Shawano County: ‘The Land the Constitution Forgot’

There’s a saying in Shawano County, usually attributed to the county’s former district attorney, that if you come on vacation, you’ll leave on probation. 

Decades of law and order prosecutors and a historically punitive culture have created a court system that mistreats outsiders, locals, Native Americans from the neighboring Menominee Reservation, defendants and victims. At the same time, the current district attorney’s management is being questioned, with critics pointing to a slipshod process that ends with dismissed cases, disgruntled victims and long backlogs. 

Interviews with more than a dozen defense attorneys, defendants, court workers and community members, as well as an analysis of hundreds of documents obtained by the Wisconsin Examiner, show a criminal justice system unable to provide basic tenets of procedural justice — let alone a sense of fairness.

“How are things in the land the constitution forgot?” says Steve Menard, a retired defense attorney who practiced in Shawano for 40 years. “I would say your chance of getting justice in Shawano County is probably less than any place else.” 

Justice Delayed

If someone is arrested for a misdemeanor in Shawano County, more often than not, they’ll need to wait for charges to be filed. The average number of days between arrest and the filing of misdemeanor charges in Shawano is more than 100. In nearby Waupaca County, with a slightly higher population, the average number of days to charge a misdemeanor case is less than 30. 

Less than half, 48%, of Shawano County’s misdemeanor cases are filed within 30 days. In Waupaca, Monroe and Polk counties — all with similar populations and numbers of arrests — more than 70% of misdemeanor cases are filed within a month, according to court records. 

When cases are delayed, people can be harmed. 

There’s the 38-year-old man with a history of domestic violence who — while out on bond for another offense — was arrested in May, September, October and November of 2019 for other incidents of domestic abuse. 

And then there’s the case of the 27-year-old woman who was arrested in September 2016 for stealing cash and merchandise from the convenience store where she worked. Charges weren’t filed against her for 1,071 days. (That’s nearly three years.)

The effect of these delays is that defendants and victims move on with their lives, get new jobs and sometimes believe the incident has been forgotten. 

“It’s a very difficult situation for criminal defendants because by that time they assume nothing is going to happen to them and it’s not going to get prosecuted,” says Steve Weerts, a retired attorney from the Wisconsin Public Defender’s office in Shawano. “They move on with their lives and all of a sudden they get charged, you can imagine that can be traumatic for people.”

Often defendants will move before their court appearances and miss notices mailed to an old address. Then defendants are charged with failure to appear and the county must spend the resources on a warrant for their arrest.

There are other issues with the county’s prosecutors — calls and emails go unanswered, plea negotiations are hardly a negotiation even when contradictory evidence comes up, defense attorneys say. Lawyers often don’t begin to digest the details of a case until the day before trial, paperwork is frequently misfiled and defendants are often overcharged, critics in Shawano and court documents show. 

“There’s a culture there, and it’s not unlike other counties, but Shawano has been more out there in the sense they’re out of touch with things and draconian,” says Hank Schultz, a retired defense attorney and former Green Bay regional manager for the state public defender. He added that he has had good outcomes for clients in Shawano, but the prevailing culture is one focused on retribution. 

“They tend to treat cases in a way that is more punitive and less rehabilitative,” he continues. “The goal, if they’re found guilty, the goal is so it doesn’t happen again. In Shawano, it’s more about being punitive, the war on crime and not [on] creating a safer society.” 

McCarthyism

To really understand how Shawano County’s criminal justice culture got this way the search has to start in 1936 when a 28-year-old lawyer named Joseph McCarthy ran as a Democrat to be the Shawano County district attorney. 

He lost, but three years later he was elected judge of the Tenth Judicial Circuit, covering Langlade, Shawano, and Outagamie counties.

McCarthy was a circuit court judge in Shawano until he was elected to the U.S. Senate in 1945. Of course he then went on to become one of the most famous politicians in America as he led a frenzied hunt for communists across the U.S. and is remembered and reviled for kicking off the Red Scare and running hearings that were characterized as witch hunts.

