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Thomas Smith Trial Transcript

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212 views142 pages

Thomas Smith Trial Transcript

Uploaded by

William N. Grigg

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You are on page 1/ 142

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STATE OF WISCONSIN

CIRCUIT COURT

IOWA COUNTY

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STATE OF WISCONSIN,
Plaintiff,

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v.
THOMAS G. SMITH,
Defendant.

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12 CM 192

May 30, 2013

9:10 a.m.

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TRANSCRIPT OF JURY TRIAL

BEFORE THE HONORABLE WILLIAM D. DYKE

JUDGE PRESIDING

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APPEARANCES:

FOR THE PLAINTIFF :

ATTORNEY MATTHEW C. ALLEN

Asst. District Attorney
222 N. Iowa Street
Dodgeville, Wisconsin

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FOR THE DEFENDANT:

ATTORNEY THOMAS B. AQUINO

Suite 1104
131 W. Wilson Street
Madison, Wisconsin 53703

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COURT REPORTER:

Denise Severson, RMR

Iowa County Courthouse
222 N. Iowa Street
Dodgeville, Wisconsin
608.935.0349

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(The following proceedings were had in chambers.)

THE COURT:

Appearances.

MR. ALLEN:

MR. AQUINO :

State appears by ADA Allen.

The defendant appears by his attorney

Thomas Aquino.
THE COURT :

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We have State versus Smith, 12 CM 192 .

A point came up at the outset of trial,

and I think it was Mr . Aquino .

MR. AQUINO :

Yes, Your Honor.

Before when we were in

chambers Mr . Allen indicated that he was likely to object to

the introduction of the other Facebook comments that were

made in response to the Arena Police Department ' s Facebook

posting on the grounds of hearsay.

refer to those other comments during my opening statement

because they are, I think, relevant to explain what Mr. Smith

was responding to.

context.

truth of the matter inside of those comments .

the allegations that the police department was somewhat

racist in how they handled the underlying event , but just

that there were these allegations out there and that

Mr. Smith was adding his own two cents about the situation,

and also i t is also -- I'm also going to raise the point that

it appears that the Arena Police Department deleted those

other comments in addition to Mr . Smith's comments , which is

Your Honor , I intend to

It puts Mr. Smith ' s comments into

They will not be introduced for the purposes of the

Specifically

relevant to the issue of the motivation of the witnesses from

the state.

THE COURT:

Mr . Allen .

MR . ALLEN:

Your Honor, he correctly notes I do

object on hearsay grounds.

the exception of Dana Willey are here to be cross-examined

about their e-posts or rationale.

posts are at all relevant to the content of Mr. Smith's

posts.

None of the other posters with

I don't think that their

Either Mr. Smith's posts are disorderly and unlawful

electronic messages or they aren't.

he should be gauged in reference to other people's comments ,

so for those reasons I think it's inappropriate to allow the

other comments with the exception of Ms. Willey, and even

that comment has hearsay within it where Ms. Willey discusses

asking an officer specifically what the juveniles looked

like , and stating that his response is that they will stand

out because they don't belong here, so we have got multiple

levels of hearsay and irrelevancy.

And I don't think that

Again, Kim Marks' comment, she notes she was accused

of harboring so-called dangerous fugitives, and she is not

here to testify about that.

need to bring the additional posts in .

with asking the officer were there other posts, yes, but not

going into what those other posts were , because I don't think

it's relevant to Mr . Smith's posts .

I think on balance there is no

I have no problem

MR. AQUINO :

Well, Your Honor, again we're not

introducing them for the truth of the matter asserted within

those comments that these events actually happened.

we're trying to show is that there was this ongoing

discussion involving the alleged racism of the Arena Police

Department and that my client chimed in with his two cents ,

so that's the context of his statements.

conduct statute says that has to tend to provoke a

disturbance under the circumstances .

THE COURT:

What

The disorderly

I want the milieu to be a part of this as

we craft the trial .

The use of the social network media is ,

I think, something that has to be put in proper balance and

context.

hearsay quality , but if you are able to proceed to show that

there i s an ongoing series of comments , and they are not

being offered for the trut h of anything except to show there

was a conversation going on, and it's -- that this language

erupts from that conver sation , I'm going to let you put it

in, because I want the social network issue -- th i s kind of

stuff is going on all the time .

where the l aw can look at it , and the law can deal wi th i t,

and it may be disorderly.

order to get a proper look at what ' s going on , and frankly,

anticipating that there could be an appeal on what the use of

the soci al network contexts ar e , I'm going to let you get a

I tend to side with the state in terms of the

Let's put i t in a place

It may not be , but I think that in

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lot in.

everyday language, everyday talk .

from our communities?

So I'm going to go kind of gently on your use of the milieu.

Also in terms of what some of the specifics are I'm going to

hear Mr. Allen on his objection.

the matter now?

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Because as I see it, this is part now of common

MR. AQUINO:

I see that as something evolving here.

comments in my opening statement?

THE COURT:

comments that were posted .

conversation.

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Did I successfully confuse

My question is can I refer to the

Is this to be expected

MR . ALLEN:

You can say that there was a series of

These grew out of that

But not make specific comment about what

those comments were at least in opening?

THE COURT :

No.

No , I don't think we need to .

think as the case evolves this stuff is going to come out.

MR. AQUINO :

Okay.

Well, I guess for the record I

would object to not being allowed to read the specific

comments of Kim Marks and Dana Willey in order to put my

client's comments, which will be read to the jury during the

opening stat ement, I object to not being allowed to put them

in context in my opening statement .

THE COURT:

I respect your objection.

It's

well-founded .

I must , however , because those people could

have been brought i n and testif i ed, that they are not on the

witness list.

It's not intended -- apparently we're not

intending to hear from them, and I think that is the

distinction.
MR. AQUINO:

Well, Your Honor, one of the witnesses

will be here.

Ms. Willey will be here, so she'll be able to

authenticate her comment.

THE COURT:

MR. AQUINO:

THE COURT:

Yes .
Do I have to add that to the list of

witnesses?

MR. ALLEN:

MR. AQUINO:

The witness is going to be called?

You have Ms. Willey.

May I refer to her -- may I refer to her

specific comment during opening statement?

THE COURT :

Sure .

MR. ALLEN :

Even there I have some issue with the

entirety of the comment.

entire comment reads, "And don't anybody say it isn't about

race because it is .

they look like and his response is they will stand out

because they don't belong here."

"and don't say it isn't about race because it is" portion of

that, but then we get into hearsay of what an officer

allegedly said, and it calls for speculation on the part

of the

THE COURT:

I don't mind if he says -- the

When I ask the cop specifically what

I don't have a problem with

I can feel for you on that, but I'm going

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to let it come in because I want the entire social

interaction to be seen for what it is.

thing is I think to some extent that could be handled -- it's

very difficult to craft a question around it for cross, but

let's see what happens.

