STATE OF WISCONSIN,
Plaintiff,
v. Case No.
***
Defendant.
_____________________________________________________________
REQUEST FOR DISCLOSURE
_____________________________________________________________
COMES NOW ***, by his attorney, Waring R. Fincke, upon all of
the
files, records and proceedings had herein and the annexed affidavit
of
counsel, respectfully requests the Court and all Prosecutors,
Law
Enforcement Officers and other governmental workers or officials
who
have worked on this case to disclose to the undersigned all
financial interests,
direct or indirect, in Prison Realty Corporation, its
predecessor,
Corrections Corporation of America, Inc., and/or its wholly
owned
subsidiary, Transcor, Inc.
These disclosures are required so that mandatory and/or
discretionary
disqualification of the Court and/or the Office of the District
Attorney
for ______________ County can be considered and/or requested
and
the credibility of the State's witnesses investigated further.
In support of this request, the Defendant respectfully shows the
Court
the following.
1. In the past decade, the Wisconsin Legislature has
criminalized more and
more behavior and extended the amount of prison time associated
with
criminal convictions. It has been popular to be "tough on
crime."
2. Wisconsin Judges have used this increased regulation of human
behavior
to fill Wisconsin's prisons.
3. To meet the increased demand on our correctional bed space,
the
Legislature considered building more prisons, an expensive and
time
consuming process. Because the demand for prison beds outstripped
the
taxpayer's willingness to build the prisons to hold them quickly
enough,
the Legislature authorized the Wisconsin Department of Corrections
(DOC)
to rent prison beds from other states and local governments.
Wisconsin
then started to transport some of its prisoners to out of state
prisons and
county jails under the provisions of sec. 301.21, Wis. Stats.
4. When the DOC transportation bills began to mount, buses
driven and
staffed by union scale DOC guards were expensive, the
Legislature
authorized use of private transportation services. sec. 301.21 (2m)
(a), Wis.
Stats. In September, 1997, DOC contracted with Transcor, Inc. to
transport
Wisconsin's traveling prison population. Transcor, Inc. was then a
wholly
owned subsidiary of Corrections Corporation of America, Inc. Soon,
many
Wisconsin sheriff's began to recognize that Transcor, Inc. could
provide
services for local prisoner transport as well. Many Wisconsin
Counties also
contracted with Transcor, Inc., to bring back extradited prisoners,
and to
move prisoners within Wisconsin. Both types of contracts continue
to this day.
5. As the national demand to lock up our citizens increased,
public prison
beds became an increasingly scare commodity. Private prison
providers,
driven by the corporate bottom line, stepped into the breach.
These
corporate creatures started building prisons all over the world. By
early
1998, Corrections Corporation of America, Inc. (CCA) was one of
the
largest of the private prison players. See,
http://www.correctionscorp.com.
6. Having increasing difficulty renting public prison beds
around the same
time, Wisconsin's DOC obtained Legislative approval to rent private
prison
beds as well. sec. 301.21 (2m) (a), Wis. Stats. On March 6, 1998,
DOC
contracted with CCA to house up to 1,500 Wisconsin prisoners in its
facility
in Whiteville, TN. That facility is now full and Transcor, Inc.,
took many of
these inmates there and will probably bring them back when asked.
In addition,
DOC has approved placement of an additional 300 Wisconsin inmates
at a
CCA facility in Sayre, OK. CCA gets paid $42.00 per day for each
Wisconsin
inmate it warehouses which comes to $22,176,000 per year for the
1500
inmates at Whiteville, TN alone.
7. In 1997, CCA was a publicly owned corporation. Its stock was
traded
on the New York Stock Exchange (NYSE) under the symbol CCA. In
April,
1997, CCA created a Real Estate Investment Trust named Prison
Realty Trust.
