By M.D. Kittle | Wisconsin Reporter
MADISON, Wis. — Milwaukee County Assistant District Attorney Bruce Landgraf was so obsessed with going after the target of a secret John Doe investigation that he was willing to jail an innocent man.
That’s what the attorney for a Rice Lake Harley-Davidson dealer contends three years after Christopher Brekken spent the better part of a day in jail for failing to comply with the investigation’s court-ordered subpoena — a subpoena that would have forced Brekken to violate state law.
“I’ve been practicing law for 34 years this week, and this is just as egregious an abuse of prosecutorial power as I’ve ever seen,” said Michael Schwartz, Brekken’s Minnesota-based attorney.
Brekken’s experience with Landgraf illustrates what critics have said about Landgraf’s role in the newest Democrat-led investigation of Wisconsin conservatives: Driven by arrogance and a driving belief that the end justifies the means, he’s willing to flout the law he is sworn to defend.
The Wisconsin judge who earlier this year ruled on Brekken’s lawsuit against Landgraf harshly criticized the prosecutor, asserting Landgraf was “behaving badly, probably for political reasons.”
Despite that, the judge dismissed the case on technical grounds, so Brekken is appealing. He’s seeking unspecified damages for false imprisonment and abuse of process.
Landgraf, who helped run at least two politically driven John Doe cases during the past three and a half years, says Brekken got what was coming to him, that his day in jail was the price he paid for thumbing his nose at a lawful subpoena.
And besides, the prosecutor said, investigators ultimately got their man – not Brekken, but Kevin Kavanaugh, a one-time customer at Brekken’s motorcycle dealership.
Kavanaugh, a former appointee of Gov. Scott Walker, when Walker was Milwaukee County executive, was eventually convicted and sentenced to two years in prison for pilfering more than $51,000 from a county program designed to help veterans and their families.
Landgraf is unapologetic about jailing Brekken.
“What difference does it make?” Landgraf shrugged. “We ultimately got the information and the details we needed.”
To catch a thief
Ironically, it was Walker’s office that first brought concerns about bookkeeping practices at the veterans program to the district attorney’s attention.
Critics say Landgraf and his boss, Democrat District Attorney John Chisholm, seized on Walker’s concerns as an opportunity to attack Walker and fellow conservatives.
And, the critics say, Landgraf and Chisholm ended up producing collateral damage among innocent people — people like Christopher Brekken.
In the course of their probe, investigators learned that Kavanaugh had used a credit card on July 24, 2010, to make purchases totaling $107.26 from Brekken’s Harley-Davidson shop.
According to Schwartz and court records, retired Appeals Court Judge Neal Nettesheim, who presided over the John Doe probe, issued a Sept. 22, 2010, subpoena seeking copies of records “detailing the full credit card number” Kavanaugh used for the retail purchase. Satisfying that request would violate state privacy laws, as well as credit card association regulations.
Landgraf says Brekken didn’t bother to respond, that he “thumbed his nose” at the subpoena.
Schwartz said the prosecutor contacted Brekken via phone, and the businessman said he had no intention of giving out a customer’s credit card number, that he didn’t care who Landgraf was. Then he hung up on the prosecutor. That “ticked off” Landgraf, Schwartz said.
Landgraf disputes that. He told Wisconsin Reporter he had no contact with Brekken before the day of the arrest.
At 7 a.m. on Oct. 19, 2010, the Barron County sheriff showed up at the Rice Lake dealership and arrested Brekken on a bench warrant.
Schwartz said his client sat in jail long after he had faxed investigators basic and allowable information about the credit card. Landgraf apparently wasn’t satisfied. He wanted the credit card number.
“He said, ‘You get us this credit card information and we’ll get your client out of jail,’” Schwartz said.
Here’s the problem: Retailers, by law, cannot retain their customers’ full credit card information.
“(Landgraf’s) response was that my client should put pressure on his bank or his credit card company and get it for me. Our response was that, by law, we can’t have it. Landgraf’s response was, ‘Figure out a way to get it,’” Schwartz said.
The assistant district attorney disputes the account, but the subpoena and the warrant clearly state the prosecutor’s demand for the credit card information.
A state law in effect months before Brekken received the subpoena bars retailers from maintaining credit card numbers — a law designed to limit access to, and fraudulent use of, the account information. The credit card industry has had safeguard practices in place for several years. Those Payment Card Industry Data Security Standards include fines of up to $100,000 per month to retailers who don’t comply, and offenders can be held financially responsible for fraud.
