In November, 2010 I launched The Legal Watchdog specifically to criticize State v. DeVera, an unpublished case where a trial judge “created facts out of thin air (and contrary to the evidence) to justify sending an autistic defendant to prison.”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.