Defendant accuses assistant district attorney, police officers of conspiring to suborn perjury; lawyer disagrees
By Brandi Makuski
The trial of a Stevens Point man charged with disorderly conduct and resisting an officer in 2014 has been delayed for a third time.
In a case he once described as “a fascinating look at First Amendment rights,” defense attorney Jared Redfield has been relieved as counsel for Scott Wenger.
Wenger, 57, was arrested after allegedly causing a disturbance at the 2014 Art in the Park, held in Pfiffner Pioneer Park, when a caller reported Wenger’s suspicious behavior to police. Wenger was reportedly taking photographs of attendees at the event without their permission. According to Stevens Point police, similar complaints have been lodged against Wenger in the past.
When approached by police at the park in 2014, Wenger reportedly became uncooperative and verbally combative.
According to the criminal complaint, when police attempted to question Wenger about his photography, he refused to answer the question, responding instead by videotaping the officers and asking if he was being detained repeatedly until he was yelling the statement. After several moments a large crowd had begun to gather and watch, and police took him into custody for creating a disturbance.
Wenger resisted to such a degree officers weren’t able to restrain his hands in the same pair of handcuffs, according to the complaint. Officers on either side of Wenger were eventually able to place one pair of handcuffs on each of his wrists, then cuff the pair together behind his back. Wenger then “intentionally flopped” to the ground, according to the complaint.
Officers managed to get Wenger into the squad car by laying him down on the back seat. As they were searching him for weapons, Wenger suddenly became quiet and polite. Believing he would then be cooperative, officers sat him upright.
But Wenger then sprang from the car and began shouting at the crowd, advising people to videotape what he called “police abuse” with their cell phones, before officers could successfully restrain him in the backseat.
Wenger was released on a $500 signature bond Sept. 23, 2014 with the condition he not be in possession of a camera or video equipment in public during the trial. Since then, Wenger and his attorneys — first Jerod Barkley, who withdrew as Wenger’s counsel in January of 2015, and then Redfield — have managed to reduce those conditions, prohibiting him from taking pictures of videotaping strangers within a distance of six feet, and have also come before the court with dozens of other motions, demands for discovery and other court appearances related the charges.
According to court documents, Wenger has unsuccessfully attempted to subpoena numerous witnesses, but successfully summoned into court former Republican candidate Tony Kurtz, who ran against Congressman Ron Kind in 2014.
Kurtz, who was campaigning at Art in the Park on the day Wenger was arrested, witnessed the events leading up to and including Wenger’s arrest, according to Redfield, who on Aug. 22, said Kurtz’ sworn affidavit confirms Wenger did not resist arrest.
Wenger’s jury trial was first scheduled for Sept. 10, 2015, but was delayed when Redfield announced his intention to file a motion to dismiss the disorderly conduct charge. Based on two motions filed by Redfield last Oct., which argued Wenger’s First and Fourth Amendment rights had been violated, Judge Thomas Flugaur dismissed the charge of disorderly conduct, saying he was mindful of the case getting tossed on appeal, and the charge would be “difficult to prove beyond a reasonable doubt”.
Redfield also later motioned on Wenger’s behalf for a bench trial, meaning Wenger would be judged by Judge Thomas Flugaur himself, rather than a 12-person jury.
Wenger’s second trial date was scheduled for June 29. That trial was postponed after Redfield announced a last-minute addition to the defense’s witness list, triggering another delay until Redfield turned over a complete witness list to the district attorney’s office.
Throughout the case Wenger has maintained a 15-second video clip captured by his camera would exonerate him on the charge of resisting arrest, but that clip was not admitted as evidence following a suppression hearing late last year.
“The 15 seconds goes to the resisting charge, because that’s the time period during which the police handcuffed me; that part is completely missing,” Wenger told Flugaur on Aug. 22.
Accusations of perjury
Redfield argued the 15-second clip, which he claims is on an SD card in the court’s possession, is “completely contradictory” to testimony previously offered by a Stevens Point police officer, who stated that Wenger was the aggressor during his arrest on Sept. 20, 2014.
Assistant District Attorney Elizabeth Constable replied by saying, “I think Attorney Redfield and I disagree as far as how to interpret the video which was viewed at the suppression hearing in this case.”
