A poisoned prosecution

Introduction

In May 1999, Robert Wasser’s life was turned upside down when Walworth County, Wis., Assistant District Attorney Diane Resch charged him with fourth-degree sexual assault. The charge stemmed from a complaint filed by Wasser’s then 20-year-old adopted daughter Samantha (not her real name).

Wasser and his wife Bonnie had dedicated their adult lives to helping abused and neglected children. Over the years, the couple had adopted 22 children and were on the state’s list of parents who take in special needs kids. The state would sometimes use them for emergency placement when children had nowhere else to go. When the Wassers adopted 14-year-old Samantha, they knew the risks. Her previous foster father had sexually assaulted her, and she would need special care. But they had had success raising similar adopted children and were confident they could help her.

Wasser’s troubles began one weekend when Samantha was home from Wisconsin Lutheran College, a four-year, coed liberal arts school in Milwaukee. Wasser found a handwritten note from Samantha to her boyfriend, a man she would later marry, about dropping out of college and leaving Wisconsin together. Wasser confronted Samantha about the note. Later, he drove her back to college.

The drive to Milwaukee was tense—but still, the conflict with Samantha seemed minor to Wasser, considering her painful past. All that changed, however, a few months later, when an overzealous prosecutor with a history of misconduct and a series of mistruths and outright lies turned a minor dispute into a major crisis. While the charges against him were eventually dismissed, he lost his job, his reputation was damaged, and he incurred the expense of a court battle. The woman who prosecuted him, and misled the court in the process, still has her job.

Aggressive advocacy—and misconduct

At a time when the nation was still trying to make sense of a series of highly charged and much publicized sexual abuse trials involving children—some of which would show how the original accusations were either coaxed by aggressive investigators or induced by questionable therapeutic techniques—some prosecutors continued to push for convictions with very questionable evidence. Resch, for one, remained a passionate prosecutor of alleged sexual abuse and had assumed responsibility for most of Walworth’s sexual assault cases since joining the DA’s office in 1992. Since then, the Wisconsin Court of Appeals has addressed her conduct at least seven times. In four of those appeals, judges ruled that her behavior warranted reversing the defendant’s conviction. Two of the reversals involved alleged child sexual abuse. (See our clarification on these numbers.)

Resch declined requests to comment for this report.

In 1994, appellate judges reversed a conviction Resch won against Andrew Torstenson for the sexual assault of a child. There had been no physical proof or eyewitness testimony; Resch’s case rested mostly on the victim’s statements. During the trial, Resch told the jury that the trial judge thought the victim’s statements were “reliable,” “credible” and “trustworthy.” Defense counsel offered no objection and the trial judge did not admonish Resch, though he did tell the jury that the prosecutor’s opinions and arguments were not evidence. Writing for a unanimous appeals court, Judge Richard S. Brown held, “When the prosecutor commented that the court had given a judicial imprimatur to [the victim’s] credibility, the jury was effectively being told that [the victim] was truthful and, therefore, that the State’s case was the truth.” Resch’s bolstering of the victim’s statements denied Torstenson a fair trial, the court concluded. “In a credibility battle, we can hardly think this to be unprejudicial,” Brown wrote.

In a 1998 burglary case, Resch withheld exculpatory police interviews from the defense. In reversing the conviction, the appeals court held that the interviews showed there was no “criminal intent” and “seriously” impeached a police officer, who was also a witness for the state.

In a 1997 case involving child and animal neglect, Resch used juvenile-court records she had obtained on the eve of the trial without notifying the defense counsel. Appellate Judge Harry G. Snyder wrote that the court had “no confidence in the outcome of the verdict” and reversed the conviction.

The year after Wisconsin State Legislature passed a law that allowed children as young as 10 to be convicted of serious sex crimes, Resch charged a 10-year-old boy with first-degree sexual assault.

