New trial ordered for Ted Oswald (GOP deal with RATS over Adelman strikes again)

Waukesha - Citing juror bias, Federal Judge Lynn Adelman has ordered a new trial for Ted Oswald, convicted with his father in a notorious Waukesha County crime spree that left a police captain dead.

Adelman's decision, received by attorneys Thursday, drew sharp rebukes from District Attorney Paul Bucher and Circuit Judge Lee S. Dreyfus Jr., who presided over the trial eight years ago.

Both said they were confident Adelman would be reversed on appeal, as he has on several other high-profile cases.

But Oswald's defense attorney said Adelman did what the Wisconsin courts were too timid to do: declare that Ted Oswald, now 27, did not get a fair trial because Dreyfus failed to search hard enough for unbiased jurors.

But Bucher laid the blame back at the feet of Ted Oswald's trial attorneys, saying they made the decision to not try the case outside of Waukesha County. They wanted local jurors who had heard about the case and would be more inclined to believe the defense theory that Ted had committed the crimes as an 18-year-old only because he was brainwashed by his father.

"All I can remember is Ted Oswald saying into the camera and into my face, 'I did execute Jim Lutz,' " Bucher said. "To take that and now say this defendant deserves a new trial is absolutely ludicrous and preposterous.

Bucher added, "I'm speechless as far as what to tell the families . . . the Lutzes, the bank clerks, the officers' families, all of those cops to go back now and tear the scab off of it."

Adelman's decision gives the state 180 days to either appeal his decision or return him to Waukesha County for a new trial. Oswald would be freed from the Green Bay Correctional Institution if the state chose to do nothing.

Bucher vowed to appeal and said if Adelman was not reversed, "we'll retry it and we'll get the same result."

Bucher once investigated Adelman, then a state senator and private attorney, for possible attempted theft for taking from a store's counter a petition denouncing one of his clients and reading it in the store's restroom. Bucher declined to prosecute. Asked about the incident Thursday, he said he hoped the case didn't color Adelman's decision.

Diane Lutz, widow of slain Waukesha Police Capt. James Lutz, said late Thursday that she was still absorbing the news.

"At best, it's disturbing," said Lutz, who declined further comment. She has lobbied for establishment of the death penalty and now is a victim-witness volunteer in Bucher's office.

But in a telephone interview from her California home, Ted Oswald's mother, Susan Williams, said: "I'm just so grateful that at least one person maybe looked at this for what it was and not for what it was portrayed . . . (that Ted) was preyed upon by a sadistic psychopath," a reference of James Oswald.

Ted Oswald and his father, James Oswald, now 58, were convicted in separate trials in 1995 of robbing a Wales bank, carjacking vehicles, taking a woman hostage and gunning down James Lutz in the April 28, 1994, crime spree.

A television news crew captured the final moments of the chase, in which a van commandeered by the two men crashed into a tree in what is now the City of Pewaukee.

The Oswalds are serving consecutive life terms in prison after being convicted in separate trials costing more than $1 million.

But Dreyfus questioned how a federal trial judge could essentially overturn the state Supreme Court, which declined to hear Ted Oswald's appeals, thus letting the convictions stand. Those convictions were upheld by the state Court of Appeals, which dismissed arguments that jury bias had tainted Ted Oswald's trial.

After his state appeals were exhausted, Ted Oswald filed a so-called habeas corpus appeal in Federal Court, arguing essentially that he was being unconstitutionally imprisoned after being unfairly convicted because of biased jurors.

"A federal trial judge has effectively overturned the state Supreme Court," Dreyfus said. "That strikes me as an abuse of the system. I don't think that's how the system was designed."

"The trial was properly done," Dreyfus said. "I'm more than satisfied his rights were properly protected."

Jerome Buting, Oswald's appellate attorney, said he was pleased with the decision.

"We said all along that this jury-selection process was outrageously biased, in our view," Buting said. "And, frankly, we were surprised that earlier courts that looked at it didn't agree with us."

Weeding out biased jurors

In his 60-page decision, Adelman states that Dreyfus was notified that prospective jurors were talking about the case in a jury assembly room and were complaining about how the Oswalds were guilty and that the trial would be a waste of time.

One of the men complaining made it onto the jury after Dreyfus refused a defense attorney's pleas to strike him, Adelman's decision notes.

Dreyfus said that he believed he struck about 25 jurors for cause on issues such as bias or work conflicts.

Dreyfus said he believes there were about 80 to 90 people in the jury pool and 54 were questioned before the final panel was selected.

Adelman ruled that there were at least three other jurors that Dreyfus should have struck for cause but did not. The defense then had to use some of its seven so-called peremptory strikes to dismiss those three jurors and could not use those strikes to get rid of others.

Pewaukee Police Chief Gary Bach, who was involved in the Oswald shootout, expressed outrage at Adelman's decision.

"This is a travesty. This is crazy," Bach said. "It's going to open up some old wounds. Needless to say it's going to cost the county an enormous amount of money that is just ridiculous spending. The system here failed if they allow him to have a second trial."

Here's a story from earlier about this (also posted at the time on FreeRepublic) ...

GOP feels stung by Adelman trade-off

To win Senate, Republicans backed him for judge; some say it was a big mistake

By Dave Umhoefer and Gretchen Schuldt
of the Journal Sentinel staff

Last Updated: Dec. 16, 1999

U.S. District Judge Lynn Adelman's decision this week to free a convicted killer has touched off a round of finger-pointing, hand-wringing and I-told-you-sos among high-level elected state Republicans.

Even though it was two Democratic U.S. senators who recommended Adelman's lifetime appointment to President Clinton, key figures in the Wisconsin GOP supported or agreed not to oppose the nomination of Adelman, a Democrat. They did it because they coveted GOP takeover of his state Senate seat in the Republican-friendly 28th District.

