Lt. Riley's Post-Hearing Reply Brief

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 reply brief.

It is an old adage in the law that: "If your case has good facts, argue the facts, if your case has good law, argue the law, and if your case has neither good facts nor good law, pound the table." Essentially, that is the substance of the Complainant's case here. Lacking good facts and good law, the Complainant (figuratively) pounds the table and insists that Lt. Riley must have lied to him, because Lt. Riley could not possibly have forgotten the [Patty] letters. Pounding the table falls far short of satisfying the Complainant's burden of proof.

Lt. Riley has set out in his principal brief, at length, the many reasons why the [Patty] letters would no longer have been in his conscious mind more than three months after he received them and briefly reviewed them with Cpt. LaMar and Det. Woodmansee. He has also set out at length the many reasons why it is totally implausible to conclude that he would have lied to Lueders. These arguments will not be repeated in this brief. Instead, this reply brief will be confined to addressing specific arguments set forth in the Complainant's brief.

Lueders characterizes the alleged lie as "motivated by [Lt. Riley's] desire to avoid accountability." (Lueders' Brief at 1.) Accountability for what? To whom? As has already been stated at length in Lt. Riley's principal brief, there is no evidence that Lt. Riley had any motive whatsoever to lie about whether he remembered the [Patty] letters in order to "avoid accountability." This claim is not only fanciful, it is logically inconsistent with the very record evidence upon which Lueders relies in contending that Lt. Riley could not have forgotten the letters.

Lt. Riley had no need to avoid accountability. He had discussed the [Patty] letters with his supervisor, Cpt. LaMar, who agreed that the letters should simply be put in the file. Lt. Riley had nothing to hide, he had nothing to fear being held "accountable" for,1 [Footnote 1: Lueders also fails to explain how lying to him would have advanced Lt. Riley's (hypothetical) desire to avoid accountability, since by lying he would have dug a deeper hole for himself, assuming, of course, that there was a hole in the first place.] because he had discussed the letters with his supervisor, and they jointly decided how to deal with the letters, i.e., by filing them.

As one court has stated, "simply to label a claimed error as constitutional does not make its so." State v Scherreiks, 153 Wis. 2d 510, 520, 451 N.W.2d 759 (Ct.App. 1989), citing State v Schlise, 86 Wis. 2d 26, 29, 271 N.W.2d 619 (1978). Applying that principle here, that Lueders believes Lt. Riley (and Cpt. LaMar apparently as well, since he agreed with Lt. Riley that the letters should be put in the file) should have viewed the [Patty] letters as "making extremely serious allegations of police misconduct" (Lueders' Brief at 2), and therefore Lt. Riley could not have forgotten them, "does not make it so."

Critical to understanding whether Lt. Riley "actually remembered the letters," rather than (simply in Lueders opinion) "should have remembered the letters," are the divergent perceptions of the letters as between MPD personnel and the District Attorney's office (in the person of Assistant District Attorney Karofsky) on the one hand, and Lueders on the other. The law enforcement professionals who testified found the [Patty] letters, in their experience, unremarkable, particularly by contrast to Lueders' overwrought presentation2 [Footnote 2: See particularly Lueders' demand that Asst. Chief Cowan explain what "this woman" ([Patty]) would have to do in order to have her "complaint" taken seriously by the MPD. (Tr. at 239.) Yet, [Patty] sat silently with Lueders at counsel table throughout the hearing and said nothing, and [Patty] has had a year to take action on her "complaint" and has done nothing, except bringing the motion to suppress her confession in the context of the criminal case against her, a motion which was denied by the court. (Tr. at 141-42.)] and discussion of them. Lueders seems to regard [Patty]'s bizarre letter as gospel, and apparently concludes that [Patty] was subjected to a Soviet-style interrogation by the evil Det. Woodmansee,3 [Footnote 3: The Board also had the opportunity to assess Det. Woodmansee's demeanor. Lt. Riley would submit that Det. Woodmansee's personal manner and style evidence why he was assigned to the "sensitive crimes" section of the MPD.] resulting in her confessing under coercion to having fabricated the sexual assault claim. The professionals know better. Irrespective of whether Lueders likes it or agrees with it, the following assessment of [Patty]'s letter by Assistant District Attorney Karofsky probably best expresses the view of the law enforcement professionals:

[quote] And given what I knew about the investigation, the fact that Tom Woodmansee had come to the conclusion that [Patty] had lied, and from my reading of the reports I had come to the conclusion that she had lied, this letter would have held very little weight on the other side of it to show that she had not lied. [unquote]

(Tr. at 132.) As was clear from the testimony of the law enforcement professionals, there is nothing unusual about a criminal suspect alleging that his or her confession was coerced. A claim by an accused that his or her confession was the product of coercion is an everyday occurrence in law enforcement. What was said in the [Patty] letters, and whether the District Attorney's office received copies of those letters in October 1997 or February 1998, made no difference in the way the case was handled by the District Attorney's office. (Tr. at 137-38.)

Here, despite Lueders' insistence that [Patty] is some kind of victim of Dane County law enforcement authorities, [Patty]'s claim that her confession was coerced was soundly rejected by the Dane County Circuit Court after an evidentiary hearing. As the court stated in the decision: "To contend a direct accusation is somehow improper or coercive defies common sense." State v. [Patty], Case No. 98CM0529, at 3 (July 14, 1998). The court further noted that the use of a "ruse" by Det. Woodmansee to induce a confession,4 [Footnote 4: Deplored by Lueders as "an investigation in which lies were told to a suspect in order to get her to confess." (Lueders' Brief at 2)] "is not improper conduct, by well settled law culminating in the case of State v. Albrecht, 184 Wis. 2d 287 [,516 N.W.2d 776 (Ct. App. 1994)]." (Id. at 4.)

What Lueders apparently sees as evidence of some kind of vast conspiracy, i.e., the [Patty] letters, the law enforcement officials see as part of another typical "day at the office." That Lueders pounds the table and insists the law enforcement professionals would not, could not, or (in his not-so-humble opinion) should not have forgotten [Patty]'s letters "does not make it so." That Lueders' view of the [Patty] letters is incongruent with that of the law enforcement professionals does not put the letters in Lt. Riley's conscious mind on February 5, 1998; nor does it suggest that Lt. Riley (who evidently did not take the letters seriously enough, per Lueders' analysis) had a motive to lie in the discussion with Lueders.

Lueders attempts to make much of Lt. Riley's testimony that he did "not have a clue" as to what [Patty]'s letters were in response to, while at the same time Lt. Riley construed them as a "venting" by someone upset with being charged. But, [Patty]'s motive in sending the letters to the MPD, and Lt. Riley's interpretation of the letters, are immaterial to the issue whether Lt. Riley lied on February 5,1998.

[Patty]'s letter states in part that it is in response to what she characterizes as the "irresponsible article" released to the press. Lt. Riley did not issue the News Release. (Tr. at 89-93.) The News Release (Exh. 6), which the [Patty] letter in part addresses, expressly states that the matter had been referred to the District Attorney's office for possible prosecution on obstruction charges.5 [Footnote 5: As of that date, the file in fact had already been copied and sent to the District Attorney's office. (Tr. at 47.)] Accordingly, there certainly was at least a reasonable basis for Lt. Riley to construe (on his scan reading) [Patty]'s letter as a venting on her part about her possibly being criminally charged (whether or not that was actually her purpose).

That Lt. Riley disclaimed personal knowledge of [Patty]'s purpose in writing the letters, but at the same time construed them as a venting in response to possible criminal charges, does not suggest that he knowingly lied to Lueders on February 5, 1998, or that he had a motive to lie.

The issue of the Meriter nurses' (Poarch and O'Brien's) testimony has already been addressed in detail by Lt. Riley, and will not be repeated here. The subject of the interrogation, the principal subject of [Patty]'s letter, was not mentioned in the discussions between Lt. Riley and the nurses. That [Patty] had sent her letter to the MPD was not mentioned in these discussions. The principal focus of the discussions with the nurses was what Det. Woodmansee had reported concerning the nurses' findings. Lt. Riley was "open" in discussing the case with the nurses.

