OFFICE OF THE DISTRICT ATTORNEY

OUTAGAMIE COUNTY
320 S. WALNUT ST.
APPLETON, WI 54911
(920) 832-5024 PHONE
(920) 832-5031 FAX

TO: Outagamie District Attorney Melinda Tempelis; Waupaca County

Sheriff Timothy R. Wilz; Chief Deputy Carl M. Artz; Wisconsin
Attorney General Josh Kaul; Veronica Isherwood; State
Prosecutor’s Office; Investigator Dan Running; Investigator Mike
Velie

FROM: ADA Randall Schneider

DATE: December 15, 2022

RE: Special Prosecution—Waupaca County

The Sheriff and Chief Deputy of Waupaca County sent a letter to the

Attorney General dated June 21, 2022 requesting an investigation “into

actions and potential law violations of the District Attorney.” The letter alleges

the Sheriff believes a review by DCI would be biased and DCI would most

likely cover up District Attorney and State liability. The Attorney General has

requested an independent review by this office.

The facts which give rise to the Sheriff’s Department complaint relate to a

dispute regarding how the District Attorney responded to an alteration of a police

report by an Investigative Captain.

A deputy was on a traffic stop which turned into a burglary/trespassing

complaint. The deputy called the Investigative Captain for guidance on searching

the vehicle. The deputy put language in his report about the search and about

information provided to him by the Investigative Captain. When the report was
later reviewed, a Waupaca County Detective identified issues related to the

search and brought them to the attention of the Investigative Captain. The

Investigative Captain reviewed the report and did not agree with the language the

deputy used. The Captain changed the language of the deputy’s report to better

suit how she believed she directed the deputy to conduct an inventory of the

vehicle. She threw the original report in the shred bin. The Investigative Captain

told the detective that brought the report to her attention that she would take care

of it. The detective(s) was not satisfied with that answer and dug the original

report out of the shred bin and eventually provided the unrevised report to the

District Attorney. The two detectives who provided the unrevised report to the

District Attorney were disciplined for insubordination. The deputy who drafted the

initial report was not consulted on the changes made by the Investigative Captain

before the changed report was submitted to the District Attorney. The District

Attorney was not advised by the Investigative Captain that she had changed the

report.

In response to the information provided, District Attorney Isherwood

conducted an inquiry as to whether this was an isolated occurrence or a

systematic problem. It was determined the Investigative Captain routinely made

changes to reports without informing the District Attorney. An investigation was

done by the Outagamie County Sheriff’s Department at the request of the Sheriff

and the investigating detective did not find malfeasance on the part of the

Sheriff’s Department. However, the actions of the Investigative Captain clearly

violate the Sheriff’s own report writing policy. At 322.4 the policy forbids report

changes or alterations by anyone other than the author of the report:

322.4 REPORT CHANGES OR ALTERATIONS

Reports that have been submitted to the Records Division for filing and
distribution shall not be modified or altered except by way of a
supplemental report. Reviewed reports that have not yet been submitted
to the Records Division may be corrected or modified by the authoring
employee.

The purpose behind this policy is to ensure the integrity of reports. It apparently

was not followed in this case and at other times by the Investigative Captain.

District Attorney Isherwood determined it was necessary to make changes

to the attestation clause of the complaints filed by her office. The change was

made to ensure the Sheriff’s Department followed its own policy. An example of

this change is below:

Your complainant is an officer with the Waupaca County Sheriff’s

Office. Your complainant makes this complaint upon information
and belief and upon reports and records of that department. Your
complainant is aware that the reporting officer Det. Sgt. Traeger’s,
reports were not reviewed by any administrative staff or any other
officer before submission to the Waupaca County District Attorney’s
Office. Your complainant believes that Det. Sgt. Traeger prepared
his reports in compliance with Waupaca County Sheriff’s Office
Policy #322: Report Preparation.

After this change was instituted, the Sheriff’s Department

Administration refused to cooperate with it. The Chief Deputy signed 80

complaints and later testified under oath that he had not read the complaints

or the attestation clause.

Ultimately, the facts regarding the alteration of reports was disclosed to

the Court and to the defense bar. The District Attorney determined that
Bragy/Giglio disclosures were necessary for the Investigative Captain, the

Sheriff and the Chief Deputy.