The charges, which led to a three-day, non-jury trial in front of Walworth County Judge Robert Kennedy, stemmed from two separate incidents, both of which occurred while David played in his backyard with other children. In the first incident, he touched a next-door neighbor during a game of truth or dare. In the second, he created a new rule for a game of capture-the-flag—the girls had to lift their shirts when they were captured. One of the girls said David touched her underneath the shirt.

Resch argued that the law does not distinguish between childhood sexual exploration and an adult with intent to be sexually aroused. “This is just as wrong as an adult playing these games with little kids,” she told the court.

Kennedy ordered the boy to be placed on one-year supervision at home with psychological counseling, restitution and community service. The judge also ordered him to register as a sexual offender and provide a DNA sample.

The boy provided a DNA sample but appealed the order requiring him to register as a sex offender. In 2001, the Wisconsin Court of Appeals ruled in his favor.

“Resch just went for the throat and was treating him like he was 18,” the boy’s mother told the Center for Public Integrity. “She wasn’t interested in the truth; no one was interested in the truth.”

Sexual assault alleged

About a week after Wasser had spoken to Samantha about her intention to quit school, Samantha called to tell him she had dropped out of college and was living with her boyfriend. A month later, Bonnie Wasser received the first of many letters alleging sexual contact between Robert and Samantha.

“Ask christen Bob about his sinful relationship with his foster daughter, Sam,” one of the typed letters said.

“You must condemned this man from the innocent children under his authority,” said another.

Wasser’s workplace and one of his three birth sons also received letters. Soon, the reason for the letters became apparent.

“We got a call in December from the guy she is with saying the harassment would go away for $500 a month,” Wasser said. He also received a letter from Samantha asking for money to help pay bills.

One of the letters was dated January 9, 1999. That same day, Officer Jeff Recknagel interviewed Samantha and her boyfriend at the Fontana Police Department. The police had been contacted by a therapist Samantha was seeing. During the interview, Samantha claimed that Wasser had sexually assaulted her once when she was 19 years old and once again when she was 20.

When Recknagel interviewed Wasser at his home, Wasser told him the allegations were not only false but also indistinguishable from Samantha’s allegations against her previous foster father.

“He didn’t believe me,” said Wasser.

In February 1999, Assistant District Attorney Diane Resch took the case.

In March, Wasser received a certified letter stating that Samantha was filing a civil suit against him for monetary compensation.

Two months later, Resch pressed criminal charges.

Wasser hired defense attorney David Danz, who had previously served as District Attorney, to represent him. Danz entered a not-guilty plea.

“Our lawyer told us the system worked,” Bonnie Wasser said. “But I think I overestimated the honesty of the system.”

A culture of misconduct

Resch wasn’t the only one at the Walworth County District Attorney’s office with a recent history of aggressive prosecutions, error and misconduct. Since 1990—the year District Attorney Phillip Koss was elected to office—there have been at least 26 appellate decisions addressing alleged prosecutorial error. In the 20 years before that, there were three. In 11 of those 26 cases, judges ruled that the prosecutor’s conduct required reversing the defendant’s conviction.

The appellate court has addressed Koss’s conduct in at least 11 cases. In five, the court ruled that his misconduct warranted reversing the defendant’s conviction. Two reversals involved alleged child sexual assault.

In January 2003, for example, the Wisconsin appellate court reversed a conviction for sexual assault of a child because Koss convinced trial judge James Carlson to ignore a precedent-setting appellate decision, Richard A.P. That decision held that defendants in sexual assault cases must be allowed to use psychological experts in their defense. Koss apparently thought the decision was wrong.

“We are troubled by the district attorney’s arguments that a trial court is free to ignore a published decision of the court of appeals,” wrote Judge Snyder. “While the District Attorney may think that Richard A.P. was an ‘obviously’ wrong decision and contrary to nationwide precedent, it is the law.”

