STATE OF WISCONSIN

CIRCUIT COURT

V/ALWORTH COLINTY

STATE OF WISCONSIN,
FTIED

Plaintlscurr NOv 0 DANIEL WHITE,

cOlJfrT

2013

Case No.

lz-cF-447

C'o' Cltd(Of COurE, Watwor*r

ioli'b"t'r.runn,

DePutY

clerk

Defendant.

NOTICE OF MOTION AND MOTION TO DISMISS CHARGES BECAUSE THE PRTOR MISTRIAL WAS INTENTIONALLY CAUSED BY STATE MISCONDUCT AND RETRIAL IS BARRED BY DOUBLE JEOPARDY
PLEASE TAKE NOTICE that the Defendant, Daniel White, appearing specially by his
o#nmarrc V,,^L1^9. f\^++^fi 1^-- L attuiiisys iruciiier d. uoiion, Ct ^ 5.U., tiy- Atforney Anthony D. Cotton, wiii move this Court, the

Honorable Reddy presiding, at the walworth county Judicial center on the 2013

day of

at -.M.,

or as soon thereafter as counsel may be heard, for an order

-,

dismissing the current charges and barring future prosecution. Due to egregious intimidation

of

jurors, witnesses and parties associated with this case by the State intended to cause a mistrial,
double jeopardy bars re-prosecution on these charges. As a basis for this motion Mr. White

offers sworn affidavits offered LTNDER SEAL by jurors in the previous trial asserting that
members of the

jury were intimidated by the conduct of the Walworth County District Attomey,s
s

office and Walworlh County Sheriff

deputies. In addition, Mr. White offers a swom affidavit

by Atty. Donna J. Kuchler, attomey for Mr. White at the prior trial, who further attests to
conduct calculated to intimidate and coerce the jury and parties in this case. The practical intent

of these practices was to prevent a fair hearing of the prior cases, cause a mistrial, and make
acquittal less likely.

Mr. White brings this motion pursuant to sections

871

.28 and 971 .32(2) and (5) of the

Wisconsin statutes on the grounds that the court lacks jurisdiction over the defendani because the
prosecution ofthe defendant in this case violates his rights guaranteed by the doublejeopardy
and due process of law provisions of the 5th and 14th Amendments to the United States

Constitution; article 1, section 8 of the Wisconsin Constitution; sections 939.71 and972.07 of

the Wisconsin Statutes; and Oregon v. Kennedy, 456 U.S. 667 (1982) and IlS. v. Dintz, 424U.5.
600 (1976).

STATEMENT OF FACTS Mr. White was previously tried at the Walworth County Justice Center for the same
offenses alleged in the instant case. The trial took place from September 9th through the 13th,

2013 before the Hon. Judge Reddy, before whom this motion is also brought. The trial resulted

in a granting of

mistrial by the court sua sponte on the charges now before this court for retrial.
a

At trial, defense objected to the issuance of

mistrial in part because the jury had not been given

sufficient time to deliberate. Thus the facts did not create a manifest necessity to order a

mistrial. US. v. Jorn,400 U.S.470.

The nature of the charges relating to an alleged assault by Mr. White of a member of the

Walworth County Sheriff

Department caused an abnormal interest on the part of law

enforcement. During the trial the prosecution and the Sheriff s Department engaged in coercive
and improper behavior towards witnesses, parties and potential witnesses. Based upon swom statements

ofjury members the tactics worked

and had a significant impact on the proceedings,

leading to a mistrial. Ex.

I and2.

The State's conduct included:

1)

Packing the gallery with fully uniformed deputies who scrutinized the jury throughout the

trial.

2)

Maintaining as many as 10 to 12 fully uniformed deputies in the comidors and near exits while jury members were transported to and from the courtroom. This conduct even
included positioning about a dozen uniformed officers outside the courthouse when the jurors were finally dismissed from their first day of deliberations between 10 & 10:30 PM on Thursday, September 12,20l3,1ong after their presence could have any effect beyond coercion.

