LEGAL NEWSLINE

By Stuart Taylor, Jr., AMERICAN MEDIA INSTITUTE

MILWAUKEE (Legal Newsline) - After missing a scoop on Milwaukee District Attorney John Chisholm’s long-running investigation into Wisconsin Gov. Scott Walker, Milwaukee Journal Sentinel writers, along with the district attorney’s staff, hunted down the key source who had asked for anonymity, fearing retaliation.

That story, produced by the American Media Institute and published by Legal Newsline last week, said that the district attorney’s wife was a teachers union shop steward, had taken part in demonstrations against the Republican governor's proposal to curb public employee unions and was repeatedly moved to tears by governor’s legislative crusade.

Chisholm, a Democrat, said privately that it was his “personal duty to stop Walker,” the confidential source said.

AMI’s confidential source was a former prosecutor in Chisholm’s office who feared his reputation and his law practice would suffer if he were unmasked.

The district attorney’s staff launched a Nixon-style “mole hunt” to find the anonymous source, a Journal Sentinel columnist said, and was annoyed that the description of the confidential source wasn’t precise enough to identify him. The staff developed a list of roughly a dozen suspects, the columnist said. The Journal Sentinel never reported this secret search.

The feared retaliation was not long in coming. The Journal Sentinel’s Dan Bice, whose “political watchdog” column is titled “No Quarter,” appeared after dark at the source’s home on Sept. 11. Bice’s persistent door-bell ringing and heavy knocks awakened and frightened the source’s sleeping 12-year-old daughter, he said. The noise was so loud that a neighbor came out to investigate the din, he said.

When the source, a decorated and disabled-in-the-line-of-duty police officer, Michael Lutz, came to the door, he opened it a crack to hear Bice demand to know if he was the person quoted in the story. He did not deny it and speaks exclusively on the record in this story for the first time.

Lutz says he has been friends with John and Colleen Chisholm for more than a decade. He admires the district attorney, considering him a role model and mentor. He says he worked with Chisholm as a police officer and in the district attorney’s office, first as a law school intern in 2010 and as a special prosecutor in 2011 – a period of more than a year, not the five-and-a-half months reported by Bice.

(An editing change in this reporter's Sept. 9 article identified Lutz as a "longtime Chisholm subordinate," which has been faulted as inaccurate. Even if valid, the criticism has little or no relevance to Lutz's credibility in light of what can now be revealed about him. In any event, police officers can be called subordinate to the district attorney.)

Lutz says he met with Chisholm in his private office in 2011 and was surprised when he heard the district attorney say that his wife had wept repeatedly and joined demonstrations against Walker, who was fighting for and winning legislative approval of his union reforms. Lutz said Chisholm demonstrated what he called a "hyper-partisan" bias against Walker.

Lutz’s motivation for speaking out was based on principle: "I don't like what he [Chisholm] has done in regard to political speech that he disagrees with."

Revealing how Chisholm allegedly spoke of his wife’s anguish in connection with his own determination to "stop" Walker, Lutz said, wasn’t meant to harm her. "I never did anything to hurt anyone," Lutz said. "I just wanted to speak the truth because I don't think it's right the way they are stifling speech."

Citing one previously unreported example, Lutz mentions not being “allowed” to express an opposing viewpoint. He wrote in an May 20, 2012, email to an unidentified person:

When “I was a Special Prosecutor in the DA's office and [Wisconsin Supreme Court] Justice [David] Prosser approached me to do a [pre-election] video spot about how the decision authored by him about the guy who shot me was a very important ruling for Police officers in general, DA Chisholm ... stated that he couldn't allow me to do it and he wants to stay as far away from these Republicans as he can … Fast forward 8 months and HIS [Chisholm’s] liberal block of DA's, 80% of them, are actively campaigning, emailing, and even verbally bashing Walker at meetings. I think Chisholm has left the reservation and now has his flag firmly planted in the liberal left's camp.”