MR . AQUINO:

I think - - the other

Okay .

So I'm clear , I can read her comment

during my opening statement?

THE COURT:

You may .

MR. AQUINO:

Okay.

Thank you.

(The following proceedings were had in open court ,

In the presence and hearing of the jury.)

THE COURT:

This case is State versus Smith.

Case

No . 12 CM 192.

It is a trial in a misdemeanor matter.

parties , as I indicated, are the State of Wisconsin, and

we ' ll let the appearances be made at this time.

The

MR . ALLEN:

State appears by ADA Allen .

MR. AQUINO:

his counsel Thomas Aqu i no .

THE COURT :

Ladies and Gentlemen, this is a criminal case , not a

The defendant appears in person and by

Thank you , Counsel .

civil case.

The allegations are contained in an amended

complaint .

defendant on or about Saturday , July 21, 2012 in the village

of Arena , Iowa County, Wisconsin did with intent to

int i midate another person send a message to the officers of

I will read those .

That the above-named

the Arena Police Department on an electronic mail or other

computerized communication system, and in that message used

profane language contrary to law.

the above-named defendant did on that same day, same place

while in the village of Arena, Iowa County, Wisconsin engaged

in indecent, profane and boisterous conduct under

circumstances in which such conduct tended to cause a

disturbance, and that's contrary to law.

It is also alleged that

This complaint language that I just read to you is a

written formal accusation against the defendant charging the

commission of one or more unlawful acts.

consider this complaint as evidence against the defendant in

any way, and of course , it shall not raise any inference of

guilt .

You are not to

Mr. Smith has entered a plea of not guilty to each

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count in the complaint, which means the state must prove

every element in the offense charged beyond a reasonable

doubt.

and Gentlemen, Mr. Allen, if you would please stand and

introduce yourself to the panel.

I will now introduce to you Mr. Allen and Mr. Aquino,

MR. ALLEN:

Good morning.

My name is Matthew Allen.

I'm a resident here in Dodgeville and serve as the assistant

district attorney for Iowa County.

THE COURT:

MR. AQUINO:

Mr . Aquino.
Well, good morning.

My name is Tom

Aquino.

area.

I'm an attorney, and I practice all through the

This is my client Mr. Smith.

THE COURT:

MR. AQUINO:

THE COURT:

Introduce your client, please.

This is my client Thomas Smith.
This is a criminal trial proceeding.

The

next portion of the trial will be the selection of the

members of the jury.

They are ancient language terms, v-o-i-r d-i-r-e, and every

attorney I know pronounces it differently.

The procedure is called voir dire.

It's voir dire

would be one of the ways to do it, but we call it voir dire,

and it's the selection procedure whereby we determine which

12 of you will be seated here in the jury box.

requested an answer, and this is a proceeding that will

probably take most of today.

that it will go longer than today.

selection process, and I'll ask the clerk to please

administer the voir dire oath to the entire panel .

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The matter

I do not in any way anticipate

We'll go now to the

Ladies and Gentlemen, stand please and raise your

right hand.

(Jury panel duly sworn.)

THE COURT:

Now, this selection process isn't

designed to get into your personal life.

It's to determine

who may be selected to hear this particular case.

tumbler here that we use for jury selection .

the whole thing in this process.

We have a

You can see it ,

Many courts today are using

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computers.

the computer has some way of scrambling it and spitting out

the names to be called to go into the box .

old-fashioned.

you now how your name got called and how you got in the box.

If you would please.

This is Iowa County.

We're

We'll let you see it so

THE CLERK:

Do you want 14 or 12?

MR. ALLEN:

I think we can do with 12 .

MR. AQUINO:
THE CLERK:

Winkers.

Ryan Rux .

Jay Lindner.

THE COURT:

BAILIFF:

THE CLERK:

Stanfield.

Justin Davis.

Calvin Williams .

He is one that was not here.

Elaine Schwartz.

Brandon Starr.

Gary Leonard.

Lonnie Johnson.

Lanny

Catherine Price.

William Schrader.

MR . ALLEN:

I think we should have a voir dire panel

of 20 with four strikes for each -MR. AQUINO:

THE CLERK:

Rosemary Mccrea.

Nankee .

Leah Houtakker .

John

Mr. Rux, are you hear?

Jacob Peterson .

He is not here .

Agreed.

Julie Roberts.

You put the name into the computer, and I guess

Who was just called?

William Schrader.

Sheila Buchholtz.

Julie Gullickson.
Doreen Nichols.

Brian Miess .
THE COURT:

I would please ask the name of the

gentleman in the window.

Mary

MR. DAVIS:

Justin Davis.

MR. ALLEN :

The gentleman in the blue shirt .

MR. SCHRADER:

MR . AQUINO :

Mr. Schrader .
I have one question .

Juror in the green

shirt .

MS . HOUTAKKER:

THE COURT:

Leah Houtakker.

Now we have our 20 in the panel.

We ' ll

proceed now to address the selection process itself.

Vair

dire shall be reported, and we'll have then four strikes per

party , and the prospective jurors , including those of you

seated here beyond the rail, we ask please pay attention to

the entire proceedings.

are seated here may be excused , and you may be selected to

come into the box.

the questions carefully we will not have to repeat the

separate questions to you, but instead we'll be able to ask

whether or not you have heard all of the questions and

whether any of those questions apply to you.

questions if your answer is yes please raise your hand and

hold i t up until you are directed to put your hands down .

It's necessary that the attorneys be given an opportunity to

make note of the jurors who have responded with a yes answer

to any of the questions .

jurors wi ll now follow , and I remind you those of you who

have not yet been called into the box please pay attent ion so

Some of the prospective jurors who

If this occurs, if you have listened to

As I ask my

My questions to you as prospective

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that your answers may be noted when you are called upon to

appear.

One of the first questions that we must ask by law is

you have been introduced now to the attorneys .

Have any of

you had any prior experience with Mr. Allen in any respect?

We have three people here who have .

Would that

way affect your abi l ity to be fair and impartial in listening

to the testimony this morning , and when called upon to do so ,

We make note of that.

you can put your hand down.

Would that in any

to vote your conscience as to whether the party is guilty or

not guilty?

Is it in any way affecting that?

MS . GULLICKSON:

THE COURT:

Are you satisfied with your contact ,

Ms . Gullickson, with the district attorney, Mr. Al l en?

MS. GULLICKSON :

THE COURT:

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Mr . Peterson, was your contact harmonious?

MR. PETERSON:
don't know the lawyer .
THE COURT:

Is the defendant Allen?

Is that -- I

I know the defendant .

Would that in any way affect your ability

to be fair?
MR. PETERSON :

THE COURT:

Yes .

And the gentleman over here ,

No, sir .

