Lt. Riley's post-hearing brief

[What follows is the reply brief submitted to the Madison Police and Fire Commission on Nov. 5, 1998, on behalf of the respondent, Lt. Dennis George Riley.]

BEFORE THE BOARD OF POLICE AND FIRE COMMISSIONERS
OF THE CITY OF MADISON

BILL LUEDERS,
Complainant
vs.
LT. DENNIS GEORGE RILEY,
Respondent.

NOW COMES the respondent, Lt. Dennis George Riley, and submits this post-hearing brief.

The Board's rulings on pre-hearing motions resulted in limiting this matter to a single disciplinary claim, described as follows by the Board's chairperson:

The specific charge which survives as the subject of this hearing is the allegation that Respondent violated Rule 2-1816, Untruthfulness, as follows. . . [and quoting from the Complaint]: "I believe that Lieutenant Riley violated this rule when he falsely represented to me that he had no knowledge of Patty's complaint."

(Transcript "Tr." at 7.)1 [Footnote 1: Citations to the Transcript of the hearing in this matter are abbreviated as "Tr."] The applicable rule, City of Madison Police Department ("MPD") Rule No. 2-1816, states as follows:

[Quote] Members of the Department are required to speak the truth at all times and under all circumstances, whether under oath or otherwise.

This regulation prohibits perjury, withholding of evidence from a judicial proceeding, false public statements, untruthful statements made within the Department, and any other misrepresentations. The regulation does not required divulgence of matters prohibited in 2-1837. [Unquote.]

As attested to by Senior MPD Management familiar with this rule and with the disciplinary process, MPD Rule 2-1816 is violated only if an officer knowingly makes a false statement with intent to deceive. (Tr. at 67-Lt. Pat Malloy; 228-Asst. Chief Salvatore Balistreri.)

As the person bringing disciplinary charges before this Board under sec. 62.13(5), Stats., Complainant Lueders bears the burden of proving the charges by a preponderance of the evidence. In Matter of Owens, 122 Wis. 2d 449, 454-55, 362 N.W.2d 171 (Ct. App. 1984) (charges must be proven by a preponderance of the evidence). Accordingly, the issue presented is whether Lueders has proven by a preponderance of the evidence that Lt. Riley knowingly made a false statement with intent to deceive when he told Lueders, in a telephone conference in early February 1998, that he had no knowledge of a letter sent to him by Patty [last name], a letter Lueders characterized as a complaint.

The respondent, Lt. Dennis Riley, has served the city of Madison for 31 years as a police officer and a command officer with the MPD. In these 31 years, he had never been disciplined in connection with his employment as a police officer. (Tr. at 176-78.) Department witnesses described Lt. Riley as having an outstanding or "impeccable" reputation for truthfulness within the Department, and many of these witnesses had known and worked with Lt. Riley for twenty to thirty years.2 [Footnote 2: The Department witnesses described Lieutenant Riley's reputation for truthfulness as follows: "outstanding" (Det. Tom Woodmansee, Tr. at 39); "I know that he is a truthful person and I know that he has a reputation for truthfulness in the department" (Lt. Pat Malloy, Tr. at 68); "he's a person of high integrity" (Chief Richard Williams, Tr. at 84); "Lieutenant Dennis Riley is known around this organization as being absolutely truthful and absolutely candid in all circumstances" (Cpt. Jeffrey La Mar, Tr. at 100); "he has a reputation for being straightforward and truthful" (Asst. Chief Salvatore Balistreri, Tr. at 229); "His reputation is held in very high regard" (Asst. Chief Richard Cowan, Tr. at 234).]

In early September 1997, Lt. Riley assigned Det. Tom Woodmansee to investigate a report by Patricia [Patty] that she had been sexually assaulted. (Tr. at 26, 181.) As a supervisor in these circumstances, Lt. Riley would read the initial report and assign the case to a detective to perform the investigative work. Lt. Riley would then act as a "sounding board" for the investigating detective, and would learned from other detectives. (Tr. at 180.) This was the division of responsibility relative to the [Patty] investigation; Lt. Riley did not personally go out and gather the evidence. (Tr. at 181.) According to Det. Woodmansee, he spoke with Lt. Riley about the case on perhaps two occasions during the investigation. (Tr. at 26.)

