Attack ad overreaches in state appeals court race

A typically low-profile race for state appeals court has taken a contentious and partisan turn due to a series of attack ads against the incumbent.

Judge Jeff Davis was appointed to the District II Court of Appeals by Gov. Tony Evers in 2019. One of the people who unsuccessfully applied for that position, Muskego Municipal Judge Shelley Grogan, is now running against Davis in the April 6 election.

Though the position is nonpartisan, the race has taken a distinctly partisan flavor as ads from Grogan and a third-party group link Davis and Evers in the obligatory ominous voiceover. An ad running on WTMJ and WISN radio the weeks leading up to the election touted Grogan’s law enforcement endorsements, then said this:

"Jeff Davis just can’t be trusted to keep our communities safe. In fact, Jeff Davis spent years defending a convicted cop killer, who murdered a correctional officer in cold blood. The killer was sentenced to death row, and Jeff Davis tried to get him off the hook."

It’s a classic attack ad narrative — and one that screams for additional context.

Let’s check out the situation referenced here and whether the ad gets it right.

In 1987, William Van Poyck and Frank Valdes attacked a prison transport in West Palm Beach, Florida, attempting to free a convicted killer being taken for skin cancer treatment.

Van Poyck told a jury that he masterminded the ambush, according to the Palm Beach Post. And one of the prison guards said Van Poyck held a gun to his head and pulled the trigger, but the gun misfired.

The other guard, Fred Griffis — a decorated U.S. Army Ranger who served in Vietnam — was shot and killed. Van Poyck and Valdes both claimed at trial that the other had killed Griffis, but both were convicted and sentenced to death since being part of a deadly crime is sufficient under Florida law.

Van Poyck spent decades on death row before he was executed by lethal injection in June 2013.

Throughout most of the post-conviction appeals process, Van Poyck was represented by Davis, who was a civil litigator with Quarles & Brady at the time.

Davis was urged to take the case as a young associate by the American Bar Association, which has a program to recruit pro bono counsel from large law firms for complex cases, his campaign website says. Davis said in an email he "thought it would be a good experience for me in developing trial and appellate skills."

Davis ended up representing Van Poyck — largely on his own — from 1992 until the execution. He asked to be removed from the case in the late 1990s when expected support from a federal resource center disappeared, but a judge denied the request and Davis didn’t ask again.

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"As time went on and my institutional knowledge of the case accumulated, I felt it would be entirely inappropriate and possibly constitute client abandonment if I were to do so," Davis said in an email to PolitiFact Wisconsin.

Davis said he pursued the case in hopes of having the death sentence reduced to life in prison. Despite the tone of the ad, it’s hardly an activity Davis sought to hide. He detailed it in the letter he wrote to Evers seeking the judicial appointment he eventually received.

In a letter to the Florida governor seeking a last-minute stay of execution in 2013, Davis said Valdes’ widow had recently provided a sworn statement that Valdes — who was beaten to death by prison guards in 1999 —  confessed to her that he killed the guard, not Van Poyck. Davis said jurors had indicated in affidavits their verdict "would have been different had they known the truth." The governor declined to intervene, however.

With that context, let’s circle back to the ad.

Grogan says Davis "spent years defending a cop killer." The ad goes on to reference the death of a correctional officer, but it exaggerates a bit on the "cop killer" line. That’s a term traditionally applied only to police officers.

The ad also says Davis "tried to get (Van Poyck) off the hook." Again, this overreaches. Davis was certainly seeking to change the sentence from death row to life behind bars, but he wasn’t seeking to overturn the conviction — the impression listeners could be left with from the ad’s choice of words.

In short, Davis was filling a role required by the American criminal justice system.

Michael O’Hear, a professor at Marquette University Law School, said it’s important to recognize the need for good legal representation even for people accused of the most serious crimes. He noted hundreds of people have ultimately been exonerated in serious cases like murder and rape through evidence solicited and presented by their attorneys.

"People who are accused of serious crimes have a constitutional right to competent legal representation," O’Hear said in an email. "The right to legal representation may be most important for those individuals who have been accused of committing the most heinous offenses."

The District II Court of Appeals, based in Waukesha, is a four-judge panel that hears cases passed up from circuit courts in Calumet, Fond du Lac, Green Lake, Kenosha, Manitowoc, Ozaukee, Racine, Sheboygan, Walworth, Washington, Waukesha and Winnebago counties. It’s a noteworthy position since it can be a stepping stone to the Wisconsin Supreme Court, as it was for Justice Brian Hagedorn, whose former post Davis and Grogan are seeking.

In an attack ad, Grogan said Davis "spent years defending a convicted cop killer" and "tried to get him off the hook."

Davis did indeed spend 21 years working on the Van Poyck case, seeking to have his sentence reduced from the death penalty to life in prison.

But the ad exaggerates on key points. "Cop killer" isn’t quite an accurate description of a man convicted of killing a prison guard. And the "off the hook" phrasing overstates the situation since the appeals weren’t seeking to overturn the conviction, just the death penalty.

Most notably, the overall tone of the ad implies something nefarious about the representation when Davis was filling a role mandated by the judicial system — and doing it for free.

We define Half True as a statement that "is partially accurate but leaves out important details or takes things out of context." That fits here.