Sheriff takes unusual approach to file threat charges (UPDATE)

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Milwaukee County Sheriff David Clarke is tapping a rarely used judicial process to bring criminal charges against a man who threatened a Madison radio talk show host.

Clarke filed a motion in Milwaukee County Circuit Court on Monday requesting a judge grant Clarke the authority to file criminal charges against Timothy Demeuse, of Milwaukee. Demeuse has admitted to threatening Vicki McKenna through a series of Feb. 14 Facebook posts.

But the only way a judge can grant that authority, according to the statute, is if the district attorney’s office refuses to file charges.

The Milwaukee County District Attorney’s Office insists the case still is under investigation.

An attorney working for Clarke insists prosecutors refused to file. According to the motion drafted by Milwaukee attorney Michael Whitcomb, of the Law Offices of Michael Whitcomb, Clarke’s office concluded that a series of profane posts warranted criminal charges, but the district attorney’s office did not file a complaint.

After the district attorney’s decision, Whitcomb said, McKenna wanted Clarke’s office to pursue a complaint through Wis. Stat. 968.02(3).

“It’s a very unique situation,” Whitcomb said. “Historically, the only way to correct a DA’s decisions not to issue charges against someone for something was at the ballot box.

“But the statute allows a citizen who disagrees with a charging decision to ask a judge to take a look, and he or she can permit the criminal complaint to be issued.”

But Milwaukee County Deputy District Attorney Jeff Altenburg disputed the allegation that prosecutors declined to bring charges. He said Clarke’s attempt to file a complaint through the courts is premature.

On Monday, Chief Judge Jeffrey Kremers ordered the case be adjourned for 60 days, pending additional review and a charging decision by the district attorney’s office.

Whitcomb appeared at the Monday hearing, but Kremers did not recognize him as Clarke’s attorney or allow him to speak because Milwaukee corporation counsel is the designated legal representative of the Sheriff’s Department.

Corporation Counsel Mark Grady spoke on behalf of Clarke, who also attended the hearing.

“As far as I’m concerned the office of corporation counsel represents the sheriff’s office in all legal matters,” Grady said, “and we are and will continue to do so.”

But Clarke said he retained Whitcomb, at no cost, to file the motion because he doubted that Grady would have agreed to the request.

Earlier this year, Corporation Counsel filed suit against Clarke over proposed sheriff’s deputy layoffs, an act which the sheriff said betrayed his confidence in county attorneys to represent him.

“So I don’t think Corporation Counsel was real big on this idea,” Clarke said of asking a judge to file a criminal complaint. “Why go looking for no?”

Clarke also said he filed the motion to encourage prosecutors to make a decision.

“He (Altenburg) is dragging his feet,” Clarke said. “I was compelled to have him either come out and say he refused to issue a complaint, or at least put him on the clock and say he’s at least considering this.”

Altenburg, who appeared at the Monday hearing, said he expects the prosecution will make a charging decision in the next 60 days, but he declined to speculate on what that decision will be.

One of the delays in deciding to charge Demeuse is finding the appropriate statute to fit the alleged crime, Altenburg said.

“We are looking at this very carefully,” Altenburg said. “And I think the fact situation presented represents a gap in the current law.”

Altenburg said the applicable law to charge Demeuse would be the computer threats statute. But there is some question as to whether the law extends to threats made on social media sites, he said.

“The statute as currently drafted,” Altenburg said, “does not appear to deal with those situations.”
According to Clarke’s motion, Demeuse posted on his Facebook page, “I am going to kill Vicki McKenna. Come and get me coppers because there isn’t a damn thing you can do about it. Retarded.”

McKenna’s radio shows focus on politics and broadcasts on WISN in Milwaukee and WIBA in Madison, according to the motion.

Kremers said he has never come across an instance in his 36 years as an attorney and judge when a public official invoked the statute to file a criminal complaint. In this case, he said, Clarke has not met the statutory threshold.

“Until the DA refuses to issues charges, or is unavailable to issue charges,” Kremers said, “nobody can ask for a judicial review.”