At some point, Det. Woodmansee told Cpt. Jeffrey LaMar, Lt. Riley's supervisor, that there were many inconsistencies and that he had concerns about the victim's statements and whether or not the facts had been correctly reported to him. (Tr. at 88-89, 91.) After the MPD had determined the report was false, at Cpt. LaMar's direction,3 [Footnote 3: Cpt. La Mar did not speak with Lt. Riley when preparing the news release, although they had discussed much earlier that Cpt. LaMar was interested in crafting a press release if the report proved false, because the initial sexual assault report had been publicized and Cpt. LaMar had received calls from citizens in respect to it. (Tr. at 89-93.)]

It issued a News Release stating as follows:

[Quote] A first degree sexual assault previously reported to Madison Police on September 4, 1997 has been determined to be a false report. A 38-year old woman had claimed she was assaulted in her home located in the 700 Block of Fairmont Avenue. The woman told officers the suspect had been armed with a knife when he assaulted her in a bedroom.

Extensive investigation indicated a lack of physical evidence and inconsistent statements made by the woman to detectives. When confronted with this information, the woman admitted to investigators that she had fabricated the report.

This information has been forwarded to the Dane County District Attorney's office for possible obstructing charges to be brought against the woman.

(Exh. 6.) The local daily newspapers (the Wisconsin State Journal and the Capital Times) published articles based on the News Release. (Id.) Sometime shortly after the issuance of the News Release, Lt. Riley showed Cpt. La Mar a handwritten letter with the name "Pat [Patty]" on the bottom. (Tr. at 94-95, and Exh. 2.) Cpt. LaMar said that Lt. Riley indicated the letter had been given to a receptionist or left for him. (Tr. at 95.) Lt. Riley showed Cpt. LaMar the letter and asked him, "what do I do with it." (Tr. at 96.) They discussed the letter and that it was an apparent response to the newspaper article based on the press release. (Id.)

At or about the time Lt. Riley and Cpt. LaMar discussed the letter from [Patty], the detective team was embroiled in a hectic series of investigations. Cpt. LaMar thought Lt. Riley was supervising a homicide or an attempted homicide investigation. (Tr. at 101.) Lt. Riley said he had two different homicides he was working on at about that time, and "the Detective Bureau would have been a zoo" at that time. (Tr. at 199.) He would have been focused on the homicide investigations. (1d.)

When he received [Patty]'s letter in late October 1997, Lt. Riley "scan read" it. He understood the letters4 related to the [Patty] investigation. (Tr. at 201.) He understood the letters to be the "venting" of a person that was being told she was going to be charged about her interview. (Tr. at 203.) He thought he would have

4. There was a handwritten letter signed "Pat [Patty]" and a copy of the letter addressed to the Wisconsin State Journal. (Exh. 1.) noticed the line in the letter stating, "I'll tell you right now you can use this as you wish," and his reaction would have been to make sure the letter gets in the case file because obviously she going to be using it as her defense. (Tr. at 204.)

Detective Woodmansee recalled one brief conversation with Lt. Riley in late October 1997 about the letter. Lt. Riley did not ask any questions, but told him to put the letter in the case file. (Tr. at 34.) Woodmansee said that Lt. Riley "instructed me to put [it] in the case file, and I believe he intended for me to put it in the case file for the District Attorney's office. However, I interpreted it as putting it in my case file, which is what I did." (Tr. at 40-41.) Lt. Riley never told Det. Woodmansee not to put the letters in the official Records file of the MPD; nor did he tell Det. Woodmansee not to send the letters to the District Attorney. (Id. at 41.)

In early February 1998, Lt. Riley spoke with two nurses at Meriter concerning the [Patty] sexual assault investigation. One Meriter Nurse, Jill Poarch, spoke with Lt. Riley in between two telephone conversations she had with Lueders. (Tr. at 118.)

