Current Commentary: A Prosecutor Crosses The Line BY Larry M. Elkin, CPA, CFP®

The justice system is supposed to protect crime victims. Occasionally, however, prosecutors’ power leads them astray.

Kenneth Kratz, the  district attorney for Calumet County, Wisconsin, sent repeated texts to a young woman whose boyfriend he was prosecuting for allegedly trying to choke her to death. The texts included propositions and inappropriate comments such as “Have u ever been spoiled by someone? I mean like being taken care of and spoil him with attention in return? Without ever saying no?” The woman, 26-year-old Stephanie Van Groll, eventually complained to the  police.

If she was hoping for immediate results, she was disappointed. Though Kratz resigned as chairman of the Wisconsin Crime Victims Rights Board, no professional action was initially taken against him. “Although (Kratz’s) communication with you was inappropriate, it did not appear to involve possible professional misconduct,” Van Groll was told.

Prosecutors, by necessity, have great discretion over how and when to prosecute alleged crimes. That power comes with the unfortunate potential for corruption and abuse. A prudent society should create safeguards against the abuses such power invites.

Grand juries are supposed to be one such check on prosecutorial misbehavior, but a  grand jury’s scope is limited to abuse against those suspected of a crime, not victims or witnesses. And, as the well-known phrase asserts, a good prosecutor has enough control of a grand jury to indict a ham sandwich. Grand juries alone clearly are not enough of a watchdog.

There are four other possible avenues to restrain a wayward DA like Kratz. The first is a court sanction. Courts can penalize prosecutors for all sorts of misconduct; in extreme cases, they can bar prosecutors from appearing in court altogether, making it effectively impossible for them to do their jobs. However, prosecutors are not part of the judiciary. Courts are often reluctant to sanction a prosecutor for anything other than offenses against the court itself. Though they do provide a check on some sorts of abuse, court sanctions are not much help in cases like Van Groll’s.

The next entity in line to curb prosecutorial misconduct is a professional organization, like the state’s bar association. There is some overlap between this solution and the previous one, as many bars are headed by their state supreme courts. Bar associations are reasonably quick to act against attorneys who have been convicted of a crime. When the attorney happens to be a prosecutor, however, mutual respect for professional turf makes such prosecution less likely, and relief from the bar seems to follow suit.

This is what happened in Kratz’s case. The DA remains evidently unrepentant for his actions, and the Wisconsin Bar Association remained silent on the matter for months.

The Wisconsin Supreme Court also has an Office of Lawyer Regulation, which handled Van Groll’s complaint. However, it is unclear from news reports why Kratz’s open harassment was not considered an instance of professional misconduct, considering the power dynamic at play. Van Groll says she hesitated to complain while Kratz was still acting as prosecutor for fear of him throwing out her case.

Wisconsin  Attorney General J.B. Van Hollen claimed the OLR had the same view in mind: not disturbing an ongoing case. But Van Hollen was equally eager to make it clear that he was blameless, even if the OLR as a whole should have acted more stringently. The Appleton Post-Crescent reported that he admitted, “There are no bones about the fact that the Office of Lawyer Regulation dropped the ball here,” but at the same time, he said, “It was a big deal last November, and we took all the action that should have been taken.” The OLR recently announced that it would reopen the previously dismissed complaint about Kratz.

The third possibility is for private citizens to be permitted to sue prosecutors or other  law enforcement officers for malpractice or professional misconduct. Generally, public officials who perform their duties in good faith are protected from  lawsuits no matter how faulty their judgment nor substandard their performance. In a case such as that of Kratz, however, I do not see how he can be viewed as having performed his duties in good faith. He tried to take advantage of a defenseless young woman who sought the law’s protection. He tried to use his affluence and power to purchase her attention; those same assets now ought to be available as sources of restitution for her distress.

Prosecutors will argue that they can’t do their jobs without the leeway to make mistakes. To that, I say: “Welcome to America.” The standards for winning compensation from a prosecutor, or other members of the  criminal justice system, ought to be set high. We do not want to intimidate police and prosecutors who must make tough decisions in order to keep society safe. But if a DA or a cop promises to act on a citizen’s complaint only if that citizen provides companionship, money or some other favor, the aggrieved citizen ought to be able to seek compensation directly from the offender as well as the offender’s employer.

The last entity that can penalize the misconduct of a prosecutor, and in this case the one that finally did so, is the public. Most prosecutors are subject to elections, and when it looked like Kratz planned to run in 2012, it seemed likely his county was going to tell him that it was time to seek other employment.

Now that won’t be necessary. Public outcry resulted in Wisconsin Gov. Jim Doyle initiating a rarely-used process to remove Kratz from office for cause. Rather than submit to the investigations and hearings that would result, Kratz will be resign his post, his attorney announced last week (though not without a suggestion that the removal was politically motivated, and a comment that the county’s residents “need to move on”).

Whether or not the reopened OLR proceedings result in further penalties, at least Kratz will no longer be in a position to prey on other crime victims.

Had the governor not taken action, the people of Calumet County would have had the last word – though not until the next election, in 2012. They had the final power to remove the abusive prosecutor from his post. And if they failed to do so, they would have gotten the justice they deserved.

Larry M. Elkin, CPA, CFP®, is president of Palisades Hudson Financial Group which is a fee-only financial planning firm headquartered in Scarsdale, NY. The firm offers        estate planning, insurance consulting, trust planning, cross-border planning, business valuation,      family office and business management, executive financial planning, and tax services. Its sister firm, Palisades Hudson Asset Management, is an independent     investment advisor with about $950 million under management. Branch offices are in Atlanta and Ft. Lauderdale. Website: www.palisadeshudson.com.