Judge William Kussell says his Branch 2 courtroom used to be McCarthy’s — and even though the current building was built in 1958, the year after McCarthy died, the disgraced senator is still a source of pride for some who practice law in the county. In the courtroom, above the jury box where 12 Shawano County residents are supposed to decide the truth, Kussell points out a picture on the wall. 

It’s a portrait of McCarthy.

‘Generational racism’

The DA in Shawano is technically the elected prosecutor for both Menominee and Shawano counties, though the DA doesn’t have jurisdiction in most of Menominee County because it is almost all tribal land. 

Shawano County, population 40,000, is 88% white. Menominee County, population 4,500, is 82% Native American, according to census data. 

“Let me start with this, reservation border towns like Shawano have historically been racist,” John Teller, former chairman of the Menominee Tribe, says. “As a native person living in Shawano and having attended off-reservation high school in Shawano, the racism, even today, is covert, not so obvious as it used to be. There’s generational racism in Shawano county.”

Jackie Miller, a private investigator in the area who worked as a law enforcement and parole officer in Shawano, says she experienced racism frequently in Shawano’s criminal justice system.

Miller, recalls a former police chief once saying in a meeting “I have been told if you put up a checkpoint on the bridge leaving Shawano County, that you could totally eliminate crime in the City of Shawano.” 

Miller, a white woman who lives on the Stockbridge Reservation with her Native American husband, says when she worked in law enforcement a supervisor cracked a racist joke in front of her without a second thought.

“He said to me ‘Yeah that’s an Indian computer — it works when it wants to,’” she says. “Dude, what? It was just, he would say something like that thinking he was in a safe environment, without even blinking.”

Native Americans are more frequently charged with crimes than the county’s white residents. In 2019, white residents of Shawano county, who make up 88% of the population, made up 51.9% of the criminal cases. Native Americans, on the other hand, were at the center of 39.6% of all criminal cases even though they make up only 8%of the county’s population, according to an analysis by Court Data Technologies.

Teller says that crime shouldn’t be justified, but the historical treatment of the Menominee Tribe must be considered when assessing crime in the area. 

“Native people have had, we’ve experienced generational trauma with boarding schools and racism and poverty,” Teller says. “The Menominee Tribe in particular, in the 60s we experienced a termination, we lost our federal protection for 11 years, that was traumatic. I never want to justify it, but let’s just say the native people have experienced difficulties and we are the poorest per capita county in the state, the highest poverty rate. Along with poverty and historical trauma, there’s problems.”

‘Fundamental, obvious and substantial’ errors

The problems of the Shawano County court system aren’t limited to the district attorney’s office or law enforcement. 

A recent survey of 4,000 practicing attorneys conducted by USA Today Network-Wisconsin found that Shawano County’s judges are some of the lowest rated in the state. 

Out of 209 judges, Kussell was one of the 10 lowest rated. Both Kussell and Judge James R. Habeck — who retired this year — were among the 31 judges not recommended for retention by the surveyed attorneys. 

The county’s appellate record includes a case in which the Wisconsin Supreme Court called out Habeck and an assistant district attorney by name and a case in which the now-retired clerk of courts used her office to advocate for a family friend to get a lesser sentence. 

In State v. Jorgensen, Habeck had a verdict overturned from a 2005 case because of errors committed at trial by both Habeck and ADA Catherine White that “denied basic constitutional rights” to the defendant. 

The man, Donald Jorgensen, was charged with operating a vehicle while intoxicated, his fifth offense. He arrived at a sentencing hearing and was having difficulties communicating with his lawyer. White told the judge she could smell “intoxicants” on Jorgensen, according to court records. The judge ordered a sheriff’s deputy to administer a breathalyzer test. 

Jorgensen blew a 0.12 on the preliminary test — which is not admissible evidence in court — and was sent to the hospital. He also had his bond revoked for violating a no-alcohol condition. 

