Evidence of a crime…or not? Police, DA give differing views to the judgeELLSWORTH -- Pierce County Judge Joe Boles called the Oct. 8 motion hearing a “very rare procedure.”
By: Phil Pfuehler, River Falls Journal
ELLSWORTH -- Pierce County Judge Joe Boles called the Oct. 8 motion hearing a “very rare procedure.”
What it came down to was the River Falls Police Department, through the city attorney, asked the judge to bypass District Attorney John O’Boyle and file a felony charge against a 20-year-old UW-River Falls college student for battery to a police officer.
River Falls police say O’Boyle won’t prosecute. The district attorney says not true, but bring me untainted evidence.
The case stems from a late night, Sept. 7, incident in downtown River Falls.
A suspect believed to be Shane W. Nelson tangled with patrol officer Greg Lotze after slipping out a window of an upstairs apartment in the 100 block of North Main Street and then jumping off an awning to the sidewalk.
Lotze tried to detain the suspect who allegedly kept struggling to escape.
The two fell to the ground. The suspect allegedly kept kicking at Lotze until he was able to break free and run off.
The suspect -- later identified as Nelson -- lost his shirt, hat and backpack before fleeing.
Lotze had minor injuries and missed some work. He went to the hospital emergency room.
Police say they recovered the backpack and text messages from the suspect to a friend. The text exchange clearly identified Nelson and had him admitting to the police scuffle.
Hours after the incident officers appeared at Nelson’s apartment at 326 N. Third St. and arrested him.
Boles, the judge, signed an order that there was probable cause to hold Nelson over the weekend in county jail. Boles also signed off on two related search warrants.
However, Nelson was never criminally charged by O’Boyle. He was soon released.
More than a month later he’s still not been charged as the stalemate between police and the district attorney goes on.
As Boles said at Monday’s hearing: “It’s clear to me there is a dispute here.”
Before that hearing, O’Boyle insisted he’s not feuding with police, but that he has problems with how officers handled this case.
Among those problems, O’Boyle said the two officers who arrested Nelson failed to read him his Miranda rights -- You have the right to remain silent, anything you say can be used against you in a court of lawn, you have the right to have an attorney present now -- as they handcuffed him.
In a memo to River Falls Police Sgt. Jon Aubart, O’Boyle concludes: “(Nelson’s) admission of ‘evading’ the police would most likely be suppressed because of that.”
River Falls Police Chief Roger Leque disagreed so strongly with O’Boyle’s review that he asked Emily Long, the city’s attorney with the Eau Claire law firm of Weld, Riley, Prenn & Ricci, to petition Pierce County Court to have the case prosecuted -- in effect, bypassing the wishes of the district attorney.
Judge Boles told both sides the court is not part of law enforcement and is “generally not in the business of filing charges.”
Both sides gave Boles conflicting views on whether O’Boyle had refused to prosecute Nelson.
O’Boyle said he hadn’t refused but wanted police to collect additional evidence that would be “admissible in court.”
City Attorney Long said police believe they’ve gathered enough legal evidence, that there’s nothing more to find and that meant, in effect, that O’Boyle was refusing to prosecute the case.
Long also said Nelson could be prosecuted for an obstruction felony under a new section of state law that refers to officers who sustain “soft-tissue injury” while making an arrest.
The key is that the obstruction/soft-tissue injury charge does not require proof that the suspect knowingly tried to harm the officer.
Long told Boles that “we strongly believe there is plenty of evidence to move forward.”
Later, outside the courtroom, Leque, speaking for his police department, was adamant about the case and the evidence.
“We are shocked by the (district attorney’s) inference that there wasn’t enough evidence for an arrest,” he said.
The city’s motion for the judge to file criminal charges was put off, finally, when O’Boyle agreed to look over the case again and consider a felony obstruction charge.
The possibility of more police evidence was also mentioned.
Boles asked O’Boyle if he could decide one way or another by month’s end. O’Boyle agreed.
O’Boyle is a lame-duck district attorney. He lost an August primary election to Sean Froelich, a former River Falls patrol officer.
During the Monday court hearing O’Boyle said Froelich would likely have charged the case that he has so far refused to do.
O’Boyle, with 20 years on the job, will finish his term at year’s end.
“I suspect there is politics behind this,” O’Boyle said. “That has to factor into this significantly,” noting that River Falls police officers at Monday’s court hearing didn’t even greet him.
Leque said the disputed case with O’Boyle is “not a vindictive thing,” adding: “He’s obviously on a different page.”
Long, a former assistant district attorney in Eau Claire, said she would never have agreed to petition the court for this “really unusual” case unless it was “open-and-shut.”
She said there was nothing questionable about it and emphasized that an “officer was injured in the line of duty.”
For the complete story, please see the Oct. 11 print edition of the River Falls Journal.