Prosser won his election in April 2011. He voted with the majority on July 31 when the state Supreme Court upheld Walker’s reforms by a vote of 5-2.

Lutz felt he had a lot to lose if his identity were revealed, which Bice and the Journal Sentinel did on Sept. 12. Lutz felt that if he were exposed as the source, it would be hard to find clients once everyone in the county knew that the district attorney was now his enemy.

Most journalists' first instinct is to protect the identity of whistleblowers against powerful people likely to retaliate against them. Not columnist Bice or the Journal Sentinel. They have devoted their energy to exposing Lutz's identity, subjecting him to attacks, and seeking to discredit him.

Chisholm’s wide-ranging investigation into Walker, his staff and 29 nonprofit conservative groups was accompanied by sweeping subpoenas for documents, phone records, emails, cell phones, computers and more; predawn raids on conservative activists' homes without allowing them to call their lawyers; and “gag orders” about the investigation. These gag orders silenced virtually all of the conservative movement in Wisconsin by denying its leaders the chance to defend themselves publicly.

This was by design, say critics who characterize the investigation itself as a political vendetta by a Democratic district attorney against a Republican governor.

Over the years, Chisholm’s office has consistently denied political motivations, stressing the roles of two Republican district attorneys who opened proceedings to help enlarge his investigation’s territorial reach, and that of Francis Schmitz, a political independent who was made Special Prosecutor and titular head of the investigation in August 2013.

The entire investigation was found unconstitutional and temporarily blocked by U.S. District Judge Rudolph Randa in a May 8 decision that is now on appeal. During the Sept. 9 oral arguments, one of the three federal appellate judges, Frank Easterbrook, noted that the gag orders appeared to be "screamingly unconstitutional" while expressing doubt (as did Judge Diane Wood) that the case belonged in federal court.

Wisconsin Judge Gregory Peterson has also suggested that the Republicans under investigation have committed no crimes and the entire investigation of their campaign finance practices is without legal foundation and should be halted. His decision is on appeal to a Wisconsin appellate court.

When Bice identified Lutz in the Journal Sentinel on Sept. 12, he smeared him for an alleged “troubled past” and accused him of making a “death threat.” The “troubled past” involved a police shooting after which Lutz was exonerated. That review, the Journal Sentinel editorialized at the time, “should be the end of the matter.” The “death threat” allegation is completely false, Lutz says, contrary to Bice's claim that Lutz had not disputed it.

In his Journal Sentinel article headlined "Source who accused Chisholm of vendetta has troubled past," Bice wrote: "But here is the shocker: Lutz issued a death threat, apparently in a drunken rage, against the prosecutor [Chisholm] and his family last year — a charge not in dispute, though it was never prosecuted."

In reality, Lutz says, here's what happened: His best friend and former police partner, Jon Osowski (also the brother of Chisholm’s wife) was in trouble and requesting help in alarming phone conversations with Lutz. Urgently, Lutz phoned the Chisholms, leaving messages expressing increasing and agitated concern for his friend, Osowski.

Finally, Lutz says, he succeeded in reaching the district attorney, goading him into action to aid his brother-in-law. Chisholm responded by going out into the night to help Osowski, Lutz says.

Lutz couldn’t go himself because Osowski wouldn’t say where he was, but Lutz was confident that Chisholm knew how to find him. Lutz also knew that the only person that Osowski would listen to in his time of trouble was his sister, Chisholm’s wife.

There was no death threat, Lutz stresses. “Any person who knows anything about the friendly relationship between myself, John Chisholm and Jon Osowski and my intense desire to get some family help for a dear friend knows, in context, what that call truly means. I think it is shameful to distort its intent. I do admit I could have used more tact in spurring the Chisholms to action.”

Lutz also adds that he and Chisholm “laughed about it” the next day and on subsequent occasions.

If he had said anything close to a death threat, Lutz notes, he would surely have been criminally prosecuted. He was not.

