changed by the sheriff’s office.
“We pride ourselves on upholding an extremely high ethical standard in our charging decisions and prosecution of criminal cases,” Isherwood wrote. “The loss of someone’s liberty is a tremendous responsibility that we do not take lightly. The Courts have been notified of this information. We want to make sure you are aware so that you can have an appropriate discussion with your client prior to and during the determination whether to proceed to a plea and/or sentencing.”
Last April, as Waupaca County public defender Kate Drury was working on her defense in the 2020 burglary case, the DA’s office notified her that there were concerns about the sheriff’s department report. Following an investigation that involved open records requests to numerous county departments, Drury determined she needed to hear the testimony of Captain Julie Thobaben and Sheriff Tim Wilz.
The case involves a traffic stop in which a deputy believed the driver was a suspect in a burglary and called Thobaben asking what he should do. Thobaben told the deputy to impound the car and conduct an inventory search, which involves taking stock of the contents of a car in police custody to protect the property of the owner.
In his report, the deputy wrote that “it was also decided that [the defendant’s] red Pontiac would be towed and taken to the Manawa evidence garage to be inventoried and searched for any possible evidence related to past thefts…”
The problem is that inventory searches can’t be done to search for evidence because to do a search with the specific intention of looking for evidence would require probable cause.
Thobaben, the deputy’s supervisor, then deleted the phrase, “for any possible evidence related to past thefts,” from the report without his knowledge.
Wilz later testified that this sort of editing happens regularly.
“What the sheriff said and the detective captain said is that this practice of a reviewing detective changing police reports, altering police reports is common, that it happens all the time,” Drury says. “In our view, we said that is inappropriate. The reviewing detective doesn’t always have personal knowledge of what happened. The purpose is to review the report and refer that problematic report back to the author. They shouldn’t be allowed to correct the police report by adding facts so probable cause exists where it wouldn’t or delete exculpatory information in the report.”
In a statement on Thursday, Wilz said he doesn’t believe his department has done anything wrong.
“This particular report was corrected to accurately reflect the intent and actions of the reporting officer in draft form before distribution to the District Attorney’s office,” Wilz said. “The officer was made aware of the correction to the report and was in agreement with the correction.”
But Drury says the sheriff’s department has been stonewalling the effort to find the truth. The deputy who alerted Isherwood about the alterations says Wilz called her to say it would “go badly” if the issue went to court.
“The facts need to be flushed out through testimony, as a result of the obstructionist policies of the Waupaca County Sheriff’s Department, including but not limited to: disciplining whistleblowers; refusing to promptly disclose information through open records; engaging in verbal discussions to discourage litigation of these issues; making promises to punish those who act according to their [conscience], rather than in line with Department policy; preventing Waupaca Sheriff’s Department employees from discussing this incident with defense investigator and the District Attorney’s office by implementing ‘gag orders,’” Isherwood wrote in a February 17 motion.
And even as Wilz denies any wrongdoing from his department, Waupaca County Circuit Court Judge Ray Huber disagreed, saying the department did violate the requirement to disclose any exculpatory evidence.
“There could be lots of dirty hands here,” he said in court.
Now, after Wilz said in court that reports are changed all the time, defense attorneys are left to work out just how dirty those hands are.
So far, the public defender’s office is still trying to get a handle on how widespread the alterations might be and how they might affect its appellate division, according to Joe Ehmann, the regional attorney manager in the state public defender’s appellate office. But Johnson says he now has to go back through his case files to find every case that was largely based on a report of a deputy. GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX
“As you can imagine, we have many clients saying ‘Hey, I told you the police department wasn’t accurate, can we re-examine my case?’” Johnson says. “We are going to have to go back on a case-by-case basis to find which cases were dependent primarily on the sheriff’s report.”
“The hard part is most cases don’t go to trial, it’s a matter of negotiating between defense counsel and the prosecution,” he continues. “Those negotiations are dependent so much on the report, did I negotiate something because the report had that in it? I have to go back to the district attorney and say all along it looked funny, but can we reopen a closed case? They can’t go back into the documents, because they’re destroyed. They’ll have to go back to the deputy and hope they have the courage to say, ‘that’s not my words.’”
For Johnson, the revelations have shaken his belief that police officers are generally trying to do their job fairly and honestly.
“Some attorneys think that police officers routinely misrepresent the facts, I have never been a member of that camp,” he says. “I think most officers are honest and are trying to do their job in an ethical way. But if their reports are being altered by an administration that’s willing to be flexible with the truth, I’m disturbed by that.”
Wilz said in his statement that he has requested a review of department practices by the Wisconsin Department of Justice, which did not respond to a request for comment.
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