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Federal lawsuit challenges state rules on lawyer discipline • Wisconsin Examiner

An ally of a man whose son was killed by Kenosha police 20 years ago is suing the state agency that regulates lawyers over its handling of a complaint that grew out of that event.

The federal lawsuit charges that the state Office of Lawyer Regulation (OLR) acted wrongfully when it dismissed a grievance filed against the current Kenosha County district attorney, Michael Graveley.

The lawsuit was filed Friday in federal court in Madison by Russell Beckman, a retired Kenosha police officer who has been working with Michael M. Bell since 2012 as Bell has pursued allegations that Kenosha police covered up details of his son’s death.

The lawsuit doesn’t ask the court to act on the rejected grievance against Graveley. Instead, it challenges the state Supreme Court rules governing OLR — rules holding that a dismissal of a grievance is final and is not subject to further review.

Those rules and the way OLR operates “grant the director nearly unbridled discretion in making dispositive decisions related to grievances filed by citizens alleging unethical conduct on the part of Wisconsin attorneys,” the lawsuit states.

The suit charges that OLR’s rules violate the First Amendment right to petition the government and the 14th Amendment rights to due process and equal protection. It asks the court “to compel OLR to amend the process by which it handles grievances filed by citizens alleging unethical conduct by attorneys.”

OLR is a division of the Wisconsin court system. A spokesperson for the courts declined to comment on the lawsuit until officials have an opportunity to review it.

Asked about the accusations raised against him that are discussed in the lawsuit, Graveley also declined. “I don’t have any comment,” he told the Wisconsin Examiner on Tuesday. “OLR has rejected multiple complaints on this matter.”

Filed without a lawyer

Beckman filed the lawsuit himself without an attorney, although he said he is seeking a lawyer who could take up the case. “I think a lot of lawyers are reluctant to take it on,” he said. “It’s a case against the agency that regulates them.”

Because the case was filed pro se — by a non-lawyer plaintiff representing himself — it is now on hold under a federal court directive from Judge William Conley until Conley reviews it “for subject matter jurisdiction” before it can go forward. 

In 2021, Beckman filed a grievance that accused Graveley of false statements when he opposed a court petition in 2018 for a new investigation into the 2004 fatal police shooting of Michael E. Bell.

The grievance focused heavily on technical evidence from the investigation of the younger Bell’s death. His father, Michael M. Bell, argues the evidence, if properly reviewed in court, would undermine the Kenosha Police Department’s account of the incident.

While the lawsuit identifies the Bell case as a case study, Beckman told the Wisconsin Examiner that he believes the matter raises much broader questions about how the OLR operates.

According to the data that OLR reported in the 2021-22 fiscal year, one-tenth of 1% of all lawyers in Wisconsin were recommended for disciplinary action or diverted to an alternative to discipline, the lawsuit states.

“They really stress this idea of getting their cases in and out,” Beckman said. “How does this serve the public interest?”

Michael M. Bell said he supports Beckman’s effort, although he is not an official party to the lawsuit. “It’s not only going to be about our case, but it’s going to be about other cases and for future generations,” Bell said in an interview.

The night Michael E. Bell died

A police officer shot and killed Michael E. Bell on Nov. 9, 2004, in his driveway during a scuffle outside his car at which five officers were present. Three officers were in a tight knot of people surrounding Bell. 

What really happened the night Michael Bell’s son died?

One officer yelled that Bell had grabbed the officer’s holstered sidearm. Another officer, Albert Gonzales, who was holding his service weapon at Bell’s head, fired the fatal shot.

The Kenosha Police Department conducted an internal investigation and in less than 48 hours cleared all the officers involved of any wrongdoing.

Michael M. Bell sued the city over his son’s death. Four years after the shooting the city paid the elder Bell $1.75 million to settle the lawsuit. Bell later successfully campaigned for a state law requiring that fatalities in police custody be investigated by an outside agency.

Since the legal settlement with the city. Bell has enlisted various experts in his personal investigation of his son’s death. His investigation highlighted evidence that he says contradicts the official Kenosha Police Department account of the events just before his son was killed.

At the time Michael E. Bell was shot, he was being held from behind by a police officer and was up against the hood of his car on the driver’s side.

According to the police account, Gonzales was standing on Michael E. Bell’s left and the officer who said his gun had been grabbed, Eric Strausbaugh, was standing on the younger Bell’s right.

Michael M. Bell, however, has argued that scenario is inaccurate. Bell says eyewitness accounts, the autopsy report on his son and the pattern of blood spattered on the car’s hood all indicate that Gonzales was standing on the younger Bell’s right side — between Bell and Strausbaugh. In that scenario, the officer fired the fatal shot from the opposite direction than was depicted in the official account.