On direct examination, Poarch described the substance of her conversation with Lt. Riley as follows:

[quote] I believe that you [Lueders] had told me certain statements about things that Patty [last name] said that Detective Woodmansee said that I had said, and I think there were a couple of statements about that, and then you also asked me about whether or not there was a thing as rubber residue. [unquote] (Tr. at 122-23.) In this conversation, Poarch said: (1) She told Lt. Riley that Lueders had called her in regard to the [Patty] matter; (2) Lt. Riley told her he was satisfied with the way that the investigation had been conducted; and (3) there was no discussion of any kind about any letters which [Patty] had sent to the Police Department. (Tr. at 125-26.)

Colleen O'Brien, a supervisor of nurses with the SANE program at Meriter, also spoke with Lt. Riley after speaking with Lueders. (Tr. at 151.) She thought the call was on February 4,1998. (Tr. at 152.) She told Lt. Riley that she was getting calls from Lueders (Tr. at 151), that she discussed certain concerns she had about the investigation with Lt. Riley (Tr. at 152), but she never spoke with Lt. Riley about any letters [Patty] had sent to the Police Department (Tr. at 154, 156). She said that Lt. Riley was "open" in answering her questions, that she never had the sense he was attempting to hide anything, and Lt. Riley left her with the impression that he felt the investigation had been conducted properly. (Tr. at 156-57.)

According to Lt. Riley, the nurses' principal concern was whether or not Det. Woodmansee had stated in his report what he had been told by the nurses. That was the focus of their discussion. (Tr. at 196, 221.) They did not discuss [Patty]'s interrogation. (Tr. at 197-98.) Although he pulled the original file from the Records section at the MPD when discussing the case with Poarch and O'Brien, the letters from [Patty] were not in the Records file at that time. (Tr. at 198.)

Soon after he spoke with O'Brien and Poarch, Lt. Riley received a telephone call from Lueders. What was said in the telephone conference is not disputed.5 [Footnote 5: Lueders' account of this call, as set forth in his written statement (Exh. 8), does not differ materially from Lt. Riley's testimony concerning the conversation. Lueders now believes the call occurred on February 5, 1998. (Id.)] Lueders called wanting to know about a complaint against Det. Woodmansee from 1997, and Lt. Riley knew in his mind that he did not have any complaints against his detectives that year, so he said "I'm not aware of a complaint, not to my knowledge." (Tr. at 182.) Lueders asked about a Badger cab driver and an envelope with Dennis George Riley written on it, but that did not ring a bell with him. Lueders read portions of the letters, and they still did not ring a bell. (Tr. at 182-83.) At no time during that conversation did Lt. Riley recall a letter from Patty [last name] complaining about Det. Woodmansee. (Tr. at 183.) He probably told Lueders he would follow up on the matter. (Tr. at 184.)

Lt. Riley was concerned and upset about this telephone call from Lueders because he had been told about a complaint against one of his detectives that he didn't know about. (Tr. at 184.) For that reason, he contacted Lt. Pat Malloy of the MPD's Professional Standards Unit ("PSU"). He asked Lt. Malloy about the letters described by Lueders, and Lt. Malloy said he did not have any such letters. (Tr. at 184-85.)

Lt. Riley then called Det. Woodmansee and asked if he remembered anything about the letters. Det. Woodmansee said he did. Lt. Riley said he did not remember the letters or giving him the letters. Det. Woodmansee told Lt. Riley the letters were in his case file, and Lt. Riley asked Det. Woodmansee to bring them over because he wanted to see them. (Tr. at 39-40,185.) They had not discussed these letters since their one discussion about them at the end of October 1997. (Tr. at 40.)

Lt. John Davenport, who shares an office with Lt. Riley, recalled seeing Lt. Riley speaking on the telephone that day. When he got off the phone Lt. Riley appeared "somewhat upset." (Tr. at 161.) Lt. Riley was moving, opening drawers, which was "not his way" because he's a "very well-organized person." (Tr. at 161.) In response to Lt. Davenport's question, Lt. Riley stated that he had got a phone call from Lueders asking about a complaint, and he was saying he did not remember the complaint and was "trying to find this letter that was supposed to have come in." (Tr. at 162.) Lt. Davenport told Lt. Riley to relax, that maybe Lt. Riley "did not get the letter or maybe it's not a complaint." (Id.)