No .

You wouldn't side with him just because

it ' s him?
MR. PETERSON:

No.

THE COURT :

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your conscience?

MR. PETERSON:

THE COURT:

end! Mr. Lindner.

THE COURT:

sir.

The gentleman on the

Yes, sir.
Did your contact in any way affect your

ability to be a fair and impartial juror?

MR. LINDNER:

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THE COURT:

follow-up on that.

it will not.

Thank you, sir.

Either attorney may

Anybody among you who have had contact with

Mr. Aquino, the attorney for the defendant?

I see no hands.

Are any of you related by blood or marriage to the

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Did you raise your hand?

MR. LINDNER :

Yes.

Thank you

--...

You could hear the testimony and vote

defendant?

I see no hands .

Nowt I have to ask this question.

It doesn't seem

rational

Would any of you in any way have any financial interest in

the outcome of this case?

but it's one of the questions that I have to ask.

And I see no hands.

You have heard only briefly that it's a misdemeanor

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case.

accused of it he must be guilty?

of a feeling?

Would that in any way cause you to say well, if he is

Anybody who has that kind

Would any of you be aware of any kind of bias or

prejudice that may attach?

There will be some testimony

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about some sayings that were on the Internet.

If they

happened to be troublesome to you does that present any

problem at all to take the context of a computer

communication?

I see no hands.

The trial will, as I indicate, probably last for a

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day.

Are there any -- is there any person among you who has

a doctor's appointment or something that says I got to be

home at 4:00 to take care of the kids?

reason that hasn't been addressed that would say I need to be

excused from the jury panel?

No hands.

Anything that for any

Anybody that has that concern?

We went through a moment ago with Mr. Peterson the

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fact that he has an acquaintance with Mr. Smith .

anybody else who has that concern at all?

to Mr. Peterson .

defendant?
MR. PETERSON:

he hangs around with.

THE COURT:

We'll go back then

In what nature do you happen to know the

Is there

I just -- guess I just know the people

I don't know him personally.

That wouldn't affect your ability to be

fair?

MR. PETERSON:

THE COURT:

No, it wouldn't.

I have difficulty -- I have explained to

people.

This building was built in 1859 and the acoustics

are old and tired, so we may have difficulty hearing from

time to time.

Does anybody have a hearing loss?

Right here

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we do.
MR. SCHRADER:

My hearing is failing.

My wife will

attest to that.

THE COURT:

We have that in common.

MR. SCHRADER:

She wants me to get a hearing aid, and

out of vanity I have not done it yet, but I'm going to have

to because it's progressing.

THE COURT:

said this morning?

Have you been able to hear what we have

MR. SCHRADER:

THE COURT:

In and out a little bit.

Do you feel that your hearing loss will

affect your ability to listen to the trial if we put you in

the same chair you are at so you have that proximity?

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MR . SCHRADER :

It's going to be difficult, but I

figure if I have a problem I could always ask.

THE COURT:

I think, Gentlemen, with your approval

I'm going to simply summarily dismiss this juror.

for your candor .

service is important and it's complete .

You can step down.

MR. SCHRADER:

THE COURT:

Thank you.

Thank you
Your

Thank you very much.

Thank you for your disclosure.

We'll

call another name to take the place of Mr. Schrader.

THE CLERK:

Terry Anderson.

THE COURT:

Would you have answered yes to any of the

questions that have been put this morning?

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MR. ANDERSON:

No.

THE COURT:

Please take a seat .

THE COURT:

I think I've asked it, but I'll ask it

again.

Are any of you related to the defendant here?

hands.

Anybody related to Mr. Allen?

related to Mr. Aquino?

No hands.

Anybody

No hands.

Do any of you have an ethical, religious or other

creed that says to you I cannot sit in judgment of another

person?

Anybody who says I just can't

other people's behaviors.

to?

I don't see any hands.

I'm not a judge of

I can't do it, and I choose not

That's a perfectly legitimate response, if it is yours .

Do any of you have a cell phone in your pocket?

Please be sure that it's turned off, and in the course of the

proceedings -- if you want to keep your cell phone and if it

goes off you may have difficulty with that .

in any way during the course -- I don't want to look over

there and see somebody texting and saying I'll be home at 2.

Seriously, we can't have any of you using your cell phone

during the course of the proceedings .

outgoing.

have a cell phone policeman sitting beside each of you.

Please just be aware we're quite concerned about the cell

phones, because in some cases in other cities people have

gone into the jury room, and they get on the cell phone or

I have to trust you on that.

Please now not

That's incoming and

We're not going to

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texting and they're not paying attention to the proceedings,

and then the next thing you find out is they are asking

somebody what do you think about this?

please no cell phones in the course of today .

mean when you are in the jury panel, when you are in the jury

room, in the hallway, when you go for lunch.

into using your cell phone.

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THE CLERK:

We just ask you

That would

Don't get drawn

Can you mention if they need to make a

phone call we can make that phone call for them?

THE COURT:

Thank you.

This is -- Ladies and

Gentlemen, this is our clerk of courts Lia Gust , and she just

pointed out that if a telephone call needs to be made she can

place it for you.

Now, I have three witnesses listed.

Those witnesses

are, and these are the names, Nicholas Stroik.

acquainted with that name?

Mr. Peterson, does that contact with Mr . Stroik cause you to

feel that you would give any greater weight or lesser weight

to his testimony?

MR . PETERSON :

THE COURT:

MR. PETERSON :

THE COURT:

MR. PETERSON:

THE COURT:

Anybody

Again, Mr. Peterson.

No.

So you can hear it and digest it?

Pardon me?

What's that?

You can hear it and digest it okay?

Yes.

And as to Dana Willey.

Anybody knows

that name?

question.

Mr. Peterson again .

Mr . Peterson, again the same

Does it make any difference?

MR . PETERSON:

THE COURT:

No.

Are any of the members of this panel

related to a police officer?

We have s i x hands.

Now, is

that - - does that affect your ability to listen to the

testimony - - bottom l i ne here , folks, i s this .

have a jury that has no preconceived notions of how it ought

to come out .

We have to

Do any of you by virtue of your contact with a

police officer feel that if a police officer testifies it

gets more weight than what someone else might have to say?

Anybody with that problem?

feel that your relationship with a police officer in any way

affects your ability to serve as a juror?

the same question a different way because we do want to be

sure .

immediate household?

MS . ROBERTS :

THE COURT:

MS . ROBERTS :

THE COURT :

MS . ROBERTS :

THE COURT:

Any of you

see no hands .

Do any of you

No hands .

I asked

and is this a member of your own

In one case it is .
That's Juror Roberts.
Yes.
Would that be a husband or - Yes .
Do any of you feel that -- thank you for

your observation .

