Schimel considered referring Kramer case to other DA - WKOW 27: Madison, WI Breaking News, Weather and Sports

Schimel considered referring Kramer case to other DA

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WAUKESHA (WKOW) -- Waukesha County District Attorney Brad Schimel tells 27 News he considered referring evaluation of possible criminal charges against state lawmaker Bill Kramer to another district attorney, but decided a subordinate prosecutor could handle review of police reports involving Kramer, a donor to Schimel's campaign for attorney general.

"A referral was not needed," Schimel tells 27 News of his decision.

"A prosecutor in my office is independently reviewing it," Schimel says.

Muskego Police lieutenant David Constantineau tells 27 News reports of an investigation of Kramer were forwarded to the Waukesha County district attorney's office Wednesday. Constantineau declined to comment on when his department's investigation into Kramer commenced.

Authorities say the referral involves an accusation of sexual assault against Kramer (R-Waukesha).

Kramer was stripped of his position of Assembly Majority Leader by his republican colleagues earlier this month, after a legislative staff member accused Kramer of groping her during a Washington, D.C. fundraising event, and a lobbyist accused him of sexually harassing comments in connection with the same event.

Kramer filed papers Monday with the state government accountability board, stating he was not seeking re-election.

Kramer's campaign committee contributed $500 to Schimel's attorney general campaign, days after a campaign fundraising event on behalf of Schimel at a Waukesha company. After the accusations against Kramer in connection with the Washington, D.C. event came to light, a Schimel campaign spokesperson said the contribution would be donated to charity.

Schimel tells 27 News relying on one of his assistant district attorneys to make a charging decision without his consultation is a common practice in his office of fifteen assistant district attorneys.

Former prosecutor and Madison attorney Chris Van Wagner says delegating a case is not unusual. "Trusted deputies are given the freedom to make decisions without consulting with the boss," Van Wagner tells 27 News.

Schimel confirms to 27 News a report in the Milwaukee Journal Sentinel that Schimel is acquainted with someone with a connection to the referred, sexual assault case involving Kramer, but declines to comment on whether that person is a witness.

"I do not want try Mr. Kramer in the media," Schimel tells 27 News.

27 News has been unable to reach Kramer for comment.

Van Wagner says while ethical standards allow prosecutors to wall themselves off from decision-making in cases where even the appearance of a conflict-of-interest is possible, another consideration is a subordinate prosecutor's continuing reliance on a district attorney for their employment.

"The issue is will someone think because he had a supervisory role in this, that it subtly influenced the decision?" Van Wagner says. "Is that a public perception of taint?"

But Van Wagner also says, if Schimel had moved the case to another district attorney, he could have been criticized for ducking his responsibility.

If a criminal charge is lodged against Kramer, questions arise over the legality of any arrest or prosecution of the lawmaker.

Wisconsin's state constitution provides some immunity from arrest for lawmakers during a legislative session, with a session having been interpreted by some legal scholars as being continuous. Other states provide similar immunity. In 2011, police officers cited the immunity in refraining from taking a state senator into custody, despite a police stop of his car and evidence of injuries to his girlfriend.

Attorney General Van Hollen's spokesperson, Dana Brueck declined comment to 27 News on whether Kramer may be immune from criminal arrest.

Wisconsin Legislative Council attorney Laura Rose tells 27 News case law is limited on the immunity question.

While the constitution itemizes exceptions to the legislative immunity as felony, treason and breach of the peace, Rose says a 2002 appellate court case involving former state senator Brian Burke indicates even misdemeanor crimes can be lodged against lawmakers.

Schimel identifies no timetable for his assistant district attorney to conclude whether to lodge any charge against Kramer.

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