I have reviewed the letter sent by the Sheriff’s Department. In addition,

investigators from the Outagamie District Attorney’s Office have conducted a

review of this matter and interviewed witnesses. After reviewing the

evidence, I have concluded District Attorney Isherwood acted in an

appropriate manner and in accordance with the statutory and ethical

responsibilities of a District Attorney.

A prosecutor is responsible for disclosing all exculpatory evidence which is

in the control of the State. State v. Amundson, 69 Wis. 2d 554, 230 N.W. 2d 775

(1975). All exculpatory reports and evidence obtained by police agencies are in

the exclusive control of the State and must be turned over. A prosecutor will be

responsible for these items even if not in the prosecutors file. The “individual

prosecutor has a duty to learn of any favorable evidence known to the others

acting on the government's behalf in the case, including the police.” Kyles,

Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L.Ed.2d 490 (1995). Once the

prosecutor became aware the Sheriff’s Department Administration had altered a

report in violation of its own policy, it became the prosecutor’s responsibility to

determine whether the alteration was material and whether it should be

disclosed.

In this case, it is clear (1) the Captain of Investigations altered a report

which reflected poorly on her; (2) that she did not disclose the alteration to the

original deputy; (3) that she did not disclose the alteration to the District Attorney;
(4) the original report was put into the shred bin; (5) the alteration was material;

and (6) the alteration violated Department policy. The prosecutor determined

this was a material fact which she was required to disclose. She clearly had a

right and duty to do so.

The prosecutor also determined the actions of the Investigative Captain in

altering reports were not limited to this incident but may have occurred in other

cases. Whether these alterations were material or not, it is the duty of the

prosecutor to investigate and, where necessary, to disclose the alterations to the

defense and to the court. The prosecutor did so.

It is also the obligation of the prosecutor to make sure this practice does

not continue. The law makes clear the District Attorney must approve complaints

for filing. Wis. Stat. Sec 968.02(1). If the District Attorney was concerned about

alteration and shredding of reports by the Administrative staff, she had the right

to make changes to the attestation clause before she approved the complaint.

Although the District Attorney took steps to stop the alteration of reports, it

appears the Administrative Staff at the Sheriff’s Department did not cooperate.

I find that the grievances of the Sheriff’s Department Administration to be

without merit. They complain the District Attorney is interfering with the operation

of the Department by requiring the attestation clause in complaints. The District

Attorney is responsible for drafting and approving complaints and may include

any language she deems necessary to protect the integrity of her prosecutions.

This issue could have been avoided had the Sheriff’s Department followed its

own policy.
 The Sheriff and Chief Deputy complain the District Attorney should have

provided them with due process before making the Brady/Giglio disclosure. The

parties who are the subject of a Brady/Giglio disclosure are not entitled to due

process prior to the disclosure. The District Attorney decides whether there is a

credibility problem with a witness and if so, advises the court and defense

counsel. There is no proceeding required, no notice required, no right to be

heard and no appeal. In this State, the District Attorney in his or her sole

discretion makes the Brady/Giglio determination.

The Sheriff and Chief Deputy’s complaint suggest the District Attorney is

“colluding” with the public defender and the court. This complaint shows very

little insight into the operations of the criminal justice system and the obligations

of the prosecutor, defense attorney and court to ensure the defendant receives a

fair trial. The prosecutor has a duty of candor to both the tribunal and opposing

counsel. Prosecutors in this state are trained in accordance with U.S. v. Agur,

427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed 342 (1976) that where there is any doubt

about the credibility of witnesses or other evidence, the prosecutor must disclose

to the court and counsel.

The Sheriff and Chief Deputy further complain the Department should

have been notified of changes in the attestation clause and the District Attorney

endangered the public by dismissing cases where the Chief Deputy testified

under oath he did not read the complaint or attestation clause before signing 80

criminal complaints. To this complaint, I can only respond that had the Chief

Deputy actually read what he signed, this issue would not have arisen.
 I recognize this case has political overtones. Both District Attorney

Isherwood and the Sheriff have issued press releases criticizing the other. I find

nothing illegal in this behavior by either party. It is well within each party’s First

Amendment rights.

In sum, I conclude District Attorney Isherwood took actions consistent with

her training and her ethical obligations. For these reasons, I find no violations of

law by the District Attorney and I decline to take further action.