Saturday, April 9, 2011

Linda Van De Water: Poor Judge(ment)?

In November, 2010 I launched The Legal Watchdog specifically to criticize State v. DeVera, an unpublished case where a trial judge “created facts out of thin air (and contrary to the evidence) to justify sending an autistic defendant to prison.”  I wrote about this case, here, because while I’ve seen and read about bizarre sentences before, this one was beyond the pale.  And, as it turns out, The Legal Watchdog was actually on to something bigger.

The trial judge in that case—who I decided not to name at the time—was Linda Van De Water.  Interestingly, Ms. Van De Water has recently been charged with her own crime: a single count of disorderly conduct for what is alleged to be a string of aggressive, offensive and even dangerous acts in public places.  The Milwaukee Journal Sentinel has some nice stories about it here and here, and even posted the criminal complaint here.

First, although I found Van De Water’s judicial actions in State v. DeVera to be sickening (and genuinely wondered how she could possibly sleep at night), it’s important to remember that she, like every other defendant, only stands accused and not convicted. For example, while the complaint isn’t clear on this point, and although it might be immaterial to the state’s case anyway, Ms. Pettit’s identification of Van De Water as the perpetrator might have been the result of an illegal show-up identification procedure.  (If Van De Water wants to take an active role in her own defense, she can educate herself on the topic by reading my show-up article, here.) 

Second, this is a case that could easily have been brushed under the rug due to the defendant’s judicial status, so I give the Racine District Attorney’s Office credit for prosecuting it.  However, being cynical in nature, I can’t resist positing a few questions (criticisms?) about the criminal complaint.  Here goes:

  • Why is criminal damage to property not charged for the sports car?  Van De Water’s ex-boyfriend said that she had damaged it, and an eyewitness saw that Van De Water “kicked it four times, once in the tail light area, once in the driver’s side panel, once in the driver’s door, and once in the front side panel” and then, as the car was moving, “jumped on the hood of the car, lying across the hood, screaming at the driver.”

  • Why does the complaint allege “otherwise” disorderly conduct, and not “violent,” “abusive,” or “profane” conduct?  The probable cause section of the complaint does adequately allege acts of violence, abuse, and profanity by Van De Water.  (The profanity, however, appears to have occurred outside of the prosecutor’s county.)  Could the prosecutor’s restraint have something to do with the possible domestic context of this situation, and an attempt to preserve Van De Water’s Second Amendment rights if ultimately convicted?

  • Why is there only a single count of disorderly conduct charged?  The complaint alleges multiple and distinct disorderly acts with multiple victims—Ms. Pettit, Dr. Stone, and Ms. Makutz—even though an actual victim is not even required for the crime of disorderly conduct.  (For those who don’t know, charging multiple counts of the same crime in a single complaint is very common.)

  • Why is criminal reckless driving not alleged?  In my first criminal trial nearly ten years ago, my client was charged with criminal reckless driving for spinning his back wheels on some sand in a parking lot near the lake.  Here, Van De Water is alleged to have driven her own SUV “at a high rate of speed . . . in a residential area” after going-off on her ex-boyfriend's sports car and pursuing him through the neighborhood.  I might be wrong, but this sounds a bit more dangerous.    

These bullet points certainly wouldn’t earn me an “A” on an issue-spotting exam in law school; after all, I ignored the big issues like stalking and reckless endangerment.  But they are food for thought, indeed. 

My prediction: If there turns out to be a reliable and admissible eyewitness identification, or other reliable evidence of guilt, the prosecutor will decide that it was simply a matter of "poor judgment."  He (or she) will then offer Her Honor a deferred prosecution-type agreement, ending with a dismissal of the charge or an amendment to a non-criminal ordinance.

10 comments:

  1. "Circuit Court Judge charged with Disorderly Conduct for Stalking Local Heart Surgeon"
    I don't know why we are not reading about this in the Kenosha News???

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  2. "High rate of speed"? While that inanity is common in the news, what's it doing in a legal complaint? "Speed" is a rate. "Rate of speed" is what, acceleration?

    Are criminal complaints really written by people who are this ignorant?

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  3. Re: The complaint, and the language "high rate of speed."

    Complaints are often inartfully drafted, and there is an incredibly low legal standard with all inferences in the complaint going to the state. So prosecutors usually don't have an incentive (or the time) to draft a good literary work of art.

    In this case, however, I selected quotes from the complaint. I linked to the entire document in my post, and I believe they alleged a more precise speed, actually.

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  4. well now that she is back to work in family court, will she have more or less judgment and insight when she makes her rulings???
    what a great thing for the people of Waukesha County and the State of Wisconsin to have a seated judge who is a defendant herself in a borderline personal violence situation involving at least one broken heart...(with a heart surgeon no less !)
    at least those poor slobs who are struggling to understand what "no fault divorce" means can rest assured they've got a judge who FEELS their PAIN.............
    and as for the self-declared non-victim, nice drama outside the "operating theater"....

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  5. they are currently engaged, so sayeth the bride-to-be.

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  6. well now, that's a couple of divorce lawyers' dream in the making!

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  7. Van de Water should be removed immediately from the Family Court Bench. She has no business ruling on a divorce case where there has been violence, restraining orders, substance abuse, etc. How will the other party (the non-violent) get a fair trial - she will most definately relate to the abuser in her cases, of which one is mine and she has already done so.

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  8. I am one of the poor Waukesha County Family Court clients who is unlucky enough to have Judge Van De Water preside over their case. I am willing to grant anyone access to the proceedings- particularly yesterday's- in which she repeatedly tosses aside legal procedures so she "doesn't have to be here again next week". I finally retained a lawyer for yesterday's hearing as she likes to threaten jail time (although not for my ex, who has been chronically behind in child support for over 3 years & will not hold a job), and my lawyer was stunned by Judge Van De Water's lack of proper protocol. I am going to be pursuing appeals & whatever else I can to get her removed from her bench. The author of this blog can contact me at ksk262@live.com if he would like in on the action. Thank you.

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  9. She should be permanently kicked off the bench. An aquaintance who I knew for 32 years killed her own mother who she lived with all of her lifetime. Ms. Vande Water only charged her with two nominal felony convictions and only made her sit in the county jail for thirty days! I just do not get it!!!!

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    Replies
    1. Anonymous: Thanks for you comment. However, I don't think that being soft on crime is the problem with this particular judge. (See my earlier post titled "Judge makes up facts and sends autistic defendant to prison.") As for the case you are referring to, the judge didn't (and can't) charge the defendant. The prosecutor does that, and it's out of the judge's hands. Also, you can be sure that your former acquaintance didn't kill her own mother -- or at least there was no evidence that she did so. Otherwise, the charges and sentence would have been greater. If you comb through CCAP, you will find a nice history of the case, including the original charges, the plea that defendant entered into, and the sentence she received. Following things through the media is never good, as they often get things wrong. Even CCAP gets it wrong sometimes, but as a rule, it's fairly reliable.

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