The loss of critical video evidence was an honest error, not an intentional coverup of police abuse, Waukesha Police Chief Russell Jack said Thursday as the police response to a simple noninjury car accident escalated into a maelstrom of suspicions about police misconduct, political payback and slanted journalism.
Jack issued a statement Thursday in response to a Waukesha Freeman column Wednesday about a judge's finding that police acted in bad faith when they let two squad car recordings of a 2010 arrest be deleted, despite specific defense counsel requests that they be preserved. Based on that, Waukesha County Circuit Judge Kathleen Stilling dismissed a resisting arrest charge against a Wauwatosa man.
Jack said the Freeman column was not based on fact and "contained the biased personal viewpoints of a journalist connected to the incident through friendship and an outgoing judge" who had sought Police Department support before her defeat in the April election.
He also released a summary of an internal investigation concluding various officers had been counseled, and procedures changed, as a result of the case, but that the recordings were purged only because of mistaken misclassification, and not with any intent to keep them out of court.
"Corrective actions have been taken, officers were held accountable, and new procedures are now in place to ensure this does not happen again," the release said.
The column was by Darryl Enriquez, a former Journal Sentinel reporter and a Waukesha resident. Enriquez, who was an unsuccessful candidate for mayor of Waukesha in 2010, disclosed in the column that he knew one of the witnesses personally.
Judge defends ruling
Stilling said Thursday she decided the case like every other one she heard in her year on the bench, applying the law after giving both sides full opportunity to present and respond to evidence. Her term on the bench ends at the end of the month.
Enriquez said he had no bias against the Police Department, which he said he respects.
Defense attorney Craig Mastantuono noted that the video that supposedly incriminated his client was never even mentioned in police reports or shared with the prosecutor.
"This simply does not pass the smell test," Mastantuono said. "Rather than ask these questions and investigate the answers, the department insinuates that this is about an unfair judge or politics."
In an oral ruling June 3, Stilling said she nearly accepted the police explanation of the recordings' accidental destruction until she learned officers and supervisors had viewed the videos nearly 20 times in the days after the arrest, and that they were erased months later, right after Mastantuono asked the arresting officer specifically to preserve the video and another lawyer had served a notice of claim against the city - a precursor to a lawsuit.
"This really goes beyond mere negligence, and it really does look like bad faith," Stilling said in her ruling. "I mean, I understand this is circumstantial evidence based on a series of events, but just when I think about the way a chain of command works in a place like the Police Department, I just cannot fathom that this was negligence - or I just don't see it. And I think there was an element of intent."
Father gets involved
On the evening of June 19, 2010, Mark Schroeder's 19-year-old daughter was driving on Les Paul Parkway when she turned left into the path of another driver at Sunset Drive. Neither was injured, but the cars were badly damaged. The daughter was ticketed for inattentive driving.
Officer Ryan LaFavor responded. He was there only a few minutes when Schroeder, 53, arrived. His daughter had just left a family gathering and called her parents after the crash.
According to Mastantuono, Schroeder got out and began approaching the crash when LaFavor yelled at him to stop or be arrested. When Schroeder explained that one of the drivers was his daughter and began returning to his car, LaFavor took him to the ground, kneed him in the back, handcuffed him and kept yelling at him to "shut the (expletive) up," according to Mastantuono.
Schroeder asked to be taken to the hospital for back pain before he was released from the Police Department.
In the following days, dozens of people inside the Waukesha Police Department watched the video. According to the internal affairs report, it was used as a kind of training video, an example of a good use of force.
Two months later, Schroeder was charged with resisting an officer. According to the complaint, Schroeder began walking away from the scene but kept stopping and looking back, and LaFavor felt Schroeder, who smelled of alcohol, was not obeying his commands.
When LaFavor took Schroeder's arm to lead him away, Schroeder pulled away and "attempted to square up" with the officer, prompting the takedown and arrest.
Mastantuono said Schroeder had consumed two drinks and a half glass of wine but did not drive to the crash scene, was not intoxicated and denies squaring up, being aggressive or resisting in any way. He said Schroeder suffered a broken rib, assorted bruises and lingering hand pain.
The internal investigation report lays much of the blame for the foul-up on confusion over operation of the relatively new mobile audio/video recording system.
LaFavor, son of a Waukesha County sheriff's lieutenant, was supported at the crash scene by Officer Amanda Bauer, who formerly worked for the Milwaukee Police Department. It was her squad car camera that captured video.
Apparently, each officer labeled the recordings "crash investigation" and marked them to be saved as evidence.
Police Lt. Kevin Kober testified in April that the system self-purges after 120 days unless clips are marked as evidence.
LaFavor, who had been on the force less than six months, tended to mark everything as evidence, Kober said, and in clearing LaFavor's and other officers' accounts of unnecessary recordings, he mistakenly unmarked the Schroeder arrest, since it was still labeled "crash investigation."
Since the incident, officers have been instructed to label recordings based on the highest-priority activity, not just the initial call description, according to the internal affairs summary.