Lt. Riley said that he normally does not keep reports in his office, but he keeps a list of cases that his detectives are working on, but when the file drawer gets full he will "chuck them out." (Tr. at 187.) He will have a month to six weeks of cases in his office, depending on the type of case. He was checking through his file drawer to see if he had any sexual assaults back as far as the [Patty] case, but he didn't. (Tr. at 188.) Although Lt. Davenport told him to "relax" and to not get excited about, Lt. Riley was "excited because of the fact that I try to keep an orderly ship and everything is in its place and everything has its place and I didn't remember this letter." (Tr at 188.)

Det. Woodmansee arrived at Lt. Riley's office about 10 or 20 minutes after they spoke on the telephone. (Tr. at 185.) He brought the envelope and the letters. (1~) Lt. Riley recognized the letters as what Lueders had read over the phone to him, he also recognized his handwriting on the envelope (Exh. 2). He said to Det. Woodmansee: "[W]ell, now that I've seen this up in the corner, it says, 'See me on this', what did I tell you," and Det. Woodmansee replied, "you told me to put it in the case file." (Tr. at 185-86.) Det. Woodmansee confirmed that when they met face-to-face, they again talked about Lt. Riley not remembering the letter, "and then when I handed it to him he said something to the effect of I must have given it to you because I recognize my handwriting." (Tr. at 41-42.) Det. Woodmansee said that Lt. Riley then "asked me again what we discussed about this, and I told him that his instructions to me were to place it in the case file, which I did." (!~ at 42.) Lt. Riley did not tell Det. Woodmansee to destroy or conceal the letter (Id. at 43.)

Lt. Riley then delivered the [Patty] letters to Lt. Malloy, indicating that these were obviously what Lueders had been referring to. (Tr. at 190.) Lt. Riley told Lt. Malloy that "he received them and he gave them to Detective Woodmansee, and they were in Woodmansee's case file, and he forgot about them." (Tr. at 53.) Lt. Malloy thought the letters were a statement related to the individual's defense. (Tr. at 69.) Copies of the letters were made for the District Attorney's office, and the original was placed in the Records Section of the MPD. (Tr. at 66, 70.) Within several weeks after the initial telephone call with Lt. Riley, Lt. Malloy sent copies of the letters to Lueders. (Tr. at 169.)

After speaking with Lt. Malloy, Lt. Riley then went to speak with Chief Richard Williams about the telephone call from Lueders "because we were dealing with a bunch of Open Records things." (Tr. at 191.) Because Chief Williams was out of the office, he spoke with two Assistant Chiefs (Richard Cowan and Salvatore Balistreri). Lt. Riley explained what had happened, i.e., that he received a call from Bill Lueders, that he didn't remember the documents, that he tried to track the documents down, that he found the documents, and that he turned them over to Lt. Malloy. (Tr. at 191.) The reason he spoke with the chiefs was that he did not want his boss to be surprised. (1~) Assistant Chiefs Cowan and Balistreri confirmed this discussion in their testimony (Tr. at 229, 235.) Assistant Chief Balistreri testified that Lt. Riley said he wanted to make them aware of the situation because Lueders may be calling them or they might be reading something in the Isthmus about it. They described Lt. Riley not as angry or excited, but as "apologetic," "frustrated with himself," or "concerned" that the incident had occurred and that he couldn't remember the letter. (Tr. at 230, 235-36.)

On February 12,1998, the Isthmus published an article by Lueders which referred to the [Patty] letters, and stated that "Earlier, [Lt.] Riley told Isthmus he knew of no such correspondence." (Exh. 8, ¶15.)6 [Footnote 6: This was the first article on the [Patty] case published in Isthmus. Lueders was not aware of any media coverage of the [Patty] case since the publication of articles based on the MPD news release in October 1997. (Tr. at 170.)]

In a story published in Isthmus on February 20,1998, Lueders wrote that: "Lt. Dennis Riley, who received Patty's letters, kept them from being investigated by giving them only to Woodmansee, the accused, to put in his file. Lt. Riley also apparently lied to Isthmus in saying he knew of no such letters." (Exh. 8, ¶16.) On March 20,1998, Lueders wrote in Isthmus that Lt. Riley, as "a police supervisor apparently kept a serious complaint from being investigated by not following the rules." (Exh. 8, ¶17.)