In 1999, Koss prosecuted Mark Daer for sexually assaulting his eight-year-old stepdaughter. The appellate court reversed Daer’s conviction in August 2002 because Koss “prevented the real question of Daer’s guilt from being fully tried.” Among the incidents the court found problematic were “the prosecutor’s improper focus during closing argument on [alleged perjury by Daer’s wife] Trina Daer and the prosecutor’s comment during closing argument that defense attorneys routinely trumpet their clients’ innocence no matter what the evidence at trial.”

In another case, which Koss prosecuted before his election to District Attorney, the appellate court reversed the defendant’s conviction because Koss withheld evidence suggesting that the defendant was innocent.

“This type of abuse wasn’t present before,” said Defense Attorney Jeffrey Krebs, who has practiced in Walworth for about 18 years and is now the deputy assistant state public defender. “It has been going on since 1990—it starts at the top.”

Koss said some defense attorneys might mistake his vigorous public advocacy for abuse.

“I believe we are aggressive on prosecuting child sexual assault cases,” Koss said. “We’ve prosecuted cases that other counties would not.”

Karen Barbour, a victim’s advocate who has worked in Walworth for 26 years, agrees.

“They take these cases extremely seriously and they are very proactive as far as prosecution,” she said. “They will take on many cases that other district attorney’s would not consider prosecuting.” She has worked closely with Koss in many cases involving children.

“I think he is very professional and takes his work very seriously,” she said.

No Plea

In June, Resch offered Wasser a deal. He could plead guilty to one count and the state would not recommend a sentence, leaving that to the discretion of the judge. Wasser turned down the deal. For the next seven months, his case lingered in the system on various hearings and continuances.

On February 8, 2001, Resch offered Wasser a second deal. He could plead guilty to disorderly conduct, and the state would recommend a sentence of costs only. Again, Wasser turned her down: Wasser said he was not willing to plead guilty to something he did not do.

Five months later, Samantha dropped her civil suit, and Resch withdrew the offer.

“With the issue of money no longer looming over the case, the defense was without any motive for the victim to falsely accuse the defendant,” Resch wrote in a report.

On October 11, with the trial date approaching, Danz confronted Resch with the crux of Wasser’s defense—the similarity between Samantha’s description of the sexual assault by her previous foster father James Schlosser and her allegations against Wasser. Both cases involved manual masturbation and ejaculation.

Diane Resch insisted that first Samantha then Diane Behrens, one of Samantha’s previous foster mothers, said Schlosser had had sexual intercourse with her. Resch told Danz and Watson (and the court) that the Schlosser incidents “clearly involved sexual intercourse.” Resch insisted the two assaults were entirely different. She told Danz she had spoken with Samantha, who had specifically told her the two assaults were different.

Danz sent Resch a fax transcript of their conversation together. He asked Resch to “call immediately” if she discovered that the two assaults were, in fact, similar. An hour later, Resch called Danz and said Samantha was in her office and had confirmed that the two assaults were “clearly” different.

The next day, armed with a transcript of the first foster father’s trial that proved the allegations were similar, Danz went to Judge Michael Gibbs. At this point, Resch changed her story. She told the court that Samantha had never told her the assaults were different. She said it was actually Diane Behrens, one of Samantha’s previous foster mothers, who had explained how the two assaults were different. She denied ever having told Danz otherwise.

Gibbs called an evidentiary hearing to determine the truth, and enjoined both sides from speaking to Diane Behrens or Samantha.

Because Danz would be a witness at the evidentiary hearing, Wasser hired local defense attorney Steven Watson to aid in his defense. Resch would also be a witness, so District Attorney Koss stepped in to aid in the prosecution.

Samantha and Behrens took the stand and denied telling Resch that the assaults were different. Behrens denied discussing the previous assault at all.

When District Attorney Koss asked Samantha to describe Wasser’s assault, she instead described details of the allegations that led to her previous foster father’s conviction. Samantha also testified that Resch never asked her about the differences in the two allegations.

Gibbs ended the evidentiary proceeding by asking all the attorneys not to talk to the witnesses while he decided on his ruling. “I don’t want to see affidavits coming in with different versions,” he said.