3) Bringing drug dogs to the parking lot and subjecting

vehicles in the parking lot to drug sniffs,

deliberately targeting vehicles belonging to the defendant and to his legal counsel.

4)

Contacting Atty. Flitcroft, the attorney of Ms. Erika Alvaro ("Alvaro"), a woman alleged to
have been in an extramarital affair with Mr. White and demanding he have his client present at every day of the

trial without any pu{pose. Alvaro was not subpoenaed or kept from the

gallery under a sequestration order. Her name did not appear on any witness list. However,
her presence in the courtroom was calculated to intimidate and to coerce the testimony of Mr. and Mrs. White and, indeed, could have had no other purpose. Ex.
3

At least 8 of the 12 jurors made statements indicating they believed that the Deputies had
the

jurors' names, addresses, phone numbers, or license plates, and some even believed they

were having their vehicles tracked via GPS. Ex. 1 and

2.

These beliefs were a product of the

intimidating conduct of Sheriff

s Deputies that was independently

viewed by jurors, infecting

deliberations and making members of the jury reluctant to issue a verdict in favor of Mr. White. The natural products of this conduct would be either a poisoned verdict against the defendant or,

as occurred, a

mistrial. The law does not permit the State to have two bites at the same apple in

criminal

cases.

ANALYSIS
The fundamental maxim of double j eopardy jurisprudence creates a tremendous bulwark against tyranny in a democratic society. Specifically, it prevents retrial where
a

jury is

contaminated by egregious misconduct on the part of the state or the court resulting in a mistrial.

"fW]here a defendant's mistrial motion is necessitated by judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution might well be barred." There are likewise statements rn United States v. Dinitz, supra, 424 U .5. at 6ll, 96 S.Ct., at 1081, based largely on the plurality opinion in Jorn
to the same effect. Kennedy, 456 at 678(Quoting United States v. Jorn,400 U.S., at 485, n. 12)(Emphasis added). The Double Jeopardy Clause does protect a defendant against govemmental actions intencied to provoke mistriai requests anci thereby to subject defeniiants to the substantial burdens imposed by multiple prosecutions. It bars retrials where "bad-faith conduct by judge or prosecutor," United States v. Jorn, supra,400 U.S., at 485,91 S.Ct., at 557, threatens the 6'(h)arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict" the defendant. Downum v. United States,372U.S. at 736,83 S.Ct., at 1034,10 L.Ed.2d, at 102. See Gori v. United States,367 U.S., at369,81 S.Ct., at 1526,6L.8d.2d905; United States v. Jorn, supra,400 U.S., at 489,91 S.Ct. at 559, 27 L.Ed.2d at 558 (Stewart, J., dissenting); cf, Wade v. Hunter,336 U.S. at 692,69 S.Ct., at 838, 93 L.Ed., at 979. Dintz,424U.S at 6ll (Citations in original) (Emphasis added).

While cases resulting in bars to further prosecution generall5, hinge on deliberate

prosecutorial misconduct, free standing bad-faith conduct by police alone creates the same
burdens on a defendant and threatens the very same "harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorabie

opportunity." Id. Here, there is independent bad-faith by the prosecution itself,

and there is a

confluence of bad-faith by state law enforcement actors all serving the same unconstitutional puryose.

a)

The Prosecution was independently responsible for the witness coercion through the use of Ms. Alvaro.

It came to light on the first day of trial that District Attomey Daniel Necci had called the
attorney for Alvaro and used his authority in a criminal case against her to leverage her presence

at

trial. Mr. White stresses that the State had no purpose for engineering Alvaro's presence in

the courtroom beyond intimidation. She lacked personal knowledge relevant to the charges.