Lueders never called Lt. Riley for comment on these articles before they were published. (Tr. at 172.) Nor did Lt. Riley contact Isthmus in regard to these articles after they were published. (Exh. 8, ¶18.)

On March 27,1998, Lueders called Lt. Riley. This was their second telephone conversation. In this call, Lueders states that he said to Riley:

[quote] Hello, Lt. Riley, this is Bill Lueders at Isthmus. I feel I should inform you about an action I intend to take. Early next week, I intend to file a formal complaint against you with the Police and Fire Commission, charging you with violating department rules regarding complaint acceptance and referral, as well as the department's rules regarding truthfulness. From my understanding of the situation, you're guilty on both counts. But I am open to the possibility that my understanding may be faulty, especially given my recent experience with Lt. Maples. If there's anything I'm not understanding about the situation that you'd like to tell me, I'd like to invite you to tell it to me. Otherwise, I'll see you before the PFC. [unquote.]

(Exh. 8, ¶19.) According to Lueders, Riley responded, "Okay," and hung up. (1~) Lt. Riley agrees that Lueders' statement is a substantially accurate account of the March 27,1998 telephone call. (Tr. at 192.) As to why he did not discuss the matter further with Lueders, Lt. Riley testified: "You [Lueders] had already found me guilty so I said okay and hung up." (Tr. at 219.) It was after this call from Lueders that Lt. Riley spoke with Chief Williams and expressed anger over Lueders' threat to bring charges before the PFC. (Tr. at 193.)

Lueders filed the complaint against Lt. Riley on April 1,1998. After Lueders filed the complaint, Lt. Riley spoke with Cpt. LaMar. In their discussion, Cpt. LaMar said they had spoken about the letters from [Patty], he thought on the day the letter came in, but Lt. Riley did not remember the discussion. Cpt. LaMar told Lt. Riley that "you discussed it with me, you showed it to me, and I told you to put it in the case file." (Tr. at 195.) According to Cpt. LaMar, in this discussion Lt. Riley:

[S]tarted out by telling me that he didn't recall receiving this letter, and then he asked me a question, and he said do you remember me talking to you about this letter, and at that time I said, yes, I did, but it was obvious to me that he hadn't recalled that, and I was telling him then in response to that question about what I recalled about that short conversation [about the letter the previous October].

(Tr. at 104.) They had not discussed the [Patty] letter at any time between its receipt and the conversation which occurred after Lueders filed his complaint. (Tr. at 105.)

Lueders charges that Lt. Riley violated MPD Rule No.2-1816, Untruthfulness, when Lt. Riley said he did not remember the letters which Lueders described as a complaint by Patty [last name] against Det. Woodmansee. Lueders' argument appears to be that because Lt. Riley saw the letters upon their receipt, because he discussed them at that time with Cpt. LaMar, because he spoke with the Meriter nurses about the [Patty] case, and because he was able to locate the letters after the call, he lied when he said on February 5, 1998, that he did not recall and had no knowledge of the letters.

Lt. Riley does not dispute that he told Lueders he did not remember or have knowledge of a complaint by [Patty] against Det. Woodmansee. Although he now knows he had previously seen the letters to which Lueders referred, at the time he spoke with Lueders in early February he did not remember the letters. Lt. Riley believes he forgot the letters because of the lapse of time (at least three months) since he had seen the letters, because he was focused on homicide investigations at the time of their receipt, and because when Lueders told him the letters were delivered by a Badger Cab driver this did not ring a bell with him. There was no reason for Lt. Riley to lie about his knowledge of these letters, and his conduct after the telephone call with Lueders indicates that he had genuinely forgotten the letters until he spoke with Det. Woodmansee.

B. Issues Presented.

In determining whether Lt. Riley lied to Lueders when he said he did not remember the [Patty] letters, the Board's task is to determine Lt. Riley's state of mind at the time of the first conversation with Lueders. There is no direct evidence that Lt. Riley lied when he said he did not remember the letters. Accordingly, in making its determination, the Board, on the basis of the evidence, and not on the basis of speculation or conjecture, must examine two questions.

