Waupaca County sheriff testifies reports are routinely altered
WAUPACA, Wis. (WBAY) - “There could be lots of dirty hands here, but I will find there has been a Brady violation.”
Waupaca County Circuit Court Judge Ray Huber made that ruling after a hearing trying to determine if a suspect’s car was illegally searched. But it’s what was said on the stand during testimony by top members of the Waupaca County Sheriff’s Office that has now unleashed a firestorm -- opening the door for dozens of unrelated cases to possibly be thrown out.
What started as a trespassing call involving a suspect in Waupaca County led to an hours-long court hearing in which the sheriff testified under oath that police reports are routinely altered and deputies don’t always know their reports have been changed.
It’s prompting the district attorney to notify defense attorneys across the state -- with the potential of dozens of cases being thrown out.
NBC15 News’ sister-station WBAY has been looking into this for the last week. We learned that late last week nearly 80 defense attorneys across Wisconsin received what’s called a Brady letter from the Waupaca County district attorney (see complete text below).
District attorneys are legally obligated to tell defense attorneys when an officer is found to have lied or has been untruthful about something in the case. It’s called a Brady violation. That can greatly impact a case -- and in some circumstances get them thrown out. But what we’re talking about here is far different and much bigger with the possibility of many Brady violations because, according to testimony by the sheriff and a detective captain, police reports are routinely changed.
In video of a motions hearing in Waupaca County court, obtained exclusively by WBAY, defense attorney Kate Drury questioned several members of the Waupaca County Sheriff’s Office regarding a police report involving her client and a search of his car back in 2020.
“When Detective Captain Thobaben told you she altered a police report, what was your reaction?” Drury asked the sheriff.
“When she said she corrected the report? We do it all the time,” Sheriff Tim Wilz answered.
“And you do corrections to substantive facts of police reports all the time?” Drury followed up.
“We do corrections to incorrect reports draft,” Wilz said.
The report sent to the district attorney’s office reads in part that Drury’s client’s car would be “towed and taken to the Manawa evidence garage to be inventoried and searched.”
But the defense attorney found another report, which she says was the original report, with the same sentence continuing to say “...searched for any possible evidence related to past thefts with [her client].”
According to testimony, when a detective discovered this and told the original deputy working the case, that deputy said he didn’t know his report had been changed.
That began raising questions about how often this happens.
“Did you make the change to this report, removing the language for any possible evidence related to post thefts with [my client]?” Drury asked the deputy who worked that case.
“I did not,” Deputy John Stephens replied.
Stephens testified he didn’t know his report had been changed until after it was at the D.A.’s office.
“And you had nothing to do with that change?” Drury asked.
“Not that change, no,” Stephens answered.
A sheriff’s detective who says he noticed the altered report testified that he raised concerns with the sheriff’s administration.
“I was concerned that the report had been changed and was sent to the district attorney’s office without the authoring deputy’s knowledge,” Detective Sgt. Peter Kraeger told the court.
Drury asked the sheriff, “And so your opinion is that it’s the policy of the Waupaca County Sheriff’s Department to change the factual observations of the author of the report when it’s appropriate?”
Soon after, that detective and another who got involved were placed on administrative leave. Their immediate boss, Capt. Julie Thobaben, who talked with the deputy about the search at the center of the case, was called to the stand. She was asked about changing police reports in general.
“What type of corrections do you make?” Drury asked her.
“Grammatical word changes, any corrections that need be to make the report correct,” Thobaben said.
“What type of corrections would fall under that last category? Need be to make the report correct?”
“To make it factually correct for the charges being there? Yes, correct,” Thobaben answered.
Then came testimony from the sheriff himself, Tim Wilz, who was elected in 2019.
He was asked multiple times about changing police reports.
“No, we don’t. We don’t change reports. We correct them,” Sheriff Wilz testified.
“And they can correct them in a way that will remove evidence?” asked Drury.
“No, we don’t correct them in a way that removed evidence. We make sure they’re accurate as to what the officer did,” Wilz said.
Waupaca County District Attorney Veronica Isherwood said, “I think it’s clear to anyone who listened to testimony today that basically every county prosecution that the district attorney’s office has right now is in jeopardy.”
After nearly five hours of testimony, Judge Huber had the final say.
“I’m not at this point in time necessarily inclined to identify an individual in the sheriff’s department was involved in a Brady violation. I’m more inclined to find that the department as a whole, from the sheriff on down. They believed reports could be changed, contrary to the written policy,” Judge Huber said.
It prompted the D.A. to send an unprecedented 79 Brady letters, not only writing “Captain Julie Thobaben altered a report ... which resulted in the removal of exculpatory information” -- meaning key details that could lead to exoneration of a suspect -- but that “this practice is done ‘regularly’ at the Sheriff’s department” and “evidence of any changes were not preserved.”
The D.A. added, “We have no idea if the reports in the case you are defending were changed or altered in any way.”
We talked with Sheriff Wilz by phone late this Monday afternoon. He told us, “We do everything according to policy” and that he holds his officers to the highest level of integrity. He says he’s working with an attorney and expects to release more information later this week.
Waupaca County District Attorney Veronica Isherwood gave this statement: “The right thing to do is rarely the easy thing to do. My legal obligation is to notify defense attorneys and I have done so. I and my staff will continue our hard work and do everything in our power to seek justice for victims and protect the community from harm while honoring our legal obligations and the constitutional rights of defendants.”
WBAY reached out to the Wisconsin Department of Justice to ask if it will be involved. We haven’t heard back from the DOJ at the time of this writing.
BRADY LETTER FROM WAUPACA COUNTY DISTRICT ATTORNEY
February 25, 2022
Waupaca County Criminal Defense Attorneys
In re: State’s obligation under Brady/Giglio
You are receiving this letter because you represent a defendant who has been charged with a crime in Waupaca County after an investigation by the Waupaca County Sheriff’s Office. Based upon the State’s obligation to disclose potentially exculpatory evidence as set forth in Brady v. Maryland, 373 US. 83 (1963), and Giglio v. Maryland, 405 U.S. 150 (1972), I am hereby advising you that the State is aware of and in possession of certain evidence which indicates that Waupaca County Sheriff Captain Julie Thobaben altered a report authored by a deputy which resulted in the removal of exculpatory information. Captain Thobaben testified to her actions this week. Furthermore, Sheriff Tim Wilz testified on Monday, February 22, 2022 that this practice is done “regularly” at the Sheriff’s department. It was also disclosed that evidence of any changes were not preserved. We have no idea if the reports in the case you are defending were changed or altered in any way. There is only one case where we are certain a report was changed, but the sworn testimony that this happens regularly is very concerning.
Under normal circumstances you would receive notification of a Brady violation, only when an affected officer was subpoenaed to testify. The attorneys at the Waupaca County District Attorney office believe under this circumstance, the spirit of Brady/Giglio makes it incumbent upon us to notify you of this irregularity. Additionally we have received information that reports to my office of these irregularities are discouraged.
We pride ourselves on upholding an extremely high ethical standard in our charging decisions and prosecution of criminal cases. 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.
Very truly yours,
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