August 1, 2018 at 6:08 p.m.
Sexual assault charges against Lee Lech dismissed
Madison detective: DA makes wrong decision in Welcenbach matter
Sexual assault charges against Lee Lech dismissed
Among emails obtained by The Lakeland Times concerning the case was one by a Madison detective who had investigated the allegations, saying she thought "wholeheartedly" the district attorney's office was "making the wrong decision."
Lech was charged in a September 18, 2017, criminal complaint with one count of second degree sexual assault/use of force and one count of attempted second degree sexual assault/use of force, both Class C felonies.
The Dane County district attorney's office had filed the charges in the first place, but an ongoing review of the case after it was reassigned to another assistant district attorney led the county's district attorney, Ismael Ozanne, to drop its prosecutorial efforts.
Welcenbach accused Lech of sexually assaulting her at an out-of-town training session in October 2011. According to the criminal complaint, Welcenbach contacted Dane County authorities about her accusation on Nov. 29, 2016.
(The River News does not normally identify alleged sexual assault victims, but in this case Welcenbach identified herself publicly, both in a federal lawsuit she filed against the sheriff's department and in a county grievance committee hearing, which she elected to have take place in open session.)
In the prosecutor's motion to dismiss, filed in Dane County on July 27, assistant district attorney Gerise LaSpisa said the state had decided it could not win the case in court.
"At this time, the state does not believe that it will be able to meet its burden at trial, proof beyond a reasonable doubt, and pursuant to its ethical obligations, moves to dismiss this case," the motion stated.
LaSpisa said the decision to discontinue its prosecution was not based upon disbelieving the victim's report.
"Instead, the state's decision is based solely upon the assessment that we are unable to meet our burden of proof and, as such, are bound to not proceed," the motion stated.
In court this past Monday, LaSpisa said the district attorney's office does not come to such decisions lightly, but she said much information had come to light since the case had been filed and assigned to her after the DA that filed the case left the office.
"At the time that I received the assignment, there was a significant amount of discovery that had not been obtained and reviewed at the time of the filing," LaSpisa told the judge, Nicholas McNamara. "I reviewed - I received much of that the beginning of this year, perhaps a little bit in through the spring."
After reviewing it, LaSpisa said she asked two deputy district attorneys to review the file, and that Ozanne and victim witness coordinator Mark Kerman, who she said had 30-plus years of experience in such cases, were also actively involved in the case review.
"This decision, as I stated, does not come about lightly or without significant thoughtful consideration, and we want to stress to the court, to the community and to the defendant that the decision is not based on disbelieving the report of this victim, but instead is solely and only based upon our belief that we cannot meet our burden of proof beyond a reasonable doubt," LaSpisa told the court.
After receiving Welcenbach's letter asking him to deny the motion to dismiss, the judge said he had conducted research about the court's discretion when the state moves to dismiss charges but found little in the case law that was helpful to the specific situation.
"I, of course, don't have the discovery," McNamara said. "All I have is the complaint by way of a factual basis. I do have now this letter from the complaining witness. But none of that could ever be a basis for me to find that the public interest requires that this prosecution continue when the district attorney's office has determined that they cannot meet the burden of proof. There is no interest the public has in pursuing cases that cannot be proved."
For her part, in her July 26 letter to the judge, Welcenbach implored the judge to let the case move forward and said dismissal would accomplish for Lech the very thing the district attorney's office told her it wanted to avoid: Lech's exoneration.
"The Dane County District Attorney's Office told me directly that they do not want to offer Lee Lech anything that would allow him to raise his arms in vindication if he was found not guilty, but by not even trying the case, they are doing just that," Welcenbach wrote.
In a separate statement provided to the newspaper that had been prepared originally as a victim impact statement, Welcenbach addressed Lech directly but took aim at the court and the district attorney's office.
"If the charges today are being dismissed against you, I feel that I am probably more disgusted with the justice system than I am with you," she wrote.
A Dear Sara letter
The district attorney's office notified Welcenbach of its decision to ask for dismissal in an email, a fact that stung Welcenbach and took a Madison detective who had investigated the case, Angela Kamoske, by surprise.
The decision was apparently reached in May, and it fell to victim-witness specialist Kerman to relay the news, which he sent to Welcenbach via email on May 15.
"As you know, we were in the midst of trying to schedule a time to meet so that we could share with you the decision about going forward, and the reasoning behind that decision," Kerman wrote to Welcenbach. "In checking in with detective Angie Kamoske about her availability, she raised a concern we had not thought about. Angie said that if the decision we made was to not take the case to trial, that it may not be fair to make you take a full day off to drive here and back, just to hear that kind of news."
Kerman said he needed to be honest and say that, after reviewing the evidence with Ozanne, the district attorney himself made the call.
"None of that decision was based on disbelieving your assault report, but rather because of his certainty that there were too many obstacles to meet our burden of proof, convincing a unanimous jury that the defendant is guilty of this crime, 'beyond a reasonable doubt,'" he wrote. "DA Gerise LaSpisa and myself were in agreement with that assessment. We don't disbelieve your assault report, but we don't think we have a legitimate chance to prove this case at trial."
Kerman said he did not want to inform Welcenbach by email.
"For all you have been through, I think you deserve an in-person explanation along with the decision," he wrote. "But Angie raised a fair concern that maybe it would not be right to make you come all the way down here, just to hear bad news. We remain totally willing to meet with you to discuss the reasons for this decision. .... I am really sorry to bring you this news."
In her response to Kerman, Welcenbach said she was more than disappointed and would have liked to have had another chance to make her case in person to the district attorney's office.
"It is absolutely crushing to be honest," she replied to Kerman. "My thanks to Angie for thinking of me and not having me travel down to hear this news however I would have liked the opportunity to appeal to the DA one more time."