Do any of you have any relations in

emergency medical teams that brings you i nto contact with law

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enforcement perhaps from time to time?

of your contact with law enforcement and with EMTs, again in

any way could that be seen to interrupt your ability to be

fair?

hands.

No hands.

Do you have, in light

Have any of you been a police officer?

I don't know that this would have had any prior

pretrial publication, but do any of you have any recognition

of this case at all?

think not .

Any of you heard anything about it?

No hands.

MR. ALLEN:

Can we approach real quickly?

(Sidebar.)

THE COURT:

We had a brief conversation about the

proceeding in the voir dire and the question that is yet to

be asked .

panel?

of you votes one way and the other the other way just because

you know him?

Are any of you related to anybody else on the

Now , two hands .

Would that in any way affect, if one

UNIDENTIFIED MALE JUROR:

THE COURT:

No .

You feel you can express your wishes no

matter what the other guy says?

UNIDENTIFIED MALE JUROR:

Yes.

UNIDENTIFIED MALE JUROR:

Yes.

THE COURT:

be quite so heavy.

think that we're here.

I say it in a way that's designed not to

This stuff gets heavy sometimes, and I
This is going to be a good

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experience.

You are going to - - have any of you been on a

jury before?

your hands up high .

juror in any way affect your ability to serve?

once , and I don't want to go back there?

You have a sense of how it works and -- put

Does your service, past service as a

UNIDENTIFIED JUROR:

No .

UNIDENTIFIED JUROR:

No .

UNIDENTIFIED JUROR:

No .

UNIDENTIFIED JUROR :

No .

THE COURT :

I did that

I can assure you , that many more jurors

after a trial have said , you know , I didn't want to be here .

I learned a lot.

bel i eve that will be available -- that feeling may be

possible for each of you when this is over .

good experience or bad experience?

UNIDENTIFIED JUROR:

(Indicates affi rmatively . )

UNIDENTIFIED JUROR:

(Indicates affirmatively . )

UNIDENTIFIED JUROR :

(Indicates affirmatively . )

UNIDENTIFIED JUROR:

(Indicates affirmatively . )

THE COURT:

UNIDENTIFIED FEMALE JUROR :

THE COURT:

UNIDENTIFIED FEMALE JUROR :

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I'm kind of glad I did it .

Did you hav8 a

How long ago was it?

Th i rty-three years .

Well, the law hasn't changed a bit .

I don ' t recall .

say ten years maybe .

THE COURT :

I trust I

You know you were there .

I would

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UNIDENTIFIED MALE JUROR:

Mine was in 2000.

THE COURT:

MS. SCHWARTZ:

THE COURT:

companions with the other?

on the same crews?

have people on the jury who know somebody else, you know, you

can say well, Janeen voted that way .

to do the same thing.

It was over ten years ago.

And it was on federal .

Okay.

No one.

Thank you.

Are any of you work

Any of you work at the same place

The reason I ask that is if we

I guess I kind of want

If she voted there then I want to be

friends, so you can see what I'm getting at in kind of a

shorthand way.
Have you or anyone close to you ever been accused of

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breaking the law?

Several hands.

That would be in a formal

accusation, not what your neighbor said .

embarrass you .

one of you -- does any one of you feel I don't want to be on

a jury because of that past brush with law?

to say I don't want to do this.

the few remaining forms of service that is required of a

citizen .

men, and it was viewed upon as an honor in the community to

be one of the jury panel members, and you will note in the

course of this after selection that when you enter the room

or leave the room we all stand in recognition of the service

that you are giving.

I don't want to

That ' s not the point of the question .

Do any

You have a right

Being on a jury is one of

Once upon a time the jur y were picked from select

For the last question of voir dire that I'll put to

you is there anyone who has any other reason at all for

choosing to not serve on this jury?

very much.

Thank you

Mr. Allen, for purposes of follow-up you may proceed

5
6

now with your voir dire.

over the same plowed ground.

MR. ALLEN:

No hands.

questions.

You may follow-up, but don't go

A couple of additional preliminary

First, just to make sure everyone here is a

citizen of Iowa County.

judge touched on all the witnesses.

Nicholas Zimpel.

Zimpel or know him personally?

shift or is taking medications or anything that might make

you drowsy or unable to follow today's proceedings?

Schwartz, you indicated you sat on a federal jury.

a criminal or civil trial?

between the two?

time.

Anyone here who works third

Ms.
Was that

Do you know the difference

It was twice.

The same period of

Were you the foreperson for each of those

trials?

MS. SCHWARTZ:

MR. ALLEN:

I wasn't sure if I heard

One was a criminal, and one was a civil.

MR. ALLEN :

I believe the

Is anyone related to Officer Nicholas

MS. SCHWARTZ:

Anyone who is not?

of the cases?

No .

Were you able to reach a verdict in each

23
1

MS. SCHWARTZ:

MR. ALLEN:

Yes.

And can you tell me a little bit about

the experience for you?

MS. SCHWARTZ:

MR. ALLEN:

Was it a favorable experience?

Yes, it was.

On the civil case did you find for the

plaintiff who is seeking money damages , or did you find for

the defense?

MS . SCHWARTZ:

MR . ALLEN:

And on the criminal case did you return a

verdict of guilty or not guilty?

MS. SCHWARTZ :

MR . ALLEN:

The plaintiff .

Not guilty.

And do you recall what kind of case that

was?
MS. SCHWARTZ:

It was -- it had to do with a young

man that was institutionalized , and he said his counselor had

molested him .

17
18

MR . ALLEN :

Anything else you want to share about

that experience?

MS. SCHWARTZ:

MR. ALLEN:

Thank you .

MR . STANFIELD :

MR . ALLEN:

Mr . Stanfield , you have been

on a jury?

No .

Yes .

Can you recall whether that was a civil

or criminal case?
MR. STANFIELD:

I believe that was a civil case .

was in Dane County .

MR. ALLEN:

2
3

And so a car accident type of case or

something along those lines?

MR. STANFIELD:

It had to do with a printing press

whether or not it was working well enough and if the company

was liable.

MR. ALLEN:

MR. STANFIELD:

MR . ALLEN:

Breach of contract type of thing?

Did you find for plaintiff who was

seeking the damages or the defense, if you recall?

MR. STANFIELD:

MR . ALLEN :

jury.

I don't recall.

Ms. Nichols, you stated you were on a

Were you -- what type of case was it?

MS. NICHOLS:

MR. ALLEN:

Right.

It was federal and three civil cases .

And in the federal case that was a

criminal action?

MS. NICHOLS :

MR. ALLEN:

Money.

Punitive .

And in those cases that you sat on did

you find for the plaintiff or for the defense in those cases,

if you recall?
MS . NICHOLS :

One was for the plaintiff, and one was

for the defendant, and I'll be darned if I can remember the

third one, but I know there was three.

