Ismael Ozanne (left) blames a trial delay on inadequate staffing. But Judge Josann Reynolds doesn’t buy it. “We are in a situation that’s entirely of the district attorney’s making.”
A Dane County judge last month butted heads with District Attorney Ismael Ozanne in court, leading to the dismissal of a case against a prison inmate that she concluded had dragged on for too long.
“This case has been pending for over two years,” Circuit Court Judge Josann Reynolds noted in a hearing on April 24, the day of a scheduled trial against Davond Pipes, according to a transcript. “Mr. Pipes has rights.” Although he was already in prison on other charges, Reynolds said, “The substantial passage of time … does in fact have a negative impact on the defendant.”
Pipes was charged with third-degree sexual assault in March 2015. The charge carried a maximum sentence of 10 years, plus up to four more years due to prior offenses. Pipes was accused of having “ejaculated onto” the hand of a physician during an examination at the Oakhill Correctional Institution. Pipes, 39, has prior convictions for armed robbery, battery and other offenses, but not for sexual misconduct.
As Reynolds noted, the charge against Pipes resulted in his being relocated from Oakhill, a minimum security prison near Madison, to a maximum security prison. He is now at the Wisconsin Secure Program Facility in Boscobel.
Pipes immediately entered a plea of not guilty. His lawyer, Nathan Otis, filed motions seeking to introduce evidence regarding Pipes’ accuser — specifically, that it was the Oakhill physician who had engaged in inappropriate sexual conduct. Otis filed motions seeking to call as witnesses two other Oakhill inmates who would attest to similar experiences. Reynolds granted these motions last December and set the date for the trial, expected to last up to four days.
“It was a fascinating case,” Otis tells Isthmus. “We would have had an interesting trial.”
On April 20, Ozanne appeared by phone seeking to postpone the trial due to the prosecutor’s scheduling conflict, telling the court “We don’t have an ability at this point to just pluck prosecutors out of the air.” Reynolds refused, saying “The state has had plenty of notice and opportunity to get somebody to try this case.”
On April 24, Ozanne appeared in court asking that the case be dismissed without prejudice — meaning his office simply restart the process by re-filing the charge. But Reynolds insisted that the trial proceed as planned, as Otis had urged.
“We are in a situation that’s entirely of the district attorney’s making,” Reynolds said in court. “And it could have been avoided and it still can be avoided if you can get an attorney in here to pick a jury and try this case. But poor administration is not a reason to deny Mr. Pipes his day in court.”
A moment later, Reynolds added: “It appears to me that the only interest that the district attorney’s office is taking into consideration is its own interest and its complete, cavalier disregard of the defendant’s rights.”
Ozanne, who was appointed to his post in 2010 by Gov. Jim Doyle and won two elections since, has come under criticism from Dane County judges before. Last year, Judge Juan Colas pointedly declined Ozanne’s request to delay changes regarding bail hearings for poor inmates. Another judge, William Hanrahan, expressed frustration over Ozanne’s failure to attend or send a representative to a meeting on this process.
“Although this date had been selected and noticed months ago, the agenda circulated weeks ago and almost every agenda item required your input, remarkably, no representative of your office was in attendance,” Hanrahan wrote. “Needless to say, as a result of the lack of input from your office, we were not able to accomplish much.”
But what played out in Reynolds’ courtroom on April 24 was a much more epic clash, suggesting deep fissures between Ozanne’s office and some local judges.
Ozanne explained that the prosecutor assigned to the case, Deputy District Attorney Matt Moeser, was unable to proceed because he was in the second week of a murder trial. Reynolds responded by listing the various assistant prosecutors who had appeared in connection with the case since it was filed in March 2015. She noted that the trial date was set five months in advance, arguing that Moeser had plenty of time to reassign the case if he was unable to appear.
“It’s not a convoluted case,” Reynolds said. “It’s pretty simple, straightforward.”
Defense attorney Otis agreed, telling the court “We’ve done what we’ve been asked to do and the state has made no effort to accommodate or abide by the court’s orders.” Ozanne, in turn, explained that his office has been “understaffed . . . going on four years.” He said Moeser alerted the court in March of a possible scheduling problem.
Reynolds replied that she had at that time “told [Moeser] to reassign the case. I suggested that he find somebody . . . ”
Ozanne cut her off: “Excuse me?”
Reynolds: “I suggested he find somebody that was available.”
Ozanne brusquely informed Reynolds that “You do not direct how this office assigns cases. I do not ask or direct how you assign cases or what you schedule.” He reasserted that his office was “not adequately staffed, let alone fully staffed.” And he proceeded to blame “you judges” for not following through on a plan to create a master calendar, saying “had your system been working” it would have shown that Moeser had a conflict that made it impossible for him to appear.
Reynolds replied that the master calendar plan “went out the door when your office unilaterally changed the . . . process by which DAs were appearing in courts so . . .”
Ozanne interjected, “Well, actually . . .”
Reynolds cut him off: “I’m not done. It’s my turn. I am not finished, Mr. Ozanne.” She went on to reiterate her concerns about how the DA’s office had handled this and other cases and called for the trial to proceed as planned, beginning with the selection of a jury. If the state was then not prepared to proceed, the case would be dismissed with prejudice, meaning that the charges could not be refiled.
Ozanne ended up grudgingly asking Reynolds to dismiss the case with prejudice, saying he did so to prevent the court from having to “waste precious judicial resources.”
Ozanne, in an email response to a request for comment, sent a timeline of the Pipes case showing that some delays were caused by defense motions and requests. It also highlights court notes showing that, on being told of a potential scheduling problem in March, Reynolds left the case slated for trial “in case [Moeser’s]other trial settles.”
Reynolds likewise declined to comment. But she did forward a sharply critical letter sent to Ozanne by another judge in February 2016. The letter, from Judge Nicholas McNamara, accuses Ozanne of having “clearly and completely abandoned any effort toward open, collaborative dialogue,” specifically with regard to case scheduling. It says he has embraced “closed, silo-like practices and policies with no regard for systematic consequences.”
