Yes, We Have a Prosecutor Problem

Waukesha's tragedy reminds us that ideas have consequences

(Photos: Milwaukee County DA Office / Shutterstock)

It’s unclear whether Miranda Devine, a conservative Australian columnist and writer, has ever been to Waukesha, Wisconsin. But, nonetheless, she has strong opinions about what happened there.

“There’s a reason that the Waukesha massacre has faded from the national media,” she wrote in her fellow Aussie, Rupert Murdoch’s New York Post. “There’s a reason that MSNBC and CNN and CBS refer to it as merely a ‘parade crash’ and quickly move on to other news.”

There’s a reason that President Biden and Vice President Kamala Harris have not prejudged the violent, racist, BLM-supporting career criminal charged with murder for driving his SUV deliberately into a Christmas parade in the mostly white Wisconsin town of Waukesha on Sunday, killing six innocents, including an 8-year-old boy, and injuring 62 others.

There’s a reason the media are incurious about the hate-filled, anti-white social-media posts of suspect Darrell Brooks.

It goes on….

If you’ve spent any time following right-wing media you know that the incident in Waukesha has been a major, recurring outrage, as commentators have rushed to score political points off the tragedy.

The reality is that, despite the speculation, we don’t know why Darrell Brooks drove into the parade route. We don’t yet know whether it was, in fact, a deliberate hate crime. And columnists like Devine aren’t waiting for the evidence to catch up to their priors.

But we do know a great deal about one aspect of the case: the role that Milwaukee’s progressive prosecutor played in putting Brooks back on the street in the days before the tragedy. And while some of the criticism of Milwaukee District Attorney John Chisholm is over-the-top, much of it is, in fact, richly deserved.

The night that Brooks ran into the Waukesha parade, he was out on $1,000 bail, in a case where he was accused of punching the mother of his child and running her over with the same SUV that he drove into the marchers.

It gets worse.

As the Milwaukee Journal-Sentinel reported: “At the time, Brooks was [also] out on bail in a different case, in which he was charged with firing a gun during an argument with a relative. Brooks was released on Nov. 16 after he posted the $1,000 bail.” Brooks also had an outstanding warrant for his arrest in Nevada.

The absurdly low bail was so indefensible that Chisholm did not even try to defend it. In the wake of the Waukesha tragedy, the Milwaukee DA said that the $1,000 bail — recommended by his own office, — was “inappropriately low", and announced that he was ordering an “internal review.”

But this is hogwash, because the low bail was not an outlier in Chisholm’s office. In fact, it represented his pattern and practice, as well as his well-known ideological approach to incarceration.

“The liberal prosecutor believes cash bail is harmful to poor defendants who often can't afford to pay the sum set by judges for their release from jail before trial,” noted columnist Daniel Bice.

The handling of the Brooks case was especially egregious.

Darrell Brooks has been charged with crimes 10 times since 1999, when Brooks — who was then 17 years old — pleaded guilty to a felony charge of inflicting substantial bodily harm.

 A decade ago, during a traffic stop, a Milwaukee police officer jumped inside Brooks’ car, fearing he was about to be run over. The officer had pulled him over for not wearing a seat belt. As Brooks began to drive away while the officer was talking to him, the officer got inside the car and wrestled for control of the steering wheel.

Eventually, the officer was able to stop the car and removed the keys. Brooks ran away from the car, court records say, and he was arrested hiding in a children's playhouse in the same block. He later pleaded guilty to a misdemeanor charge in that case.

More recently, Brooks was charged in July 2020 with two felony counts of second-degree recklessly endangering safety and possession of a firearm by a felon. He was accused of getting into a fight with a relative and then firing a gun at the relative and a friend, according to court records.

His bail was set at $10,000 and then reduced to $7,500. Prosecutors were prepared to go forward with his jury trial on Feb. 9, according to the district attorney's office's statement. Brooks was still in custody at that time and had made a speedy trial demand, but because another jury trial was in progress in the same court, the case was postponed.

After hearing arguments from Brooks' attorney, bail was dropped to $500…

**

Until this month, Chisolm was the very model of a Modern Progressive Prosecutor.

In 2015, he was featured in a glowing profile in The New Yorker headlined: “The Milwaukee Experiment.” The piece, by Jeffrey Toobin, recounted Chisholm’s determination to reduce the number of offenders who were jailed. It quotes an admirer saying: “Chisholm stuck his neck out there and started saying that prosecutors should also be judged by their success in reducing mass incarceration and achieving racial equality.”

“John is a national leader in law enforcement, because he is genuinely interested in trying to achieve the right results, not only in individual cases but in larger policy issues as well,” Cyrus R. Vance, Jr., the Manhattan District Attorney, told Toobin.

As The Free Beacon notes, Chisholm has “taken credit for inspiring a new wave of prosecutors in cities like San Francisco, St. Louis, and Philadelphia who have enacted similar reforms. Chisholm congratulated San Francisco district attorney Chesa Boudin following his election in 2019, and the pair spoke at a forum earlier this year on the status of the progressive prosecutor movement.”

Chisholm has aggressively pursued his policy of diversion and low bail, despite acknowledging the risks.

“Is there going to be an individual I divert, or I put into a treatment program, who is going to go out and kill somebody? You bet,” Chisholm said in a 2007 interview.  “Guaranteed.  It’s guaranteed to happen. It does not invalidate the overall approach.”