First, were the [Patty] letters in Lt. Riley's conscious mind when he spoke with Lueders? Two, when he spoke with Lueders, did Lt. Riley consciously intend to deceive Lueders by telling Lueders he did not know about these letters?

In conducting this analysis, the Board also must bear in mind that Lueders bears the burden of proof on these issues.

There is no evidence of record which supports an inference that Lt. Riley had the [Patty] letters in his conscious mind at the time of Lueders' call.

As to direct evidence, each witness who spoke with Lt. Riley about his discussion with Lueders testified that Riley told them: (1) that he had told Lueders he did not recall the [Patty] letters; and (2) that at the time of the call he had forgotten the [Patty] letters. Thus, there is nothing which even remotely approaches an implied admission by Lt. Riley that he was aware of the letters during the telephone call. The evidence is the opposite.

As for inferences, that Lt. Riley saw the letters more than three months earlier (in October 1997) does not logically suggest that the letters should still have been in his conscious mind in February 1998, in light of the following:

While Lueders may think the [Patty] letters are important and unusual, and while Lueders may believe that the letters express "serious" complaints which could not escape the mind of a police officer, it is Lt. Riley's actual state of mind, not the state of mind Lueders believes he should have had, which is at issue. However, in any event, neither Lt. Riley nor any of the other law enforcement personnel who testified in this case agrees with Lueders' view of the letters. When the letters were received, Cpt. La Mar agreed with Lt. Riley's assessment that they appeared to express a likely defense to obstruction charges, and that putting [Patty]'s letters in the file for future reference was the appropriate disposition. With a decision made, Lt. Riley had to turn his attention back to the rest of his overwhelming caseload, particularly the several homicide investigations. The [Patty] case, having been referred to the District Attorney, from his perspective, was completed, "out of sight, out of mind."7 [Footnote 7: That "out of sight, out of mind" is the rule, not the exception, in recalling completed investigations, was illustrated by the difficulty that Lt. Riley had in spontaneously attempting to recall specific names incident to homicide cases upon which he has worked. (Tr. at 179.) One reasonably would presume that homicide cases (which fortunately remain relatively rare in Madison) would make the deepest impression upon, and thus would be best remembered by, officers involved in investigating tens of thousands of cases over a 30+ year career in law enforcement.]

In answering the question whether the [Patty] letters would have been in Lt. Riley's conscious mind when he spoke with Lueders on February 5,1998, the Board should "walk a mile" in Lt. Riley's shoes. When he received Lueders' call, Lt. Riley had not seen the [Patty] letters for more than three months. The letters, from his perspective, were unremarkable. A suspect recanting a confession, and, in doing so, claiming that the police acted inappropriately in extracting the confession is not unusual.8 [Footnote 8: Tr. at 103 (Cpt. LaMar), 137 (Assistant District Attorney Karofsky).]

Lt. Riley had dealt with the letters upon their receipt. He reviewed them with Cpt. LaMar, and they agreed the letters were not a complaint and should be put in the file for possible use by the District Attorney. Lt. Riley told Det. Woodmansee to put the letter in the case file, by which Lt. Riley meant the official Records file. Det. Woodmansee, however, misunderstood Lt. Riley's direction, and put the original letter in his working file instead of the Records file. (The file had already been copied for the District Attorney to be evaluated for prosecution, which was why the letters did not get to the District Attorney until later.) From Lt. Riley's perspective, until and unless the case approached the date of trial, or pre-trial motions, the case and the [Patty] letters would have been filed away, "out of sight, out of mind," and it was back to the grindstone and other pressing business.

While no doubt the most important case in the world to a criminal suspect is the case in which he or she may be charged, the reality of a police officer's workload is that each case is one of many serious cases No detective supervisor could be expected to remember every piece of paper in the 2000+ cases (annually) which cross his or her desk, particularly in a case where one's role is to supervise the detective who conducted the investigation, and not to perform the investigation. The application of common sense leads to only one reasonable conclusion, that under these circumstances it would have been very surprising if the [Patty] letters were still in Lt. Riley's conscious mind more than three months after their receipt and their disposition.

