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Prosecutor Ken Kratz has been battered by a storm of denunciation since revelations in September 2010 that he used his position -- and sexually suggestive text messages -- to pursue a crime victim and possibly two other women who relied on him to do right by them in court.
Among those castigating the Calumet County district attorney is Scott Hassett, the Democrat candidate for state attorney general.
But Hassett’s thunder has also pounded another prosecutor, Attorney General J.B. Van Hollen, his Republican opponent in the Nov. 2 election. It was Van Hollen’s Department of Justice that in October 2009 conducted a criminal investigation of Kratz’s most recent "sexting."
Hassett was blunt in a Sept. 21 e-mail to his supporters, declaring:
"Van Hollen knew about this case for nearly a year and did nothing about it."
Hassett has since been more measured, saying Van Hollen did nothing "substantive." When we asked him to back up his claims, Hassett said Van Hollen should have taken a number of steps, including:
- Questioning Kratz as part of DOJ’s criminal investigation.
- Reporting Kratz to the Office of Lawyer Regulation, the state agency that investigates attorney misconduct.
- Reporting Kratz to Gov. Jim Doyle, who has the power to remove district attorneys from office.
Much has happened publicly in recent weeks, so it’s important to keep in mind what was known at the time. Let’s look at Hassett’s accusation in light of how the case unfolded and the role of Van Hollen’s office in it:
The Department of Justice’s involvement was limited to the racy texts sent to Stephanie Van Groll in October 2009 by Kratz, then the chair of the state Crime Victims Rights Board. Kratz had gained attention in 2007 for successfully prosecuting junkyard worker Steven Avery for the murder of a young photographer.
Reports about texts to the other two women and a separate woman who says Kratz invited her to an autopsy didn’t surface until after the Associated Press revealed the Van Groll texts on Sept. 15, 2010.
Kratz, 50, had met Van Groll, 26, while prosecuting a domestic violence case against her former boyfriend. In one text, he wrote: "You may be the tall, young, hot nymph, but I am the prize."
On Oct. 22, 2009, the third day of receiving such text messages, Van Groll reported them to Kaukauna police. Van Groll said Kratz was harassing her and she feared that his interest in her could affect how Kratz prosecuted her former boyfriend, who was accused of strangling her.
Van Groll went to police in Kaukauna, in Outagamie County, because she lived there at the time. Kaukauna police turned their investigation over to the state Division of Criminal Investigation because the Police Department often works with the Calumet County district attorney's office.
The Justice Department opened its investigation on Oct. 27, 2009. It closed the probe several days later, without questioning Kratz.
Van Hollen told PolitiFact Wisconsin "there weren’t any facts that indicated any crimes were committed." Van Hollen, who described himself as being "very involved" in the case, said he didn’t question the decision by investigators who determined it was not necessary to interview Kratz. He noted the department took the step of replacing Kratz in the domestic violence case involving Van Groll with one of its own prosecutors.
Office of Lawyer Regulation
Even though Van Hollen’s agency decided not to file criminal charges, Van Hollen and other department attorneys may have had an obligation to report Kratz to the state Office of Lawyer Regulation.
Wisconsin Supreme Court rules require a lawyer to make such a report if he or she knows another lawyer has committed professional misconduct. The misconduct must raise "a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer."
Two days after the Kratz scandal broke in the news, the Wisconsin District Attorneys Association’s executive committee -- which includes a Department of Justice official -- called on Kratz to resign his district attorney post. The committee judged his behavior with Van Groll as repugnant and "inconsistent with the standards of our profession."
That would seem to qualify as professional misconduct that the Department of Justice should have reported to the Office of Lawyer Regulation as it was reviewing the case for possible charges.
Van Hollen’s office did not to report Kratz to the regulatory office -- but it did pressure him into reporting himself.
On Nov. 12, 2009, less than two weeks after the criminal investigation was closed, Department of Justice attorney Kevin Potter told Kratz in an e-mail "we believe the matter needs to be reported to OLR. Again, we would be willing to discuss with you what we see as being your options and what we believe to be the best course of conduct for you to follow."
Three weeks after that, on Dec. 4, 2009, Kratz reported his texts to Van Groll to the Office of Lawyer Regulation.
It could be argued that a complaint filed the Department of Justice would carry significant weight with OLR. But Van Hollen said his office believed that cases that are self-reported were more likely to result in disciplinary action.
