OPINION\Marc Eisen

A sorry decision

One of life's lessons is to avoid lawsuits. They take longer than you expect, cost more than you want and sometimes end not in justice but in a display of the law's curious illogic.

Therefore, it has been with trepidation that Isthmus has sued the city of Madison twice to open up police records to public inspection. And it was with trepidation that news editor Bill Lueders, sans legal assistance, personally brought a complaint to the Madison Police and Fire Commission, alleging that a citizen complaint had been mishandled.

Our fears aside, we thought it all pretty basic to the newspaper's role as watchdog. Nobody wields more power than the police. If complaints are made that they have abused that power, the citizens have a right to know about it.

In 1995, Circuit Judge Sarah O'Brien agreed with us and the Wisconsin State Journal, our co-plaintiff, as she ordered the police to provide access to all citizen complaints made against police.

In 1996, we sued again, this time joined by The Capital Times and the State Journal. We asked Circuit Judge Mark Frankel to order the police to reveal another category of complaints, those filed by fellow officers and other professionals against Madison police. This February, Frankel ruled substantially in our favor, ordering the complaints released but with the names of the officers and other identifying information stricken.

No great stories came out of these documents, but we felt an important point had been made: In an era when the police seem increasingly close-mouthed about their operations, we had established that complaints about misconduct aren't going to be covered up.

At least that's the cheerful illusion we labored under until Sept. 30. That's when the Police and Fire Commission ruled that Bill had no "standing" to pursue our charge that the police department had, in fact, covered up the exact sort of citizen complaint that we had spent nearly $18,000 litigating to open up.

It was, in my opinion, a remarkably bad decision that owed more to arcane legalisms--Bill wasn't an "aggrieved person," hence we had no "standing" to petition the PFC--than to common sense and good public policy.

First, for my money, two successful open-records lawsuits clearly establishes our "standing" to appear before the PFC on a records issue. Spending nearly $40,000 on legal bills, for both cases, documents our seriousness in these matters.

Second, the PFC decision sharply curtails the PFC's own role as the disciplinary body for police and firefighters. Should the decision stand, a horrible precedent will be set for the oversight of the police.

Say, to pull an example from recent history, Joe Citizen spots a Madison police officer peeing into the beer bottle of a drunk on State Street. Because of this ruling, Joe Citizen no longer has a right to file a complain with the PFC. Yup, Joe Citizen has no "standing"; only the drunk is the "aggrieved person."

I suppose it shouldn't be a surprise that Bill's PFC case involves "Patty," the Madison woman who says that, under the duress of a police interrogation, she was forced to recant her account of a violent rape. Attempts to prosecute her for obstructing an officer later collapsed, in part because of Bill's vigorous reporting of the inconsistencies in the district attorney's case.

Certainly, there's an interesting issue of journalistic propriety to be discussed with Bill's advocacy of Patty's cause. What I've never doubted, though, is that something stunk about the police handling of Patty's complaint of a detective's misconduct.

In late October 1997, after a news story had appeared voicing police concerns about false rape accounts, Patty wrote the department alleging that the detectives who interrogated her had coerced her into recanting her story.

Her complaint then disappeared.

When Bill filed an open-records request to examine the citizen complaints for 1997 (it took seven weeks for the MPD to respond), Patty's complaint was nowhere to be found. Instead, what Lueders subsequently discovered, is that the detective's supervisor, Lt. Dennis George Riley, had forwarded Patty's letter to the accused detective, instead of to the Professional Standards Unit for review.

I was astonished. We had spent a ton of money litigating the right to access these records, and here the police not only failed to release a record we had a right to see, but failed to follow its own procedures regarding complaint acceptance and investigation!

To be sure, somebody else might see the facts differently. Patty's handwritten letter, arguably, might not be considered a formal complaint. But even if that's the determination, it's still not Riley's call. That's the job of the Professional Standards Unit, to investigate allegations of police misconduct.

As much as anything, this apparent violation of the police process is what disturbs me. Consider if the same thing happened in your own shop: an employee is accused of ethical misconduct by a customer. What do you? Do you tell the accused that somebody is bad-mouthing him or her and leave it at that? Or do you pass it up the chain of command for further review?

Hiding bad news from the boss is a classic sign of a troubled organization. And that makes me wonder about the Madison Police Department. Are there other incidents being covered up? Are there other management decisions being freelanced outside of the rules? One screw-up doesn't justify an indictment. But I sure as heck would feel better if the PFC had considered the merits of Bill's complaint rather than resorting to a legalism that allowed it to avert its eyes.

As it is, Bill is pursuing a second charge that the PFC has allowed to proceed--that Riley lied to him in saying he had no knowledge of Patty's complaint. Frankly, I'm not optimistic about the outcome; Riley is using the "I forgot" defense, which is enormously hard to puncture.

In the end, the PFC does not inspire confidence. The five citizen members--all certifiable "good liberals"-- seem lost in the gossamer of lawyerly web-spinning. Citizens should be warned: The commission is no place to take your complaints about police or fire misconduct. n

Marc Eisen (eisen@isthmus.com) is editor of Isthmus.