An Irresponsible Prosecutor?

Local television news folks are showing their love for “shocking” and “emotional” stories in their coverage of an overturned jury finding. .

There was trial in Sheboygan County for an accused child molester. A jury convicted Mitchell Pask of child enticement on 12 September, 2007.

After the conviction, Sheboygan County Circuit Court Judge Timothy Van Akkeren overturned the decision. It is an extremely rare occurrence for a judge to throw out a jury verdict.

It turns out that the Sheboygan County District Attorney misfiled. DeCecco filed under Statute 948.07(1) ‑ child enticement. The statute is clear: Section 948.07, Wisconsin Statutes, prohibits causing or enticing a child into any vehicle, building, room, or secluded place with the intent to commit an act of first or second‑degree sexual assault….

There appears to be no argument that Pask intended to entice the nine‑year‑old. The problem is that this occurred in a public park frequented by many and Pask was attempting to lure the child to a very open and public pavilion. The charge DeCecco wanted is based upon seclusion.

According to the criminal complaint, the victim was at the park with several friends when the accused passed by and commented “Look at those sexy little salty girls.” The victim said that the accused wave his hand and made a finger motion toward the pavilion. Then several times he offered her candy and to come with him.

It should be noted that the identification protocol used by police was severely flawed. After Pask’s arrest, the identification was performed by flanking Pask between two officers which is extremely leading. No other possibilities were offered. Whether the other girls who were with the victim were involved in the identification procedure is unknown.

Pask has a lengthy history of misdemeanor and felony convictions. He appears to be one of those persons who are incapable of behaving themselves. He has two prior sex‑related convictions. Many of his convictions are for disorderedly conduct or noise violations.

In 2002, he was convicted of first‑degree sexual assault of child for which he received a prison term. In 2004 he pleaded no contest to fourth‑degree sexual assault receiving jail time.

Given his past demonstrating his inability to behave on even simple levels I doubt that jail or prison is the solution for him. Long term confinement in a state or county hospital is probably more suitable although he may be incapable of good behavior. Jails and prisons in Wisconsin are better at teaching people how to commit more crimes than for rehabilitation.

The problem in this case is not that Pask was charged and tried. It was that DeCecco overcharged. Whether this was due to ignorance, incompetence, or greed is not the issue. He simply needed to file a more appropriate charge or be prepared to show how wide open spaces are same as secluded spaces.

The jurors are expressing anger, but they did not do their job. It is the responsibly of a juror to examine and weigh the facts against the charges rather than decide that mere allegation is sufficient to convict and assume that the prosecutor is behaving properly.

Judge Van Akkeren acted properly by overturning the decision simply because the prosecutor’s case didn’t match the charge. Whether DeCecco screwed up big time is unknown. If he refiles a proper charge and the charge survives double jeopardy challenges, he will likely gain a conviction.

Meanwhile, the jurors who are whining about the reversal would do well to reflect on the fact that they as well as the accused are vulnerable to machinations of prosecutors and that includes overcharges, false charges and more. If they believe they are exempt, they are extremely naive.

Prosecutor Joe DeCecco should bite the bullet and admit the screwup and promptly recharge Pask with the appropriate statute and take this as a lesson learned. I recall a case several years ago when a prosecutor overcharged in a death by intoxicated driver. The jury while perhaps having no doubt of guilt realized that the greedy prosecutor’s charge could not meet the burden of guilty beyond reasonable doubt.

None of us want a child molester to run free and that includes judges. But, there are too many innocent people in jail and prison because of the lackadaisical attitudes of jurors. The witch hunts of “Little Rascals” and “Fells Acres” should be prime examples of the damage caused by overly compliant jurors.

Here, DeCecco is blaming the judge for his screw up. In February, 2007, he blamed a jury for not convicting a man for the same charge. Again, that was DeCecco’s case and his blaming others for the prosecution loss demonstrates a lack of responsibility.