Having addressed why one would not logically expect the [Patty] letters to be in Lt. Riley's conscious mind when he spoke with Lueders in February 1998, the Board must next examine the second question, i.e., whether Lt. Riley consciously intended to deceive Lueders. The proof on this element is even more lacking that on the first element. To conclude that Lt. Riley consciously intended to deceive Lueders about the existence of these letters is preposterous, for several reasons.

First, Lt. Riley had no motive to lie to Lueders about the letters. As was clear from his testimony, Lt. Riley does not believe, and has never believed, that the [Patty] letters were a complaint, or that Det. Woodmansee did anything wrong in the [Patty] investigation. Lt. Riley showed the letters to his commanding officer, Cpt. LaMar, who concurred with Lt. Riley that the letters should be placed in the file for future reference. If Lt. Riley believed the letters were not a complaint and that Det. Woodmansee conducted a proper investigation, as he told the Board, and as he told the Meriter nurses when he "openly" answered the questions they raised about the investigation, there was no conceivable reason for him to lie to Lueders about his knowledge of the letters.

Second, all of Lt. Riley's actions after the Lueders call are consistent with what he described as an effort to locate the letters Lueders had told him about. While he was concerned about this call, his concern was that he knew nothing about a complaint which Lueders said had been lodged against one of his detectives. Not one witness indicated that Lt. Riley was concerned that Lueders would accuse him of lying. Lt. Davenport, who observed Lt. Riley on that date, testified that Lt. Riley was upset about not knowing about or being able to locate the document. Assistant Chiefs Cowan and Balistreri, who described his demeanor, thought he appeared apologetic about his memory lapse.

To accept the Lueders' thesis that Lt. Riley lied requires one to believe a most improbable scenario, that is, one would have to conclude that the following occurred:

For no apparent reason, Lt. Riley lies to Lueders by saying he did not remember a letter of complaint by [Patty] against Det. Woodmansee. Lt. Riley then promptly embarks on an elaborate charade by "pretending" to "find" the [Patty] letters and by "pretending" to have forgotten them. Why? What purpose would this accomplish? Aside from the fact that Lt. Riley is no actor, this scenario makes no sense.

There was absolutely no reason for Lt. Riley about his knowledge of [Patty]'s letters. He had shown the letters to Cpt. LaMar, his supervisor, upon their receipt the previous autumn. Cpt. La Mar agreed the letters were not a complaint and should be put in the file. If, as Lueders claims, Lt. Riley would have remembered the letters because he should have remembered speaking about them with Cpt. LaMar, then logically Lt. Riley also should have remembered that Cpt. LaMar agreed the letters were not a complaint and should be put in the file. If so, what was there to hide?

Lueders presented no testimony indicating that anyone in authority with the MPD or the District Attorney's office feels that either Detective Woodmansee or Lt. Riley did anything wrong in the [Patty] investigation9 [Footnote 9: The MPD witnesses testified that they believed Lt. Riley responded appropriately and did nothing wrong. (Tr. at 65-67, 85-86, 235-36.) The ultimate dismissal of charges against [Patty] was not in any way connected to what was said in the [Patty] letters. (Tr. at 141-42, 146.)]; more importantly, however, there is not even a hint that Lt. Riley, whose state of mind is the issue, thinks that Det. Woodmansee did anything wrong. If Lt. Riley had nothing to hide, why lie? It makes no sense.

Again, in assessing the inferences one should draw from the evidence, the Board should walk in Lt. Riley's shoes. Either he remembered the letters at the time of Lueders call, or he had forgotten them. If he had remembered the letters, what logically would Lt. Riley have said to Lueders? Given his evident antipathy toward the press, a simple "no comment" would be one distinct possibility. Alternatively, upon Lueders reading from the letters, logically he might have said something like:

"Oh, those letters. Yeah, I remember them. I discussed them with Cpt. LaMar. We agreed they were not a complaint. We put them in the file."

That Lueders may believe Lt. Riley and Cpt. LaMar were wrong in deciding to file the letters rather than refer them to the PSU is not the issue. The issue is why would Lt. Riley have lied to Lueders about knowing about the letters and then immediately located them, given that his supervisor agreed with his decision to file the letters in the first place. Answer: There is no logical reason to lie.

