Trial and Error

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Almost five years after contacting the Wisconsin Inno-cence Project (WIP) and nearly a decade behind bars, Jeffrey J. Dake is a free man thanks to the investigative work of the University of Wisconsin Law School initiative.

This June, the program successfully argued a new trial was needed for Dake, 37, who had been in prison since 1998 for raping a 14-year-old girl.

Langlade County Circuit Court Judge Fred W. Kawalski granted a new trial, but rather than revive the past for the victim, district attorney Ralph M. Uttke elected not to prosecute the case. Charges were dropped against Dake, who had six years left of his 16-year sentence.

“The feeling was after a significant amount of time in the jail system, we felt the interests of the public had been protected and the case didn’t warrant an appeal,” said Uttke, who added that Dake unsuccessfully appealed in 1997. “I had contacted the victim who said she just wanted to get on with her life at this point.”

According to attorney John Pray, co-director of the Wisconsin Innocence Project, Dake’s was the fourth successful case the program has argued in the last year and in three of the four, new trials were granted and the state subsequently dismissed charges. The WIP’s most prominent exoneration was Steven Avery, who had served 18 years in prison.

In Dake’s case, the WIP based part of its argument on the notion that the jury in the original trial was unaware of pertinent information regarding the girl’s stepfather who testified.

His testimony claimed that Dake allegedly offered the girl $20 if she would not tell anyone about the assault, but Dake said the first he heard of the $20 was from the stepfather, shortly after the allegations were made. The stepfather denied ever telling Dake and the state argued that the only way Dake could have known about the money was if he was the one who committed the crime.

“What the jury did not know was that the stepfather had been formally charged with sexually assaulting the same girl six or seven times during the same time frame,” said Pray.

That allowed the WIP to argue that the girl could have mistaken who the offender was as the assaults took place in the middle of the night and she testified that on one occasion, she could not see her attacker, but said it was Dake based on the “feel of his shoes.”

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Pray also noted that the stepfather was charged in a separate case and ultimately pleaded guilty to two counts of sexual assault and received probation.

But Uttke, who was the prosecuting attorney in Dake’s first trial, believed that the revelation was not significant enough grounds for a new trial because Dake’s original defense attorney likely knew about the stepfather’s pending charges.

“I disagree with their (WIP) position and the ruling by the judge, because my belief is that Mr. Dake’s attorney was aware of the allegations against the father, and even if he didn’t know at the time, I don’t think it warrants a new trial,” said Uttke. “Unfortunately, circumstances have changed now which has made it difficult to verify that.”

Dake’s original defense attorney, William E. Shevlin died less than a year after the trial and the presiding judge, Robert A.P. Kennedy, has since retired.

Uttke also said the pursuit of a re-trial would have likely resulted in a sentence of time already served for Dake.

“At this point, it was important to balance the needs of the community and hopefully he is no longer a threat to society,” said Uttke.

Dake has maintained his innocence all along and first contacted the WIP in 2002, but because of the high volume of requests received, his case was not sincerely evaluated until several years later.

The WIP filed a motion in November 2006 and the case was orally argued by UW-Law student Dylan Buffum in Lan-glade County in March 2007.

“As you might imagine, we have a rather large backload of cases, so it took some time before we were able to seriously look at his case,” said Pray. “This was a difficult case because it didn’t involve DNA or other physical evidence. Because of that, we were uncertain for a long time as to whether this would be a case where we could make a difference.”