Its mission was to acquire, hold and operate private prison
properties and
contracts. This was a publicly held company as well. Its stock was
also listed
on the NYSE under the symbol PZN. See,
http://www.correctionscorp.com
and http://www.prisonreit.com. The following financial institutions
and mutual
funds currently hold significant numbers of PZN shares: 1. Pacific
Life Insurance Co.;
2. Nicholas Co.; 3. Zweig-Dimenna Partners; 4. Baron Capital, Inc.;
5. Gilder
Gagnon Howe & Co.; 6. Baron Asset Fund; 7. Safeco Growth Fund;
and 8.
Nicholas Fund.
8. In the December, 1998 issue of the Atlantic Monthly, Eric
Schlosser wrote
an informative article titled, The Prison-Industrial Complex. He
chronicled
the phenomenal growth of the private prison industry and its
supporting
businesses. By then, CCA was one of two major players in the
business.
9. On January 1, 1999, CCA and PZN merged into a newly
constituted
Prison Realty Corporation which continues to trade on the NYSE
under the
symbol PZN. CCA stock swapped for PZN shares and CCA stock stopped
being
traded. Transcor, Inc. became a wholly owned subsidiary of PZN as
part of
the deal. See, http://www.correctionscorp.com. PZN is now the
world's largest
private prison provider and CCA is its major tenant.
See, http://www.prisonreit.com.
10. All Wisconsin judges, prosecutors, attorneys general,
probation officers,
law enforcement officers, crime lab employees, DOJ agents, DOR
agents and
state employed public defenders are required by law to participate
in the
Wisconsin Retirement System. State employees can also participate
voluntarily
in the Deferred Compensation Fund and shelter portions of their
income from
income tax liability. All contributions the Retirement and
Deferred
Compensation Funds are invested.
11. The Deferred Compensation Fund is invested by the State
Retirement
Board in eight mutual funds. They are: 1. The Vanguard Group -
Wellington
Fund; 2. T. Rowe Price Mid Cap Fund; 3. The Janus Fund; 4.
Fidelity
Investments' Contrafund; 5. Dreyfus Third Century Fund; 6.
Dimensional
Fund Advisors' DFA 9-10 Small Cap Fund; 7. Seligman Capital
Fund;
and 8. American Century/Twentieth Century - Twentieth Century
Select Fund.
The State's Deferred Compensation Fund managers cannot tell anyone
which
individual stocks each of these funds hold or held at any given
time.
12. The contributions to the State's retirement system are
turned over to the
State of Wisconsin Investment Board (SWIB). There are two trust
funds
comprised of retirement money managed by the SWIB. One is called
the
Variable Retirement Trust Fund (Variable Fund). The contributions
to this
fund were made by state employees, but the fund was closed to
new
members in the late 1980s. Those in this fund when it closed could
stay in
and the fund still exists. The bulk of the state's retirement money
is held in
the Fixed Retirement Trust Fund (Fixed Fund).
13. During the fiscal year 1997 (7/1/96 through 6/30/97), the
Variable
Fund held 112,200 shares of CCA stock which the SWIB's Annual
Report
valued at $4,502,025.00 at the end of that fiscal year. During the
fiscal year
1998, the Variable Fund continued to hold, as of 6/30/98, 159,818
shares
of CCA, valued in the SWIB's Annual Report at $3,755,723.00. In the
same
period, the Fixed Fund held 1,190,182 shares of CCA stock valued in
the
SWIB's Annual Report at $27,969,277.00. That same report noted that
the
stock held in the funds had declined in value during the fiscal
year. The
Fixed Fund CCA stock holding originally cost $34,902,761.00,
showing
a loss in value of $6,933,484.00 for the year. The Variable Fund
CCA
holding lost $1,734,021.00, during the same period. PZN recently
reported
a first quarter share loss of $0.23 per share. See,
http://www.prisonreit.com.
14. After the merger, the SWIB's CCA stock was converted to PZN
stock.
As of May, 3, 1999, the Variable Fund held 59,932 shares of PZN and
the
Fixed Fund held 240,068 shares of PZN. At the close of trading on
May 5,
1999, PZN was trading at $21.25 per share for a value of
$6,375,000.00
between these two funds.