In his typically hyperbolic fashion, Lueders outlandishly exaggerates the significance of the talks with the nurses, claiming Lt. Riley "stepped front and center as the department's expert regarding this case in conversations with health care professionals that were prompted by my telephone calls." (Lueders' Brief at 2.) What, in fact, did Lt. Riley do, according to the evidence? He answered the nurses' telephone calls, and he openly discussed the case with them in attempting to answer their questions. That's all.

None of the testimony concerning the conversations between Lt. Riley and the nurses suggests that [Patty]'s letter should have been brought back into Lt. Riley's conscious mind, three months after he had briefly looked at the letter the previous October. Moreover, that Lt. Riley was "open" in discussing the case with the nurses confirms that he had no motivation to lie, actuated by the mythical desire to "avoid accountability."

Perhaps the most extreme divergence about the significance of the evidence in this case is the interpretation to be placed upon Lt. Riley's conduct after the February 5,1998 telephone call. Lueders asks the Board to conclude the post-call conduct shows Lt. Riley engaged in a clumsy charade engineered to cover-up the alleged lie, which Lueders characterizes as "casual and spur of the moment." A careful consideration of the evidence, however, leads to the opposite conclusion.

First, and foremost, there was no rational reason why Lt. Riley would have lied to Lueders, a journalist with a history of challenging the MPD on its Open Records policies. Any member of the MPD would be very careful in dealing with Lueders.

Second, Lt. Riley is not the type of police officer who would make statements casually, or at the spur of the moment, particularly to members of the press. Lt. Riley, by his own admission, is wary of dealing with the press (George Hessel berg excepted). When he communicates with the press, he tries to be careful to give as little information as possible. (Tr. at 202, 213-14.) Lt. Riley's style in dealing with the press suggests anything but a police officer telling a untruth which "was sudden, impulsive, couched in language he thought was safe." (Lueders' Brief at 7.) Such conduct would be contrary to Lt. Riley's modus operandi.

Third, the Board had an opportunity to observe Lt. Riley's demeanor, and the Board also heard the testimony of Lt. Riley's supervisors and colleagues with the MPD, most of whom have known him and worked with him for 20 to 30 years. The picture of Lt. Riley painted by his colleagues was that of a careful, meticulous police officer, one better described as a "fussbudget" than as a "reckless cowboy." A meticulous fussbudget, indeed, is precisely the type of person who would be concerned or upset by having forgotten or misplaced something, as Lt. Riley testified, and as was confirmed by his colleagues.

Fourth, having observed Lt. Riley's demeanor, and having heard the testimony of his colleagues, the Board can assess whether Lt. Riley would be capable of engaging in the charade upon which Lueders' lying thesis depends. Lt. Riley, quite simply, is not the kind of spontaneous actor who would be capable of this kind of playacting,6 [Footnote 6: Lt. Riley is the type of individual who epitomizes the statement, "what you see is what you get," i.e., a plain-talking police officer who, as described by Cpt. LaMar, is "absolutely candid and absolutely truthful in all circumstances." (Tr. at 100.)] as one would have to believe in order to accept Lueders' view of the evidence.

Finally, Lueders makes much of the fact that Lt. Riley never called him after the initial conversation, and after Lueders had published several articles attacking him, either to apologize for or explain his lapse of memory concerning the [Patty] letters. Lueders suggests that this constitutes an admission of guilt.

However, given the circumstances here, given Lt. Riley's general antipathy toward the press, and given the content of the articles Lueders published, it would be shocking to expect Lt. Riley to have placed such a call to Lueders.

First, there was absolutely no need for Lt. Riley to call Lueders after the initial conversation in order to explain his memory lapse. Their talk that day was innocent. Lt. Riley said he did not recall the [Patty] letters, but he added that he would check on it for Lueders. Lt. Riley did check on it for Lueders, he found the letters, and he took them to Lt. Malloy, who in turn gave copies to Lueders. Mission accomplished. Lt. Riley had supplied Lueders with what he sought. Why would Lt. Riley need to call Lueders in order to explain why he had not recalled [Patty]'s letters earlier?