When the case went to trial, Habeck read the transcript of that day’s hearing to the jury — even though it contained the inadmissible breathalyzer results and the reactions of White and Habeck to a defendant appearing to be drunk in the courtroom. 

“I’m concerned about Mr. Jorgensen’s health,” Habeck said at the hearing and then later read to the jury. “So I’m going to revoke the existing bond. Our Shawano County bond, so we’re clear, had a no-alcohol provision. It appears to me Mr. Jorgensen violated that, so I do have to increase the cash bond amount. It’s an unusual case.” 

The Supreme Court determined this meant that Habeck essentially testified against the defendant. Later in the trial, White called the defendant a “chronic alcoholic” in her closing remarks and pointed to her own experience seeing him drunk at the hearing. 

The court said in its decision that these mistakes “infected the trial with unfairness.” 

Violating the public trust

In 2015, seven years after the Jorgensen decision, Eric Hodkiewicz was convicted in Brown County of seven felonies and misdemeanors related to the stalking and abuse of his ex-wife. 

The appeals court upheld all but two of the jury’s guilty verdicts.

But before his sentencing, Sue Krueger, the now-retired clerk of courts, wrote a letter to the judge on her official letterhead asking for leniency for Hodkiewicz, a family friend. 

“You will never get me to believe, even with the jury verdict, that Eric was capable of the alleged violence,” Krueger wrote. 

Beth Schnorr, executive director of the Harbor House Domestic Abuse programs, told the Green Bay Press-Gazette in 2015 that Krueger’s letter “clearly violated the public trust.”

In 2018, William Switalla was arrested for stealing a grill from a foreclosed house he says he was helping to clean up. 

Switalla is president of the Village of Wittenberg Board and sits on the Shawano County Board. He’s also a Democrat who was on the ballot that year challenging incumbent Rep. Gary Tauchen (R-Bonduel). 

Switalla says the grill was returned immediately and he was just trying to clean up the yard of a former meth house that the county wasn’t going to do anything about. That didn’t matter when a felony charge was filed against him. 

“I had to hire a lawyer to keep my ass out of jail because of a meth house they were done with, I was the one cleaning it up,” Switalla says. “That was very political because they’re all Republicans and of course I’m a Democrat running against Gary Tauchen. I took the grill, I put it back long before the cops came. But they considered it something that belonged to the county so they decided they could get me that way.”

“They made sure it was front page news,” he continues. “I was quite known.” 

Switalla’s felony charge was dismissed and he was given a deferred prosecution agreement. But he was able to afford an attorney. It can be much more difficult for the people in Shawano who don’t have the money for representation. 

A number of attorneys point to the county’s lack of a process for appointing attorneys to people who don’t qualify for representation from the public defender’s office but can’t afford a private attorney. 

Instead of appointing a lawyer and having the defendant pay the county back for the charges incurred — a practice common in other parts of the state — defendants will be charged with contempt and jailed for failing to pay attorney fees. Sometimes, the court will withhold the defendant’s wages to pay for the court-appointed attorney.

In 2019, a 38-year-old woman charged with felony possession of meth was threatened with 30 days in jail for contempt because she had to make two payments of $482.78. 

A 33-year-old man who is still working his way through the system on multiple charges has collected debt and contempt orders because he requested an attorney yet didn’t qualify for representation from the public defender. 

He requested an attorney in December 2019. He did not get one until April 2020. He was jailed for not paying attorney fees and now owes Shawano County more than $2,000 (and counting) for fees incurred during the two years before an attorney was assigned.

“The people who get trapped aren’t necessarily the public defender clients, but the working people at the lower end of the spectrum,” says Menard, the longtime Shawano defense lawyer. “They can’t afford decent representation, it runs on and on and on.”

Law and order prosecutors

In 1982, four decades after McCarthy’s stint as a judge in Shawano, Republican Gary Bruno was elected DA. 