MR. ALLEN:

jury?

Did you serve as the foreperson on that

25
1

MS. NICHOLS:

MR. ALLEN :

Anything else you care to share about

that experience?

MS . NICHOLS:

MR . ALLEN :

No.

I thought it was fun.

Good to hear.

the foreperson on your jury?

MR. STANFIELD:

MR. ALLEN :

Mr. Stanfield, were you

No.

Ms. Nankee, you were on a jury as well a

while back?

MS. NANKEE :

MR. ALLEN:

MS. NANKEE :

MR . ALLEN:

Yes .
What type of case was that?
That was similar to this one .
And do you recall whether the jury in

that case found for -- found the defendant guilty or not

guilty?

MS. NANKEE :

MR. ALLEN :

MS. NANKEE :

MR. ALLEN:

MS. NANKEE:

MR . ALLEN :

And were you the foreperson on that jury?

No.
Anything about that experience that you

care to share other than what you already have?

I believe he was guilty .

on a jury?

It was very educational .

Appreciate that.

Anyone else who served

I think I covered you all .

Judge Dyke asked a little bit about if anyone had

been accused of a crime or known someone who had .

Has anyone

here been the victim of a crime?

I'll try not to pry too much unnecessarily, but trying to get

as much information as we can to make sure we get the right

jury for this case.

Mr . Stanfield, can you share a little bit about that, if you

are comfortable?

Mr . Stanfield.

And again,

Mr. Stanfield and Ms. Gullickson .

MR. STANFIELD:

I just when I was walking home one

day and got sucker punched by somebody who followed me home.

Somebody I didn't know.

10
11

MR. ALLEN:

Did you report that incident to law

enforcement at all?

MR. STANFIELD:

MR . ALLEN:

Yes, I did.

And were you satisfied with the follow-up

investigation of the incident?

MR. STANFIELD:

Yeah .

But the problem was that I

didn ' t report it until a couple of days afterwards, so that

was a mistake on my part.

MR. ALLEN:

Did any criminal charges end up being

brought against the person who hit you?

MR. STANFIELD:

MR . ALLEN :

No.

Does that experience color in any way

your views of the criminal justice system, or do you think it

might impact it at all how you decide today?

MR. STANFIELD:

MR. ALLEN:

No, I don't think.

How long ago was that?

27
1

MR . STANFIELD:

MR. ALLEN :

MR . STANFIELD :

MR . ALLEN :

It was in 1996.

A while ago?
A while ago , yeah .

Ms . Gullickson , I think you indicated

earl i er that you had some prior contact with me as well.

you share with the panel what that contact was?

7
8
9

MS . GULLICKSON :

MR. ALLEN:

And is that also the part wher e you

answered yes to being a victim of a crime?

MS. GULLICKSON:

MR. ALLEN :

MS. GULLICKSON :

MR . ALLEN :

I'm not sure if that was a crime .

A victim of some circumstances?

Right .

And did law enforcement i nvestigate that

incident?

MS . GULLICKSON:

MR. ALLEN :

I was attacked by my neighbor ' s

three dogs , and you handled the case .

Can

Yes.

Were you satisfied with the investigat i on

that they conducted?

MS. GULLICKSON :

MR . ALLEN:

Yes .

And is there anything about that

experience wi th law enforcement or with my office that would

any way affect you r ability to hear the facts of this case

and decide those impartially?

MS. GULLICKSON :

MR . ALLEN:

No.

Wer e you satisfied with the way the legal

28
1

process handled your situation?

MS . GULLICKSON :

MR . ALLEN:

MS . GULLICKSON:

Can you tell me more about that?

MR. ALLEN:

Do you harbor any feelings of resentment

about that that might play into this case?

MS . GULLICKSON:

MR. ALLEN :

She was given back one of her dogs,

and living right next to her I didn't take kindly to that .

Yes and no .

Toward her, not you .

Anything else that you would care to

share about your experiences?

MS. GULLICKSON:

MR. ALLEN:

No.

Thank you.

Has anyone here ever

witnessed a crime or had to testify in court before as a

witness?

the law enforcement area.

experience in the legal field either as a legal secretary or

an attorney or paralegal?

nature?

paralegal or other legal system participant?

Judge Dyke asked a little bit about relations in

MS. GULLICKSON:

MR. ALLEN:

MS. GULLICKSON:

Any personal experience of that

Anyone related to anyone who is an attorney or a

Does anyone here have any personal

Ms . Gullickson?

My brother- i n-law is an attorney .

What type of law does he practice?

General law I guess.

I don't know

what you call it .

MR. ALLEN:

that you know of?

And he has not represented anyone here

29
1

MS. GULLICKSON:

MR. ALLEN:

at all or just it is his occupation?

MS. GULLICKSON:

MR . ALLEN:

It won't impact your views in this case

MS. GULLICKSON:

husband before, but no.

It's what he does.

at all?

MR. ALLEN:

He has done some stuff for me and my

Nothing that would affect your decision

today?

MS. GULLICKSON:

MR . ALLEN:

No.

There was an incident in July of 2012 in

the village of Arena in which three individuals were arrested

on charges of burglary.

defendant, Mr. Smith, was not one of those individuals, but

the case that we're here for today kind of springs from that

incident a little bit, so I want to know if anyone recalls

the facts of that burglary back in July of last year in the

village of Arena.

incident or personal involvement?

23
24

I want to be sure that the

Anyone have any personal knowledge of that

MR. PETERSON:

And have you discussed the law with him

Not that I know of.

Yes .

Mr. Peterson?

I just remember hearing about

it.
MR. ALLEN:

Do you know any of the parties that were

involved or people who were arrested?

MR. PETERSON:

No.

MR. ALLEN:

Anyone else have any recollection of

seeing that story in the news or picking up any information

about that burglary?

Thank you.

Mr . Peterson, you had talked about previous contacts

4
5

earlier with Mr . Smith and Mr. Stroik and Ms. Willey.

you know Mr. Smith.

MR. PETERSON:

MR. ALLEN:

He is someone that you see frequently or

MR. PETERSON:

MR. ALLEN:

him or just when you happen to see him around town?

MR. PETERSON:

MR. ALLEN:
friend?

MR. PETERSON:

MR. ALLEN:
you know her?

MR. PETERSON:

MR. ALLEN:

23
24

Acquaintance.

And with respect to Ms. Willey, how do

Just see him .

Would you consider him an acquaintance or

would say infrequently, but I have

Do you have phone or e-mail contact with

seen him.

12
13

just know of him I guess.

infrequently?

10
11

How do

She is my cousin.

How often do you get together with

Ms. Willey?
MR . PETERSON :

I don't know.

Once every couple

months or so .
MR . ALLEN:

Family events , Christmas?

31
1

MR. PETERSON :

MR . ALLEN:

Yeah .

