DA'S DEALS LET PEOPLE BUY WAY OUT OF TROUBLE

As investigators closed in on him, Appleton resident Floyd Banks tipped the
scales of justice in his favor.

He pulled out his checkbook.

By signing a secret agreement to "donate" $5,000 to police and court
programs "as a sign of remorse," Banks, a machinist, bought his way out of
being charged with a felony in 1996, according to public documents obtained
by the Wisconsin State Journal. Eight others involved in the case were
charged with felony perjury and convicted of felony and misdemeanor
offenses for helping an Appleton man conceal $75,000 in lottery winnings in
a divorce case.

The young prosecutor who approved that deal with Banks: Vince Biskupic,
then Outagamie County district attorney, who last year narrowly lost a race
to become attorney general of Wisconsin and still is coveted by Republican
strategists as a potential candidate for high office.

The Banks case was among at least 13 in which Biskupic permitted people to
avoid criminal charges after they paid from $500 to $8,000 in secret deals
that raise legal and ethical concerns about Biskupic's practices, a State
Journal investigation shows.

During his eight years as Outagamie County's top prosecutor, Biskupic
raised at least $37,000 from individuals in uncharged deals, the newspaper
found.

Documents show the money went to politically important police agencies and
nonprofit groups and to a fund over which Biskupic had sole control in the
district attorney's office - despite a state ethics law prohibiting state
officials from using their positions to provide substantial benefits to
organizations with which they're associated.

Biskupic used money from the DA Crime Prevention and Awards fund to give
plaques to police officers and print thousands of calendars each year
touting his prosecutorial record in the Fox River Valley, 100 miles
northeast of Madison, where he cultivated a tough-on-crime image for
locking up violent criminals.

In response to the State Journal's findings, two prominent Wisconsin legal
experts are calling for a change in state law to ban prosecutors from
covertly signing pacts that involve substantial payments to third parties.

"It smacks of buying justice outside of the courtroom," said former Supreme
Court Justice Janine Geske, who was appointed by former Republican Gov.
Tommy Thompson. Geske said although a prosecutor may have good intentions,
he may gain unfair political advantage by taking credit when payments are
distributed to influential organizations.

Biskupic defended his use of the fund and the uncharged deals in an
interview with the State Journal last October, when the fund's existence
was revealed just before the election in a lawsuit filed by the Democratic
Party of Wisconsin. He came in a close second to Democrat Peg
Lautenschlager. Biskupic, 39, a father of four, is now in private practice
in Appleton. He recently acted as a state-paid special prosecutor on a
murder case and a sexual-abuse case.

In the October interview, Biskupic said deals with uncharged individuals
offer an efficient means of dispensing justice while taking into account
the crime, the potential defendant and the evidence. Over the past six
weeks, however, Biskupic declined to return repeated, detailed messages
seeking comment on the issues and cases outlined in this report.

The State Journal's investigation of Biskupic's deals with uncharged
individuals shows that:

Poor people and their attorneys weren't informed that such deals existed.
Included in the group paying money in exchange for avoiding charges were
two dentists, two corporate executives, a contractor and a student at an
expensive private college.

By making payments ranging from $500 to $8,000, and sometimes agreeing to
other terms such as counseling or cooperating with investigators, the
people signing Biskupic's deals avoided charges including criminal damage
to property, drug dealing, making obscene telephone calls, criminal
perjury, forgery and patronizing prostitutes.

Two people contend they were innocent and felt pressured to sign the
agreements to protect their reputations. One said he was "shaken down" by
Biskupic.

Spot checks with prosecutors in a third of Wisconsin's 72 counties indicate
that more than half use uncharged agreements. Of the 16 prosecutors who
reported using such deals, some said they collected no money; others said
they collected roughly $50 to $200, not the thousands of dollars that
Biskupic exacted from some individuals. The prosecutors said such
agreements represented a tiny part - probably less than 1 percent - of the
cases they handle and the offenses included domestic violence, theft and
disorderly conduct.

It's legal for Wisconsin prosecutors to make deals that permit people to
avoid facing criminal charges. The law leaves it up to prosecutors, elected
officials who by tradition are accorded extraordinary discretion, to decide
what they'd like to include in those deals - including the size of any
payments and where they should go.

Former Supreme Court Justice Geske and Walter Dickey, a UW-Madison law
professor who has served on three state sentencing-reform projects since
the 1980s, called on the Legislature to ban prosecutors from soliciting
large sums of money from uncharged people, when the money is going to a
third party rather than compensating the victim of the crime.

Geske, now a Marquette University law professor, said she had never heard
of the practice of striking large financial deals with uncharged
individuals although she's taught sentencing courses for judges locally and
nationally for 15 years.