Applying common sense to the evidence leads to only one logical conclusion. That Lt. Riley saw the [Patty] letters months before the Lueders call does not mean he lied to Lueders. Lt. Riley did not have knowledge of the letters when he spoke with Lueders, the letters were no longer in his conscious mind. Therefore, when he told Lueders that he did not know about any "complaint" by [Patty] against Det. Woodmansee, and when he told Lueders he did not recall the letters from which Lueders read, Lt. Riley was not lying, he was honestly describing what was in his mind, or, more specifically, what was no longer in his mind.

What makes sense? When he received the letters, Lt. Riley has a very active caseload, supervising 13 detectives (located in two districts), who investigated about 2500 felony cases during 1997. He was personally involved in two homicide investigations. He addressed the letters with Cpt. LaMar, and he moved on to other business. It is not surprising that months later he could not remember the letters. Accordingly, when Lueders called and asked about a complaint by [Patty] against Det. Woodmansee, Lt. Riley recalled no such "complaint," because he had never regarded the letters as a complaint. He did not recall the letters any more than he would remember details of virtually any other felony investigation months after it was referred to the District Attorney's Office. Lt. Riley was upset by the call because (1) he did not know what Lueders was talking about, (2) he did not recall a complaint by [Patty], and (3) if a complaint had been made against Det. Woodmansee, he should have known about it.

So, what did Lt. Riley do? He did what any good detective would do; he solved the case. Using elementary logic, he found the letters. How? He first called Lt. Pat Malloy. Why? Because Lt. Malloy is responsible for investigating and Lt. Riley reasonably deduced that if there was a "complaint" against Det. Woodmansee, the first logical place to look for it would be in Lt. Malloy's office.10 [Footnote 10: On the other hand, if Lt. Riley remembered the [Patty] letters and remembered that they had been put in the file and not referred to PSU, why would he ask Lt. Malloy if he had the documents?]

After learning that Lt. Malloy did not have any "complaint" by [Patty] against Det. Woodmansee, Lt. Riley took the next logical step, he called Det. Woodmansee, who told Lt. Riley that there had been a letter from [Patty] and that it had been put into the case file. Det. Woodmansee then brought Lt. Riley the letter, showed him the letter and the envelope, and although Lt. Riley recognized his handwriting on the envelope, he still did not recall the letter. Lt. Riley had to ask Det. Woodmansee what he had said to him about the letter when he had seen it the previous October.

Next, having now ascertained that there was a letter similar to that described. by Lueders, and having found it, Riley then delivered it to Lt. Malloy so that he would be aware of it, since they had discussed it and Lueders regarded it as a complaint. He spoke with the Assistant Chiefs, because Chief Williams was not available. He brought the letters and the call from Lueders to the attention of his supervisors because he expected Lueders might publish an article about what Lueders had called a complaint against Det. Woodmansee, and Lt. Riley wanted the Chiefs to hear about it from him before they read it in Isthmus or got a telephone call out of the blue. He told the two Assistant Chiefs just what he told everyone else, that when called by Lueders he said he had no knowledge about the [Patty] letters, but had found the letters when he looked into it after receiving the call.

The Board can assess the credibility of the witnesses. Lt. Riley is an officer with 31 years of experience on the MPD. He has never been disciplined in all of those years of service. His supervisors and his peers respect him for his candor and honesty. Whether or not Lt. Riley likes dealing with the press, and whatever his feelings may be about the fairness (or lack thereof) of Isthmus' coverage of the City of Madison Police Department, Lt. Riley had no reason to lie to Bill Lueders. Having no reason to lie, there is no reason to believe that an officer of Lt. Riley's integrity would risk his honor and reputation by lying to Lueders under these circumstances.

Lt. Riley requests that the Board enter appropriate findings and conclusions providing that Lueders' charges of untruthfulness have not been sustained, and dismissing the charges upon their merits and with prejudice.

Dated this [5th] day of November, 1998.
LEE, KILKELLY, PAULSON & YOUNGER, S.C.

Attorneys for Respondent Lt. Dennis George Riley

[signed]
Paul W. Schwarzenbart
State Bar No.1002789
One West Main Street
P.O. Box 2189
Madison, Wisconsin 53701-2189
(608) 256-9046

[End of document.]