Bruno, according to lawyers who have practiced in the area for decades, is where the county’s punitive culture really began. Menard says there used to be a poster in Bruno’s office that said “the electric chair — fried or extra crispy.” 

He’s also the DA who made bumper stickers with the area’s unofficial motto:  “come on vacation, leave on probation.” 

“Nobody is as bad as Bruno, he was just horrible,” says Thomas Madsen, the county’s former administrative coordinator and a current member of the human services board. “He’d find the simplest things and throw the book at them. He’d always throw the book at the people who couldn’t afford lawyers. You’re picking on poor people, picking on Native Americans, picking on people who don’t have a pot to piss in.”

But the community gets the prosecutor it wants and most people in Shawano County say the voters want a “law and order” district attorney. 

Menard says the county is stuck in a “19th century German culture” and that’s why it elects such punitive DAs.

Shawano County is a Republican stronghold. Barack Obama won the county by a slim margin in 2008. But since then Republicans have dominated up and down the ballot. Mitt Romney won the county in 2012 with 54% of the vote and Donald Trump won it with 64% in 2016. 

When Bruno retired in 2006, three candidates jumped into the race — defense attorney and former Appleton police officer Greg Parker, former Shawano Assistant District Attorney Mary Harper and Kussell, the judge. 

All three ran as Republicans. Parker won by one vote.

‘Tough on crime’ 

Parker has held the office since that 2006 election. 

In 2008, Parker again faced off against Harper, and beat her by 793 votes.

In 2016, running unopposed, Parker received 16,235 votes in Shawano County. 19,810 Shawano residents voted in that year’s presidential election and more than 12,000 people voted for Donald Trump, the Republican at the top of the ticket. 

This year, for the first time since 2008, Parker is facing a contested election. He’ll be up against local defense attorney Aaron Damrau — who was threatened with a felony charge by Parker’s office on Aug. 11. The race in Shawano is one of just six contested DA races in Wisconsin’s 72 counties this year. 

“With respect to my position since 2007, I’ve remained consistent in results,” Parker says as he sits in the Branch 2 courtroom, wearing a tie that bears the patches of numerous state police agencies. “Tough on crime, on drugs of course and very aggressive with sexual predators.” 

Parker’s stated focus on drug offenses and sexual violence is part of the problem, people in the system say. This means he prefers to take only those cases, leaving his assistants with a heavier caseload. Of the 1,253 felony and misdemeanor cases Shawano County had in 2018, Parker was the prosecutor for 189, 15% of them, according to court data reviewed by the Wisconsin Examiner. 

That left the remaining 85% for the two ADAs in the office. 

The county was just assigned a third ADA.

When the office gets around to filing charges, it can be difficult for defendants and attorneys to learn about their case. 

“Everything I did with Mr. Parker’s office was more difficult than it had to be and more difficult than other district attorneys in the state,” says Steve Lucareli, one of many defense attorneys who refuses to take cases in Shawano. “I’ve practiced from Kenosha up to Ashland, as far over as Green Bay on the eastern side, Jackson County on the western side. North to south, east to west, I’ve been a lot of places … a good prosecutor is a gentleman with a sense of fair play.” 

“That to me ought to be what you aspire to as a public prosecutor. I did not find in dealing with Mr. Parker that he acted very professionally or gentlemanly,” Lucareli continues.  “[Shawano County] is a defense lawyer’s hellhole, that’s not a reputation I’d want my county to have.” 

Parker’s accessibility also wore down the patience of a fellow district attorney, Aaron Bruce Marcoux of Washburn County. Marcoux was ticketed for going 1 to 10 mph over the speed limit in Shawano County. He pleaded no contest and paid the fine but not before attempting to reach Parker about the court date.

“Unfortunately, the Shawano County District Attorney refused to discuss this case with me,” Marcoux wrote in a letter to the court obtained by the Wisconsin Examiner. “I am District Attorney for Washburn County and have responsibilities that cannot be neglected for such a minor matter. While I wish the Shawano District Attorney had a minimum of professional courtesy to at least return a phone call, when I missed the previous scheduled hearing last week (I did not receive notice the hearing was moved to today) due to a work emergency, I paid the citation.” 