Dickey said that because prosecutors are afforded great latitude in
dispensing justice, their deals with uncharged people should be open to
public scrutiny to ensure the power is used responsibly.

Unless the law is changed, Dickey said, innocent people will sign the
agreements to avoid the public shame of being charged, guilty people will
escape prosecution by paying money, poor people will be denied access to
part of the justice system, and judges will be denied an opportunity to
ensure that the agreements are appropriate.

Defense attorneys and public defenders around the state said they hadn't
heard of prosecutors besides Biskupic taking in large donations from
uncharged individuals. No one knows exactly how many people are involved,
or how much they're paying, because there is no public accounting of the deals.

Waring Fincke, president of the Wisconsin Association of Criminal Defense
Lawyers, said Biskupic had a statewide reputation for exacting large
payments in exchange for agreeing not to file charges. Other district
attorneys, Fincke said, typically would push for no more than $200 in such
cases, and the money frequently would go to compensate victims.

Fincke said it was widely believed by defense attorneys that lawyers with
close connections to Biskupic were able to obtain extra-friendly
settlements to avoid the filing of charges. The West Bend attorney declined
to identify the attorneys, saying, "If you were looking to seek to buy your
way out of a piece of litigation, then you knew who to call."

Ethics Board is investigating

Biskupic's use of his office fund is being investigated by the state Ethics
Board, which became interested in it last fall after questions were raised
by journalists and the Democratic Party of Wisconsin. Ethics Board
executive director Roth Judd said his agency is investigating whether
Biskupic violated the state law that prohibits public officials, including
district attorneys, from using their positions to provide substantial
benefits to organization with which they're associated.

Biskupic, according to his own statements, had sole control over the money
that flowed into and out of his calendar fund, which he closed last November.

"Whether the facts will vindicate Mr. Biskupic or lead to a different
conclusion, I cannot say today," Judd said. "In any event, the Ethics Board
expects to make a public accounting of the pertinent facts and a statement
about how or whether Wisconsin's ethics code applies to those facts."

Prosecutors' opinions vary

District attorneys' deals with uncharged individuals are a variation of
"deferred prosecution agreements," a widely used technique that permits
defendants who meet certain conditions to avert a conviction. In
traditional deferred prosecutions, defendants plead guilty or no contest to
a charge first, then charges are reduced or dismissed and punishment
withheld if defendants comply with the terms of the agreement. In many
cases, the defendant avoids being convicted of the charge.

But unlike regular deferred prosecutions, deals with uncharged individuals:

Aren't filed in court.

Aren't reviewed or approved by judges.

Aren't known to the public.

Biskupic's deals with uncharged individuals were printed on a title page
implying they were official Outagamie County Circuit Court documents,
although the papers were kept in the prosecutor's office and never were
filed in court. They listed the state of Wisconsin as plaintiff and the
individual as defendant - when actually there were no charges filed so
there was neither a plaintiff nor a defendant.

The agreements contained little or no information about the alleged
offense. In contrast, standard cases include detailed descriptions of the
alleged wrongdoing, including when and where it happened and who was involved.

David Wambach, Jefferson County's Republican district attorney and
president of the Wisconsin District Attorneys Association, is among the
district attorneys using pre-charging agreements. He believes the practice
will grow as the state's financial condition worsens because it reduces the
costs of administering justice. Such deals make sense, Wambach said, for
first-time offenders who hope to turn their lives around and who deserve a
chance to remain felony-free.

Tom McAdams, assistant district attorney in charge of misdemeanor
prosecutions in Milwaukee County, said uncharged deals are used very rarely
in the state's largest county. McAdams said he's never heard of them
involving more than about $200, and the payments usually go to victims
rather than the district attorney's office or other groups.

Dane County District Attorney Brian Blanchard, a Democrat, said he wouldn't
offer uncharged deals in exchange for money, and he's particularly troubled
by doing so outside of the courtroom.

"Requiring potential defendants to pay money to a third party of the
prosecutor's choosing in order to avoid criminal prosecution is justice for
sale, and under certain circumstances, it looks like extortion," Blanchard
said.

Brown County District Attorney John Zakowski, a Republican, said his office
has signed deals with a small number of people who avoided charges, but
none of the agreements involved substantial amounts of money to third
parties. "The problem there is... you're kind of buying off your
prosecution," Zakowski said.

Sauk County District Attorney Pat Barrett, a Democrat, said she opposes
uncharged deals because they jeopardize the rights of victims to have a say
in the punishment. Also, if a person reneged on a deal, it could be
difficult to reconstruct a case a year or two after the offense, she said.

Other prosecutors said they avoid deals with uncharged individuals because
they simply lack the staff to monitor whether people are complying with the
agreements.