Welcenbach indicated she might reach out to other agencies but worried about the statute of limitations in such cases - six years after the offense - if there was no open prosecution.
"I plan to be very vocal regarding this decision and will not stop fighting to have Lee held accountable," Welcenbach wrote. "I'm very sorry a potential loss for the DA's office was worth more than an attempt at any type of closure for a rape victim."
Madison detective: Wrong not to prosecute
For her part, in a May 15 email Kamoske told Welcenbach that the email notification - rather than at least a phone call - took her by surprise and that it indicated to her that the district attorney's office had no intention of listening to either of them.
It was not the first time Kamoske was surprised by the district attorney's office. She also indicated in the May 15 email that, in a prior meeting, the DA's dismissal plan had caught both she and Welcenbach off guard. That meeting apparently took place last December, when LaSpisa, who was assigned the case not long after it was filed, was already considering dismissal.
In a December 14 email to Welcenbach, Kamoske had described that meeting as being "blindsided" by LaSpisa's take on the case.
On May 15, the day Kerman notified Welcenbach by email of the decision to dismiss, Kamoske wrote to Welcenbach that she too was only notified that day.
"I'm so very sorry," Kamoske wrote in the May 15 email, replying to Welcenbach. "I didn't get notification from their office until this afternoon. I received word from Mark last week that their office wanted to set up a meeting, and after we were both taken by surprise at the first meeting, I asked him to think about the fact that if what they were going to tell us was that they were going to dismiss the case, they should think heavily about asking you to come all the way down here, if there would be nothing we could say to sway the decision. I then heard nothing from them until today when Mark said he notified you by email."
And that, Kamoske said, also took her by surprise.
"I did not expect that is the notification method he would choose," she wrote. "I was at least hoping they would set up a conference call where we could all talk. What that tells me is we could have argued with them until we were blue in the face and they wouldn't have changed their minds."
At that point, Kamoske told Welcenbach she thought the district attorney's office made the wrong decision.
"Would it have been a challenging case? Yes," Kamoske wrote. "Do I think your testimony could convince a jury that you are telling the truth? Absolutely. I honestly teared up when I got the email because I wholeheartedly think they are making the wrong decision."
Plea to the judge
On July 26, Welcenbach wrote to the judge, asking him not to dismiss the charges.
Welcenbach pointed out that she reported the alleged violation to the proper authorities and that Lech was charged within the statute of limitations. And, Welcenbach wrote, the original assistant district attorney assigned to the case had a much different take than LaSpisa.
"The original assistant district attorney, Rachel Sattler, who was assigned to this case wanted him prosecuted aggressively," Welcenbach wrote. "We spoke about a tentative plea bargain requested by Lech and his attorney, but she did not accept it. Lee waived his right to a preliminary hearing and this case was set for trial."
But after Sattler left the office, Welcenbach wrote, the case was reassigned.
"I have met with district attorney Ozanne, assistant district attorney LaSpisa and [the] victim rights coordinator regarding this case and expressed my willingness to testify during the trial," she wrote.
She also pointed out that the detective investigating the case thought the district attorney's decision was wrong.
"I was later notified via email that the state felt there were 'too many obstacles to meet our burden of proof,'" Welcenbach wrote. "This information was conveyed to the detective investigating this case who thought, as I did, that this was an unfair and poor decision."
Welcenbach wrote that she knew prosecution would be difficult.
"I have approximately 20 years of experience working in law enforcement and understand the hurdles faced during prosecution," she wrote. "The system is in place for a reason. If these charges are presented at trial and Lee Lech is found not guilty by yourself or a jury of his peers, then so be it."
And though she said the district attorney's office told her it did not want to give Lech a way to say he was vindicated, Welcenbach wrote, dropping the charges was doing just that.
"Please consider this request and ask that this case be prosecuted, as the preliminary hearing has already been waived and a trial date has been set," she wrote.
In her separate statement provided to the newspaper that had been prepared originally as a victim impact statement, which addressed both the court and Lech, Welcenbach stood by her story and was less measured and more personal than in her letter to the judge.
"I'm sure there are days that go by that you worry about what will happen to you," she wrote. "You worry about what your friends and family think. Do you know how often I think about it? I think about it every day. I get through most days now without a panic attack, tears or the need to talk with a close friend. I have moved past blaming myself but the little things still throw me into a sad funk."
In the criminal complaint filed against Lech, Welcenbach had told investigators that Lech asked her if she had any Alka-Seltzer and snacks in her room. She told him yes and showed him where the snacks were, according to Welcenbach's allegations, and Lech was sitting on the coffee table facing the bed eating cookies when she went into the bathroom and changed into a pair of shorts and a tank top, the complaint states.
These days, Welcenbach wrote in her victim statement, those are all triggers.
"Seeing Alka-Seltzer in a store is a trigger," she wrote. " ... The sight of it makes me want to cry. If only I had said I didn't have any maybe this would not have happened."
Yellow Oreo cookies are a trigger, she wrote.
"I have never bought them since and have actually had to tell my kids 'no' in the grocery store," she wrote. "I refuse to have them in my home."
In the end, Welcenbach wrote, the court considered Lech's rights more important than hers and the decision to not proceed to trial was effectively silencing her.
"My voice is still quiet, the same as it was that night," she wrote. "Not because I have not used it, but the district attorney has refused to help me find a way for it to be heard."
Lee Lech's attorney, Chris Van Wagner, declined to make a statement for this story. Neither Dane County district attorney Ismael Ozanne nor Dane County assistant district attorney Gerise LaSpisa returned a message asking for comment.
The charges were dismissed without prejudice, which ordinarily means the case could be refiled if new evidence emerges. However, a dismissal without prejudice does not toll the statute of limitations, likely making that a moot point.
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