A special prosecutor has declined to charge the Iron County District Attorney with the felony of abusing the legal process, but called his actions last fall desperate and short-sighted.
The special prosecutor — like the Attorney General’s office earlier — also declined to look into whether District Attorney Matt Tingstad actually lives in Wisconsin, or his native Upper Peninsula, another question being asked around Hurley, the Iron County seat.
Last fall, Tingstad issued a bogus subpoena to a Milwaukee lawyer who represented a bank in a civil case related to a pair of criminal cases Tingstad had filed against Hurley’s former mayor and a retired sheriff’s deputy over the use of a credit card that bore the name of Hurley fire department where they both volunteered.
One of the defense attorneys — himself a former prosecutor — asked that Tingstad’s use of the subpoena be investigated. The Oneida County Sheriff’s Office referred two possible felonies, simulating legal process and misconduct in public office, for possible prosecution.
A judge from another county appointed Milwaukee lawyer Roy Korte as a special prosecutor in March, and he released his findings last week. Because of a misunderstanding of the rare process by which the initial complaint was initiated, it was mistakenly filed under seal as a John Doe proceeding until Monday.
Korte concludes that the simulating process statute was really directed at people entirely making up a legal proceeding, such as so-called sovereign citizens trying to make people subject to “constitutional courts,” and when the documents are attempting to con people into paying money under false judgments.
Tingstad’s subpoena would have had the the Milwaukee lawyer drive five hours to Hurley for a hearing that didn’t exist — unless he signed an affidavit Tingstad prepared that characterized some facts in the state’s favor in one of the criminal cases. A judge later quashed the subpoena, and the lawyer neither signed the affidavit nor drove to Hurley.
“The statute does not appear to cover a situation involving the abuse or misuse of process in an actual pending case,” Korte wrote. “There are other safeguards in place to deal with misconduct, abuse or even mistakes. That includes professional discipline, judicial sanction, and even potential civil liability.”
Korte said he is not excusing or condoning Tingstad’s actions in issuing the subpoena.
“The conduct was clearly an abuse of the subpoena process and one that warrants some form of sanction,” he wrote.
Korte did refer Tingstad to the Office of Professional Liability, which investigates violations of lawyers’ ethics rules, though he felt the whole subpoena matter was an aberration for Tingstad.
“In some respects the conduct seems based on desperation, lack of knowledge or inexperience and was obviously an attempt to obtain evidence to oppose motions filed by a defendant,” Korte concluded.
“It exhibited incredibly poor judgment and short sighted thinking. It may also be reflective of a lack of experience or understanding of criminal process. It does not appear to me to constitute a crime or conduct that deserves a criminal sanction.”
The defense attorney who made the initial complaint about Tingstad’s use of the subpoena has one more chance to seek criminal charges. Now that a prosecutor has clearly declined to issue a complaint, the attorney can ask a judge to consider all the materials and issue a complaint. There’s a hearing set for August.
But as Korte notes, that process would involve appointing another special prosecutor, who could again exercise discretion and decide not to file, even if the judge felt there was a basis for a complaint.