Osowski, reached by telephone, denied the episode ever happened.

“He’s ruining my family,” Osowski said of Lutz.

The recorded messages that Lutz left are apparently still in Chisholm's possession, Lutz claims, adding that the district attorney could clarify the matter by making them public. Bice said that he has not heard the recordings himself.

None of this explanation for the supposed “death threat” appeared in Bice's Sept. 12 Journal Sentinel column.

Chisholm's lawyer, Samuel Leib, and Chisholm’s top deputy, Kent Lovern, have not responded to a Sept. 17 email detailing Lutz’s claims that would be reported in this article. Nor has Chisholm or anyone else ever denied Lutz's specific allegations point by point.

Lutz provided additional information and documents that call into question the objectivity of the Journal Sentinel’s reporting.

As a police officer working in Milwaukee, Lutz was named "Professional Law Enforcement Officer of the Year" in 1997 and again in 2007. He received the Milwaukee Police Department's Purple Award of Valor in 2009, commendations for heroism in 1996 and 2006, and an Award of Merit from the FBI in 2006. In all, he won 11 honors and decorations.

Injured in the line of duty, he retired on disability pay and went to law school, earning his degree in December 2010. He worked in Chisholm's office to gain experience from June 2010 to July 2011.

When Lutz went into private practice, Chisholm wrote a memo to him on July 27, 2011, that said his service “has been exemplary,” that his “dedication and hard work ... have proved to be invaluable,” and that “I am extremely grateful for the service you provided.”

In a previous letter of recommendation from November 2007, Chisholm wrote that Lutz had been “one of the best investigators in the Milwaukee police department” and had “removed some of the most dangerous offenders from the streets of Milwaukee” while combining “a remarkable memory with unceasing hard work and courage.”

Critics of the Journal Sentinel's coverage of Chisholm’s investigation of Walker, his staff and his allies have long complained of what they call biased reporting and commentary, especially by Bice, overseen by Managing Editor George Stanley.

“Dan Bice and the Journal Sentinel have abandoned journalistic standards in covering the long-running investigation of Gov. Scott Walker, his staff, and allied conservative advocacy groups,” said George Mitchell, a former journalist who worked for former U.S. Rep. Les Aspin and former Wisconsin Gov. Pat Lucey - both Democrats.

“Bice and the paper have relied heavily on material that originated from illegal leaks. They have smeared numerous innocent people who were barred by secrecy orders from responding to rumors and leaks. They have dishonestly portrayed completely legal and widespread political conduct. The list goes on. It is long.”

Lutz says he has no animus toward Chisholm, adding he gave $200 last month for a Chisholm campaign fundraiser. He has visited the Chisholms’ home several times and gone to dinners, after-work functions, and other outings with one or both of them over the years.

As to the effect of the Journal Sentinel campaign to discredit him, Lutz said in an email:

“I have relocated my kids to prevent them from being brought to tears by any more J-S reporters and to protect them from the onslaught that has already begun. All for telling the truth.”

The consequences for telling that truth are already being felt, Lutz writes. “My law practice ... is over in MKE [Milwaukee]. There is no doubt, as one person has put it, that I am already blacklisted. . . . . Supporting the family will be difficult. Of course, it has been a huge undertaking to go through 4 surgeries, take care of 2 children, drive back and forth to Madison daily in order to get my law license ... only to be persecuted for simply telling the truth.”

In response to suggestions by the Journal Sentinel that Lutz must not be telling the truth because no other current or former employee of the district attorney's office has corroborated his allegations, Lutz says: “No one in the current DA's office or any practicing attorney in Milwaukee would dare speak up against Chisholm or even mention a suggestion of partisanship. Their [private] practice would be killed in Milwaukee. Mine is finished but I can still rely on my police pension.”

Stuart Taylor, Jr. is a Washington journalist, author, and lawyer and a nonresident senior fellow with the Brookings Institution.