Sunday, September 26, 2010

Who's watching the watchdog?

Judging by the public and professional outcry, most of Wisconsin seems to have known that the purported actions of Calumet County District Attorney Ken Kratz in trying to spark a relationship with a domestic abuse victim even as he was prosecuting her assailant was wrong.

But somehow that was not the conclusion of the state Office of Lawyer Regulation.

Last week, Gov. Jim Doyle began the process of removing Kratz from office and appointed former Kenosha County District Attorney Bob Jambois to oversee those proceedings.

That's all well and good. A hearing is set for Monday and we hope a final determination comes as soon as practicable.

But the Kratz case shouldn't end there.

It has raised disturbing questions about the processes, secrecy and effectiveness of the Office of Lawyer Regulation itself.

As state Attorney General J.B. Van Hollen told the Green Bay Press-Gazette last week, "I was astounded they (the Office of Lawyer Regulation) dismissed it as out of hand. To think they did nothing. Everybody was very shocked."

After the woman filed the complaint against Kratz with police, the state Justice Department investigated and decided against pursuing criminal charges.

From published reports of the allegations, that makes some sense - the allegations are creepy and outrageous, but may not be criminal.

The Justice Department gave the complaint over to the Office of Lawyer Regulation, as it should have, to assess whether Kratz' actions constituted professional misconduct.

Incredibly, the agency decided that Kratz' smarmy text messages to the domestic abuse victim were inappropriate but "did not appear to involve possible professional misconduct." The office did not even go ahead with a formal investigation and closed the file last March. They never contacted the abuse victim.

Even today, the agency's decision and the reasons for it remain cloaked in secrecy.

On Friday, in the face of mounting criticism, the Office of Lawyer Regulation announced it was reopening its investigation into the Calumet County district attorney because "substantial" new information had been presented that shows "what may be a pattern of conduct." Ah, that would be the three other women who have come forward with similar complaints against Kratz in the past two weeks.

Isn't that the kind of thing the state agency is supposed to ferret out in the first place?

The Office of Laywer Regulation is an arm of the state Supreme Court, and its actions on grievances are done confidentially to protect lawyers and their clients, until there is a referral to the Supreme Court for action or a lawyer agrees to a public reprimand.

In the main, that is probably a reasonable process for most state lawyers. But prosecuting attorneys have substantially more power than other lawyers and that should require special safeguards to prevent abuse of office and professional misconduct.

According to the office's annual report for 2008-09, almost 70 percent of the grievances and complaints filed that year were dismissed for "lack of sufficient information to suggest an allegation of potential ethical misconduct."

The Wisconsin State Journal reported earlier this month that the state Supreme Court has publicly or privately sanctioned just 28 prosecutors in the past 29 years.

We don't know if one sanction a year is something to celebrate or something to wonder about and, given the Kratz case, that "wonder" has turned to worry.

This episode has done no favors to ethical, hard-working district attorneys, either. It has brought a dark cloud over the justice system by raising a question of how often predation has replaced fairness and professionalism in our courthouses.

Such circumstances are not acceptable. The state Supreme Court must clear the air on this case and make sure someone is watching the watchdog. If it takes more openness in proceedings when prosecutors are accused of misdeeds or inappropriate action, then that should be the course we follow to restore confidence in our courts.


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