While waiting for Gibbs’ ruling, Danz and Watson discovered a smoking gun. Officer Recknagel had interviewed Diane Behrens on June 30, 1999. He asked her about the similarities between Samantha’s first father’s conviction and her allegations against Wasser.

“Now is this the same type of sexual contact that her prior foster father had with her also?” asked Recknagel. “Yes it was,” answered Behrens.

Resch had Recknagel’s report of the interview all along.

In April, Gibbs issued an opinion dismissing with prejudice all charges against Wasser because of prosecutorial misconduct. (Courts rarely dismiss a case “with prejudice”; it means that a defendant cannot be retried. In Wasser’s case, the judge cited the prosecutor’s misconduct as the reason). Gibbs ruled that Resch provided false information and lied under oath in an effort to “cover up her misrepresentation to defense.”

“The Court believes ADA Resch was dishonest with the Court and defense counsel,” Gibbs wrote in his decision. “The Court finds that ADA Resch provided false information to the Court on October 12 and lied under oath on October 16.

“The misconduct has infected the proceedings with unfairness and has poisoned the entire atmosphere of the proceedings.”

Permanent stain

Even with his charges dismissed, the court of public opinion continues to haunt Wasser. Before Resch filed the charges against him, he was the head director of a Milwaukee boarding school. Now he can’t step foot on campus.

“It’s a loss of profession,” Wasser said. “I’m 59 years of age, and not too many people want to pick up a has-been.” Wasser believes that the efforts he and his wife have made on behalf of children like Samantha made him particularly vulnerable to the charges that cost him his job. “[B]ecause we adopt children who have been abused, we’re high risk for allegations.”

Wasser filed a claim for damages against Walworth County, including Resch and Recknagel, for $910,000. In his claim, he stated that because of Resch’s actions, he suffered significant injuries and damages, including humiliation and loss of future employment.

Koss suspended Resch with pay while he looked into her conduct in Wasser’s case. The Office of Lawyer Regulations began its investigation by convening a small panel of clerks and attorneys from other counties to determine whether disciplinary action was warranted. A special prosecutor also investigated Resch’s conduct to determine if criminal charges were appropriate.

During the OLR investigation, Judge Robert Kennedy, who served as Walworth County District Attorney from 1979 to 1985, wrote a letter to the OLR supporting Resch. A local newspaper had published Resch’s endorsement of his judicial re-election campaign. So close is the relationship between Kennedy and Resch that local defense attorneys routinely charge judicial bias and request a different judge whenever the two are assigned to the same case.

“I am aware of an ethics rule that indicated that judges should not volunteer to testify as character witnesses,” Kennedy’s letter says. “If it does apply, then I must ask you to disregard this letter and return it to me.” He closes the letter by “stressing the fact that her character for truthfulness and honesty both in and outside the courtroom to my knowledge is above reproach.”

Although several sources with knowledge of the situation told the Center that the panel unanimously agreed to disbar her, Resch has received no disciplinary action. None of the sources could explain why Resch received no punishment. The special prosecutor did not press criminal charges, and Koss later determined that Resch’s behavior did not warrant discipline.

After receiving notice that Resch would receive no disciplinary action, Steve Watson closed his law practice and moved to Vermont. “I just couldn’t stomach it anymore,” Watson said. Even with half a country between him and Walworth, he said the injustice he witnessed still upsets him. As recently as February of this year, he wrote a letter to the OLR appealing their decision. The OLR declined to revisit the matter.

“A circuit judge had made a specific finding of fact that [Resch] had lied, OLR’s own investigative panel reached the same conclusion, and yet the final decision reached the opposite conclusion and gave no explanation whatsoever,” Watson wrote.

The next day, OLR informed Watson that they would not re-open the case. The director of OLR “did not believe that this office could prove by clear, satisfactory, and convincing evidence that Ms. Resch had made a misrepresentation.”

Resch is currently prosecuting felonies, including sexual assaults of children, in Walworth County. As recently as February, she retried a defendant whose conviction had been reversed due to her conduct