Judge removes Iron County DA from case
December 15, 2020
By RICHARD JENKINS
Hurley — Iron County District Attorney Matt Tingstad is no longer responsible for prosecuting former Hurley fire chief Darrell Petrusha after a judge removed Tingstad from the case, citing a totality of circumstances that “gave the appearance of impropriety.”
“The defendant has the constitutional right to be prosecuted by a conflict-free prosecutor,” Taylor County Judge Ann Knox-Bauer wrote in a ruling last month. “Further, the public has the right to a prosecutor who is viewed to be free from any issues that would prevent him from doing justice.”
Knox-Bauer is presiding over Petrusha’s case. Petrusha is charged with one count of identity theft related to his alleged improper use of a department credit card for personal expenses.
The circumstances leading to the judge’s decision involve accusations the defense has made regarding Tingstad and his actions in the case.
In the ruling granting the defense motion to remove Tingstad, Knox-Bauer wrote part of the factual basis for her decision is contained in an affidavit filed by Steven Lucareli, Petrusha’s former attorney, regarding a subpoena in the case.
Lucareli stated 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 — contacted him in September 2019 regarding a subpoena Van Schyndle received ordering him to appear at a pre-trial hearing that month.
“According to Lucareli, DA Tingstad sent an affidavit to Van Schyndle that he wanted him to sign in lieu of his personal appearance at that court date,” Knox-Bauer wrote in her ruling. “The subpoena was subsequently quashed by (Reserve Judge Gary Carlson), who indicated there was no court appearance on the matter scheduled before him; but rather, the DA had scheduled a pre-trial on the case.”
In July, a special prosecutor declined to charge Tingstad regarding the handling of the subpoena and Lucareli’s John Doe petition regarding the matter was dismissed in October. The special prosecutor, Ray Korte, did refer Tingstad’s case to the Office of Lawyer Regulations for a review of possible ethical violations.
Knox-Bauer’s decision also discussed the allegations Petrusha and his attorney have made that Tingstad isn’t an Iron County resident, a requirement to be district attorney, but also noted the Wisconsin Attorney General’s office has declined to act on their allegations.
The defense’s argument for Tingstad’s removal, according to Knox-Bauer, is that these issues and Tingstad’s need to potentially defend his own interests present a conflict of interest that prevents him from being able to serve as prosecutor of the case.
“Regardless of the outcome of the inquiries, investigations and complaints into Tingstad’s conduct and residency, the fact is that Petrusha and his former attorney, Steven Lucareli, have raised the issue and brought these matters to the attention of the courts, special prosecutor Korte, OLR and the AG’s office,” Knox-Bauer wrote. “Therefore, applying the criteria and law set forth in State v. Retzlaff, … the court concludes that DA Tingstad’s continued prosecution, including choice to maintain or abandon the prosecution, would be seen as a punishment to Petrusha for maintaining allegations against Tingstad, and thus has the appearance of impropriety.”
Knox-Bauer noted the issuance of a subpoena alone wouldn’t have justified Tingstad’s removal from the case. However, she found that the totality of the circumstances means any decisions Tingstad made in the case could be questioned as to whether he was allowing his personal feelings to enter into how he proceeded.
She also noted that an argument could be made that Petrusha intentionally created a conflict of interest by raising the residency issue.
“A party cannot be allowed to benefit from his own misconduct in creating an ethical dilemma or ‘making it personal,’ by doing something to a court official that would cause them to withdraw from a case,” Knox-Bauer wrote. “But, unlike similar situations in which a litigant would threaten harm to a prosecutor or to a court official, Petrusha has not engaged in any misconduct by swearing the verified complaint to the AG’s office about Tingstad’s residency.”
Tingstad declined to comment on Knox-Bauer’s decision.
The court is expected to appoint a special prosecutor to replace Tingstad in handling Petrusha’s case.