15. According to Thomson Research, a respected stock
analysis
information provider, the value of CCA/PZN has declined over the
past
two years from a high of over $37 per share to a low of $15 per
share.
The rebound to the current level is relatively recent.
16. Given the overcrowding in DOC's prisons, whenever a
defendant is
arrested, prosecuted and sentenced to the prison system, another
convict
has to leave DOC's control. Early parole has been reduced
dramatically.
A released convict may then go to CCA/PZN's prison in Whiteville,
TN,
or to a public prison or jail outside of Wisconsin. Most will get
on a
Transcor van or bus to travel to their new home. Legislatively
driven
pressure has overfilled the State's prison system. There is now,
and there
has been since 1997, an additional financial incentive for those
who
participate in the Wisconsin Retirement System to make sure the
in-state
prison system stays full so that the out of state and privately
owned prison
and prisoner transport systems, in which most of the criminal
justice
system's participants are invested, will maximize their profits and
returns.
17. Under these circumstances, the Defendant is entitled to know
if
the individual participants in the criminal justice system which is
supposed
to treat him fairly have additional financial incentives to put him
in prison
beyond those in the participant's retirement accounts.
18. Judges must disqualify themselves if they have a
"significant"
financial interest in the outcome of the case. sec.757.19 (2) (f),
Wis. Stats.
This is an objective standard. If it exists, disqualification is
mandatory.
The judge's subjective view of his partiality or bias, or lack
thereof, is not
relevant to the analysis. State v. American T.V. & Appliance
of Madison, Inc.,
151 Wis.2d 175, 186, 443 N.W.2d 662, 666 (1989); Dressler v.
Racine
County Circuit Court, 163 Wis.2d 622, 642, 472 N.W.2d 532
(App. 1991)
19. Judges must also disqualify themselves if they are in fact
biased or believe
that they are biased. sec. 757.19 (2) (g), Wis. Stats. This is a
subjective
standard and only requires disclosure and a statement from the
Judge which
says, here are the facts and I do not believe that these
facts will interfere
with my ability to be fair in this case. City of Edgerton v.
General Cas. Co.,
190 Wis.2d 510, 516-518, 527 N.W.2d 305 (1995); State v.
American T.V.
& Appliance of Madison, Inc., supra;
20. Judges are also required to follow the dictates of SCR secs.
60.03 and 60.04
(4) to avoid the appearance of impartiality or bias and to
disqualify themselves
if these standards are violated. A judge has the discretion to
disqualify himself
under these standards when mandatory disqualification is not
required. The
rules suggest that disqualification should take place in marginal
situations to
insure a public perception of an impartial judiciary. A defendant
cannot rely
on violation of these discretionary standards for reversal of a
conviction, but
the judge is subject to discipline for violations of these
standards.
21. Criminal defendants have a constitutional due process right
to a financially
disinterested and an unbiased judge. Tumey v. Ohio, 273 U.S.
510, 47 S.Ct.
437, 71 L.Ed.2d 749 (1927); State v. Walberg, 109 Wis.2d 96,
325 N.W.2d
687 (1982) State v. Washington, 83 Wis.2d 808, 833, 266
N.W.2d 597
(1978); State v. Rochelt, 165 Wis.2d 373, 378, 477 N.W.2d
659 (App. 1991).
Here, the standard is the appearance of impropriety or bias, plus
prejudice, and
reversal is then required.
22. Prosecutors are subject to discipline for violating SCR
20:1.7 (b) and
SCR 20:1.8 (j). Disciplinary Proceedings Against Penn, 201
Wis.2d 405, 548
N.W.2d 526 (1996). The State has the right to conflict free
representation
and self-disqualification by the prosecutor if a conflict exists.
The defendant is
entitled to know if such a disqualifying condition exists, at
least, to be able to
remind the prosecutor of his professional responsibility or, to
report his
violation of Supreme Court Rules as required by SCR 20:8.3. See
also,
Wisconsin Ethics Opinion E-84-9
23. There is a due process right to an impartial prosecutor
unencumbered
by a financial interest in the outcome of the case. See,
Marshall v. Jerrico,
446 U.S. 238, 242 (1980). Disqualification of a conflicted or
apparently
conflicted prosecutor is within the trial court's discretion.
