Both sides of the law


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13 reviews back to 1998

An index of the department’s internal investigations of Cates, provided to the Journal Sentinel under the state’s open records law, lists 13 department reviews since 1998.

Six of them — the first of which occurred in 2000 — involved allegations of failure to conform to state statutes, according to the document. The other internal reviews involved alleged violations of department rules.

A request by the newspaper for documents containing detailed accounts of the investigations is pending with the Police Department. Limited information about some of the cases is contained in the index, known as a case file history, and in documents released by the Fire and Police Commission and the district attorney’s office. During an interview with the newspaper, Milwaukee Police Capt. Pat Mitchell of the Professional Performance Division provided clarification about some of the incidents.

Cates was disciplined by the department for breaking the law first in 2000, according to his case file history. He was suspended for two days for domestic violence battery. His girlfriend at the time, also a Milwaukee police officer, said he choked her and shoved her during an argument, according to Fire and Police Commission records.

The department, under Chief Jones, referred the case to the district attorney’s office, which offered Cates a potentially career-saving deal.

If Cates had been convicted criminally, he likely would have been removed from the force, because federal law prohibits people convicted of domestic violence offenses from carrying guns. Instead, he entered a one-year diversion agreement with the district attorney’s office, which allowed him to avoid charges by refraining from criminal activity, avoiding violent contact with the victim and undergoing counseling.

The same year, Cates was investigated again for failure to conform to state statute, according to his case file history.

His former girlfriend, named in the battery case, had received a series of hang-up telephone calls and suspected Cates, according to Mitchell. He was neither disciplined nor referred for charges in connection with that allegation.

It is listed as “pended,” which means police did not have enough information to prove misconduct or to clear the officer. If witnesses come forward or more evidence is presented, the internal investigation could be reopened.

In 2005, while working as head jailer at the city lockup, Cates was investigated for allegedly breaking the law in connection with an incident involving a female prisoner. The charge, which involved allegations of sexual contact, was ruled “not sustained,” Mitchell said.

At the time, Cates was responsible for administration and paperwork. He was not supposed to interact with female prisoners or move them throughout the facility, according to a complaint filed with the Fire and Police Commission by then-Chief Hegerty.

Nonetheless, Cates moved a woman from the female “bullpen” — an area with lots of prisoners in it — to an individual holding cell. While she was there, “Officer Cates was observed having lengthy conversations with her,” the complaint says.

While the investigation about his activities with the female prisoner was going on, Cates went against a supervisor’s orders and asked another officer about its progress, the complaint says.

Cates was suspended for eight days for mistreating a prisoner and failure to obey a supervisor’s orders.

Two years later, in February 2007, Cates was investigated for sexual assault and misconduct in public office. A different woman said she had consensual sex with him in the city jail, according to Mitchell.

Consensual sex on duty is against department rules. But investigators could not prove conclusively misconduct or clear the officer. Again, the case was pended, and Cates was neither disciplined nor referred for charges.

In November 2007, Cates, then 40, was investigated for allegedly having sex with a 16-year-old girl while off duty. The department, under Hegerty, sent the case to the district attorney’s office, which again did not prosecute Cates. A form letter sent to the victim’s parents, a copy of which was provided to the Journal Sentinel under the open records law, says the case won’t be prosecuted, but does not specify why. Cates also was not disciplined by the police department, according to the case file history.

No additional information about the investigations into the three sexual misconduct allegations was included in the records released to the newspaper.

Weighing a charge

In deciding whether to charge someone with a crime, prosecutors must weigh the credibility of the victim, defendant and other witnesses. When considering charging a police officer, the district attorney also has to consider what impact the badge will have on jurors’ reactions, according to Chief Deputy District Attorney Kent Lovern.

However, the tendency for jurors to believe police officers more than their victims — especially if those victims have troubling histories or criminal records — can be overcome if prosecutors can show a pattern of wrongdoing by the officer.

That’s what happened in the case against fired Milwaukee officer Lelinski. But for nearly a decade, according to prosecutors, Lelinski got away with sexually assaulting prostitutes, drug addicts and women with warrants out for their arrest — women whose reputations would not stand up to his.

At a 2007 trial, Lelinski was convicted of second-degree sexual assault and attempted second-degree sexual assault, both felonies, and fourth-degree sexual assault and lewd and lascivious behavior, both misdemeanors. He was acquitted on two counts of third-degree sexual assault. He is serving a prison term of more than 20 years.

From 1996 to 2005, nine women accused Lelinski of sexual misconduct. He was not charged until 2006, when Assistant District Attorney Miriam Falk decided to take on the case.

Falk charged Lelinski in connection with incidents involving three women, two of which occurred in 2005 and one in 2002. A different prosecutor had declined to charge the 2002 case at the time.

The other six cases were too old to charge by the time Falk charged Lelinski, but a judge allowed her to present information about them during Lelinski’s trial because they showed evidence of a pattern. Other prosecutors had been made aware of many of those incidents shortly after they occurred, but did not issue charges because they did not consider the women credible.

In two of those cases, which occurred in the late 1990s, internal affairs investigated, but did not notify the district attorney’s office.

As a rule, prosecutors aren’t in the business of reviewing internal investigations, Lovern said. Further, under a U.S. Supreme Court decision, if an officer makes a statement as part of an internal investigation, it can’t be used in court.

“If something is deemed as an internal matter, it’s not something we would be later made aware of in a criminal investigation,” he said. “It’s something we would not be allowed to consider in evaluating a later criminal charge.”

While prosecutors may examine past referrals to learn more about a potential defendant’s background, they aren’t necessarily looking for trends, Lovern said.

“Every matter we review must rise or fall on its own particular set of circumstances,” he said. “We review each one of those independently.”

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