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McMonigal comes under fire for plea deal, sentence

By: dmc-admin//January 29, 2007//

McMonigal comes under fire for plea deal, sentence

By: dmc-admin//January 29, 2007//

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Green Lake County residents, upset by a plea agreement and sentence in a case involving alleged sexual assault by two Illinois attorneys, have launched a campaign to recall Judge William M. McMonigal.

Wisconsin Law Journal Photo/Jack Zemlicka

Did the punishment fit the crime?

That is the question many Green Lake County residents are asking in the wake of Judge William M. Mc-Monigal’s sentencing of two Illinois attorneys accused of raping a 29-old Berlin, Wis., woman in August 2005.

McMonigal levied legal penalties against Benjamin C. Butler, 29, of Medinah, Ill., and Stephen W. Addison, 29, of Chicago that were less severe than initially sought by the state after a plea agreement was reached in December 2006.

A group of local residents is upset by a plea agreement in the case, but a law professor and veteran criminal law attorney say the agreement and resulting sentence were not unusual given the situation.

The outcome has led to an increasingly publicized perception by some residents that the case was a “travesty of justice” and the outrage came to a head when a formal recall of McMonigal was filed with the State Elections Board on Jan. 9.

“I want someone to answer for this,” said resident Tara Schubert who is the primary organizer of the recall. “I tried to call the judge several times and get an explanation, but got no reply. If he couldn’t be a man and call me back, he certainly doesn’t deserve to be a judge in this community.”

While McMonigal’s actions have raised a few eyebrows in the legal community, legal observers do not consider the outcome a judicial anomaly.

Case for Conviction

Butler and Addison faced up to 60 years in prison after being accused of raping a local woman on the night of Aug. 7, 2005 at a boat landing in the town of Brooklyn, in Green Lake County. The charges were eventually reduced due to a plea agreement and the men were sentenced to community service, with Addison also receiving 30 days in jail.

Addison originally faced three counts of first-degree sexual assault, one count of fourth-degree sexual assault and false imprisonment, while Butler faced one count of being party to the crime of first-degree sexual assault, false imprisonment and battery.

Statements from the woman claimed that after she agreed to give them a ride from a tavern in Ripon to a waterfront house in Green Lake, the men groped her in the car and made sexually explicit comments.

Once they reached the destination, one which the woman claimed she was unfamiliar with, she said the men raped her on the hood of her car and forced her to perform oral sex.

She claimed she never willingly engaged in any sexual contact with either man and repeatedly discouraged their advances.

In their statements, both Addison and But-ler claimed the sexual contact with the wo-man was consensual and they relented when she asked them to stop.

In the 18 months that followed, Green Lake County District Attorney James Camp and defense attorneys Michael F. Hart and Stephen Hurley formulated their arguments, though without witnesses or substantial evidence, personal testimony was the primary ammunition for either side.

Justification of Justice

In December, they reached an agreement in which Addison and Butler each pled no contest to felony charges of second-degree reckless endangerment and sexual gratification in public, a misdemeanor.

According to Michael O’Hear, an associate professor at Marquette University Law School, plea agreements are typical in criminal cases and it’s common for a prosecutor to lessen charges in exchange for a guilty plea.

“The Green Lake County case seems like a classic ‘he said, she said’ credibility contest,” said O’Hear. “This sort of case is always risky for the prosecution. In order to get a conviction the prosecution must prove the defendants’ guilt beyond a reasonable doubt, so, if the jury can’t decide who is telling the truth, the jury must acquit. So, it is not surprising to me to see a relatively generous deal offered to these defendants.”

In his statements during sentencing, Camp admitted that “there was a lot to lose at trial,”
and that the plea agreement was “clearly a compromise.”

Criminal defense attorney Jerome F. Buting, of Buting & Williams, S.C., in Brookfield, suggested that pleading down charges in a sexual assault case is not uncommon, especially as more discovery is done by the defense. Buting, who was not involved in the case, is chairman of the State Bar’s Criminal Law Section.

“In some cases, initial facts may wear a little thin when challenged by the defense and in this case, the district attorney had an ethical responsibility to go to trial only if he could prove guilt beyond a reasonable doubt,” said Buting.

