Wisconsin prosecutors face challenge with Lincoln Hills case, Attorney General Brad Schimel says

Patrick Marley
Milwaukee Journal Sentinel

MADISON - Prosecutors will have difficulty pursuing criminal charges in at least one incident uncovered in the wide-ranging investigation into the state’s troubled juvenile prison, Attorney General Brad Schimel said.

The Republican attorney general also raised concerns about limits a federal judge has put on Lincoln Hills School for Boys and Copper Lake School for Girls, which share a campus 30 miles north of Wausau. Schimel said it is “dangerous” for courts to put restrictions on prison operations.

Schimel declined to provide details about a criminal case at the prison complex his office is handling, but signaled it was stalled because of difficulties working with one or more juvenile inmates who witnessed or alleged abuse.

“I just don’t want to come off as being critical of the youth that were there for their levels of participation in an investigation,” Schimel said in an interview. “Some of them have a lot of reasons to be wary of talking to law enforcement.”

The prison complex has been under criminal investigation for nearly three years for prisoner abuse, child neglect and other possible crimes. Schimel’s office conducted the investigation for the first year and then turned it over to the FBI.

Schimel said he’d hung onto at least one case that “has some potential” but that has “some problems.”

He declined to provide specifics, other than to emphasize many of the inmates at Lincoln Hills and Copper Lake have troubled pasts. He said he wanted to avoid commenting on whether some inmates were reluctant to work with prosecutors.

“A good prosecutor never makes statements that are critical of a crime victim,” Schimel said, referring to one or more inmates.

His comments raise questions about whether prosecutors will issue charges when they wrap up the long-running probe.

The investigation is now headed by U.S. Attorney Scott Blader, who took over the job last month after being nominated by President Donald Trump and confirmed by the U.S. Senate. So far, Blader has declined interview requests. His processor, Acting U.S. Attorney Jeff Anderson, said in October that the investigation was “active and ongoing.”

Investigators with the Lincoln County Sheriff’s Office recommended charging former Copper Lake guard Scott McKenna for a 2015 incident in which he allegedly pushed a 15-year-old girl against a wall with his hand on her neck.

The Department of Corrections fired McKenna, but later reversed course and allowed him to quit. The department gave him a $6,000 settlement and he agreed not to seek employment with the department again.

Last year, Lincoln County’s district attorney at the time, Donald Dunphy, said he referred the charging recommendation to Schimel’s office, but no charges have been issued.

It was unclear if Schimel’s comments this week referred to the McKenna case or a different matter.

Schimel said he had told the new U.S. attorney that he would be willing to do anything to help with the Lincoln Hills investigation but has not heard back from him yet.

“I wouldn’t expect them to tell me where things stand because it’s their investigation,” Schimel said.

The FBI was “pretty insistent” about taking over the case in early 2016, he added.

Asked how the public could be confident the U.S. attorney’s office is taking the investigation seriously, Schimel said: “I would expect that eventually there is going to be some kind of report or accounting by the U.S. attorney’s office.”

This year, teen inmates represented by the American Civil Liberties Union and Juvenile Law Center brought a class-action lawsuit against prison officials. A federal judge found their civil rights were likely being violated and issued an order forcing prison leaders to curb their use of pepper spray and solitary confinement.

Prison workers have said conditions have gotten less safe since then, with some of them saying they fear for their lives.

“It’s dangerous for a court to get too far involved in dictating what law enforcement and correctional officials have to do to keep themselves and the people they supervise safe,” Schimel said. “It’s dangerous. And as I understand it, the young people that are engaging in the acts of violence now have made statements about being aware, ‘You can’t touch us; the judge told us your hands are tied.’ That creates a dangerous situation for everybody.”

Attorneys for the inmates reacted strongly to Schimel’s comments.

“The only options the court has limited are cruel and unusual options that other juvenile correctional systems have managed to do without,” said a statement from Larry Dupuis, legal director of the ACLU of Wisconsin.

Marsha Levick, deputy director of Juvenile Law Center, said federal courts are required to protect constitutional rights.

“It is dismaying that a state law enforcement official fails to see how critical that is to our constitutional democracy,” she said in a statement. 

Schimel does not represent the Department of Corrections in the lawsuit and said he does not know why the agency has not appealed the ruling or sought modifications to it.

The litigation is being handled by Sam Hall and other attorneys with Crivello Carlson in Milwaukee. 

Department of Corrections spokesman Tristan Cook did not say whether he agreed with Schimel’s views about the judge's order. He said by email the department is seeking “a mutually agreeable resolution that retains options for DOC line staff to effectively manage youth who are dangerous and ensures that staff have tools to defend themselves.”