By Gina Barton of the Journal
Sentinel
At least six Milwaukee police
officers were investigated for impeding the inquiry into a series of illegal
strip and cavity searches by their fellow officers, according to records
recently made public in court.
One officer told authorities
she had not witnessed an improper search even though a video showed she was
standing just a few feet away. Five others were suspected of violating a court
order by discussing the strip search investigation soon after they were
subpoenaed to testify at a secret fact-finding hearing in 2012.
The six officers may have
broken the law or violated department rules, the video and documents show, but
none of them faced criminal charges or discipline by the Police Department.
Officer Stephanie Seitz was
investigated for perjury after prosecutors unearthed a surveillance video that
contradicted her sworn testimony. Prosecutors concluded Seitz was "clearly
untruthful" when she said she had not witnessed then-officer Michael
Vagnini retrieving drugs from a man's buttocks, according to internal affairs
records.
The five other officers could
have faced contempt of court charges for violating a secrecy order when they
went to a Wauwatosa parkto talk with three fellow officers — including Vagnini
— who later were criminally convicted in connection with the illegal searches,
the records show. At the time of the meeting, at least seven of them had been
stripped of their police powers pending the outcome of the investigation.
Police Department leaders and
prosecutors decided there wasn't enough proof to take action against anyone for
hampering the investigation despite numerous inconsistencies found in a
Milwaukee Journal Sentinel examination of the video, police reports,
transcripts of sworn testimony and internal investigators' reports. Many of the
documents were recently made public as part of a federal civil rights lawsuit
against the city and the Police Department.
Seitz did not return a
telephone call. A police spokesman said she did not want to be interviewed.
Attorney Brendan Matthews, who
represented some of the officers present at the park, said in his view the
gathering was not a violation of the secrecy order. The only thing barred by
the subpoenas, Matthews said in an email, was discussion of the fact that the
officers had received them.
Milwaukee County Circuit Judge
Jeffrey A. Wagner, who oversaw the fact-finding hearing, known as a John Doe,
did not inform the officers they were not to discuss other matters until they
appeared before him to testify — which occurred after the gathering at the
park, Matthews said.
"If, as the (Police
Department) has erroneously contended, the officers were already under a
'blanket' secrecy order by means of their subpoena, why would Judge Wagner have
forced them to take an oath of secrecy as the first order of business in the
Doe?" Matthews asked. "He is a smart judge and he knows what he is
doing."
More than 50 people have sued
the department, contending their constitutional rights were violated as a
result of improper strip and cavity searches — purportedly for drugs — which
occurred in district stations and on the street during a five-year period
beginning in 2008.
Last month, in the first of
those cases to go to trial, a federal jury awarded a Milwaukee man more than
half a million dollars after finding his civil rights were violated by officer
Michael Gasser, among those who met at the park, and his partner. The search
was unconstitutional because the two officers had no legal reason to conduct
it, the jury found, not because of the way in which it was done.
The trial in a second case was
set to begin Monday, but attorneys instead agreed to try mediation after U.S.
District Judge J.P. Stadtmueller criticized the city's continued efforts to
defend strip and cavity searches by police.
"Eventually, it comes at a
very, very high cost — whether it's morale in the Police Department, whether
it's the citizens' respect for the rule of law in the community — that there
are those in the city that want to defend this sort of conduct. It's plainly
unconscionable," Stadtmueller said at a hearing last week.
Vagnini, who is named as a
defendant in the second lawsuit, as well as in several others, pleaded no
contest to four felonies and four misdemeanors in connection with illegal
searches and is serving a 26-month prison term. Three additional officers —
Jeffrey Dollhopf, Brian Kozelek and Jacob Knight — pleaded no contest to
misdemeanors. All four were forced to resign.
Officers Zachary Thoms and
Gasser admitted they were present during invasive searches but avoided charges
and kept their jobs after making deals with prosecutors.
Authorities began examining the
possibility of criminal conduct by officers in March 2012, after an internal
affairs lieutenant detected a pattern of problematic searches.
At the Police Department's
request, the Milwaukee County district attorney's office convened the John Doe
investigation.
John Doe hearings are similar
to federal grand juries, in that witnesses can be brought before them and
compelled to testify in secret. Witnesses are placed under oath. They can be
jailed for refusing to answer questions and charged with perjury if they lie.
Such inquiries typically are
used to find the truth about criminal conspiracies in which witnesses aren't
cooperating.
Video contradicts officer
Early in the investigation,
Seitz was called to testify about a 2011 arrest in which Vagnini searched the
suspect's anal area for drugs at the District 7 station on the city's north
side.
Seitz's report says Vagnini
"located a clear plastic sandwich baggie in between (the man's) butt
cheeks. Inside the baggie was an off-white chunky substance suspected to be cocaine."
But during the John Doe, Seitz
testified that she had not watched the search. Rather, she only saw Vagnini go
behind the man, then saw a bag of cocaine hit the floor, she said. In writing
her report, she assumed the cocaine had come from the man's buttocks based on
earlier information, Seitz explained on the witness stand.
Five months after Seitz gave
that testimony, the man appealed his sentence on the drug conviction and
prosecutors found a surveillance video of the search among their records.
The video file, which had been
corrupted, had to be repaired before prosecutors could watch it.
Once they did, Chief Deputy
District Attorney Kent Lovern and then-assistant prosecutor Miriam Falk
convened another John Doe, this time targeting Seitz.
The prosecutors told police
"they reviewed the booking room video and compared it to Officer Seitz's
John Doe testimony. They indicated that Seitz was clearly untruthful when she
testified," internal affairs Lt. Derrick Harris wrote in his report.
