Jude beating trial

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Milwaukee police officers Daniel L. Masarik, left, and Jon Bartlett, center, were among three former officers found guilty of violating Frank Jude Jr.’s civil rights and assaulting him, while acting as police officers. The beating took place outside a party in Bayview. Former Milwaukee police officer Andrew R. Spengler was also found guilty during a federal trial last month. All three had been acquitted during a trial in state court. AP Photo/Milwaukee Journal Sentinel, David Joles

A similar time span for court proceedings and jury deliberations in the federal case against one suspended and three former Milwaukee police officers accused of violating the civil rights and assaulting Frank Jude, Jr. while acting as officers, ended distinctly differently than the state trial.

Additional testimony from former police officers may have helped solidify the convictions of fired officers Jon Bartlett, 35; Andrew Spengler, 28; and Daniel Masarik, 27. Inconsistent statements spared suspended officer, Ryan Packard, 27, who was acquitted of both charges.

The state trial concluded in April 2006 with acquittals of Bartlett, Spengler and Masarik on assault charges, while Packard was not charged.

Marquette University Law School Professor Michael M. O’Hear suggested that while the charges were different, the two cases boiled down to the same thing. Those elements included who was actually present when the beating occurred, and among those present, which ones were participating in or encouraging the cops’ actions as they crossed the line from lawful restraint to an unjustified assault.

New Faces in the Same Place

One of the three federal prosecutors noted that a key distinction in earning three guilty verdicts from the eight-woman, four-man jury was new testimony. Four former officers involved in the incident pleaded guilty to federal charges after the state trial and two, Jon Clausing and Joseph Schnabel, offered significant testimony in support of the prosecution during the federal proceedings.

“If we can develop people who were involved to plead guilty and testify, obviously that changes the dynamic,” said Assistant U. S. Attorney Mel Johnson, who noted that the officers were in a different position in the state case.

“Once we were able to prove they were culpable, that put them in a position where it was in their advantage to plead guilty and try to improve their situation for sentencing,” Johnson said. “It made sense to agree.”

During the trial, both Clausing and Schnabel admitted to taking part in the assault and identified Bartlett, Spengler and Masarik as fellow participants. The former officers had previously lied about their roles in the incident.

The fact that the two, and especially Schnabel, revised their stories was a tremendous asset to the prosecution, especially in light of the sometimes muddy testimony of other witnesses who also appeared at the state trial, Johnson said.

“Even though (Schnabel) admitted he lied in our cases, admittance of guilt tended to in a way enhance his credibility,” said Johnson. “It’s easier to attack someone who said, ‘He did it and I didn’t,’ as opposed to someone who said, ‘We did it.’”

Defense attorney Mark E. Hersh of Mark Hersh Law Office, SC., said the testimony by the ex-officers was the critical aspect of the federal case.

“The Feds absolutely had unlimited resources compared to the state investigation and were able to get a lot of people to admit their own involvement in exchange for their testimony,” said Hersh. “The defense tried to show that those witnesses who testified were the bad guys and liars who withheld the truth, so it came down to who the jury believed.”

Though Bartlett’s attorney, Gerald P. Boyle praised the handling of the trial from all sides, he expected appeals to be rooted in defense of an alleged “conspiracy” among officers to cover-up the incident.

“I think conspiracy concept is always difficult because no words were mentioned like, let’s get them,” said Boyle of the officer’s testimony. “If it was a conspiracy, and we always disputed that, it was a very silent one. It’s a potentially major league question on appeal, whether perjured testimony can be relied upon.”

Boyle went on to say that there were no statements attributed to anyone about their job in the conspiracy and that there was no prior agreement to get Jude.

Sentencing is set for Nov. 29 and each of the convicted face up to 20 years in prison and $500,000 in fines.

O’Hear suggested that there may also be some litigation relating to the calculation of sentences under the federal guidelines, as well as potential arguments by the defendants for a sentence below the recommended range.

“I expect one or more of the defendants will seek lenience on the basis of an otherwise clean record, as well as the potential for victimization at the hands of fellow prisoners,” said O’Hear.
Packard Goes Free

Though Johnson admitted that a fourth conviction would have been ideal, he conceded that there was a “reasonable distinction” between Packard and the other officers.

The cases against Bartlett, Spengler and Masarik were linked by testimony and the fact that they were off-duty at the time of the assault, but Packard was not even charged in state court.

“Obviously, we had a good enough case, but we also realized that it wasn’t perfect partly because there was so much water under the dam with witness who had made four or five statements and testified before,” said Johnson.

Inconsistencies made the fresh testimony all the more vital, but in the case of Packard, who is currently on suspension, there was not enough to warrant a conviction.

Attorney Rodney L. Cubbie said his client’s case came down to one witness, fired officer Jodi Kamermayer, who testified that she saw all four defendants attack Jude, but later contradicted her statements and admitted to drinking a bottle of wine on the night of the incident.

“She was inconsistent, she wasn’t credible and she was intoxicated at the time of the observations,” said Cubbie. “The other defendants had multiple people accusing them; the other three were intoxicated and nobody said Ryan had a drink.”

O’Hear was not surprised by the acquittal of Packard because he was on duty at the time of the incident.

“He was actually on duty at the time of the beating and centered his defense on the claim that he was just doing his job,” said O’Hear. “The other defendants, though, were straddling the line between being cops and just plain party-goers. Jurors may have reasonably felt that police officers in that sort of situation really should think twice before forcibly restraining another person.”

Rare civil rights victory

Despite the apparent victory for the prosecution, it was a relatively infrequent one nationally in terms of criminal civil rights cases at the federal level, according to attorney Nathan A. Fishbach.

O’Hear supported the notion with recent data from the Department of Justice’s Bureau of Justice Statistics that shows only 55 percent of criminal civil rights cases that were litigated to a jury verdict earned convictions compared to 82 percent of general federal criminal cases.

“These types of cases are very difficult to prosecute, because of the substantial emotion and many credibility issues involved, which is why very few criminal civil rights cases are prosecuted by Department of Justice,” said Fishbach, who worked in the U.S. Attorney’s office in the Eastern District of Wisconsin for 13 years and is now with Whyte Hirschboeck Dudek SC, in Milwaukee.

Fishbach noted that a case like Jude’s demands corroboration of evidence because it often hinges on credibility, unlike federal white-collar crimes, which are often document-driven.

“Here you were dealing with people who by definition have great credibility in the community,” said Fishbach of the police officers involved.

Because of the infrequency at which cases of this nature are won by the prosecution, let alone taken to federal court, Fishbach thought the outcome would serve as a national model for prosecutors.

“I think other federal prosecutors will be looking at this case and how it was prosecuted and decide how and when to bring similar cases,” said Fishbach. “Though these types of cases are not similar across the country, the methods used to prosecute and present will be examined around the county.”