Does the fact that you know Mr . Smith and

Ms . Willey would that do you think little bit put a little

more weight on their testimony as opposed to testimony of the

officers?
MR. PETERSON:

6
7

cop .

I know Stroik is the town

I don't know much about the case .

MR. ALLEN:

It might.

But your personal interactions with

Mr . Smith and Ms. Willey you think might lead you to come

into this putting a little bit more weight on one than the

other?
MR. PETERSON:

12
13

I don ' t know either side, so I don't

know.
MR . ALLEN :

Do you think you might be better fit for

a jury on a case where there is not people directly i nvol ved

that you know?

MR . PETERSON:

MR . ALLEN :

excused for cause?

MR . AQUINO :

THE COURT :

Probably .

Your Honor , I would ask that he be

No object i on .
Mr . Peter son , you may stand please and

return to the audience .

tumbler .

We'll select another juror by

THE CLERK :

Kristen Staszak .

THE COURT :

Now as you approach , would you have said

1
2
3

yes to answer any of the questions?

MS . . STASZAK:

I know of Officer Stroik because I'm

from Arena.

THE COURT:

MS. STASZAK:

THE COURT:

MS. STASZAK:

THE COURT:

MS . STASZAK:

Does it make a difference?

No.
You are sure?
I'm sure.
You can be fair?
Yes .

THE COURT:

You can be seated, please.

How do you speak your last name?

MS. STASZAK:

THE COURT:

Staszak.
If I may depart from the seriousness for

a moment, this explains part of the process.

We had a

situation just like this when a juror was being excused and

we were drawing a name for a replacement, and I asked the

gentleman would you have said yes to any of the questions,

and he said yes, and I pursued it, and I said what is there

about this that causes you to be concerned about your

fairness .

be testifying, and I wouldn't trust him with anything at all,

so we had to send everybody home.

bit gun-shy at times.

He said well, I know that witness that's going to

That's why we're a little

Mr. Allen, have you finished?

MR. ALLEN:

No, I have not .

I apologize if I'm going

long .

It's one of those situations where I only get to ask

questions once, and I don't know if Mr . Aquino will ask

something that I feel is important, so hopefully I will cover

a lot of ground and he won ' t have too much, but he is

entitled to ask questions too , so I'll get through this as

quickly as we can .
Who here knows how to text message?

Who has a smart phone?

A fair number of

you .

Again, a fa i r number of you .

If you don ' t text yourself how many of you have maybe seen

around town teenagers walking down the street with a phone in

hand and thumbs going?

there anyone here that thinks that text messaging or

E-mailing or social media, as it's described , i s not an

increasing form of communication today?

it's becoming more and more common to talk through the

computer phone.

talking to them in person .

Lot of hands.

Facebook movie and social media.

Facebook account?

but just to try to get some idea, Ms. Houtakker , how often do

you check your account?

Everyone agrees that

Buttons instead of call i ng someone or

Who here knows what Facebook is?

Hard not to these days with the advent of the

Who here personally has a

I don ' t want to go through everyone here ,

MS. HOUTAKKER :

MR. ALLEN:

A see lots of heads nodding.

Once a month maybe .

Are those who raised your hand, is that

how they use i t , check in occasionally , or is there anyone

who is on it on a more regular basis , on a daily basis?

Some people on a daily basis.

Anyone want to volunteer what they use their Facebook account

for primarily?
UNIDENTIFIED FEMALE:

family.

And what do you use it for?

Keep in contact with relatives,

See what my 20-year-olds are doing.

MR. ALLEN:

Sometimes that's the easiest way to keep

track of family.

other than keeping up to date with family?

Anyone use their Facebook accounts for

keep tabs on local news or media events?

do you use it for?

click on?

MS. STASZAK:

MR. ALLEN:

MS. STASZAK:

MR. ALLEN:

Anyone use it to
Ms . Staszak, what

Do you have news feeds or links that you

I have a link to NBC.

The convenient way to get news?
Right.
Who is in charge of the content on your

Facebook page?

MS . STASZAK:

MR. ALLEN :

Facebook yourself?

MS. STASZAK:

MR. ALLEN:

Yes.

Myself .
And can you -- you can put posts on

Yes .
And can others post on your Facebook page

as well?

MS. STASZAK:

MR. ALLEN:

No.
Could you allow them to do that?

35
1

MS . STASZAK :

MR. ALLEN:

MS . STASZAK :

MR . ALLEN :

How are you doing?

Yes .
Do you post on other Facebook pages

accepting messages l i ke that?

MS. STASZAK:

MR . ALLEN :

Like can --

Can a friend of yours send you a message

saying hi, Ms . Staszak .

What do you mean?

it?

Sure .
Is that generally how other people use

Those of you who have Facebook accounts are familiar

with how you post on your page or you can comment on someone

else's page?

line be removed as a post because the person whose page you

posted it on fe l t that it was i nappropriate?

understand that's something that can be done?

a post from your own Facebook page?

anyone here ever removed something from your own Facebook

page that someone had posted because you felt it was

inappropr iate?

Has anyone here had something they posted on

MR . STANFIELD :

MR. ALLEN:

You can remove

A lot of head nods.

Has

Mr. Stanfield .

Everyone

Yes.

Can you tel l me a little bit about that?

Was it a language thing?

MR . STANFIELD :

I think it was like a

religious/political thing that I didn ' t want to get into .

lot of times I don't want to tell them about that stuff , so I

remove it , and some of the messages I don't want that kind of

stuff put on my page.

MR . ALLEN :

That's something you can do as the holder

of your Facebook account?

MR. STANFIELD:

MR. ALLEN :

Mr. Stanfield?

Anyone else have a similar experience to

Ms. Gullickson, I see your head nodding .

MS . GULLICKSON:

Right .

I just didn ' t want it on my page .

It's similar to what he said .

THE COURT:

As you may have guessed from some of the

questions I have been asking, this case involves Facebook

postings .

Mr . Smith posted on the village of Arena Police Department's

Facebook page.

might be some objections that the attorneys raise , and there

may be some things that you don ' t get to hear or see all of.

That's partly because it's the rule of ev i dence , and those

impact what we as attorneys can talk about and show you in

the course of a case .

may be some things that you might want to hear about but

can't?

this particular case only on the facts that you do get to

hear and not speculating about what else might be out there

or what you may have heard from someone else?

okay with doing that?

In particular it involves some comments that

As you learn of the facts i n this case there

Does everyone understand that there

Would anyone have a problem with being able to decide

Is everyone

Mr . Lindner, you said earl i er that you had had some

contacts with me .

contacts were?
MR. LINDNER:

MR. ALLEN :

-._

It ' s been a while.

Social interaction .

No contact through my professional office?

MR . LINDNER:

MR. ALLEN:

We played baseball together for the

Knights four years ago maybe .