If that’s how it happened, the elder Bell argues, it would have been impossible for his son to have actually grabbed Strausbaugh’s gun. Bell and Beckman say that under this scenario, it seems more likely that Strausbaugh’s holster got hooked on the car’s side mirror, creating an erroneous sensation that the gun was being grabbed.

Bell has said he was not accusing Strausbaugh of deliberately lying about his recollection of that moment. Strausbaugh, who took his own life in 2010, might have genuinely believed in the heat of the moment that his gun was being grabbed, Bell has said.

Bell has argued that getting an accurate account of what happened is important so that any error involved can be understood and avoided in the future.

DNA evidence debate

In a 2005 State Crime Lab report on the shooting, investigators stated they found no evidence of  Michael E. Bell’s DNA on Strausbaugh’s weapon. The elder Bell and Beckman have argued that the report further supports the contention that the younger Bell never touched the officer’s gun.

Citing the absence of that DNA evidence as well as the other discrepancies between the Kenosha Police Department account of the shooting and physical evidence along with eyewitness testimony, Michael M. Bell asked Graveley in 2017 to conduct a new investigation. (Graveley didn’t take office as the county’s top prosecutor until several years after the incident.)

Graveley rejected the request. In his letter to Bell denying a new investigation, Graveley asserted that the absence of the younger Bell’s DNA on the officer’s weapon proved nothing.

In brief contact with a firearm or holster, “you would almost never see a positive test result for the presence of that person’s DNA,” Graveley wrote. State Crime Lab DNA analysts had told him “that there would be no expectation of DNA results under the facts and circumstances described in your son’s death.”

In 2019, Racine County Circuit Judge Timothy Boyle also rejected Bell’s petition to hire a special prosecutor and conduct a John Doe investigation of the case.

In a filing with the judge opposing the investigation, Graveley included his 2017 letter to Bell. Boyle’s subsequent order denying Bell’s petition minimized the significance of the lack of DNA evidence.

The grievance that Beckman filed with OLR in 2021 against Graveley charged that Graveley’s written comments on the DNA were false, and that his description of the events on Nov. 9, 2004, sharply contradicted descriptions in the police statements about the incident.

Beckman called the DA’s letter “misleading and deceptive” in his OLR grievance, and said that it was an “unethical misrepresentation” of the events as police had described them.

OLR dismissed the original grievance and did so again after Beckman resubmitted it. After Bell hired a DNA expert in 2022, Beckman submitted the grievance a third time with an affidavit from the expert, Dr. Karl Reich.

In the affidavit, which is included with the lawsuit, Reich said scientific literature regarding DNA evidence “flatly contradicts” the assertions that Graveley made in the DA’s 2017 letter to Bell. OLR dismissed the revised grievance on April 19, 2024. 

In a letter to Beckman, also filed with the federal lawsuit, Francis X. Sullivan, OLR’s deputy director for litigation, wrote that the agency would not “address every factual dispute raised by the parties,” but instead whether there was “clear, satisfactory and convincing evidence” of misconduct.

“Attorney Graveley explains that his letter was his personal opinion on the DNA evidence in the case based on his experience as an experienced trial lawyer ‘who has thought about DHA evidence hundreds of times and has utilized DNA evidence and the absence of DNA evidence dozens of times in criminal courtrooms,’” Sullivan wrote. “Attorney Graveley’s explanation is reasonable.”

The Reich affidavit “does not address Attorney Graveley’s opinions and therefore does not expose conduct involving dishonesty, fraud, deceit or misrepresentation,” the OLR official added. 

Given the disagreement between the expert’s affidavit and Graveley, Sullivan wrote, “I conclude that OLR would not be able to meet the burden of proof that the Supreme Court requires to show that Attorney Graveley was intentionally deceitful when he provided his thoughts regarding DNA evidence in that case.”

In the lawsuit, however, Beckman asserts that his grievance offered “very compelling evidence showing DA Graveley engaged in serious unethical conduct” that OLR failed to address. The lawsuit argues that “OLR ignored critical and well documented facts in dismissing this grievance with nothing more than pro forma comments.”

In an interview, Beckman said the rules insulate prosecutors from accountability if the OLR declines to act and someone bringing a complaint has no right to appeal.

“Prosecutors have a tremendous amount of power, and if a prosecutor acts unethically it can cause a tremendous amount of problems,” he said. Because OLR did not thoroughly investigate the issues that his original grievance raised, “I don’t believe they’re looking out for the public’s interest.”

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originally published at https%3A%2F%2Fwisconsinexaminer.com%2F2024%2F05%2F15%2Ffederal-lawsuit-challenges-state-rules-on-lawyer-discipline%2F by Erik Gunn

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