The party indeed won the seat in an April 1998 special election, tipping the balance of power in the Senate to the Republicans, who already controlled the Assembly and governor's office. But their joy was short-lived: Senate Democrats were left in control, 17-16, after the November 1998 elections.

On Thursday, Republican Congressman F. James Sensenbrenner of Menomonee Falls said Adelman never would have won federal confirmation without the support of the state's top Republican, Gov. Tommy G. Thompson.

"The governor was almost camped out in Washington to get the (U.S.) Senate Judiciary Committee to meet on this (appointment) at the end of the session," said Sensenbrenner. He said he warned Thompson against promoting "an ultraliberal" to a much more powerful office just to "get him out of the way in Madison."

Asked if he personally lobbied the Senate Judiciary Committee against Adelman, Sensenbrenner said he did not. "I would have tripped over the governor," said Sensenbrenner, who serves on the House Judiciary Committee.

"This was a huge error, a tragedy," state Sen. Alberta Darling (R-River Hills) said of the political trade-off. Darling said some of her constituents were angry about the murder case decision. "People can be upset that we saw it as a political opportunity. We did."

The finger-pointing came in the wake of Adelman's decision this week to set aside Kathleen A. Braun's 1976 homicide conviction because Reserve Circuit Judge Max Raskin did not let a Milwaukee taxicab driver watch the trial.

That, Adelman said, deprived Braun of her constitutional right to a public trial.

The decision, state and federal records show, was the fifth time Adelman has found in favor of a convict in habeas corpus cases - actions brought to protect the rights of the imprisoned. That constitutes more than half of the eight such decisions by judges in Wisconsin in favor of convicts since July 1, 1997, according to the state attorney general's office.

Thompson aide Kevin Keane sounded surprised Thursday when told that the GOP strategy was coming under attack.

"Senate Republicans came to (Thompson) with the idea" to back Adelman, Keane said.

"Bill Clinton was going to appoint a big liberal anyway," he said. "When you are faced with lemons you try to make lemonade out of it. At least we knew Adelman and we knew we had a chance to win his seat and capture the Senate."

Darling and other Republicans praised Adelman's integrity and said they liked and respected him personally. But they expressed surprise that Adelman's strong liberal values on individual rights were showing so clearly from the bench.

"His job is to be a judge, not a legislator or an activist," Darling said.

But Franklin Mayor Fred Klimetz, who lost a close state Senaterace to Adelman in 1992, scoffed at the idea that Republicans should be caught off guard by Adelman's rulings.

"No one should be surprised," Klimetz said. "This was a political trade-off and a major mistake."

Adelman showed an independent streak in the Legislature that allied him with both major parties at various times. But he was best known as an effective check on law-and-order legislation that he and other Democrats believed was too broad or threatened constitutional rights.

A frequent adversary on those issues, state Sen. Joanne Huelsman (R-Waukesha), said that in Adelman's absence, Republicans pushed through limits on personal injury lawsuits and new criminal penalty laws.

"We got some good things done," she said.

Others, though, bemoaned the outcome.

"Of course it was not worth it to get the majority" for several months, said Waukesha County District Attorney Paul Bucher, a Republican who's interested in running for state attorney general or winning appointment as U.S. attorney. The jury's still out on whether the 28th District was a big enough prize on its own, he said.

District attorneys across the state will have to be on guard now that Adelman has shown a willingness to review state-court cases from decades past based on second or third or fourth appeals, Bucher said.

"This is like a shot of cold water in the face," Bucher said.

Democratic U.S. Sen. Russ Feingold was the key force behind sending Adelman's name to Clinton. Herb Kohl, Wisconsin's senior senator, joined in the pick.

Feingold's offices Thursday reported getting about 10 phone calls against Adelman's latest decision, while Kohl's office reported no calls either way.

Convicts Win 5 Times

Adelman has decided in favor of convicts in state habeas corpus cases five times since being named judge in early 1998. That constitutes more than half of the eight such rulings since July 1, 1997, according to the state attorney general's office.

So far, Adelman has disposed of 82 state habeas cases, dismissing 77 of them, according to the U.S. Clerk of Court's office.

Habeas corpus is "one of the oldest legal protections in the Anglo-American tradition," Marquette University law professor J. Gordon Hylton said. "The right of someone who believes they've been improperly imprisoned - the right to have themselves brought before the court to determine the merits of the imprisonment - is ancient."

But inmates lose a lot of their cases because "most of them are frivolous," added Marquette political science professor Christopher Wolfe. "Most of them are jailhouse lawyers."

There was an explosion of habeas filings in the 1950s and 1960s, Hylton said, but since then, the ability of inmates to file the petitions has been restricted, as federal courts sought to stem the tidal wave, particularly in death penalty cases.

Despite the new limitations, including time limits for filing and restrictions on the issues that can be raised, the petitions remain common in federal courts, but success by petitioners is not.

Nationwide in 1996, federal judges disposed of about 11,800 habeas petitions filed by state inmates and ruled in their favor 1.2% of the time, according to John Scalia, a statistician with the U.S. Justice Department's Bureau of Justice Statistics.

Inmates in Wisconsin generally have not been particularly successful in seeking relief through habeas, either, according to the attorney general's office.

Of the 73 habeas case the office dealt with in the year ending July 1, 1998, inmates won in only one, spokesman Jim Haney said. In the following fiscal year, the office handled 84 petitions, and the inmates won twice; since July 1 of this year, he said, the attorney general's office has been involved in 42 habeas cases, with rulings going in the inmates' favor five times.

Adelman was not involved in any of the inmate victories before the current fiscal year; he was the judge in all five this year, Haney said.

Appeared in the Milwaukee Journal Sentinel on Dec. 17, 1999.

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