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July 1, 2002
BURKE ATTY CALLS THE CASE `GROSS OVERKILL'
By Melanie Fonder
MADISON -- The felony charges agains Milwaukee Democratic state Sen. Brian Burke amount to ``gross overkill,'' his attorney says.
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State Senator Brian Burke
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Burke, who made his initial court appearance on July 1, is charged with 18 felony counts connected to alleged corruption in office and destroying subpoenaed documents.Burke's attorney, Milwaukee Democratic activist and campaign finance expert Robert Friebert, also argued that his client was privileged from arrest because of an 1898 case, State v. Polacheck. Friebert said the decision means a lawmaker is free from arrest when the Legislature is in session as well as 15 days before and after lawmakers are in session. State constitutional language doesn't protect lawmakers from arrest for breach of peace, treason or a felony. But Freibert said the Polacheck case found that if the crime was not considered a felony at the time the constitution was passed in 1848, the lawmaker could also be free from arrest.
"Under these circumstances, Senator Burke objects to the jurisdiction -- and, I might add, he has to," Friebert told the court before asking the court to halt proceedings until the privilege expires. Burke, dressed in a suit and showing no emotion, sat behind his attorney in the packed courtroom. Later, when Friebert talked to reporters, Burke declined comment and stood behind his attorney. Burke and his attorneys have maintained the charges are trumped up and that Burke will be proven innocent.
``The charges against Senator Burke do not involve any allegation whatsoever that there was pay-to-play -- in other words, there's no extortion and no bribery,'' Friebert said. ``It seems to me this is a gross overkill for the kind of conduct that's alleged here.''
Dane County District Attorney Brian Blanchard said Burke had not been arrested so the Polacheck case should not apply. Court Commissioner Todd Meurer did not rule on that claim but said he would leave the issue up to the trial court.
A preliminary hearing was tentatively scheduled for July 30 at 1:15 p.m. -- the latest time Meurer said was available in the schedule. But Friebert said he would not be ready by then. Judge William Foust, a former district attorney, will be the trial judge for the case. Charges against two ex-staffers to Burke's aborted attorney general campaign -- Tanya Bjork, current chief of staff to Burke, and Raghu Devaguptapu, a former fundraiser for Burke -- will also be handled in Foust's court.
Burke signed a signature bond for $18,000 before leaving the court with no comment. But Freibert said there was an appearance Blanchard had a conflict of interest in the case.
"A lot of the activities that were engaged in by the district attorney when he ran for district attorney two years ago, which he conceded. A lot of what's going on here is just a matter of degree," Friebert said. "I'm not sure you can just be a little bit pregnant." Blanchard received help from a Democratic caucus staffer in his election effort and voluntarily involved Milwaukee County District Attorney E. Michael McCann to avoid the appearance of conflict. Blanchard is facing a major re-election challenge this November from former Republican sheriff Rick Raemisch.
Friebert said he'll likely ask for a late August preliminary court date.
"This is simply not enough time," he said. "This is a very complicated complaint. It took a year to write, and I think we should have an awful lot of time evaluating it and investigating it ourselves. It's been a secret proceeding and our job is just beginning right now to present a plausible defense that Senator Burke did not engage in any improrieties and that is what we will be saying."
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