Law & Disorder

When sex offenders get released from jail or prison, they’re required to stay in contact with the state Department of Corrections so that law enforcement can keep tabs on them. For the rest of their lives, they must update authorities about their employment and place of residence.

Convicted child rapist Frederick Perez-Santos had a problem doing that.

According to court filings, Perez-Santos was “an absconder” who was listed as “non-compliant” with the state sex offender registration program more than 25 times since his 2005 conviction for second degree sexual assault of a child.

Perez-Santos has also been in and out of jail over the years on other charges. He’s been locked up for having his probation revoked and has faced new felony charges, including battery, bail jumping and another arrest for sexual assault — the latest, for forcefully raping his girlfriend’s sister.

Last year, authorities charged Perez-Santos for a sex offender registry violation, a felony that can carry up to six years in prison. His trial began one morning last August.

But when the prosecution made a technical error, the case was quickly dismissed and Perez-Santos walked out of court a free man. The problem was that Dane County Assistant District Attorney Frank John Remington, who did not respond to a request for comment, forgot to identify the defendant in court.

“In every case, [the prosecution] has to prove venue and identification. And they didn’t prove identification,” explains Dane County Circuit Court Judge Jill Karofsky, who presided over the trial. “We had all this evidence, but no one said, ‘It’s that guy who we’re talking about.’ No one ever said, ‘This is the guy who’s failed to register as a sex offender.’”

Defense attorney Crystal Vera — who also declined to comment — caught Remington’s error and asked the judge to toss the case.

Karofsky says her hands were tied. “I felt like I didn’t have any choice but to dismiss the case because the state hadn’t met its burden,” she says. Because the prosecution made its argument and rested its case in front of a jury, Karofsky says Perez-Santos cannot be tried on this same sex offender registration violation again.

Karofsky doesn’t blame Remington, who has only been on the job since March. Instead, she faults the Dane County District Attorney’s Office.

“If [Remington] had a seasoned felony prosecutor sitting next to him, this mistake wouldn’t have happened,” says the judge, who was an assistant and deputy district attorney in Dane County from 1992-2001. “When I started out in the DA’s office, you were in the misdemeanor unit for a good 10 years before you ever picked up a red felony file. Ten years. Now you have people who are in the DA’s office 10 days handling felony cases.”

If people knew more about mistakes like the one that happened in the Perez-Santos case, Karofsky says, “I think the public would be upset by it and I think they would have a reason to be.”

These errors have not gone unnoticed by attorneys, law professors and other judges. Isthmus interviewed more than a dozen Dane County courthouse insiders who say this one botched trial is not an anomaly. They say these mistakes reflect a poorly managed district attorney’s office.

Among the issues: a high turnover rate of prosecutors who don’t stay in the job long, which has led to woefully inexperienced attorneys handling cases; a record number of felony cases dismissed, due to mistakes made by prosecutors, that need to be re-charged later; a decrease in the DA’s office winning cases at trial; and the sudden — albeit temporary — stopping of a program meant to help defendants. All of this, the insiders say, slows down the system, causes confusion, and ultimately hinders justice.

And for these many problems, they say one man is at fault: Dane County District Attorney Ismael Ozanne.

One growing concern is the high number of cases being dismissed during preliminary hearings.

Held early in the court process and only for felony cases, preliminary hearings are often described as the “trial before the trial;” it’s when judges decide if the case should continue. During the hearings, prosecutors present evidence and witnesses to show there’s probable cause.

Prosecutors only need to show “a very low level of proof that a felony has been committed and that the defendant committed it,” says Dane County Circuit Court Judge Ellen Berz.

Achieving that goal was made much easier thanks to a 2015 law that made hearsay admissible during preliminary hearings, meaning prosecutors could rely on a police statement or a witness who heard incriminating information secondhand.

Prosecutors “should absolutely not be losing preliminary hearings, but they are — at an alarming rate — and it’s embarrassing,” says one former assistant district attorney who now works in criminal defense and asked that his name not be used for fear of retaliation against his clients.

In 2010, when Ismael Ozanne became district attorney, his office had one case dismissed at the preliminary hearing stage. Since then, that number has grown from 11 in 2013 to 16 in 2016 and then 37 dismissals in 2017 before dipping to 20 last year, according to Wisconsin court system records. As of the end of November, there were another 37 felonies dismissed this year at the preliminary hearing stage.

The dismissals have become so frequent in court that Berz has taken to writing out the elements of probable cause on a whiteboard in her courtroom during proceedings to show prosecutors what they need to prove. She says she does this “in court when it appears that an [assistant district] attorney does not understand or remember the legal requirements at a preliminary hearing.”