In the video, Seitz is
"looking directly at Officer Vagnini" as he conducts the search,
according to Harris' report. She "clearly observes" Vagnini pulling
down the man's pants and underwear with his left hand, then reaching inside the
man's clothing with his right hand. After the baggie falls to the ground, Seitz
puts on a glove and picks it up.
But Lovern decided the video
alone was not enough to charge Seitz with perjury. So he subpoenaed two other
officers, Adam Dettman and Jeremy Klug, and questioned them during the second
John Doe, records show.
According to Harris' report:
"Klug is also...sitting in the booking room and observing the search. He
also has a clear line of sight and is able to observe Officer Vagnini placing
his hand inside the buttocks of (the suspect)."
But neither Klug nor Dettman
provided corroborating evidence to bolster the case against Seitz, Lovern said
in an interview with the Journal Sentinel. As a result, he concluded he could
not prosecute her.
"I couldn't prove that she
had lied under oath about anything," Lovern said. "I don't know that
the video proves that beyond a reasonable doubt one way or the other."
In a deposition in one of the
civil suits, Seitz insisted she did not see how the baggie of cocaine ended up
on the floor.
"When you slow the video
down, I didn't see anything," Seitz said during her deposition. "I
was not telling anything but the truth and what I remember happened that day. I
also would not lie about something that I knew was on video."
When an officer is suspected of
a crime, law enforcement agencies are supposed to conduct two separate
investigations: the first to determine whether any laws were broken; the second
to figure out whether any department rules were violated.
One of the Police Department's
"core values" is integrity, and officers have been fired for lying in
other cases. Officers who lack credibility are useless as witnesses against
people they arrest.
After Lovern declined to charge
Seitz, internal affairs officers completed their second review, which focused on
whether she had violated the department's code of conduct.
That investigation is now over
and Seitz was not was disciplined, department spokesman Lt. Mark Stanmeyer said
in an email.
He did not elaborate on the
reasons, saying only that the department could not "sustain...internal
charges."
The Police Department refused
to release documents detailing the results of the review, citing Wagner's
secrecy order.
No charges for meeting
The Police Department also has
not released records regarding its investigation into the meeting among the
officers at the park, requested by the Journal Sentinel in July. On Friday, the
department notified the news organization that those records would be turned
over in about two weeks.
Under secrecy orders such as
Wagner's, which are standard practice in John Doe investigations, violations
can be charged as criminal contempt of court, which carries a maximum penalty
of six months in jail, or as civil contempt, which results in a fine.
Asked if any officers were
referred to the district attorney for possible contempt of court charges,
Lovern did not reply.
No officers were charged.
The Police Department also did
not discipline any officers for violating supervisors' orders not to discuss
the John Doe investigation or for lying — although their accounts of the
meeting did not match.
Internal investigators
concluded they could not prove the officers broke any rules, according to
Stanmeyer.
The meeting took place March
28, 2012, at a park on N. 104th St. and W. Wisconsin Ave. in Wauwatosa,
according to police records filed in court as part of the civil case.
Three of the officers who
attended — Vagnini, Knight and Kozelek — later were criminally convicted in
connection with the illegal searches. The other five had been subpoenaed the previous
week and were scheduled to testify within days after the meeting.
Thoms, one of the officers who
got an immunity deal from prosecutors, told internal investigators the
assembled officers discussed three searches that occurred in 2012. Vagnini was
later criminally charged in connection with one of those searches, although the
charges ultimately were dismissed as part of a plea agreement.
"Thoms stated the meeting
in the park occurred...in violation of the secrecy order," internal
affairs Detective Justin Carloni wrote in his report.
Thoms said Vagnini initiated
the meeting via text message.
"Thoms would not get into
much detail, but indicated they discussed the cases trying to figure out why
they were under investigation for those particular incidents," Carloni's
report says.
During a deposition in one of
the civil cases, Thoms again admitted they had discussed the investigation:
"Basically we were just seeing how everyone was doing, kind of trying to
sift through everything, see...if anyone had any further information about what
our — what the accusations against us were and what this was all about."
He added: "It wasn't a
plotting. It wasn't, 'What are you going to say?'... At no point during that
meeting was anything like that ever mentioned. I want to make that very clear,
OK?"
In addition to Thoms and the
officers later criminally convicted, also present were Gasser; Jason Mucha,
then the sergeant who oversaw the anti-gang unit at District 5; and officers
Brian Burch and Louis Kopesky. In a deposition taken from prison, Vagnini said
he wanted to be sure none of the others were suicidal and to remind them they
had nothing to hide.
"There's a John Doe.
Obviously, don't lie. That's what I said repeatedly," Vagnini testified.
In his deposition, Mucha said
the group simply went to the park to "socialize."
When Gasser was deposed, he
said he remembered almost nothing about what happened at the park that day.
"I do remember going to a
park," Gasser testified. "I don't remember if (Vagnini) asked me to
come to a park, (or) who did. I just remember we were at a park hanging
out."
Called to the witness stand at
last month's civil trial, Gasser added that he could barely remember the
investigation.
"I know I got a subpoena.
I remember it was for a John Doe hearing, but I can't recall the details,"
Gasser testified. "That was two and a half years ago."
The one thing he said he
remembered very clearly, both during the deposition and on the witness stand,
was that they definitely had not discussed the strip search investigation.
"We were ordered not to
discuss it and we didn't discuss it, so I don't understand how it could violate
rules if we weren't discussing it," he testified.