Not surprisingly, however, Lueders finds evil lurking in this scenario, as he complains that: "Lt. Riley explained his forgetfulness to others in the department, but never to me." But, why would he? Lueders is not "someone else from the department" who needed to be informed of possible press coverage. There was no reason for Lt. Riley to feel it necessary to call Lueders to explain his lapse of memory. Lt. Riley had done what Lueders had asked of him by finding the letters, and Lt. Riley has endured this complaint as Lueders' form of a "Thank You" for his effort.

Next, examine Lueders published statements. In the first, February 13, 1998 article, Lueders stated that Lt. Riley had said to him that no such documents exist. Whether or not the quote was literally accurate, it is substantially what Lt. Riley had told Lueders in their February 5,1998 conversation, although Lueders, apparently desiring to paint a picture of a malevolent Police Department, omits the statement that Lt. Riley said he would check on the letters for him. With Lueders' anti-police slant on the story now disclosed, why would Lt. Riley call Lueders?

In the second article, Lueders, employing a journalist's favorite fudge factor, stated that Lt. Riley "apparently lied" in their conversation. As with the first article, Lueders and Isthmus published this defamatory statement without calling Lt. Riley for prior comment. Again, so much for journalistic fairness. Why would Lt. Riley call Lueders when it was evident that Lueders had already prejudged him and did not have the courtesy to seek his comment before publishing defamatory statements.

The third article accuses Lt. Riley about being involved in an attempt to "cover-up" wrongdoing by the MPD. Again, there was no prior call for comment, as the Isthmus and its News Editor, Lueders, hid behind their formidable First Amendment privileges in attacking the criminal justice system for its handling of the [Patty] case.

Apparently, in Lueders' reality, by engaging in irresponsible journalism and defaming a person in the press, the target's failure to demand a retraction is deemed an admission of guilt. Tell that to the victims of the National Enquirer Lt. Riley had every reason to believe that speaking with Lueders would be an exercise in futility. There was no reason that Lt. Riley would believe that Lueders would treat him fairly, after he had already published his conclusions without asking for any comment.7 [Footnote 7: Lt. Riley is not alone in his assessment of Lueders. As Assistant District Attorney Karofsky testified, "Mr. Lueders, I would have trouble accepting anything that you told me as fact." (Tr. at 129.)]

In addition, Lueders' conduct in prosecuting this case, and the content of Lueders' brief, prove that Lt. Riley's assessment was well-founded. Having made one mistake in speaking with Lueders in the first place, and been called an "apparent" liar for his trouble, and after doing what he told Lueders he would do and locating the [Patty] letters for him, to say that Lt. Riley was "understandably cautious" in refraining from further contact with Lueders is a rank understatement. Asking anything of the press would have been out of character for Lt. Riley, and in any event it is clear that nothing Lt. Riley could say will dispel Lueders of his misguided belief (and whether that belief is genuine or feigned is left for another day) that he (apparently) lied to Lueders on February 5,1998. Lt. Riley's conduct in maintaining a dignified silence in the face of Lueders' attacks should be commended rather than condemned.

There is simply no credible evidence that Lt. Riley lied to Lueders. There is no reason why Lt. Riley would have lied to Lueders. Having discussed the [Patty] letters with Cpt. LaMar, and having determined that the letters should be filed, Lt. Riley had nothing to hide relative to his handling the letters.

Nobody is perfect, and people make mistakes. One mistake occurred when Det. Woodmansee misunderstood Lt. Riley's direction that the [Patty] letters should be put in "the file." Second, Lt. Riley, who strives to maintain order in the office, did forget about the letters, and he was upset with himself because of that.

Inadvertent mistakes do not a conspiracy make. Lueders has led this Board to the proverbial "grassy knoll." The grassy knoll is empty. The emperor wears no clothes. Saying so, and pounding the table, "does not make it so."

The charges are unfounded. Lt. Riley did not lie. Accordingly, this Board should enter findings and conclusions providing that the charges of untruthfulness have not been sustained, and dismissing the Lueders' charges upon their merits and with prejudice.

Dated this [12^th] day of November, 1998.

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.]