Attorneys who have worked in Shawano say prosecutors under Parker’s management don’t look at cases until days before the scheduled trial date and often refuse to negotiate, even when the facts don’t match the charges. 

Cases are often dismissed at the last minute, which Parker attributes to victims and witnesses not agreeing to testify in court. 

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“It’s not the prosecutors dismissing a case for no reason,” Parker says. “Information doesn’t get filed … witnesses refuse to cooperate. We find that out very near to trial.” 

But defense attorneys say if the office put in more work ahead of time, they’d know before the eve of trial that a witness had recanted. 

Court records show that since 2018, 29 Shawano County criminal cases were dismissed within 48 hours of a jury trial. While some of these cases could be refiled, neighboring counties don’t have the same problem. Nearby Waupaca County has had one case dismissed within 48 hours of trial since 2018. Langlade County has had zero. 

“You hang on until trial time, they don’t know enough about their cases and then they’re screwed,” Menard says. “They don’t do it because they’re so unprepared and so lazy. Talk about people eating out of the public trough, that’s what Parker and White are all about.”

Playing with the team

Parker also has been repeatedly reprimanded by the County Board for not running the drug treatment court in accordance with best practices outlined by experts. 

Drug treatment courts have been in use across the country for more than three decades. All but 17 of Wisconsin’s 72 counties have some sort of treatment court. The goal is to provide rehabilitation to drug offenders in order to stop the abuse of alcohol and drugs while preventing future crimes and avoiding the traditional criminal prosecution process.

The candidates for drug court must be non-violent offenders who qualify as high-risk and high-need. Treatment is provided by a team of counselors and the program is run in collaboration with local district attorneys, judges, defense attorneys, law enforcement and probation officers.

When the Shawano program was established in 2018, it was billed as providing cost-savings to the county and helping drug-addicted members of the community. 

Yet two years later, the problems with the drug court come up often in meetings of the full county board and various committees.

“One of the challenges results from the lack of referrals being made and referrals that are being made are on low risk individuals from the District Attorney,” the minutes of a human services board meeting in December 2019 state. 

But Parker says he’s disappointed by people not qualifying. 

“They don’t score high-risk, high-need, we send people through to be examined and we don’t have anything but probation,” Parker says. 

Defense attorneys and local officials say Parker tries to send first-time offenders into drug court and fails to send enough referrals. 

“[The drug court] is on track to be the first drug court in the state to fail,” says Damrau, Parker’s opponent and a member of the County Board. “We have eight people in it, it’s meant for up to 20.” 

Madsen, the former county administrative coordinator, is a retired social worker and a proponent of the drug court. He says he doesn’t think Parker believes drug court is the right response to drug offenses. 

“Mr. Parker doesn’t seem to be taking the drug court very seriously,” Madsen says. “It could be their own political philosophy or personal philosophy that drug offenders should be jailed. Shawano County is a very conservative county and sometimes you get a feeling the philosophy is, you do the crime, you pay the time.”

The drug court is not the only aspect of Shawano County’s services that Parker has been accused of neglecting. 

In early October 2019, Shawano County Child Support Administrator Courtney Windorski emailed Parker asking him to occasionally prosecute parents who have not paid child support in more than 120 days. 

“We wouldn’t overload you with cases, I’m thinking maybe 1 or 2 a year, just so people know that not paying child support is unacceptable,” Windorski’s email, obtained by the Wisconsin Examiner, states. “Especially when they are just avoiding the responsibility. We would get everything together for you, so you would just need to take it into court for us.”

More than three weeks later, Windorski sent another email. 

“Just following up on this email to see if you had a chance to think about it,” she wrote. 

In November 2019, in a report Windorski submitted to the Shawano County Board, she says she’s still waiting on a response. 

