John Doe prosecutor pushed for brain-damaged man’s conviction in ATF debacle

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – In the controversy surrounding the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives’ “Operation Fearless,” there’s been little attention to the role of Francis D. Schmitz.

At the tail end of the botched federal guns and drugs sting, it was Schmitz, then an assistant U.S. attorney in Milwaukee, who drove the criminal proceeding against Chauncey Wright, a nearly 30-year-old man whom experts say has the mind of a 6-year-old child.

Schmitz left the U.S. Attorney’s office before Wright was sentenced, but signed off on the plea agreement before his departure. Today, he’s the special prosecutor at the center of the politically charged John Doe investigation into dozens of conservative groups – a probe launched by the Democrat-led Milwaukee County District Attorney’s office.

His critics say Schmitz’s commitment to the case against Wright raises questions about whether he has the restraint to manage the Milwaukee County DA’s attack on conservative advocacy groups.

A Milwaukee Journal Sentinel story noted that Schmitz has taken the rare step of criticizing the ATF operation at the first federal sentencing resulting from the sting.

But in an interview Thursday with Wisconsin Reporter, Schmitz stood by his decision to prosecute Wright.

“If I had any concerns about him being treated fairly I wouldn’t have been part of it,” Schmitz said.

Wright’s family and friends said the developmentally disabled man was no match for law enforcement.

“With him being slow, they knew that and they used him,” Willie Campbell, Wright’s grandmother, told the Journal Sentinel in an April 2013 investigative piece. “He was too slow to catch on to what was going on. He was saying, ‘These are my good friends. These are my guys. They are looking out for me.’

“Whatever they told him to do, he would try to keep his job and he would do it.”

Advocates for the developmentally disabled and a former long-time Milwaukee cop who worked on a special crime-fighting task force alongside the ATF say they remain baffled about Schmitz’s eagerness to prosecute Wright.

“When you think about it the prosecutor who charged him, what kinds of drugs is he on to charge a guy with a 50s IQ,” said Greg Thiele, a 30-year veteran on the Milwaukee Police force who worked sting operations with the FBI and the ATF.

“You can’t only blame the agents; I blame the prosecutor as well. How does he go to court and charge this kid?” Thiele added.

Jim Hoegmeier, executive director of the Arc-Wisconsin Disability Association, asks the same question.

“I can’t believe he was even prosecuted. I just don’t understand it,” said Hoegmeier, whose agency has intervened on Wright’s behalf and continues to assist him in connecting to social services.

Before Wright’s sentencing, Hoegmeier wrote a letter to the defendant’s attorney urging a review of competency and potential guardianship for Wright. The expert noted that Wright’s brain damage was caused by a near-drowning incident in a bathtub when he was a very young child, and that individuals with traumatic brain injuries, in general, desperately long to fit in with groups of people without disabilities, often to the point of smothering them.

“So it is no surprise that Mr. Wright would do all he could to be part of the ATF operation group,” Hoegmeier wrote. “He was used by his ‘friends’ in an effort to get them what they wanted.”

And what the ATF wanted was Wright to drum up clients – felons in the market to sell guns and drugs.

The Journal Sentinel reported agents paid Wright with cigarettes, merchandise and $530 in cash for marketing and “generating business.”

He got into trouble after selling cocaine to the agents in March 2012, a crime that he’d also been convicted of in 2007.

Wright eventually was indicted on seven drug and gun counts, arrested and thrown in jail for six months while his case was pending. Last year, he was sentenced to four years’ probation and six months house arrest, according to court documents.

But a Milwaukee-area attorney who has worked in the same legal circles with many of the same players told Wisconsin Reporter that it’s important for a prosecutor to “know when to say no.”

“Being a prosecutor isn’t just about winning,” said the attorney, who asked not to be identified because of his relationship with some of the individuals in the local legal system. “If he thinks a case is bad it’s his obligation not to proceed.”

Now in private practice in Waukesha, Schmitz previously worked for the U.S. Department of Justice’s counterterrorism operations and helped apprehend a large group of foreigners carrying illegal visas, some of whom officials believed had ties with Sept. 11 hijackers.