This month, Darrell Brooks killed six people.

**

The New York Times sought to downplay the role that Chisholm’s policies may have had in the Waukesha incident, suggesting that “the controversial release may have been not a policy decision, but the result of happenstance and other factors — an inexperienced junior prosecutor and a rushed supervisor up against a huge backlog of cases that piled up during the coronavirus pandemic, according to court documents and interviews with judges, prosecutors, local officials and defense lawyers.”

But Chisholm’s policy of low bail, and his deferred prosecution program were controversial long before Brooks drove into the parade.

In 2010, the Journal Sentinel reviewed Chisholm’s program and found “dozens of examples that raise questions about how the… program is being implemented.” The newspaper’s investigation found that the program “has grown into a major initiative that allows hundreds of defendants each year to walk away from criminal charges with little or no consequences in exchange for getting treatment and staying out of trouble.”

Some defendants awarded breaks under the program committed serious crimes, including several that prosecutors admit violate their own policy, a Journal Sentinel analysis of three years of court records has found….

Among the findings:

• Milwaukee prosecutors offered deferred agreements, in select cases, to defendants charged with felony sexual assault, high-volume cocaine and marijuana trafficking, armed robbery and other weapons crimes.

More than 200 defendants charged with offenses such as felony assault to police officers, prostitution, burglary, felony child abuse, lewd behavior and graffiti were given deferred prosecutions.

• Some offenders were given successive plea deals after getting arrested on new charges and failing to meet the terms of earlier agreements.

• At least a dozen people with extensive criminal records were given deferred agreements.

In one case, the paper found, “a Milwaukee man had a first-degree sexual assault charge dismissed after he completed a year of treatment and counseling, even though he was accused of molesting a 2-year-old girl — a crime that carries a maximum 60-year prison sentence.”

**

More recent studies found that low bail had become a norm under Chisholm’s watch, even as crime spiked in Milwaukee.

A 2019 study by the John K. MacIver Institute found that:

When it comes to crimes like felony hit and run, defendants are often released without any kind of supervision at all. So far this year, judges have released 11 of 31 defendants charged with hit and run involving injury or great bodily harm without supervision. Their bail was set as low as $250.

Additionally, there have been 5 felony hit and run cases involving death. One defendant, Christopher M. Grosskreuz is accused of running over a woman in a West Allis alley and leaving her to die. Video evidence showed his vehicle drug her body. He was released with minimal supervision and a mere $5,000 signature bond.

**

My colleague, Jonathan V. Last, wrote yesterday about the Democrats’ crime problem, which he argued is largely a gun problem. He is, as usual, right.

But as the Waukesha-Milwaukee story ought to make clear: Democrats also have a Prosecutors Problem. And it will be a major issue in next year’s mid-term election (especially in Wisconsin).

Expect to hear a lot more about it.

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I had some thoughts.

Deadline White House @DeadlineWH

"If people believe there is an existential threat to democracy, then they should act like it. The Justice Dept. should act like it, the Congress should act like it, the administration should act like it, and to date I don't think that they have"- @SykesCharlie w/ @NicolleDWallace

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Quick Hits

1. Conservative Media Makes Up a Fake Florida Mansion for Nancy Pelosi

Absolutely fabulous piece by Jim Swift on the anatomy of a viral lie.

Over the weekend, Conservatism Inc. found a new scandal to promote: A false report that Nancy Pelosi had purchased a $25 million mansion in Florida, home to 2024 hopeful, Gov. Ron DeSantis and former President Trump. To underscore: This story is false. Nancy Pelosi has not bought a $25 million mansion in Florida.

But watching how the fake news blew through the conservative ecosystem is illuminating.

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2. The Right’s New Legal Crusade Against Corporate Free Speech

Corbin Barthold in today’s Bulwark:

Conservatives have soured, to put it mildly, on corporate free speech. Last spring Senator Mitch McConnell urged “corporate America” to “stay out of politics.” (He later backtracked, perhaps realizing that he is not one to talk on the subject.) “Big Business has gone hard left,” Senator Ted Cruz recently protested. At the Federalist Society’s national convention last month, many top conservative lawyers questioned corporate political power. “Massive corporations,” one speaker asserted, are seeking “to destroy American freedom.” Vivek Ramaswamy, a tech entrepreneur and critic of woke culture —he is the author of the new book Woke, Inc.—endorsed the left’s objection to Citizens United v. FEC (the 2010 Supreme Court ruling that conservatives loved). In political debates, he said, “every person’s voice and vote” should be “weighted equally, unadjusted by the number of dollars they control.”

As David Brooks observes, the right is coalescing around a new project: “using state power” to “humble the big corporations” and “push back against coastal cultural values.” But vowing to enact laws that tame woke capitalism is one thing; crafting and passing legislation another; and ensuring that that legislation is constitutional yet another.

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Cheap Shots

Charlie Sykes @SykesCharlie

It didn't go well.

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Insanity update.

Oliver Darcy @oliverdarcy

Fox host Lara Logan says that people tell her that Dr. Fauci doesn't represent science, but represents Josef Mengele, the Nazi doctor known as the "Angel of Death" for performing medical experiments at Auschwitz: "I am talking about people all across the world are saying this"