During an interview with Ozanne regarding concerns over how his office is managed, he shrugged off the preliminary hearing dismissals.

“It’s very rare that there’s something that happens at a prelim that we can’t rectify,” he says, arguing that most prosecutors who have their cases dismissed will re-file the charges. “I don’t think it’s a real problem.”

Others disagree.

“[Ozanne and his management team] haven’t trained these new prosecutors so they can actually stand up on their own,” says the former ADA who asked not to be named. “And then these dismissals happen and [the new prosecutors] are disempowered and not developing any competency. So you have judges just ripping through them left and right, which makes for very low morale.”

High-profile criminal defense attorney Jessa Nicholson Goetz says the preliminary hearing dismissals hurt the accused as well.

“When a case is dismissed and then refiled, it creates an additional criminal record,” she says. “So it gives an inaccurate impression of a defendant’s criminal history — when it might be that they really only had one charge, but it has to be brought two or three times, it creates two or three [criminal] records and that makes them look like a repeat offender.”

Nicholson Goetz, a board member of the Wisconsin Association for Criminal Defense Lawyers, says the high number of preliminary hearing dismissals raises a lot of questions.

“Is it that they’re making really bad charging decisions [and] they’re charging cases that they don’t have sufficient proof for?” she asks. “Or is it that their lawyers are not well trained enough to meet these basic standards of practice?”

Ozanne earned his undergraduate degree in political science from UW–Madison in 1994 and later enrolled in the university’s law school. “I saw myself, at least when I started law school, as potentially a defense attorney,” he remembers. “But then I realized you could effectuate more change and have more of an ability to protect the community on this side.” In 1998, he landed a job as a Dane County assistant district attorney.

Initially, he was assigned low level misdemeanor cases before moving on to domestic abuse cases and felony drug cases. He left that position in 2008 when then-Gov. Jim Doyle appointed him as executive assistant for the state Department of Corrections. A year later, Doyle appointed Ozanne as the department’s deputy secretary. In 2010, Doyle appointed Ozanne district attorney — the first African American DA in state history — to fill the vacancy when Brian Blanchard was elected to the state’s court of appeals.

Because their families have been friends for generations, Doyle says he’s known Ozanne “since before he was even born.” Having kept a close eye on Ozanne’s career over time, Doyle knew him to be “a good prosecutor,” he says. “I knew him to be a very smart and thoughtful person with good judgment [who was] interested in making some significant changes in the system [and] was not afraid to look at things clear eyed and to see where we could do better. He had all the traits I was looking for” in a district attorney, Doyle adds.

Doyle, who served as Dane County DA from 1977 to 1982, says the job is a challenge. “It was a hard job then and it’s a harder job today,” he says. “It’s one that you just look at things and give the best judgment that you can make and you’re going to get second guessed a lot and people are going to be happy with you and unhappy with you.”

Over the decade he’s spent as DA, Ozanne has faced only one political opponent for the office — a challenger who came from within his own ranks. Then-assistant district attorney Bob Jambois challenged Ozanne in 2016, hinging his campaign on the dysfunction he’d witnessed in the office.

Before challenging his boss at the polls, Jambois says he tried to correct problems he saw in the office. “I tried to come up with solutions…but all of that was met with a deaf ear,” he says of Ozanne. “He was completely uninterested in any suggestion for improvement because he deemed that to be a criticism of him. He was very, very defensive.”

Jambois was the district attorney for Kenosha County for more than 15 years before becoming an attorney for the state Department of Transportation, and then working as an assistant DA in Dane County for 15 months.

Ozanne won the election with 73 percent of the votes. Afterwards, Jambois returned to his role as an assistant prosecutor. He says Ozanne retaliated against him for the election challenge by overloading him with difficult cases. Two months after the election, Jambois resigned.

He then sued Ozanne in federal court. After a year and a half of negotiations, the two sides settled and Jambois was awarded $350,000.

Ozanne maintains he did nothing wrong and that the county’s attorneys advised him to settle. He says the attorneys told him “it’s going to cost us double that just to go through a trial.”

Jambois now works as an assistant DA in Portage County. Still in touch with attorneys who work for Ozanne and some who have recently left, Jambois has heard that things have not improved. “It’s just a completely broken system,” he says. “Prosecutors are being forced to run into court with an inadequate level of training and an inadequate level of mentorship and an inadequate opportunity to examine and learn the file that they’re supposed to be working on.”

In October, Ozanne announced that he will run for reelection. Candidates can begin circulating nominating petitions on April 15 and have until June 1 to file. So far, no other candidates have announced they will challenge Ozanne. The election is in November 2020.