But Wenger said in open court on Aug. 22 he wanted Redfield to file a motion to compel production of the 15-second clip of video evidence, and also demanded that Redfield report Constable to “the proper authorities” — for suborning perjury, accusing her of previously allowing the arresting officer to knowingly give false testimony.
Redfield said when he told Wenger he saw no evidence of wrongdoing on Constable’s part, Wenger earlier this year broke attorney-client privilege and wrote a letter to Judge Flugaur, also sending a copy to Constable, outlining his complaint.
“There were a number of accusations [in the letter] concerning Mr. Redfield,” Flugaur said. “I asked Mr. Redfield if he felt he could still represent Mr. Wenger, given the allegations in this letter, and he indicated he did not think he could.”
Redfield read a portion of Wenger’s letter aloud in court on Aug. 22, which states in part, “I asked Mr. Redfield when he plans to report Elizabeth Constable to the proper authority, and he didn’t answer me. So it seems to me, by Mr. Redfield’s refusal to report Elizabeth Constable, he is by extension also suborning perjury.”
Redfield said he was “quite distressed” that Wenger would have breached attorney-client privilege to file his complaint with the court and the DA’s office.
“This should never have seen the light of day,” Redfield said, who added he wasn’t even aware Wenger sent the letter until he was notified by Judge Flugaur’s clerk.
“I never went to law school, but the way I read the statute is, it appears to me that Mr. Redfield should report Ms. Constable to the proper authorities, because he told me twice on July 11 that Elizabeth Constable was suborning perjury,” Wenger said. “If he doesn’t report her, then it’s like conspiracy to suborn perjury and that’s not going to help me.”
Wenger also said that Constable “has made my life miserable” for the past two years.
Constable said she had no personal interest in the case, and wasn’t doing anything unethical.
“I really don’t understand where the idea that I’m suborning perjury comes from; I’m not aware of preparing any witness to perjure themselves,” she said. “I have no personal feelings about what should happen in this case and have nothing against Mr. Wenger, so I don’t know where the idea I’m making his life miserable comes from, because I am simply doing my job.”
Constable also said given the number of delays already seen in the case, she didn’t expect the trial to conclude prior to her leaving the Portage Co. DA’s Office — Constable is running uncontested for district attorney in Langlade County — noting the case has potential to continue past the circuit court level.
The end of the line for Redfield
Redfield said the reason the case has dragged on for so long is because Wenger is “dictating questions for me to ask, he’s raising questions, constantly, about Ms. Constable and [the arresting officer].”
Constable has already made two plea offers for Wenger, both of which he turned down, Redfield said, adding he and Wenger discussed those offers via “a shouting match that could probably be heard a block away from our office.”
“He’s already received an offer [the case] be dismissed with prejudice on deferred prosecution, and he’s received an offer this be dismissed with a $10 ordinance violation, and he’s refused both of those,” Redfield said. “It is my avowed feeling Mr. Wenger is here now to impeach and hurt the reputations of Ms. Constable and [the police officer]. Under the circumstances, when he is dictating what I have to say, and areas where I have to go, I’m just not willing to do it.”
Flugaur said the attorney-client trust and relationship was been “irreparably” damaged, and granted Redfield’s motion to withdraw at a hearing on Aug. 22.
“I don’t do this lightly, because I’m well aware that by doing so it’s going to cause delays, but I’d rather have things done properly than concern myself with a delay,” Flugaur said. “So Mr. Redfield, you are free to leave at this time if you wish.”
As Redfield left the room, Flugaur asked Wenger if he wanted to instead represent himself. Wenger replied by saying he wanted “hopefully effective counsel.”
After Redfield left the Branch III courtroom, Wenger told Flugaur he had no contact information for at least one of his witnesses, who lived two hours away.
“You excused my attorney,” Wenger said.
“I excused your attorney because of the actions you took, sir,” Flugaur said sharply. “You’re the one who caused your attorney to withdraw in this case.”
“But he didn’t want to follow the rules of professional conduct,” Wenger replied, adding he did not want to be unrepresented, but he could not afford to hire a new attorney.
Flugaur said the court would assist in arranging him new counsel. Wenger returns to court Aug. 29 at 10 AM.