Excerpt from brief in federal lawsuit

[The following argument is from a brief filed May 15, 2000, by attorneys representing Madison Police Detectives Tom Woodmansee and Linda Draeger in a federal lawsuit filed by Patty, after the charges against her were dismissed. It was a brief in support of the defendant officers' motion for summary judgment. Federal Judge John Shabaz subsequently granted this motion, and dismissed the case. The following exchange appears on Pages 52 and 53. Patty is referred to in this pleading as "Doe." This portion of the brief asserts that Detective Woodmansee’s decision to prosecute was in no way tied to the receipt of Patty’s letters complaining about his handling of her case. In fact, he forwarded the file to the DA’s office for prosecution one day after these letters were received.]

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In this matter, there is no evidence other than Doe’s speculation as to any animosity on the part of Detective Woodmansee towards Doe. In fact, the facts show that Detective Woodmansee was concerned that Doe might be emotionally upset or suicidal after her confession, and he took her to Dane County Mental Health for a mental health evaluation. As Defendants noted, under the applicable Seventh Circuit law, as stated in Rakovich v. Wade, 850 F.2d 1180, 1210 (7th Cir. 1987) (en banc), there must be a showing in a retaliatory prosecution claim that retaliation was the "decisive," "substantial or motivating factor" behind the prosecution. Id. at 1189-90. Doe does not even mention, much less discuss, Rakovich in her brief. The case is controlling Seventh Circuit precedent, and compels dismissal because there is no evidence that retaliation was the "decisive" factor behind Detective Woodmansee’s decision to refer Doe f or prosecution to the Dane County District Attorney’s Office.

In fact, there is no evidence that Detective Woodmansee’s decision to refer Doe for prosecution was related in any way whatsoever to her letter to Woodmansee’s supervisor dated October 17, 2000, as Doe suggests. [The date ascribed here is incorrect; "Doe"--i.e. Patty--had her letter delivered by cab on Oct. 23, 1997.] Doe acknowledges there is no dispute that on October 3, 1997, Detective Woodmansee informed Doe that intended to pursue prosecution of Doe for obstructing through the District Attorneys’ Office. See Defendants’ Proposed Finding of Fact nos. 260-61. This was a full two weeks prior to Doe’s October 17, 1997 letter. In addition, Defendants’ proposed finding of fact no. 266 states that "On October 10, 1997, Woodmansee spoke with the District Attorney’s Office and advised them that he would be forwarding his report to their office for charges of obstructing." [Note: The District Attorney's Office's file has no record of this contact.] Doe provides no evidence whatsoever to contradict this finding; her only response is to state "objection hearsay" in her response to Defendants’ finding of fact no. 266. However, this objection is irrelevant because the statements in this proposed finding are not being offered for their truth, but rather to show that Woodmansee had already decided, one week prior to Doe’s letter to his supervisor, that Doe would be prosecuted for obstructing.

There is nothing in the record to contradict this fact, and thus there is nothing in the record to show that the prosecution was the result of Doe’s letter. Accordingly, there is no evidence of any prosecution based on Doe’s exercise of any free speech right in this matter. Furthermore, even if there was evidence of such a prosecution, it would be barred by the existence of probable cause and the doctrine of qualified immunity. As Defendants noted in their initial brief, under Rakovich, the facts of any case which purported[ly] demonstrate[s] a "clearly established" right against retaliatory prosecution must "closely correspond to the contested action before the defendant official is subject to liability."

[End of excerpt.]