5
6

Can you share what the nature of those

No .
Any result of our interaction socially

those years ago or seeing each other on the street would that

in any way impact your weight or mere ability to decide the

facts of this case as you heard them?

MR. LINDNER:

MR . ALLEN:

No.
Now, after this case the judge will

instruct you on the laws that you are to apply in reaching

your decision based on the facts that you have heard .

there anyone who would have trouble following the laws and

convicting the defendant if the facts support it simply

because ther e i s something about the law that you disagree

with?

defendant gui l ty because you might be worried about what

would happen to him if he is found guilty?

conviction the judge would be in charge of sentencing .

That's not a dec i sion that you would have to make .

that , is there any concern for what a potential convi ct i on

might mean for the defendant that would prevent you from

Is there anyone who might have trouble finding the

If there is a

Knowing

38
1

serving on this case?

After you have heard the case and go through the

process of jury deliberation where you decide whether Mr .

Smith is guilty or innocent of the charges that have been

brought against him, that process involves the 12 jurors who

are empaneled discussing the facts and the law and applying

those facts to the law .

themselves a particularly shy person or would have difficulty

voicing their opinion in the course of deliberations?

Is there anyone here who considers

So you

would all feel comfortable expressing your viewpoint on this

case then?

to be a fairly dominant per sonality and worry that you might

take over the deliberations to the extent that other voices

aren ' t heard?

On the flipside, does anyone consider themselves

Anyone have that concern?

Has everyone heard the term beyond a reasonable doubt

whether it ' s CSI or Law & Orde r or some of those shows on TV

these days?

this case beyond a reasonable doubt on the charges that were

issued in this case .

that standard i s either too high or too low?

have to prove it beyond any doubt or that I should have to

prove it by a lower standard?

beyond a reasonable doubt standard?

It is the state ' s burden , my burden to prove

Is there anyone here who thinks that

That I would

Everyone comfortable with

Th i s is just going to be a series of showing of hand

questions.

In the past year how many of you have attended a

town meeting or public meeting?

written or called a politician at a local , state or national

level?

organization or group?

club or organization?

or call a live broadcast expressing opinions?

made a public speech?

publ i c office?

9
10

Three .

How many have you

Anyone served on a committee in a local

MS . NICHOLS :

One hand .

Anyone an officer of a

Anyone written a letter to the editor

Two .

One .

Anyone

Has anyone here held or run for

It wasn't a publ i c office.

I was a

village clerk .

MR . ALLEN :

MS. NICHOLS:

MR . ALLEN :

What village?
Ridgeway .
Has your experience in government as the

village clerk do you think that would affect your view of the

criminal justice system or today's proceedings?

MS . NICHOLS :

MR. ALLEN :

No .
Do you think you can hear the facts and

evidence as they are presented and make a decision based on

that?

MS . NICHOLS :

MR . ALLEN :

Oh , yes .
Thank you , Ms. Nichols .

I'm nearly done .

Jurors have certain ri ghts , and it's important for you to

exercise them when necessary.

right to hear all the testimony .

bit of a quiet talker , talk too quickly .

Fi rst of all, you have the

I know I can sometimes be a
If I do that , would

anyone have any problem interrupting and telling me or

Mr. Aquino or whoever is speaking to slow down or speak up so

that you can understand?

understand the law and know that the other jurors understand

it and are applying it correctly.

there is any question about the law that you don't understand

or if there is disagreement among you about the law would you

all be comfortable asking the foreperson to knock on the door

and ask for clarification of the law?

You have the right to clearly

If during deliberations

I can't promise you

that you will get a satisfactory answer to whatever your

question might be.

asking the question if you feel it's necessary.

I want to make sure you are comfortable

I don't know that I have heard from everyone today .

Is there anyone who I haven't spoken with today that has

something they feel would be important for me and Mr. Aquino

and the judge to know about your ability or background to

serve on this jury that might be important?

share something that hasn't been shared?

time.

Anyone want to

Thank you for your

I'll turn it over to Mr. Aquino.

MR. AQUINO:

All right.

Thank you.

As you might

have guessed, Judge Dyke and Attorney Allen have covered most

of the questions that I would ask.

follow-up questions.

24
25

I just have a few

First, just so you know, this case is going to

involve some Facebook comments that include what might be

considered offensive language, which I'll call right now .

will include the F word and the N word, and the comments are

not abbreviated or used in that shorthand, so you will hear

those actual comments, so my request is whether any of you

would feel so offended by hearing those comments that you

would be inclined to return a guilty verdict regardless of

whether the facts of the case actually fit the statutory

definition of the crimes?

Similarly, the comments involve -- are highly critical you

I see no hands.

I'll move on.

would say of police officers .

is there anyone here who would be inclined to find the

defendant guilty based on the fact that there are comments

that are critical of police officers regardless of whether or

not his words actually fit the definitions of the crimes at

issue here?

wanted to follow-up with the jurors who i ndicated that they

have some kind of relationship with members of the law

enforcement community.

your hand to that question?

Seeing no hands I ' ll move on .

MR. LINDNER :

MR . AQUINO:

22
23
24

Similarly when you hear the

Just briefly , I

First was Mr. Li ndner.

Did you raise

Yes.
Can you describe what your relationship

is?
MR . LINDNER :

My first cousin's husband works for the

Grant County Sheriff ' s Department .

MR . AQUINO:

Is he a sheriff?

MR. LINDNER:

That's how much I know about it.

I don't know what his actual position is with the - - it ' s not

the sheriff.

MR. AQUINO:

MR. LINDNER:

detective.

MR . AQUINO :

MR. LINDNER :

MR. AQUINO :

He is not a deputy?
He could be a deputy.

MR. LINDNER:

He works in law enforcement capacity?

Yes .

I do know that .

How often do you socialize with him?

Maybe twice a year .

Christmas Eve and

summer.

MR. AQUINO :

ability to be fair?

And would that relationship affect your

MR. LINDNER :

MR. AQUINO :

husband is a police officer?

MS. ROBERTS :

MR. AQUINO :

MS. ROBERTS :

MR. AQUINO :

MS. ROBERTS :

MR. AQUINO :

MS. ROBERTS :

MR. AQUINO :

It could be a

I have no idea.

No.

testimony?

No .
And Ms . Roberts, you indicated that your

Correct .
What office is he?
City of Mineral Point .
How long has he been a police officer?
Close to 20 years.
What is his position?
Sergeant.
Do you know if he has to ever give

43
1

MS. ROBERTS:

MR. AQUINO:

How frequently is he giving testimony?

MS. ROBERTS:

I think it's been maybe three or four

Yes .

or five years, something like that.

MR . AQUINO:

MS. ROBERTS:

MR . AQUINO:

Since the last time he gave testimony?