Dane County Sheriff Dave Mahoney, a staunch supporter of Ozanne over the years, has again endorsed him. Ozanne has “a vast amount of experience not only as a prosecutor, but he also knows the impact of incarceration, having served as the [deputy] secretary for the Department of Corrections,” says the sheriff. “And I think that’s very valuable experience to have in a prosecutor — to know what the impact of locking somebody up is.”

Mahoney adds: “He believes, as I do, that the criminal justice system should be examining why people are brought into the system, rather than just locking people up for their misbehavior that resulted in a prosecution.”

The sheriff says he hasn’t heard any frustrations about Ozanne as a manager. Mahoney, who has been sheriff for 14 years, says the relationship between his detectives, deputies and the district attorney’s office “is the best we’ve ever had” under Ozanne.

From 1990 to 2010, the year Ozanne became DA, the office lost, on average, fewer than two assistant prosecutors each year. During Ozanne’s time as DA, that average has tripled to more than six per year, according to records kept by the state Department of Administration. The office lost nine ADAs in both 2014 and 2015, and then 12 in 2017. Last year, three ADAs quit the job and, as of the end of this November, seven ADAs have left.

That substantial turnover — which averages 22 percent a year over the last decade — seems to be a problem unique to Dane County.

The three other closest-sized counties, both bigger and smaller, have a far lower turnover rate. Two counties smaller than Dane, Waukesha and Brown, have had annual average turnover rates of 9 percent and 12 percent, respectively, since 2010. The state’s largest county, Milwaukee County — with four times as many ADAs — loses, on average, 11 percent of its attorneys a year.

Ozanne concedes that his office has lost a lot of institutional memory and experience over the years. “There was historically not a lot of turnover in this office,” he says. “When I [became DA] in 2010, we had a number of people who had 30 plus years” on the job. They have all since left.

Ozanne blames low pay for the high turnover. “Most people who come here love the job. They didn’t go into it to become rich, but they [would] also like to be able to pay their bills [and] their school loans” so they take jobs elsewhere, he says.

Kasey Deiss, director of the State Prosecutors Office, says the minimum salary for assistant district attorneys with no experience is $52,291. Prosecutors are eligible for merit-based increases of $2 per hour — a raise of more than $4,000 or 8 percent of the base salary — each year. The position has a salary cap of $126,339.

But salary isn’t the issue, says the former assistant district attorney now working as a defense attorney. “The majority of people are not leaving because of the pay,” he says. “They came into it knowing what the pay was and they begin looking elsewhere because of the atmosphere, because of the pressure and the lack of support.

“I know one person who left and didn’t even have another job lined up,” he adds. “These are people with great potential, who wanted to be great prosecutors and they’re leaving for various reasons — not having any direction, feeling bullied and maligned, not having support.”

Previously, it was tough to get an ADA job in Dane County, but that’s changed over the last decade.

“It was very difficult to get a job there, it was very competitive,” says another former prosecutor who also asked not to be named. “Now they have a difficult time hiring and have for a number of years. Part of that is the declining reputation of the office.”

The lack of experience in the office is evident in courtrooms, says the former ADA, who now works as a defense attorney. “So, you have a bunch of younger attorneys that are getting pummeled by these older defense attorneys and judges.”

Ben Kempinen, who spent 30 years as a UW Law School professor specializing in prosecution, says the absence of oversight affects both turnover and competency.

“[Dane County] could benefit from better management and mentoring practices,” he says, adding that these problems then compound. “If you cut your teeth without supervision and you’re making decisions that aren’t really good, that becomes the way you make decisions [and you] don’t get better.”

Since becoming district attorney, Ozanne has frequently complained that his office is understaffed, making it difficult to keep up with the caseload.

In 2017, he told a county committee that “our reality is that prosecutors have impossible caseloads.” Last February, Ozanne told a local TV station that his attorneys are “just trying to keep pace with what’s coming in the door.”

For many years, the DA’s office has received funding from the state for 28 full-time and one part-time assistant district attorneys. In the latest state budget, Gov. Tony Evers increased funding to provide almost every county in the state with an additional ADA position. When the three current vacancies are filled, Dane County will have 30 ADAs on staff.

Ozanne tells Isthmus that even with additional ADAs, his office will still be swamped. “We haven’t been able to necessarily decrease our cases,” he says. “We, sort of, are charged with addressing what’s referred.”

An Isthmus review of court system data, however, shows a decline in the number of cases — both felonies and misdemeanors — coming through the DA’s office. Felony cases have fluctuated in recent years, but have generally declined from more than 2,800 in 2009 to 2,400 cases in 2018. On average, the caseload has decreased 14 percent each year from 2009 to 2018.

Misdemeanor cases have dropped much more significantly, from just over 4,300 cases in 2009 to about 2,100 in 2018, with an average decrease per year of 31 percent.

