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The Respondent, Paul W. Humphrey, is a
Wisconsin-licensed attorney, admitted to
practice in this State on May 31, 1989.
On July 18, 2003 a woman (defendant) driving
a SUV, while making a right turn in downtown
Madison, Wisconsin, struck a pedestrian who
was crossing the street in the crosswalk of
the street into which defendant was
turning. The pedestrian died about an hour
later at a local area hospital.
On July 22, 2003, a Deputy District Attorney
(DDA) filed a criminal complaint against the
defendant for Homicide by Negligent
Operation of a Vehicle. The criminal
complaint included the following information:
• The defendant told a police officer,
JG, that she negotiated the turn at 25-30
miles per hour (mph) and that the traffic
light was yellow. The defendant told the
officer she did not see any pedestrians on
the sidewalk or in the crosswalk and that,
as she drove through the intersection, she
did not see, feel, or hear anything. She
said that when people yelled at her to stop
she saw the pedestrian behind her.
• A police officer, PN, interviewed
four witnesses. One of the witnesses said
the defendant told him, “Me not pay
attention.” Another witness, CD, told PN
that the defendant went through a red light
and was travelling at a speed of 35-40 mph
when she struck the pedestrian.
An Assistant State Public Defender (defense
counsel) was appointed to represent the
defendant. Respondent, an Assistant
District Attorney, was assigned to prosecute
the case.
On July 24, 2003, police officers JG and CJ
conducted trials of negotiating the turn the
defendant had made at different speeds.
The SUV used in the July 24, 2003 speed
trials was similar to the defendant’s SUV,
but not the same make of automobile. The
speed trials were videotaped by a third
officer. The first trial run was completed
at 25 mph. In his July 28, 2003 written
report, JG, as a passenger, reported that at
25 mph he felt the tires slip slightly and
heard them squeal. CJ’s July 24, 2003
report stated he felt a slight loss of
vehicle control and the tires squealed. CJ
stated that the 25 mph turn was faster “than
what I would normally complete the turn
in.” The second trial run was attempted at
30 mph. JG reported that CJ had to quickly
decelerate to 20 mph because the tires were
squealing loudly and they were drifting out
of their lane. CJ reported that he was not
able to maintain the 30 mph speed through
the turn. CJ stated:
In my opinion, maintaining the 30 mph
speed
through the turn is very dangerous and would
be nearly impossible. I don’t believe the
speed could be maintained without causing
the vehicle to either overturn or to run up
onto the sidewalk on the east side of
[street name].
On July 28, 2003, defense counsel filed a
motion to dismiss the complaint.
On July 29, 2003, the motion to dismiss was
denied and the Preliminary Hearing on the
complaint was held.
The Court based its denial of the
motion to dismiss on a number of factors,
including the fact that the complaint
indicated that the defendant said she was
going 25-30 mph through the turn and a
witness said she was travelling at a speed
of 35-40 mph.
The preliminary hearing included
testimony from CD, who said he thought the
defendant’s speed at the time of impact was
35 mph. On cross-examination, CD conceded
that it was possible the defendant was going
25mph.
Officer JG testified that he believed the
speed limit at the accident location was 30
mph. JG testified that the defendant told
him she was travelling through the
intersection at a speed of 25 to 30 mph.
JG’s testimony did not include his opinion,
based on the speed trials conducted by CJ
and him on July 24, 2003, that it was not
possible to negotiate the turn at a speed of
30 mph.
In finding probable cause, the Court stated:
Here the evidence is frankly
overwhelming
that this defendant’s operation of this
vehicle on the day in question created a
huge risk of death or great bodily harm.
Not only did she, according to the plausible
version of guilt, drive through a red light,
she did so at a high rate of speed.
When one considers that this is done
in a
busy downtown intersection a block off the
Capitol Square and is done where her speed
may not, according to her, have exceeded the
speed limit if one were proceeding straight
ahead but the defendant was making a turn,
one does not travel the full speed limit
when one is making a turn. But here, even
by her own admission she was travelling 25-
30 miles an hour as she made the turn. By
[CD’s] testimony, she was travelling 35
miles per hour. Whichever is correct,
there’s no question it is a very high rate
of speed for a congested area.
In ruling, the Court also considered the
fact the defendant was “completely
inattentive” and did not even see the victim
or notice that she had struck something.
On July 30, 2003, defense counsel
made a Demand for Discovery and Inspection,
which included a request for “All
exculpatory evidence, including…police
reports, or any other information within the
State’s possession, knowledge, or control…”
By letter dated July 31, 2003, Respondent
provided defense counsel with 90 pages of
discovery. According to Respondent, JG’s
and CJ’s reports from the July 24, 2003
speed trials were included with this
original group of reports sent to defense
counsel. Respondent did not provide defense
counsel with copies of the videos of those
speed trials at that time.
Also included with the discovery
sent to defense counsel on July 31, 2003,
was a report and a diagram of the scene of
the accident that had been drawn by then
Special Investigator, MT. Shortly after
making the diagram, MT was placed on leave
and subsequently left the employ of the
police department. The diagram defense
counsel received on July 31, 2003, along
with MT’s report, stated “1 inch = 20 ft.”
The diagram contained none of the actual
measurements taken by MT.
On August 13, 2003, Respondent sent defense
counsel some photographs, and stated he did
not have anything new since the preliminary
hearing.
By letter dated September 19, 2003, defense
counsel asked Respondent for, among other
things, a copy of the reconstruction test
and all reports pertaining to it;
measurements obtained in relation to the
reconstruction; copies of all videotapes
prepared during the reconstruction; traffic
signal timing sequence data; and the diagram
and typed addendum attached to PN’s report.
