On Thursday, July 20, Dane County Judge William Hanrahan read Isthmus’ just-published article about how he forced the dismissal of felony charges against three alleged armed robbers because prosecutors had botched their handling of the case. Then he went into court and ended up tossing charges in another case because prosecutors were unprepared to proceed.
“Ironically, after reading your article,” Hanrahan wrote in an email, “I had to dismiss the very first cases that were called on the record this morning.”
It was yet another sign of frayed relations between the Dane County District Attorney’s Office and the local judiciary.
At issue were non-criminal charges of operating while intoxicated and with a prohibited alcohol concentration against a 22-year-old Middleton woman. The cases were set for trial that day after an earlier postponement.
But the defendant, whom Isthmus is not naming since her identify is not relevant to this story, told the judge she needed another delay, because she still had not been provided requested video footage from the night of her arrest.
The DA’s office, represented by Assistant District Attorney Alexandra Keyes, said the state had no objection to granting this delay, adding that an analyst it intended to call as a witness “could not make it today,” according to a transcript produced at Isthmus’ request.
“And you found that out this morning?” asked Hanrahan, suggesting incredulity. Keyes replied that the case belonged to Assistant DA William Brown, “and that’s what he told me this morning.”
Hanrahan unloaded: “Well, this has been set for trial for well over a month now. Discovery that had been requested has not been provided. The witnesses aren’t present for the county. This has been set [for trial] previously.” He dismissed the charges, citing “the failures that I’ve stated on the record.” The woman still faces a single non-criminal count of operating without a license, with a trial date later this month. (Note: The DA's office, in a letter to the judge that was provided to Isthmus the day after this article was published, challenges his decision to dismiss the two other charges, and notifies him that it intends to refile. This is allowed because the judge's dismissal was without prejudice.)
Dane County DA Ismael Ozanne, who had already provided a significant response to criticisms of his office’s management of cases, did not respond to a request for additional information or perspective on this dismissal. He has noted in the past that his office is overworked and dealing with “a significant amount of turnover.”
In the earlier case, on June 26, Hanrahan barred the prosecution from presenting witnesses because it failed to provide witness lists to the defense prior to the morning of trial. That forced the DA’s office to dismiss charges against three men who allegedly robbed two low-level drug dealers at gunpoint last fall.
Hanrahan accused the office of “a willful disregard” of his efforts to keep the cases on track. Ozanne said he thought the judge’s actions were “not proportionate with the actual violation in these cases.”
And in another case reported by Isthmus, Dane County Judge Josann Reynolds on April 26 forced the dismissal of charges against an incarcerated man charged with third-degree sexual assault, because the prosecution showed up on day of jury selection unable to proceed. That led to a courtroom clash between Ozanne and the judge.
Ozanne, in an email composed before the latest case in Hanrahan’s court, said he was aware of one other instance in which “a Dane County Judge took active steps to ensure a case was dismissed with prejudice,” meaning it could not be refiled. In that case, from September 2016, the prosecution came to court on the day of a scheduled trial seeking dismissal, citing newly discovered deficiencies in the prosecution’s case. The judge, Ellen Berz, briefly empaneled the jury, ensuring that the case would be dismissed with prejudice.
Then she delivered an epic scolding to the prosecutor, Assistant DA Paul Humphrey, for not conveying his plans to dismiss earlier. “Consider this a warning short of contempt and short of further ethics action,” Berz said in court. “I don’t want to see it again. Delay, if you will, in other courts. Procrastinate, if you will, in other courts. Don’t prepare your cases, if you will, in other courts. But know darn well if you’re in this court, you come prepared.”
It’s not just judges who are bothered by what they consider to be serious problems with the DA’s office.
“In the last two or three years, in particular, there has been a sharp decline in the functionality of that office,” says Jessa Nicholson, vice president of the Dane County Criminal Defense Lawyers Association.
Nicholson says this can lead to criminal defendants spending months in jail as their cases are delayed, sometimes to be acquitted in the end. The disarray is also unfair to victims, some of whom have hired her to represent them, because of the problems they’ve had dealing with the DA’s office — which, she notes, is “highly unusual.”
In an interview, Hanrahan, the chief judge for criminal cases in Dane County, faults the DA’s office for a general “lack of readiness.” Problems with process, he says, are “happening with some frequency. Witnesses are not being subpoenaed. Motions are not being filed. Discovery is not being provided. Motions are not being responded to.”
Ozanne, in an email, responded at length and in detail. He cited his office’s workload, saying “it is not uncommon for some prosecutors to have 20 or more cases set for trial in a given week” and that many resolve short of trial, so choices must be made about which trials to prepare for.
“Obviously, more experienced prosecutors have a better perspective on what likely will go to trial, but even they get this wrong sometimes,” Ozanne wrote. “We have to balance tying up witnesses, having deputy sheriffs out serving witnesses, and scheduling meetings with witnesses for trials against other day-to-day job responsibilities.”
He cited various conflicts that can lead to witnesses being unavailable, such as when lab experts are subpoenaed to testify in other counties. Such issues “may make it seem like we are not as prepared as we could be, but I still believe that my office works hard to bring cases to trial.”
Ozanne also defended his office’s methods for providing discovery and filing motions, explaining that unavoidable complications occur. (His full response is linked to this story on isthmus.com.) He added that he has always been willing to meet with judges or defense attorneys to seek common ground or make improvements.
“[We] all desire a fair and functioning criminal justice system,” Ozanne wrote. “For my part, I think that such a system needs to reflect the fact that my office has a finite set of prosecutors, that I cannot simply institute a quota system on how many cases we prosecute, and that I need to do my best to match up cases with a prosecutor who is capable of handling cases of that type or complexity.”
Editor's note: This article has been updated to include a link to a letter to Judge Hanrahan from the DA's office regarding the recently dismissed case. The letter was provided to Isthmus after the story was published.
