LEGAL NEWSLINE

By Stuart Taylor, Jr., AMERICAN MEDIA INSTITUTE

MILWAUKEE (Legal Newsline) - The whistleblower who has accused Milwaukee District Attorney John Chisholm of privately expressing "hyperpartisan" political and personal bias against Gov. Scott Walker is now considering a libel suit against Wisconsin’s largest circulation newspaper.

The Milwaukee Journal Sentinel falsely accused him of making a "death threat" against Chisholm - a crime - Michael Lutz told this reporter in an interview Thursday night.

It also failed to print his denial and used a fragment of what he told columnist Daniel Bice to make it appear as if he were confirming something that he was in fact denying, he said.

And then, Lutz said, the newspaper kept reporting the false charge as fact — compounding the harm to his livelihood and reputation.

This is the first time in the four-year legal battle between allies of the Republican governor and the Democratic district attorney that the Journal Sentinel itself may be drawn directly into the legal fray after years of conservative charges of extreme pro-Chisholm, anti-Walker prejudice.

Lutz, a decorated police officer who worked in Chisholm's office as an unpaid special prosecutor in 2011 after graduating from law school, blew the whistle on Chisholm by anonymously telling this reporter in several interviews that he heard the D.A. privately express shockingly strong personal and political bias against Walker.

Chisholm allegedly said that his wife, Colleen Chisholm, a teachers’ union shop steward, was repeatedly moved to tears of anger by Walker’s union-curbing policies; that she had joined the famously boisterous 2011 union demonstrations against Walker; and, tellingly, that Chisholm "felt it was his personal duty to stop [Walker] from treating people like this."

Lutz has described Colleen Chisholm as “very opinionated about her hate for the gov" and has said that John Chisholm “had almost like an anti-Walker cabal of people in his office who were just fanatical about union activities and unionizing."

Lutz’s account was first published on Legal Newsline by the American Media Institute, a non-profit news service, in a Sept. 9 article. More details about Chisholm's allegedly biased comments to Lutz against Walker were published in a Sept. 19 article.

What happened after the first article surprised Lutz and triggered the potential libel suit.

Journal Sentinel columnist Daniel Bice, who had covered the “John Doe” investigations into Walker and his allies since 2011, did not follow on AMI’s report.

(Ironically, Lutz had anonymously offered Bice's newspaper some of the same information about the DA's wife's union activities in 2012. The Journal Sentinel did not report or, from all that appears, even look into Lutz’s tip.)

Similarly, after AMI broke Lutz's allegations on Sept. 9, Bice did not report, as AMI later did, that the district attorney launched what one observer called a “Nixon-style mole hunt” to find the confidential source. Instead, Bice did his own mole hunt, eventually going to Lutz’s home on the night of Sept. 11.

Here are the circumstances of Lutz's conversation with Bice about the alleged death threat, as detailed by Lutz Thursday night for the first time:

At about 9 p.m., Bice rang Lutz's doorbell and knocked loudly enough to alarm Lutz’s 12-year old daughter. Bice then engaged in "borderline shouting," almost "throwing a temper tantrum," when Lutz refused to confirm that he was this reporter's source (Bice's Sept. 12 column correctly exposed Lutz as the source anyway).

A neighbor, an off-duty policeman, emerged from his home with gun in hand at one point to see what the problem might be.

Toward the end of the conversation, Bice asked Lutz if he had ever issued a “death threat” against Chisholm.

Lutz says he responded with these words: “I did not issue a death threat, and I... was drunk."

Lutz has explained to this reporter that he immediately recognized the "death threat" question as an erroneous reference to an agitated voicemail that he had left for Chisholm one night in 2013.

Lutz had considered Chisholm a “friend and mentor” and had donated to his campaigns. His former police partner was Colleen Chisholm's brother, Jon Osowski.

On that night in 2013, Osowski -- who was suffering intense physical pain as a result of on-the-job injuries - phoned Lutz and left a voicemail indicating that was going to "eat his gun" and might use it to kill himself (Osowski has denied this).

Lutz believed that the only way to save his former partner’s life might be to goad Chisholm and his wife to seek out Osowski. He says he called Chisholm's cell phone several times, spoke with the DA, and ultimately became concerned that Chisholm might not be doing enough to help Osowski.

So Lutz finally left an urgent voicemail demanding that Chisholm go help Osowski right away (he says that he has since learned that Chisholm had already gone to Osowski).

Lutz had been drinking, was distraught and does not recall what words he used, but does not rule out the possibility that he may have used words that could be taken as threatening if twisted out of context. But Lutz did not intend, and is certain that Chisholm did not believe, that this was a real threat.

Indeed, Lutz repeated Thursday night, "we had a very good laugh" about Lutz's voicemail in a good-natured conversation the very next day.

This, Lutz says, is the so-called “death threat” that Bice was asking about at Lutz's door on Sept. 11, apparently based on an allegation by Chisholm's lawyer, Samuel Leib, although it appears that Bice knew little or nothing at the time about the circumstances described above.