Ozanne says the drop in cases disposed in Dane County is because his office is charging fewer crimes. “Some of the lower level things, we are either trying to divert pre-charge or not filing [charges] at all,” he explains. “We have stopped charging multiple case types out of actual incidents. We used to charge criminal traffic and a misdemeanor out of one incident…now we charge them as one.”

But even when prosecutors refer cases to the county’s restorative justice program or file just one charge instead of several, they’re still doing important, time-consuming work, he says. “It takes time to meet with victims, it takes time for us to understand what brought the offender to the system,” Ozanne says. “And that’s not something you can do in 15 minutes.”

While the caseload has declined, so has Ozanne’s win ratio at trial.

The number of felony trials has fluctuated since Ozanne took office from 85 in 2010 to 122 in 2015 to 45 last year. The percentage won by prosecutors, however, has steadily declined from 79 percent in 2010 to as low as 48 percent in 2015. Last year, the office won 60 percent of its felony trials. Overall, the district attorney’s office has won just more than 61 percent of felony trials during Ozanne’s tenure.

The number of misdemeanor trials has bounced from 63 in 2010 to 76 in 2015 to just 39 last year. Prosecutors have won 57 percent of misdemeanor trials since 2010.

Ozanne says these numbers don’t tell the whole story. “That’s not how I would gauge the success of the office,” he says. “The reality is 98 percent of the cases we charge, settle and we actually get the conviction.”

He adds: “If we aren’t losing some cases, that means we’re not taking the tough cases to trial.”

One program designed to help defendants avoid jail time — and get their lives back on track — has struggled under Ozanne’s tenure.

The Deferred Prosecution Unit, formerly known as the “first offenders program,” offers defendants without lengthy criminal records a chance to avoid criminal charges. Those in the program are required to do things like get substance abuse treatment, do community service, and pay restitution. If they complete the program, their charges are dismissed.

Wildly successful for decades, the program was brought to an abrupt halt over the summer while program managers conducted an internal audit. During that time, prosecutors could not refer new defendants to the program, except for opiate-related charges.

Before the program was halted, judges were noticing a problem. Defendants assigned to deferred prosecution were not being told to report for intake in the program, says Judge Nicholas McNamara, the county’s chief criminal judge. “We were finding that out [because defendants] were coming back [to court on] new cases and the other one [in deferred prosecution] hadn’t even started,” McNamara says.

Defense attorney Nicholson Goetz has been enrolling her clients in the deferred prosecution program for more than a decade, but had never seen it taken offline before.

Delaying program enrollment “leaves criminal offenders in our community who have treatment needs waiting for weeks, if not months, without any access to court-sponsored or court-required treatment programs or monitoring,” she says, adding that when the program was halted, defendants were not getting “domestic violence counseling and sex offender treatment [or] alcohol and drug testing — any variety of issues that someone might need addressed.”

Ozanne admits that the deferred prosecution program was not functioning properly and says “they’re still not fully staffed.” But he declines to go into specifics about what was wrong.

“We obviously had some cases that caused us concern,” he says. “Some cases fell through the cracks.”

About the audit, he adds: “The only way we could figure out everything that’s going on would be to pause cases going in. So that’s what we did.”

Isthmus requested a copy of the audit but Ozanne denied that request. Instead, he turned over a handful of redacted pages that included little more than a program workflow for new cases, a half-page analysis by an unidentified woman named Suzanne calling for the “need to eliminate so many appointments” and another page with vague, scant notes like “Expired contract — lack of activity/monitoring” and “Expired contract — due to clerical error.”

While the deferred prosecution program was reinstated in early October, it remains unclear how many cases were not properly processed, how many defendants were affected or if client processing has improved.

On his accomplishments in office, Ozanne offers few specifics or related statistics.

“I think we have tried to address violent crime in Dane County. I think we have looked at diversion,” he says. “We’ve tried to get in front of the criminal justice system and talk about true prevention [and] positive parenting, trying to take violence out of not just our homes but out of the community as a whole with educating parents about research and data on the risks of physical discipline.”

When asked about the mission of the office, he resorts to a practiced tagline: “We’re the second largest, fastest growing county, we are charged with trying to maintain public safety and do what it takes to keep the community safe,” he says. “And we are strapped with a limited number of attorneys right now.”

Despite his many critics, Ozanne insists he’s doing just fine as the county’s top prosecutor.

“I think our morale is good. I think our employees love what they do,” he says. “I’m sure you could find someone who would say, they didn’t agree with me, or they didn’t like my style, but I don’t think that’s necessarily the judge of a good manager…because at some level, managers are not everyone’s friend.”