Did Susan Happ cost a slain couple, community, justice?

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Less than two years after she was elected Jefferson County’s district attorney, Susan Happ chose to prosecute one of the more violent crimes in the history of the rural county just east of Madison.

A prominent Wisconsin district attorney tells Wisconsin Reporter that Happ’s decision to personally prosecute the homicide case and not turn it over to more qualified prosecutors was an egregious error in judgment that cost a slain young couple and the community at large justice. It was a decision, says Ozaukee County District Attorney Adam Gerol, that will turn a dangerous man loose in another five years.

“A law degree might give you the right to sit in front of a jury, but only experience can make someone an effective litigator,” Gerol said in an interview with Wisconsin Reporter. “Happ was at a minimum too ignorant to see her own limitations, or at worst too arrogant.”

Happ is the Democratic candidate for Wisconsin attorney general. She faces Waukesha County District Attorney Brad Schimel in next month’s general election.

Happ has faced her share of criticism in recent weeks regarding her prosecutorial judgment, particularly in her office not seeking a special prosecutor for a child molestation case in which Happ was involved in a business relationship with the defendant.

Gerol, a Schimel supporter, said he is speaking out because he believes Happ’s decisions in the double homicide case indicate what kind of attorney general she would make.

‘Nothing to lose’

Andrew Wirth gunned down off-duty police officer and 37-year-old mother Jennifer Luick and her boyfriend, Gregg Peters, 40, in the parking lot of the Rock Bottom Saloon and Eatery in Jefferson on Dec. 6, 2009.

Wirth, 25 at the time and a reputed member of the los Diablos motorcycle gang, didn’t know the couple, but he didn’t take too kindly to Luick goosing him, as she did to other male patrons of the bar that night, according to court documents.

Luick told her boyfriend about the exchange. Peters then asked if Wirth wanted to step outside. Yes, Wirth did.

“If he wanted to (expletive) with me, that’s life,” Wirth, who has a tattoo on his neck boasting “Nothing to Lose” in black ink, told police.

Wirth also said that he had never intended to kill anybody, but he came to the fight with a gun — and he used it.

He shot Peters three times at close range. One bullet passed through Peters and struck Luick, according to court documents. She struggled back into the bar, bloody, screaming for someone to call 911 before collapsing, dying on the dirty barroom floor, according to testimony. Peters made it to the bar’s entryway, begging for help.

Wirth fled. He was found a short time later.

‘Very confused’ prosecutor

Happ originally charged Wirth with two counts of first-degree intentional homicide and three counts of first-degree recklessly endangering safety.

Before the trial, the DA took the endangering safety charges off the table. Jefferson County Circuit Judge Jennifer Weston approved Happ’s request.

In the end, a jury acquitted Wirth of the homicide charges — they were allowed to under the charging guidelines — and found him guilty of two counts of homicide by negligent handling of a dangerous weapon. He was negligent, the jury said. The killer, who showed very little emotion during witness impact statements and who bounded at courtroom spectators before being controlled with an electro shock weapon, went from the potential of serving life in prison to a 10-year sentence with 10 years extended supervision.

“This is an extremely hardened and vicious individual who will be out among us in next five years, at this point with a two-person body count, one of them being a cop,” Gerol said.

The district attorney is a Republican, but he says he has no ax to grind against the Democrat attorney general candidate. He said he didn’t know Happ before she became a DA, and had heard little of her since — at least until she decided to run for attorney general.

Gerol said he does distinctly remember Happ frantically sending out email blasts to prosecutors around the state on the eve of the Wirth trial. Happ’s questions, he said, were cause for concern.

“When I read them, it was readily apparent that she was very confused about some basic trial issues, such as the limits of self defense,” Gerol said. “Later, I was horrified to learn that this man — who should now be spending his life in prison — was only convicted of far lesser included offenses.”

Had Happ not filed the motion to dismiss the three reckless endangerment charges, Wirth could have faced an additional 37 ½ years in prison, Gerol said.

More unfathomable, Gerol said, is that Happ never asked for help in prosecuting the case from experts on homicide cases, particularly the attorney general’s office, which Happ would like to lead. The agency has a team of lawyers who assist in the prosecution of local criminal cases at the request of district attorneys.

“What I can’t fathom is why Happ kept this case in the first place when she was so obviously out of her depth,” said Gerol, who has been a prosecutor for more than 22 years, an attorney for 26 years and has served as special prosecutor in several conflict-of-interest cases in multiple counties. He is a 15-year member of the Wisconsin District Attorneys Association Executive Board, serving as its president for two years.

Asked whether Happ had contacted the attorney general’s office for help, agency spokeswoman Dana Brueck in an email said that she could not “respond or confirm any such contact due to privilege that would attach.”

In the prosecutors’ defense?

Happ and her campaign did not return several calls and emails from Wisconsin Reporter seeking comment.

According to Happ’s annual report to the Jefferson County Board of Supervisors, 2010 was a busy year for law enforcement in the county. That year the Jefferson County DA’s office “closed six homicide cases involving nine different homicide victims,” including the cold case of serial killer Edward Edwards. But the heavy lifting in that case was completed by law enforcement investigators, and like the other cases, with the exemption of the Wirth double homicide case, Happ didn’t have to take it to trial.

Jefferson County Board Supervisor Laura Payne, a Happ supporter, said the district attorney has done a great job for Jefferson County.

“I have full confidence in Susan Happ’s ability to be our DA as well as attorney general,” Payne said. She could not speak to any particular case that stands out, but said Happ does her job “very competently” and that she is “very intelligent and extremely hard-working.”

Fellow board member Jim Mode has a different opinion of Happ’s competence and sense of priorities. Mode said the board in the past hasn’t always had Happ’s cooperation in dealing with a backlog of important social services cases.

Happ shouldn’t count on Mode’s support at the polls.

“I just don’t think she’s qualified to be the attorney general,” he said.

‘Never going to forget’

Family members of the victims expressed outrage at what they say was a miscarriage of justice.

Kim Leinweber, Luick’s sister, spoke directly to Wirth, telling him that she hoped he would have to think about the decisions Wirth made on Dec. 6, 2009, for the rest of his life.

“We now know that justice was not served, and this will not be the case,” Leinweber said.

“I hate you for shooting my parents. I think that you should go to jail forever,” read a letter from Luick’s son, who was 12 at the time.

LOVE LOST: Jennifer Luick, and her boyfriend, Gregg Peters, were gunned down outside a Jefferson bar in December 2009.

At the sentencing, Happ did argue for the maximum 10-year prison sentence for Wirth, and she blamed the jury for the verdict it rendered.

“Certainly, the Luick and Peters families are never going to forget, not just because their loved ones were taken so senselessly, but also because of the outcome of the trial,” Happ said, as quoted in the Jefferson County Daily Union.

She said the jury’s verdict was similar to “killing (the victims) all over again” in the eyes of their surviving family members.

But Gerol said Happ needs to look at herself in the mirror and recognize the mistakes she made that ultimately thwarted justice. Prosecutors, for better or worse, must own their cases, he said.

“Jennifer Luick and Gregg Peters are dead. Their families have to live with the fact that justice wasn’t done for them,” Gerol said. “But as bad as that sounds, the outcome is actually far worse. It’s the rest of society, each and every one of us, who are going to suffer from this result when Andrew Wirth gets out of prison in a little over five years.”