Court records show that Shawano County has prosecuted just five of these cases in the last 20 years. All five came before Parker was the DA. 

Every time an email goes unanswered, a plea agreement isn’t reached or a drug court referral is given to the wrong person, two things are at risk: a human being’s freedom and taxpayer money. 

Stuck in a broken system

A 33-year-old man from the area was facing domestic abuse charges in a neighboring county. The man had no prior record and the initial charges were ultimately dismissed as part of a deferred prosecution agreement. The Shawano charges were dismissed because the DA’s office didn’t file paperwork ahead of the scheduled jury trial. 

He was out on bond for those charges and one of the conditions of bond was that he not have contact with the woman he was charged with abusing, who is also the mother of his child. In a custody exchange at a public parking lot, the man was there while his new girlfriend picked up his son. 

He says he didn’t interact with his son’s mother and that surveillance video proves it.

The next day, the mother went to the Shawano County Courthouse and filed a restraining order against him. Months later, Shawano filed a felony bailjumping charge for violating the conditions of his bond in the other county.

“I didn’t do anything wrong,” the man says. “I’ve never been in the court system at all. The stress of this, I’d barely eat or sleep … I worked hard to keep my head out of trouble.”

The man asked to remain anonymous to avoid retribution in the county and because all charges were dismissed. 

“I’ve lived in the area enough to avoid all police contact in Shawano because you never feel like it’s fair,” says the man. “I just know Shawano County isn’t a good county to have bad things happen.” 

Culture shift

Damrau says he is running against Parker because he’s tired of watching clients get “railroaded” by the system and believes he can change the county’s entrenched culture. He’s trying to convince the voters that if they want a “law and order” prosecutor, they aren’t getting it from Parker. 

“What is the cost of injustice?” he says, citing the time and resources he thinks are wasted as Parker’s office delays charges and has cases dismissed over paperwork errors. “Is this law and order?” 

Damrau, who is running as an independent, is convinced that if elected he can make a difference, but he says if the election were held today — rather than Nov. 3 — he’d probably lose.

Most attorneys who’ve worked in and around Shawano for years say they don’t think he can win, but some say removing an incumbent can make a huge difference.

“The discretion of a district attorney in the state of Wisconsin is almost unfettered,” says Lucareli, the Vilas County attorney who won’t practice in Shawano. “Because of that incredibly broad discretion, it could have a tremendous impact on how things are handled down there. I think electing a new DA could have a significant impact countywide.”

Damrau has out-fundraised Parker by a margin of more than 7 to 1 this year and there are more Damrau signs than Parker in Shawano County lawns, but even so, Richard Kucksdorf, the chairman of the Shawano County Republican Party, is confident. 

“They, for whatever reason, don’t like Greg Parker and don’t like how he does his business,” Kucksdorf says. “They’re entitled to that opinion and entitled to run somebody against him. I think he’s doing fine, if the voters don’t think he’s doing fine they won’t vote for him. We’re obviously going to work hard to get him reelected and continue to serve the Shawano-Menominee community as a whole.” 

Kucksdorf says dismissals and backlogs happen in Shawano County because the DA’s office is “taxed,” and that Parker’s critics in the county all have ulterior motives. 

“As far as the dismissing this and that, I know that [Parker], and his department, is taxed,” he says. “I know that Greg Parker takes the more difficult cases and leaves the more, for lack of a better term, routine cases for the newer prosecutors. [Parker’s critics] are all on one side of the fence, they can all appear as pure as the snow but they all have their loyalties. I think they have an axe to grind. It’s like I like the Packers and you like the Bears.” 

Parker, despite the critics, says he believes the community supports him. 

“I think experience matters with what a district attorney should be,” Parker says. “He or she has a role in keeping a community safe and a responsibility to listen to what people in the community say. I don’t have a lot of people telling me I’m doing a bad job.”

Parker did not respond to calls and emails requesting a response to additional questions.