The chairman of the Assembly judiciary committee said he plans to ask
Biskupic about his dealings with uncharged individuals. But Rep. Mark
Gundrum, R-New Berlin, said the Legislature should "go slow" in seeking to
limit prosecutors because of the state's historic separation of powers
between branches of government.

The chairman of the Senate judiciary committee, Dave Zien, R-Eau Claire,
declined to comment on Biskupic's practices.

Attorney General Lautenschlager, a Democrat and the former U.S. attorney
for the Western District of Wisconsin who defeated Biskupic in the election
last fall, said requiring large donations in exchange for more lenient
treatment "is bad in terms of the public's perception of justice - that
people with money have the ability to buy their way out of jail - even if
technically they (agreements) fall within the confines of the law."

Joshua Marquis, a National District Attorneys Association board member from
the state of Oregon, agreed. He called tactics such as those used by
Biskupic "inherently corrosive to people's confidence in the justice system.

"It creates a two-tier system of justice - those with money and those without."

The system in Biskupic's office was so secretive that Biskupic's top deputy
didn't know what criteria were used in offering the deals, and the longtime
head of the state public defender's office in Appleton, which represents
poor people, only last fall learned that some well-to-do individuals had
bought their way out of court while his clients faced felony charges.

Carrie Schneider, who was Biskupic's handpicked deputy for two years before
being elected district attorney in November, said she's suspending the
practice of offering uncharged deferred prosecution agreements until she
learns more about them. Asked to comment on Biskupic's uncharged deals,
Schneider, a Republican, said she hasn't examined them and doesn't intend to.

Four assistant district attorneys who worked under Biskupic - including
Mitch Metropulos, the Democratic candidate who ran unsuccessfully against
Schneider in 2002 - said they oppose such uncharged deals, which Biskupic
kept under wraps, even around the office.

Metropulos, who now works as an assistant district attorney in Winnebago
County, echoed the sentiments of the other three former assistant district
attorneys who worked under Biskupic: "I have a real problem with the
practice.I think it's a real shady way to practice justice."

Money to Biskupic's office

Although Biskupic often used the deals to raise money for worthy causes, in
several cases, he used them to boost the bottom line of his own office. In
two cases, potential defendants agreed to pay $1,100 each for interns in
Biskupic's office. The agreements allowed the two to avoid charges of
soliciting a prostitute stemming from a secret John Doe investigation that
Biskupic had run.

In prosecuting the perjury cases against Appleton machinist Floyd Banks and
the others, Biskupic's aim was to raise money for a van for his
investigator, Steve Malchow, according to Mike Balskus, a former assistant
district attorney under Biskupic. Only one of the nine people under
investigation Banks - accepted the $5,000 deal, said Balskus, who handled
the prosecution. indent"I was instructed to make an offer to all of these
guys: If you come in and pay five grand ... there would be no charges,"
said Balskus, now an assistant district attorney in neighboring Winnebago
County.

In that prosecution, eight people were charged with felonies for lying in a
divorce case involving William and Estelle Moes of Appleton. Banks was not
charged. indentSeven, including William Moes, were convicted of felonies
including perjury and false swearing, thereby losing the right to vote and
to own a gun. The eighth was convicted of misdemeanor false swearing. The
defendants received sentences ranging from probation to six months in jail.
indentBanks and his Appleton attorney, Michael Rudolph, declined to talk
about the agreement. Joseph Troy, the Outagamie County circuit judge who
asked Biskupic to investigate whether Banks and the others committed
perjury, said he was unaware any agreement had been struck with Banks to
avoid prosecution. indentBiskupic initially directed that the money be sent
to the vehicle fund of the Outagamie County Sheriff's Department. Later,
Biskupic changed the agreement to benefit four groups, including an
anti-gang organization run by the sheriff's office. Sheriff Brad Gehring,
whose department got $2,000 in the deal, was surprised to learn the payment
wasn't court-ordered.

"A lot of hope for Vince" Questions about Biskupic's handling of cases are
beginning to trickle down to his supporters, who remain convinced he could
win election to statewide or congressional office, said Brian Murray,
chairman of the Outagamie County Republican Party, and Cody Splitt, the
vice-chairwoman, who's been active in the GOP

"In the state party and the county party, everyone has got a lot of hope
for Vince, because they thought he was such a terrific candidate," Murray
said. indentMurray said he's comfortable with details he's heard of several
cases in which Biskupic worked out deals with people who weren't charged
after paying money. "It sounded like an expedient form of remedying the
problem and making those people contribute to the very things that they may
have hurt," Murray said.

"So far I'm not convinced this is an ethical smudge." indentSplitt said
Biskupic remains a potent political force if he ever decides to seek office
again. People in Appleton, Splitt said, "think the world of him and his
family."