Special prosecutor opts against charging Iron County DA
July 25, 2020
By RICHARD JENKINS
Hurley — Iron County District Attorney Matt Tingstad recently learned he won’t be facing criminal charges after a special prosecutor appointed to review his handling of a subpoena in a case found Tingstad didn’t violate Wisconsin law.
At issue was a September 2019 subpoena Tingstad issued in former Hurley Fire Chief Darrell Petrusha’s case related to Petrusha’s alleged improper use of a department credit card for personal expenses. Tingstad was accused of attempting to leverage someone into signing an affidavit that would help his prosecution by subpoenaing them to testify despite no formal hearing involving the presentation of evidence being scheduled.
Special prosecutor Roy Korte, a former assistant attorney general with the Wisconsin Department of Justice, criticized Tingstad’s issuing of the subpoena but found it didn’t merit criminal charges.
“To be clear, my conclusion that the conduct in this matter does not appear to fall within the intended scope of (the relevant laws) does not mean I condone or excuse the conduct,” Korte wrote in his report, dated July 16. “The conduct was clearly an abuse of the subpoena process and one that warrants some form of sanction.”
Tingstad said the right decision was made in not bringing charges.
“The special prosecutor made the decision we anticipated,” Tingstad told the Daily Globe Thursday.
In October 2019, Steven Lucarelli — who was Petrusha’s attorney at the time — requested the Iron County Sheriff’s Department begin an investigation into Tingstad’s conduct. The matter was later transferred to the Oneida County Sheriff’s Department, which requested the appointment of a special prosecutor to review the matter in December 2019. Korte was appointed as special prosecutor in March 2020.
The Oneida County Sheriff’s Department referred a charge of simulating legal process, according to Korte’s report, while Lucarelli sought an additional charge of misconduct in public office as well.
Simulating legal process involves the imitation or appearance of legal documents — including subpoenas — without being genuine.
On Sept. 5, 2019, Tingstad issued a subpoena to Eric Van Schyndle — an attorney representing US Bancorp, the holder of the disputed credit card and a party to a civil suit related to the criminal case — ordering Van Schyndle to appear at a pre-trial hearing set for Sept. 17, according to Korte’s report.
Along with the subpoena was an affidavit for Van Schyndle to sign, stipulating various facts about the events leading to the criminal case.
The email from Tingstad’s office containing the affidavit and subpoena indicated Van Schyndle wouldn’t have to make the 10-hour round trip to appear on Sept. 17 if he signed the affidavit.
The subpoena was ultimately quashed and Van Schyndle was told he didn’t need to appear.
Korte’s report listed several issues with the subpoena, perhaps most significantly that evidence usually isn’t presented at pre-trial hearings, as they are informal and often held in the DA’s office — meaning Van Schyndle was subpoenaed to testify during something that wasn’t yet a formal hearing or time when evidence is normally presented.
In his analysis, Korte agrees with the accusation that Tingstad was attempting to use the subpoena to get Van Schyndle to sign the affidavit that would help the criminal prosecution.
“I have no doubt that District Attorney Tingstad acted inappropriately in issuing the subpoena for an essentially non-existent hearing and with the apparent purpose to obtain information he believed might help him in a pending criminal case,” Korte wrote. “He knew or should have known the pretrial scheduled … was not an actual court hearing, much less one at which testimony would be taken before a judge. No steps had been taken before the subpoena was issued to file a motion or schedule a court date to argue a motion or to seek to obtain testimony.”
Korte noted while Tingstad told investigators he was planning to schedule a hearing to take testimony on Sept. 17, subpoenas aren’t usually issued prior to this step, and called the move “an abuse and misuse of a subpoena,” given the offer to waive the inconvenient court appearance in apparent exchange for signing the affidavit.
Although Korte found Tingstad acted improperly, he determined there were a variety of reasons the case didn’t merit criminal charges.
In essence, Korte found the crime would require the entirety of the document to be fabricated to violate the law. As Tingstad does have the power to issue subpoenas and there was a legitimate court case it was linked to, that standard isn’t met in this instance.
He also found there is no indication the law was intended to be applied in cases like this. Tracing the history of the statute, Korte wrote it was originally intended to deal with debt collectors’ use of misleading documents that appeared to be legal documents as part of their collection efforts. The law was later expanded to cover additional legal processes in response to sovereign citizens using what Korte called “bogus and fictitious legal documents” to harass public employees and officials.
He wrote he is unaware of any cases being brought under the law that didn’t involve wholly fictitious documents.
“The above discussion establishes a reasonable basis to conclude that both the language and history of the simulating legal process statute was and is intended to be limited to legal process that is wholly fabricated or can be considered an imitation or counterfeit legal document. The statute does not appear to cover a situation involving the abuse or misuse of process in an actual pending case,” Korte wrote. “There are other safeguards in place to deal with misconduct, abuse or even mistakes. That includes professional discipline, judicial sanction and even potential civil liability.”
Korte found Tingstad didn’t commit misconduct in office as the law requires an illegal action by a public official, something previously established didn’t happen in this case.
Korte also argued prosecutors are granted discretion to conclude criminal charges shouldn’t be brought for a variety of other reasons and argued a number of them applied in this situation — including a lack of serious harm given the subpoena was quashed within 24 hours of being issued, Tingstad’s apparent absence of past criminal or professional misconduct, the disproportionate punishment of a felony compared to the facts of the case and no evident history of the charge being brought in similar circumstances either in Wisconsin or other states.
Korte said he will refer the matter to the Wisconsin Office of Lawyer Regulation as a violation of the Rules of Professional Conduct attorneys are obligated to follow, as an alternative remedy for Tingstad’s conduct, and noted that voters may also take issue with the actions in a future election.
Although Korte found criminal charges weren’t merited, the issue isn’t completely dead as his decision not to prosecute opens the door for a judge to appoint a second special prosecutor to bring charges under a state law that says a judge can allow charges to be brought by someone when a prosecutor has declined to bring charges.