Schwartz said Landgraf, as an assistant DA, should have been familiar with the law.
Landgraf said the law had only been on the books for a short time, but he stopped short of saying that he did not know the law, and said he could not speak to what the other prosecutors in the probe knew.
He brushed off questions about whether prosecutors and the judge ignored the state’s credit card law.
“The point is Mr. Brekken was in possession of valuable information to the investigation, he was issued a subpoena seeking that information … and he thumbed his nose at the John Doe judge,” Landgraf said.
Brekken was released from jail after he agreed to testify in a secret proceeding in Milwaukee County court — five hours away. In the end, Schwartz said, Brekken provided only the information he had already offered Landgraf.
No matter, said Landgraf. His investigators ultimately followed Schwartz’s advice, tracking the credit card information through Kavanaugh’s credit card issuer.
Kavanaugh was one of six people convicted in what some now call John Doe One, the Democrat-led Milwaukee County DA’s wide-ranging investigation into Walker’s former aides and associates during his days as Milwaukee County executive.
Brekken ultimately sued Landgraf. Barron County Judge Timothy Doyle in March ruled on the jurisdiction of the case. He called the “underlying circumstances” of Brekken’s lawsuit “unfortunate.”
“Obviously, a lot of what happened here was politically motivated and not — the conduct described is nothing that we as Wisconsinites should be proud of, bottom line,” the judge said in a court filing. “Mr. Landgraf was behaving badly, probably for political reasons.”
Doyle did, however, throw out the litigation, ruling that because assistant district attorneys are state employees, Brekken’s notice of claim should have been filed with the state, not in Milwaukee County. Brekken has appealed.
And while he softened his stance by the conclusion of the hearing, the judge said, “Given the timing and given the underlying investigation that Mr. Landgraf was working on, I guess I felt comfortable observing that there was politics in play here, and I don’t take that back.”
Doyle, appointed to the court by former Democratic Gov. Jim Doyle, retired this past summer and moved out of state.
He could not be reached for comment.
Brekken’s lawsuit and its charges of prosecutorial abuse come as conservatives raise questions about the latest politically charged John Doe investigation pushed by Landgraf and Chisholm.
In the most recent case, Chisholm and Landgraf have targeted state conservatives and even such national groups as Americans for Prosperity, Club for Growth and the Republican Governors Association, multiple sources have told Wisconsin Reporter. The latest Doe, sources say, began in early 2012, even as Landgraf and crew were working on John Doe One, and two and a half years after Landgraf had jailed Brekken on the way to seeking Kavanaugh’s arrest.
Though gagged by provisions of subpoenas sought by Landgraf and others, several sources have told Wisconsin Reporter the manifold legal attack on nonprofit political organizations has included after-hours visits to homes and offices; confiscated equipment and files; and demands for phone, email and other records. The sources have asked to remain anonymous due to their proximity to the investigation or to people connected to it.
Late last month, Wisconsin Reporter learned that subpoenas issued in the probe required responses “in person or in writing” from “about 100 people” by Oct. 29. A court hearing was postponed after the presiding judge in the case recused herself.
Milwaukee County Sheriff David A. Clarke has blasted the secret investigations as politically motivated, “unbridled,” “dangerous,” and “tainted.”
Landgraf told the Milwaukee Journal-Sentinel in September that Doyle had not been properly informed. If he had been, Doyle would not have “made the comments that he made about my character,” the prosecutor said.
Landgraf asked Nettesheim, the judge in John Doe One, to open the previously sealed subpoenas, showing the focus was on Kavanaugh, not on Walker.
Chisholm, according to the Journal-Sentinel, apparently called the retired judge at his home in New Mexico to complain.
But insisting that politics didn’t touch the investigation is naïve or disingenuous, critics insist. The secret probe certainly didn’t happen in a vacuum. There were countless leaks. Those leaks led to wild speculation, including rumors that Walker was a target of the investigation. And all of that information, much of it untrue, was pumped out as an angry Democratic Party of Wisconsin campaigned to throw the governor and several Republican senators out of office in the state’s spate of recall elections.
While Schwartz has said he believes political motives played a part, he said Landgraf’s conduct raises serious questions about basic government overreach.
“This,” he said, “is a classic example of prosecutorial abuse.”
Contact M.D. Kittle at email@example.com
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