State v. Smith,
198 Wis.2d 584, 543 N.W.2d 512 (App. 1995); State v.
Retzlaff, 171
Wis.2d 99, 490 N.W.2d 750 (App. 1992); Burkes v. Hales, 165
Wis.2d
585, 590, 478 N.W.2d 37, 39 (App. 1991). Disclosure of grounds
for
disqualification is essential to a fair proceeding. See, State
v. Stehle,
217 Wis.2d 50, 537 N.W.2d 29 (App. 1998).
24. The existence of a financial interest in the outcome of the
case by law
enforcement officers or other governmental workers involved in the
case
certainly goes to their credibility and is discoverable under
Kyles v. Whitley,
514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Giglio v.
United
States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972);
Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963).
For the foregoing reasons, the Court is requested to disclose to
the parties
all of his personal and familial investments in CCA/PZN stock in
addition
to his holdings in the two state retirement funds mentioned above
during
the time this case has been pending. This should include, but is
not limited
to actual holdings of this stock, but also indirect holdings as
part of the
State's Deferred Compensation Fund, other mutual funds, annuity
funds,
trusts or other such financial asset holding vehicles.
For the same reasons, the District Attorney of ___________
County
must make similar disclosures and require similar disclosures of
all
of the Assistant District Attorneys, Assistant Attorneys General,
special
prosecutors, investigators, law enforcement officers and other
government
officials or workers who had or will have any involvement in this
case. In
addition, disclosure of all current and past contracts between
__________
County law enforcement agencies and Transcor, Inc. is
requested.
________________________
Waring R. Fincke
State Bar No.
Attorney for _________________
Waring R. Fincke
Attorney at Law
1784 Barton Avenue, Suite 17
West Bend, Wisconsin 53090
(414) 334-1030 (voice)
(414) 334-1035 (fax)
email - wrfincke@mail.execpc.com
website - http://www.execpc.com/~wrfincke
STATE OF WISCONSIN
CIRCUIT COURT __________ COUNTY
_____________________________________________________________
STATE OF WISCONSIN,
Plaintiff,
v. Case No.
****
Defendant.
_____________________________________________________________
AFFIDAVIT IN SUPPORT OF
REQUEST FOR DISCLOSURE
_____________________________________________________________
STATE OF WISCONSIN }
} ss.
WASHINGTON COUNTY }
COMES NOW Waring R. Fincke who, being duly sworn according to
law,
deposes and says that:
1. He is an attorney licensed to practice law in the State of
Wisconsin and
represents *** in the above-captioned matter.
2. He makes this affidavit in support of the Request for
Disclosure to which
it is annexed.
3. He has read the foregoing Request for Disclosure and the
facts contained
therein are true and correct to the best of his knowledge,
information and belief
being based upon is personal experience in the full time practice
of criminal law
in Wisconsin since 1979, his service as Chair of the Criminal Law
Section of the
State Bar of Wisconsin from 1994-1997, his review of the Internet
sites of
Transcor, Inc., Prison Realty Trust, and the Corrections
Corporation of
America, Inc., his review of the 1999 Securities and Exchange
Commission
filings of Prison Realty Corporation, his review of the Annual
Reports of the
State of Wisconsin Investment Board for the fiscal years 1997 and
1998, his
review of the contracts between Wisconsin's Department of
Corrections and
Transcor, Inc. , and Corrections Corporation of America, email
correspondence with the directors of the State of Wisconsin
Retirement Board
and Deferred Compensation Fund and with the Information Officer of
the
State of Wisconsin Investment Board and his review of the stock
performance
of Prison Realty Corporation and Corrections Corporation of
America, Inc.
through Thomson Financial Services (http://www.netcenter.com).
_________________________
Waring R. Fincke
Subscribed and sworn to
before me this _____ day
of _______________, 1999
_________________________________
Notary Public, State of Wisconsin
My Commission ________________________