Glenn Frankovis, a police captain who retired in 2004, said in an interview that Lutz had been "a very hard worker" under his command and that he believes Lutz's recent statements about Chisholm, Bice and others because "my experience with him when he worked for me was that I trusted him completely" to tell the truth.

Frankovis added that - based on his experience and post-retirement reading of the Journal Sentinel - the newspaper "is selective in how it approaches 'walls of silence.' They want whistleblowers from the Police Department but attack someone like Mike Lutz who blows the whistle on abuse of power in the D.A.'s Office at the highest levels."

Lutz told this reporter Thursday night, for the first time, that he is considering a libel suit against Bice and the Journal Sentinel.

Exhibit A in any libel suit would be Bice's Sept. 12 column. Its seventh paragraph said: "But here is the shocker: Lutz issued a death threat, apparently during a drunken rage, against the prosecutor and his family last year -- a charge not in dispute, though it was never prosecuted."

Sixteen paragraphs further down, Bice added that Lutz "said he did not intend the threat seriously" and had been drunk, making it appear as if Lutz had admitted to Bice that he had threatened to kill Chisholm and his family.

Critically, Bice did not report, and now denies, that Lutz said anything like "I did not issue a death threat."

In response to an emailed request for comment from this reporter, Bice wrote:

"Almost nothing about Michael Lutz's fanciful reconstruction of our Sept. 11 conversation is accurate, with the exception of his acknowledgement that he told me, 'I was drunk.' We have multiple sources who characterize his voicemail as a death threat. I gave Mike every opportunity to deny making such a threat to Mr. Chisholm and his family. Mike declined to do so. I have had many confrontational interviews in my career; this was not one of them."

Bice's response stopped short, however, of repeating his Sept. 12 column's assertion - in saying that the charge was "not in dispute" - that Lutz had essentially admitted making a death threat.

While Lutz has for weeks denied Bice's claim to this reporter and others, Thursday night's interview was the first time he specified that he had directly told the columnist that he had not made a death threat.

If a jury were to believe Lutz's account of the Sept. 11 conversation and disbelieve Bice' account — it what would essentially be a “he said, he said” case - then Lutz would have a very strong argument that Bice was guilty of an intentional or reckless falsehood when he wrote that the death threat charge was "not in dispute."

Such a jury finding would allow Lutz to invoke Supreme Court assertions that as far as U.S. constitutional law is concerned, "a public figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory falsehood… if the statement was made 'with knowledge that it was false or with reckless disregard of whether it was false or not,'" as the justices put it in Hustler v. Falwell in 1988.

The court's constitutional rulings, and most state laws, also impose a lower burden of proof on libel plaintiffs who are not deemed to be "public figures." Such a plaintiff must prove only the defendant negligently published a defamatory falsehood.

Even if Lutz were deemed to be a public figure, which one libel expert said seems unlikely, he could claim that he had proved that Bice had known that he had not admitted making a death threat or had written that portion of his article with reckless disregard of whether it was true or false.

Any libel suit by Lutz would also likely stress that Bice and the newspaper have repeated the "death threat" charge several times without noting Lutz's denial since Bice's Sept. 12 column.

Such a lawsuit could also be helped by the fact that, so far as the public record discloses, no Journal Sentinel writer has ever pressed Chisholm, the recipient of the allegedly threatening Lutz voicemail message, to say whether he felt threatened or to discuss anything else about it.

Indeed, Bice's response to this reporter's request for comment conspicuously fails to identify Chisholm as among the newspaper's "multiple sources who characterize [Lutz's] voicemail as a death threat."

Nor did Bice deny this writer's emailed assertion that the Journal Sentinel has never pressed Chisholm seriously to make available the recording of the Lutz voicemail. Chisholm has ignored this reporter's request to make it public.

Any Lutz libel claims against Leib or Chisholm could prevail at trial only if Lutz convinces a jury that he did not make a death threat at all. In that scenario, much would depend on whether Chisholm - who has never said publicly that Lutz threatened him or his family in any way - testifies persuasively that he was put in fear by Lutz's voicemail.

That might not be easy, since Chisholm neither prosecuted Lutz nor reported him to other authorities for prosecution.

Both as a matter of criminal law and as a matter of libel law, a message that is neither intended by the speaker nor interpreted by the listener as threatening is not a threat, even if the speaker says something like "I'm going to kill you."

Chisholm's allegedly biased comments in March 2011 about Walker came during the bitter, nationally controversial 2011 battle over Walker's successful push for legislation sharply curbing public sector unions.

Chisholm was then running a secret, sweeping criminal investigation of Walker and his staff, which was ostensibly unrelated to Walker's union-curbing policies and was unknown to Lutz.

It has continued to grow and open new fronts — expanding 18 times in 24 months. Now it includes an allegation that Walker and almost all conservative groups in Wisconsin have engaged in "illegal coordination" of campaign spending. The investigation has been stalled since earlier this year by court decisions that are on appeal.

Lutz has also said that Chisholm would not allow him to do a campaign video requested by Wisconsin Supreme Court Justice David Prosser, a conservative, because Chisholm wanted to “stay away from these Republicans” and he did not want Prosser to be on the court when it ruled on Walker’s legislation.