Thursday, June 28, 2012

Walkergate: The Return Of The Universal Immunity Defense

The other day, I pointed out that there were upcoming attractions in regards to the criminal case against Kelly Rindfleisch.

Indeed, there's been a relative flurry of action going on in the case. As noted in the above link,the Milwaukee County District Attorney's Office is seeking permission to introduce even more of Rindfleisch's emails to provide "necessary context" and "complete the story behind the workday contacts in the charged counts."

Meanwhile, Rindfleisch's attorney, Franklyn Gimbel, has again filed a motion to have the case dismissed. His motion is based on two things.

One, he is citing the theory of universal immunity, in that the immunity Rindfleisch was granted during the caucus scandals should transcend time and be inclusive for all criminal behaviors.  He's tried this before, and I didn't think much of it then:
The defense with the highest comical effect, although I'm sure it was not intentional, is the one that Rindfleisch's attorney is presenting.

The first attempt to was to try to get the case dismissed outright, stating that it was improper for the complaint to include testimony that Rindfleisch had given years ago during the caucus trials.  In other words, they were trying to argue that the immunity granted all that time ago was unlimited in time and scope - an universal immunity, if you will.

While I am not a lawyer, nor do I play one on the Internet, I find this laughable. The immunity that was granted was indeed to protect her from incriminating herself...for the caucus scandals. It was not meant to cover her for any other misdeeds she might do years later. 
The answer to this was already given in the DA's response to Tim Russell's motion to suppress evidence. Russell's attorney, Dennis Krueger, argued that the Walkergate investigation exceeded it's authority in its scope.  However, ADA Bruce Landgraf pointed out that the investigation followed the crime and that the investigation was under the auspices of an overseeing judge, in this case, the Honorable Neal P. Nettesheim.

Starting on the bottom of page 2 of the state's response:
The John Doe proceeding at issue here was commenced in May 2010. It was initiated pursuant to Wisconsin Statutes §968.26 (2009) That statute provides in relevant part:
(1) If a district attorney requests a judge to convene a proceeding to determine whether a crime has been committed in the court's jurisdiction, the judge shall convene a proceeding described under sub.(3)and shall subpoena and examine any witnesses the district attorney identifies.


(3) The extent to which the judge might proceed in an examination under sub.(1) or (2)is within the judge's discretion. The examination may be adjourned and may be secret...
The same would hold true for material evidence as well.

In other words, as long as the judge finds the request permissible, it will be allowed to happen. The only way that the DA would be able to ensure gathering all of the evidence is to collect all the emails for a specific time frame and then go through it.

A strong example would be from the Rindfleisch transcripts filed earlier this year. The email servers might not have thought a discussion of who was taking care of Rindfleisch's pets would be relevant to the case, but the DA's Office was able to use that to show that she was committing fraud by using the pretense of moving to Milwaukee County so that Walker could hire her to work in his office and do the campaign work he wanted her to do.

If I can see through Gimbel's arguments and rebut them, I'm sure that ADA Landgraf or whoever is handling this case will be able to do so with even more aplomb.

In summary, I don't think that Gimbel's gambit will work anymore than his failed attempt to have the venue changed to Columbia County.  But he is doing what he is supposed in offering the best defense he can for her.  It's not his fault that Rindfleisch was so blatant in her misdeeds that there is such a pile of evidence against her.

1 comment:

  1. That's why Walker hired Rindfleisch to his county staff, she has a "get out of jail free" card. Now he just needs one for himself (wonder if he can buy one like in Monopoly?).