Assistant U.S. Attorney Joseph Wall, who worked for years alongside Schmitz, previously told Wisconsin Reporter that the special prosecutor’s “ethics are beyond reproach.”

But a court document reveals that Schmitz defended an ATF investigation that one defense attorney said was designed to take guns off the street but ended up pushing more weapons out into the hands of criminals.

Schmitz told the judge that he or his fellow prosecutor would not participate in any case where there were integrity concerns.

He said the case had been “dragged through the mud,” and that it was “unfortunate that there was a theft of some weapons and a store broken into.” That burglary, by the way, resulted in nearly $40,000 in stolen merchandise, paid for by taxpayers.

“But the bottom line – and, you know, one of the bottom lines is there were guns taken off the street, guns that I would submit that were not going to protect people in their households like a certain politician has spoken about many times, but to be used to further criminal activity. I’m talking about the overall investigation,” Schmitz said. The “certain politician” would appear to be Milwaukee County Sheriff David Clarke, who, at the time had recorded a PSA urging citizens to take a firearm safety course and protect themselves, because law enforcement might not be able to respond fast enough.

But Schmitz acknowledged that the sting all but failed to land any real hardened criminals.

“One of the things I tried to articulate is it didn’t get as many dangerous people, those with a criminal record for violent crime,” he told Wisconsin Reporter. “The vast majority of people were nonviolent offenders… Most of the people who were arrested had felony convictions but weren’t violent offenders.”

Prosecutors didn’t seem to have any problem using Wright as a bargaining chip. In an email to the attorney of James Warren, Wright’s cousin and fellow defendant, Schmitz insists Warren could have faced enhanced charges for taking advantage of the brain-damaged man.

“Wright is undergoing a competency evaluation due to his low IQ. We could make a case that a 4-level enhancement applied due to your client taking advantage of him. We will agree not to do so,” Schmitz wrote to attorney Doug Bihler.

Bihler declined to comment for this story.

That defense of a law enforcement operation seemingly rife with abuse may be precisely what has conservatives worried about when it comes to Schmitz’s prosecution of the so-called John Doe investigation into conservative organizations.

Schmitz is now in the position of defending a secret probe that has been called into question by the investigation’s presiding judge. The special prosecutor has asked a state appeals court to overturn Judge Gregory A. Peterson’s ruling that quashed several subpoenas in a court-administered dragnet that has included pre-dawn raids and confiscation of personal property.

The subpoenas had been issued by the probe’s previous presiding Judge, former Kenosha County Circuit Judge Barbara A. Kluka, who suddenly recused herself from the probe last fall without explanation.

According to Peterson’s ruling, which remains under seal but was obtained by the Wall Street Journal, the subpoenas “do not show probable cause that the moving parties committed any violations of the campaign finance laws,” Peterson wrote.

The judge also ordered the return of property to the targets of the John Doe probe, launched in August 2012 by the office of Milwaukee County District Attorney John Chisholm, a Democrat.

Investigators have targeted organizations like Americans for Prosperity, Wisconsin Club for Growth and the Republican Governors Association in a hunt for alleged illegal coordination between conservative organizations and Republican Gov. Scott Walker’s campaign.

Schmitz has declined to comment on the John Doe proceedings.

A civil rights lawsuit filed against Schmitz, Chisholm and Milwaukee County Assistant DA Bruce Landraf alleges the prosecutors have, among other allegations, violated the First Amendment and 14th Amendment rights of conservative activist Eric O’Keefe and his Wisconsin Club for Growth.

The lawsuit charges investigators haven’t gone after liberal organizations with the kind of prosecutorial vigor they unleashed in two overlapping John Doe campaigns — disparate treatment painstakingly outlined in the 76-page complaint.

A previous John Doe investigation, led by the Milwaukee County DA, put two innocent men in jail, allegedly insisting that one man break the law in providing documents to prosecutors, according to a lawsuit filed against Landgraf.

Contact M.D. Kittle at mkittle@watchdog.org

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