October 2, 2003

By mail & facsimile: 223-1955

District Attorney E. Michael McCann

Assistant Dist. Atty Jon Reddin

821 W. State Street, 4^th Floor

Milwaukee, WI 53233

Re: Prosecution of Diane Wilson

Dear Mr. McCann & Mr. Reddin,

We write to express our grave concern about your office’s decision to prosecute Diane Wilson, a citizen who witnessed the shooting of Timothy Nabors by Milwaukee Police Officer Michael Lutz. Ms. Wilson spoke to the police and the press about what she saw. She made none of these statements under oath. Your office has apparently decided that what Ms. Wilson claims she saw was not what really happened. News reports suggest that the decision to prosecute Ms. Wilson, as opposed to other witnesses whose original stories did not match the police version, was based at least in part on Ms. Wilson’s consistent refusal to change her story. Press accounts also reported demands from representatives of the Milwaukee Police Association to prosecute for coming forward and sticking to her story.

Regardless of whether you have correctly assessed the accuracy of Ms. Wilson’s account, the decision to prosecute her has disturbing implications. Bringing criminal charges against a citizen witness will likely deter the cooperation of future witnesses, particularly witnesses to police misconduct. Even the perception that you may be prosecuting a witness at the behest of the Police Association makes complaining about police conduct appear to be a risk not worth taking. And punishing a witness who refuses to change her story will predictably encourage other truthful witnesses to alter their stories when the police are unhappy with the content, thus undermining the justice system’s search for truth.

Many people in Milwaukee, especially those in minority communities, suspect that law enforcement does not really protect their interests and that a "blue wall of silence" protects rogue police officers from punishment. A police or civilian witness who gives information about a civilian suspect is rarely (if ever) prosecuted when that witness’s story turns out to be unfounded. But when a civilian witness complains about a police officer suspected of misconduct, as in Ms. Wilson’s case, the witness is vilified by the Police Association and prosecuted by your office. In this climate, the decision to prosecute Ms. Wilson reinforces perceptions of a double standard. It is incumbent upon your office to take care not to exacerbate this climate of fear and mistrust by an ill-advised prosecution.

As you must surely know, eyewitness accounts of events, especially fast-moving events such as a shootout, are notoriously unreliable. The recent exoneration of Steven Avery, whom the Manitowoc rape victim had positively and emphatically identified as her attacker, demonstrates this quite vividly. Naturally, the Manitowoc rape victim will not be prosecuted for perjury. She was wrong, but not a criminal. Similarly, even if Ms. Wilson proves to have been mistaken about the chaotic and unexpected events surrounding the Nabors shooting, this hardly makes her a criminal.

It is crucial to effective law enforcement that potential witnesses have enough confidence in the fairness of the system to come forward with their stories. The accuracy of those stories may be tested, and found wanting, by further police investigation and, ultimately, in the crucible of trial. The prosecution of witnesses serves only to chill cooperation with law enforcement. Absent extreme and aggravated circumstances, it is difficult to see how such a prosecution deserves the attention and scarce resources of your office.

We join the NAACP's requests for your office to appoint Independent Prosecutors, preferably from the Wisconsin Attorney General's Office, to weigh evidence in and, if necessary, to prosecute matters relating to allegations of police misconduct. Your office's necessarily close relationship to the Milwaukee Police Department does not engender confidence in these proceedings.

Thank you for considering our concerns. We would be happy to speak with you further about these issues.

Sincerely,

 

Christopher Ahmuty Arthur Heitzer

Executive Director National Lawyers Guild, Milwaukee Chapter

ACLU of Wisconsin 633 W. Wisconsin Ave., #1410

207 E. Buffalo Street Milwaukee, WI 53203

Milwaukee, WI 53202

Jerry Ann Hamilton

Executive Director

Milwaukee Branch, NAACP

3500 N. 26^th Street

Milwaukee, WI 53206