On September 23, 2003, Respondent sent a
handwritten case status report to a police
officer, BR, which stated, “∆ has
requested
certain Discovery: 1) Please send up the
Crash Recon, 2) the videos, 3) Repts on the
sequence on the lights, 4) coroner & Autopsy
Repts, 5) the diagram.”
On September 26, 2003, JG retrieved the
videotapes that Respondent had requested
from the evidence room, so that copies could
be made and sent to Respondent.
On October 17, 2003, defense counsel filed a
Motion to Compel Discovery. In the motion,
defense counsel stated he had received no
response to his September 19, 2003 letter.
By letter dated October 21, 2003, Respondent
told defense counsel he thought defense
counsel’s motion to compel was “strange.”
Respondent said, “I gave you [JG’s] report,
the diagram and the traffic light sequence…
There are NO videos prepared in the course
of crash reconstruction. I do have the
videos made of driving through the
intersection, but they are not yet
discoverable because I am not sure if I am
going to use them.”
In an October 23, 2003 responsive letter to
Respondent, defense counsel reiterated that
he was requesting the videotapes of JG’s and
CJ’s July 24, 2003 speed trials and the
measurements for MT’s diagram.
On October 23, 2003, defense counsel also
made a motion to preserve “videotapes and
all written or recorded logs in relation to
any and all tests conducted in the
investigation of the above referenced case.”
On October 30, 2003, Respondent also sent an
email to the District Attorney which stated,
in part:
…I talked to [defense counsel] today,
and
he’s still taking the position that this was
an accident…He disputes the speed, and the
timing of the lights etc…
In a November 3, 2003 typed memo to the
file, Respondent stated he had spoken with
defense counsel on that date about several
case-related matters. Respondent stated
that defense counsel said the reports showed
that the defendant was not speeding.
Respondent’s memo further stated, “He still
wants to look at those videos and one of
these days after I look at them he can look
at them.”
The case was originally scheduled for trial
on November 26, 2003 but a November 6, 2003
CCAP note indicates that the trial was to be
rescheduled for January or February 2004.
By letters dated November 28, 2003, December
24 and December 31, 2003 and January 12,
2004, Respondent provided defense counsel
with some additional photographs and other
discovery. None of those submissions to
defense counsel, however, included the July
24, 2003 videotapes or the measurements for
MT’s diagram.
By letter dated January 13, 2004, one week
before the hearing on the motion to compel,
Respondent finally provided defense counsel
with the videotapes.
On January 20, 2004, a hearing was held on
defense counsel’s motion to compel
discovery. Defense counsel informed the
Court that he received the videos “last
week” but that he still did not have the
measurements for the police diagram. The
January 20, 2004 hearing primarily involved
a discussion about the availability of the
diagram measurements, which were eventually
found and produced subsequent to the hearing.
Sometime prior to the January 20, 2004
hearing, the trial had been rescheduled for
April 12, 2004.
On January 29, 2004, Respondent and defense
counsel began negotiations for a possible no
contest plea by the defendant.
On April 2, 2004, the defendant pled no
contest to the felony charge of homicide by
negligent operation of a vehicle and was
sentenced to one-year in the county jail
with Huber privileges.
According to defense counsel, the defendant
was placed on an immigration hold because
she did not have the proper documentation to
be in the United States. Defense counsel
said the defendant decided to plead to the
criminal charge because she was going to be
deported anyway, and she wanted to get out
of jail to be with her young children. The
defendant was given credit for time served,
and she went back to her country of origin.
Defense counsel did not believe the
defendant was speeding and said the evidence
was not strong that she went through a red
light. Defense counsel said he was entitled
to the July 24, 2003 videotapes even if
Respondent was not going to use them,
because they were potentially exculpatory on
the issue of the defendant’s speed.
According to Respondent, the
videotapes did not have to be given to
defense counsel unless Respondent intended
to use them at trial. Nevertheless,
Respondent says the videotapes of the speed
trials were turned over without a court
order and well before the scheduled date for
the trial.
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By failing, between defense counsel’s
initial demand for discovery on July 30,
2003 and January 13, 2004, to provide
defense counsel with copies of the
videotapes from the July 24, 2003 speed
trials conducted by the police, despite
defense counsel’s multiple specific requests
for them, when the videos contained
potentially exculpatory evidence, and when
Respondent’s statement in his November 3,
2003 file memo that “one of these days”
defense counsel could look at the videos
indicates that Respondent did not intend to
promptly comply with defense counsel’s
requests, Respondent violated 20:3.4(d) and
former SCR 20:3.8.(d), effective prior to
July 1, 2007.
SCR 20:3.4(d) states:
A lawyer shall not in pretrial
procedure,
make a frivolous discovery request or fail
to make reasonably diligent effort to comply
with a legally proper discovery request by
an opposing party.
Former SCR 20:3.8(d) stated:
The prosecutor in a criminal case
shall make
timely disclosure to the defense of all
evidence or information known to the
prosecutor that tends to negate the guilt of
the accused or mitigates the offense, and,
in connection with sentencing, disclose to
the defense and to the tribunal all
unprivileged mitigating information known to
the prosecutor, except when the prosecutor
is relieved of this responsibility by a
protective order of the tribunal.
Respondent was suspended for 30 days in Case
No. 2008-AP-2842-D.
In accordance with SCR 22.09(3), Attorney
Paul W. Humphrey is hereby publicly
reprimanded.
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