Nothing in discovery provided by the State indicated that she had any potential to serve as even a
rebuttal witness, and her name did not appear on any witness list. Mrs. White was a potential witness in the case and she was understandably unnerved by
the presence of her husban<i's aiiegeci intimate extramaritai party at the triai. The State's actions could only serve to coerce a potential witness and threatened reprisals against Mrs. White in a creative,bizarre, and deliberate fashion. It was no accident. It was

malice, in bad faith, and demonstrates the likelihood of culpable knowledge on the part of the
prosecution regarding the other State misconduct because it is unreasonable to assume that the prosecution and Walworth County Sheriff s Deputies were engaging in independent, uncoordinated bad-faith intimidation ofjurors and witnesses. The behavior of law enforcement was visible to the prosecutor throughout the case, and despite his duty to preserve the integrity the proceedings, Atty. Necci did nothing to stop

of

it. This behavior

only needed to ultimately

affect the deliberations of one juror in order to prevent an acquittal and thereby insure that the
State would, at a minimum, have another chance to convict Mr.

White. In fact, it effected the

deliberations of the majority ofjurors. This bad-faith scheming is the exact type of tyrannical
action that the constitutional protections against double jeopardy is intended to prevent.

b) The State Conduct of Intimidating Jurors

Was Calculated to Afford the Prosecution a More Favorable Opportunity to Convict Mr. White by Encouraging a Mistrial

What more poisonous environment to due process can a court imagine than causing

jurors to fear for their own continued safety if they do not rule on behalf of the State? The
resulting mistrial was no accident, but the culmination of broadly orchestrated bad-faith actions
on the part of the State.

Attorney Kuchler witnessed a canine unit as it was lead down a line of cars, then led specifically around her vehicle, and then led directly towards Mr. White's vehicle, where it was led around the vehicle multiple times. Ex. 3. When Attorney Kuchler went to confront the
canine officer to determine what, if any basis that officer had for investigating a vehicle

belonging to a tenured member of the Wisconsin bar in good standing, the officer departed

without speaking to Attorney Kuchler. /d

The use of the drug canine to subject defense counsel's car to a search while it was

lawfully parked in the courthouse parking lot is the type of coercive intimidation one would
more likely expect from state actors in an authoritarian country than at an American courthouse.

This conduct manifested a clear willingness on the part of Walworth County law enforcement to
subject anyone associated with the defense to unreasonable, heightened scrutiny. It was carried

out during deliberations while any jurors on a break could have seen it.
The only reasonable interpretation of this conduct was not that it was designed to serve a

legitimate investigative purpose, but was instead intended to demonstrate law enforcement's

ability and willingness to subject those aligned with Mr. White to enhanced scrutiny.
The State's coercion also included an intimidating show of police presence even after the evidence portion of the trial had concluded. The same department that allegedly abused Mr.

White before bringing charges against him had numerous deputies present in the courtroom and within the corridors during the fact finding portion of the case. The deputies maintained their
presence outside the court's exit doors well in to the night, after the fact finding portion of the

trial had concluded. The deputies were still present after 10:30 pm in the exact location that jurors had to exit after the jury had been given the case for deliberation. The pulpose of the
officers congregating at the exit doors was coercive in nature and the unnerving effect was clearly felt by the jurors. Ex.7 and2. CONCLUSION

It is clear that the State, via the Walworth County District Attomey's Office and the
Walworth County Sheriff s Department engaged in "impropriety," Kennedy,456 at 678, and "bad-faith conduct fthat] threatenfed] the (h)arassment of an accused by successive prosecutions
or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to

convict." Dintz, 424 U.S at 611. Under such circumstances, re-prosecution of Mr. White on the
same charges vioiates his constitutional protections against double jeopardy.

THEREFORE, for the reasons herein stated, Mr. White's motion for dismissal should be
granted.

'//
Dated this

/<:--day

of [*{<

,zor3.
KUCHLER & COTTON, S.C.

hony D. Cotton
State

BarNo. 1055106

P.O. ADDRESS: 1535 E. Racine Ave. P.O. Box 527 Waukesha, WI53187 (262) s42-4218 (262) 542-1993 (fax)