Camp sought five years of probation and nine months of jail time for Addison and three years of probation and six months of jail time for Butler, with work-release privileges.

The recommended disposition was submitted with the endorsement of the alleged victim, according to Camp, who noted that, “she has been a part of the discussions as the decision were made as to resolution in this case, and we have her full support and authorization.”

While the suggested punishment was deemed appropriate by the prosecution, the defense spoke at length to the “character” of Addison and Butler and submitted numerous letters of support on their behalf.

Neither carried a criminal record and were well-respected among their peers, two influences used by Hurley, Addison’s attorney.

“The punishment which he has already received is greater than that visited upon most and that is because of the peculiar fact that he is a lawyer,” said Hurley.

Buting agreed with the statement and noted that “judges are allowed to consider and should consider the consequences a sentence will have on a person’s reputation or livelihood.”

McMonigal ultimately sentenced Addison to 30 days in jail and 500 hours of community service along with court costs and any mandated surcharges. Butler received no jail time and 300 hours of community service along with court costs. McMonigal also stayed a five-year prison sentence for Addison and a one and-a-half year sentence for Butler.

Neither was forced to register as a sex offender and they were allowed to complete community service in Illinois.

O’Hear expressed mild surprise as to the lenience of the sentences considering the crime, but not shock.

“The lack of jail time in the case is a bit surprising for a violent crime, but, again, not entirely unjustifiable based on the lack of criminal history,” said O’Hear, who suggested that the most commonly used and reliable indicator of dangerousness is criminal history. “Also, prosecutors may take into account whether they believe the defendants are dangerous and likely to commit more crimes in the future; if the defendants are not dangerous, it may not seem like such a good use of taxpayer dollars to lock them up for a long time.”

In his sentencing statement, McMonigal expressed his belief that neither Butler nor Addison were likely to offend again and that for the most part, significant punishment had already been inflicted upon their reputations.

“We have the unique situation of having eight lawyers in front of this courtroom, and all of us can ponder what we would be thinking about at this moment if we were all about to have our careers interrupted or ended,” said McMonigal at sentencing.

Schubert, who launched the recall, was present for the sentencing and took issue with the remark.

“There were six attorneys and two defendants,” said Schubert. “The fact that they were attorneys should have had nothing to do with it. At the very least, they should lose their ability to practice.”

As of December, Addison and Bulter were no longer employed by their respective law firms at the time of the incident, and could face discipline by the Attorney Registration and Disciplinary Commission in Illinois and the Office of Lawyer Reg-ulation in Wisconsin, pending a review of the case.

Perceived Punishment

Despite the peripheral professional losses suffered by Addison and Butler, Schubert suggested it was minor compensation compared to the personal damage inflicted upon her friend.

“She faces a daily struggle and as her friend, I want to help bring closure to this situation,” said Schubert, who said removal of McMonigal would bring a sense of finality for the victim. “We don’t feel justice was served and people need to be aware that we won’t stand for this.”

Schubert claimed to have already gathered 500-plus signatures of a needed 2,000 to advance the recall effort. A
ccording to the State Elections Board, she has 60 days to gather the necessary endorsements and the results would be reviewed.

McMonigal has been circuit court judge for the county since 1992 and was re-elected to a third term in 2005.

Meanwhile, Camp announced his resignation less than a week after the settlement, effective Jan. 31, 2007, to become the traffic safety resource prosecutor for the State of Tennessee. He has been the county district attorney for the last 16 years.

O’Hear suggested that one of the catalysts in the fallout is public perception that placement behind bars is a necessary means to curb violent behavior, regardless of the circumstances.

“We have difficulties here, though, be-cause in America, we are conditioned to view incarceration as the “standard” or “normal” punishment; unlike in most other western democracies which rely more heavily on fines, probation, and other “intermediate sanctions,” said O’Hear. “We tend to view any sentence without an incarceration component as a ‘slap on the wrist.’”

To some extent, I think we are seeing the tension between the popular view of “only incarceration counts” and the view of many criminal justice professionals that incarceration should generally be reserved for dangerous people, playing out in the Green Lake County controversy.”

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