The Department of Justice also pressured Kratz in an e-mail to resign from the state Crime Victims Rights Board, which investigates complaints of public agencies or officials accused of violating the rights of crime victims. About a month later, on Dec. 3, 2009, Kratz stepped down.
Ultimately, the Office of Lawyer Regulation did an initial review and told Van Groll on March 5, 2010, it would not conduct a formal investigation of Kratz. The letter said his texting, while inappropriate, "did not appear to involve possible professional misconduct." Since the news surfaced about the other women surfaced, however, OLR said it would open an investigation of Kratz.
Gov. Jim Doyle
After the news broke about Kratz’s texts to Van Groll and the woman who said he invited her to an autopsy, Doyle used a state law that allows a governor to remove a district attorney from office to launch a process for deciding whether Kratz should be removed. The law allows the governor to oust a DA "for cause," which is defined as "inefficiency, neglect of duty, official misconduct, or malfeasance in office."
Van Hollen said it wasn’t necessary to inform Doyle because the Office of Lawyer Regulation’s purpose is to investigate lawyer misconduct. He pointed out that while Doyle could remove Kratz as district attorney, OLR action could potentially result in Kratz being barred from practicing law altogether.
OK. We’re ready to make a closing argument.
In his bid for attorney general, Democrat Scott Hassett accused Republican incumbent J.B. Van Hollen of doing nothing for nearly a year after his office learned that Calumet County District Attorney Ken Kratz had sent sexually suggestive text messages to a crime victim.
Van Hollen’s office reviewed the case for possible criminal charges, but found no grounds for any. Van Hollen could have reported Kratz directly to the Office of Lawyer Regulation, but his office instead pressured Kratz himself to do so, feeling that would make the case even stronger. They also pressured him to resign from the Crime Victims Rights Board. They could have reported the text matter to Gov. Jim Doyle, but Van Hollen felt the review panel was in the best position to determine if Kratz committed professional misconduct.
Hassett argues Van Hollen could have done more. But his statement was that Van Hollen did nothing. Our verdict: Hassett’s statement is False.
(Note: Ken Kratz resigned from his position Oct. 4, 2010)
Gov. Jim Doyle memo appointing commissioner in Kratz removal case and complaints seeking hearing, Sept. 22, 2010
Emails between Calumet County District Attorney Kenneth Kratz and state Department of Justice officials, Nov. 2 to Nov. 17, 2009
Interview, Attorney General J.B. Van Hollen, Oct. 1, 2010
Interview, Dean Stensberg, executive assistant to Van Hollen, Sept. 30, 2010
Interview, University of Wisconsin Law school professor Aviva Kaiser, Sept. 29, 2010
Kaukauna police report, released Sept. 15, 2010
Kratz letter to Wisconsin Crime Victims Rights board, Dec. 3, 2009
Kratz news release, Sept. 15, 2010
Milwaukee Journal Sentinel, Calumet County DA sent woman racy texts, Sept. 15, 2010
Milwaukee Journal Sentinel, Doyle ready to begin removal process against DA, Sept. 20, 2010
Milwaukee Journal Sentinel, Two more women step forward, accuse Kratz, Sept, 21, 2010
Milwaukee Journal Sentinel, Regulators to reopen investigation of Kratz, Sept. 24, 2010
Milwaukee Journal Sentinel, Lawyer says Kratz will resign, Sept. 27, 2010
Scott Hassett campaign news release, Sept. 21, 2010
Scott Hassett campaign news release, Sept. 27, 2010
Scott Hassett campaign e-mail, Sept. 21, 2010
Wisconsin Department of Justice criminal investigation of Kenneth Kratz, Oct. 27 to Nov. 2, 2009
Wisconsin District Attorneys Association letter to Kenneth Kratz, Sept. 17, 2010
Wisconsin Office of Lawyer Regulation letter to Stephanie Van Groll, March 5, 2010
Wisconsin State Journal, DOJ investigated, cleared Kratz without interview, Sept. 25, 2010
Wisconsin State Statutes, Chapter 17 -- Resignations, Vacancies and Removals from Office
Wisconsin State Statutes, Chapter 165 -- Department of Justice
Wisconsin Supreme Court, Rule 20:8.3 -- Reporting Professional Misconduct (page 200 of the rules, page 52 of the pdf)
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