Yeah.
Do you think on a subconscious level you

might be more apt to trust the testimony of a police officer

because of your relationship with your husband?

MS. ROBERTS:

MR. AQUINO:

Possibly.
Well, Your Honor, in light of her answer

I would move to strike her for cause.

MR. ALLEN:

No objection, Your Honor.

THE COURT:

Ms. Roberts, you may be relieved of your

service and return to the seat beyond the bar .

for being here.

We'll draw another name.

THE CLERK:

Randal Doescher.

THE COURT:

Good morning, sir .

We thank you

Would you have

answered yes to any of the questions?

MR. DOESCHER:

THE COURT:

No.

Very well, Mr. Doescher.

If you will be

seated, please, and this is the time also to also remind the

jurors that a person who is a convicted felon shall not serve

on a jury, and if that distinguishes any of you seated in the

panel if you would like to speak to the court we'll take time

44
1

to do that .

I'm assuming

MR . JOHNSON :

THE COURT :

I'm on probation until July 12 .

I think I'll ask that you step down .

don't want to cause you to have trouble with your own

circumstances, and thank you, sir, for your service .

THE CLERK:

Mark Lease.

THE COURT:

Good morning , sir .

MR. LEASE:

Good morning.

THE COURT:

Mr. Lease, would you have said yes to any

of the questions that have been posed so far?

MR . LEASE:

Yes.

THE COURT:

You would?

MR. LEASE:

Yes.

THE COURT:

Anything that affects your ability to

serve as a juror?

MR . LEASE:

No.

THE COURT :

What was the question you would have

answered yes to?

MR . LEASE:

It would have been the first one.

with Mr . Allen directly but with the DA's office .

contact with them .

THE COURT:

Not

I have had

Does that in any way cause you to feel

that you can't listen to this testimony and be fair in your

vote?

.--...,

MR. LEASE:

No.

THE COURT :

Please take that seat , Mr . Lease.

Gentlemen, if you want to follow-up with Mr. Lease you surely

may.

We're in your round , so you can proceed .

MR . AQUINO:

Thank you .

Ms. Houtakker, you raised your hand.

MS . HOUTAKKER:

MR. AQUINO:

MS. HOUTAKKER :

MR. AQUINO:

affect your abil i ty to weigh the evidence in this case?

MS . HOUTAKKER :

MR. AQUINO :

No.

The man in the st r ipes there i n the

middle .

MR . DOESCHER :

MR. AQUINO :

MR . STARR:

MR. AQUINO:

MR . STARR:

MR . AQUINO :

Randy Doescher .
In f r ont of you.

Me.
What's your name?
Brandon Starr .
You indicated you have a

relationsh ~ p

with someone in the law enforcement community?

MR. STARR :

MR . AQUINO :

Almost 15 years .

Would your relationship with your sister

Oakland, California .

How long has she been a police off i cer?

MS. HOUTAKKER :

My sister is a police officer .

Where?

Continuing on to

the police?

My cousin.
How long has she or he been a member of

46
1

MR . STARR :

MR. AQUINO :

MR. STARR:

Six years.
What office?
She has been with Ridgeway, Arena and

Barneveld.

MR. AQUINO:

MR . STARR:

MR. AQUINO :

MR. STARR:

MR. AQUINO :

She has been with Arena?

Yes .
When was that?
Probably five years ago .
Do you ever speak with her about anyone

in the Arena Police Department or about her work at the Arena

Police Department?

MR. STARR:

about for Zimpel.

I know she trained she said something

She trained him when he was in Barneveld .

MR. AQUINO:

MR. STARR:

MR . AQUINO :

level to judge in this case?

She trained him?

Yes .
Would that affect your ability on any

MR. STARR:

MR. AQUINO :

Ms . Nichols?

MS. NANKEE:

Mrs. Nankee.

MR . AQUINO :

Yes, Nankee .

No .

Did you indicate you had a

relationship?

MS . NANKEE:

Yes .

My son.

MR. AQUINO:

And where is he an officer?

MS. NANKEE :

In Evansville.

47
1

MR . AQUINO:

How long has he been a police officer?

MS . NANKEE :

About eight years .

MR. AQUINO :

Does your relationship with your son

affect your ability to

MS . NANKEE :

MR . AQUINO :

Is this your oldest son or youngest son

that's the police officer?

MS . NANKEE :

Eldest .

MR. AQUINO:

Is there anyone else who has a

relationship with a police off i cer that I didn't ask that

question to?

Okay .

UNIDENTI FIED MALE:

MR . AQUINO :

UNIDENTIFIED MALE :

MR. AQUINO:

She i s your niece?

Yes .

Would that affect your ability to judge

in this case?

UNIDENTIFIED MALE:

MR. AQUINO :

THE COURT:

The same as Brandon ' s here .

Niece .

I have four sons,

so suffice it to say that I'm on both sides .

I don't believe so .

No.

Those are all my questions , Your Honor.

Mr. Allen, as to the newcomers to the

panel, do you have any follow-up you need to do?

MR. ALLEN:

No .

THE COURT:

We'll proceed now to the selection

process.

We'll have bailiff, please , to hand the list here

48
1

back and forth beginning with the state.

(Short pause . )

THE COURT:

We'll give this now to the clerk to call

the names of those who have been selected .

not read then you may please return to the area of the bar .

If you would please, the names .

THE CLERK :

If your name i s

Leah Schroeder , Calvin Williams, Elaine

Schwartz, Lanny Stanfield, Brandon Starr , Catherine Price ,

Justin Davis, Julie Gullickson , Rosemary Mccrea , Sheila

Buchholtz , Doreen Nichols and Randal Doescher.

THE COURT:

BAILIFF :

Bai l iff , would you, please?

There is a question about whether you

cal l ed their name or not if they are to go and sit down .

THE COURT:

If the name was read then they have been

selected .

If your name was not read then you may sit down .

If you would please, bailiff , please seat them and add two to

the back row and add the balance here i n the front row .

Let's call the row .

Ms . Mccrea , Mr. Doescher , Houtakker , Williams, and on the end

Mr. Davis.

Nankee.

Ms. Gullickson there in the back row and

Then in the front row Ms . Nichols, and Ms .

MS . PRICE:

Price .

THE COURT:

Buchholtz, Starr and Stanfield and

Schwartz .

Thank you .

I would ask you please to return to

those seats after the break.

49
1

Mr. Allen, do you accept this jury?

MR . ALLEN:

I do, Your Honor.

THE COURT:

Mr . Aquino , do you accept this jury?

MR. AQUINO:

THE COURT:

Yes, we do .
We'll ask the jurors who are here in the

box please rise and our clerk will administer the oath .

(Jury panel duly sworn . )

THE COURT:

Please be seated.

Now, I think, Counsel ,

we'll take a brief recess and I come back and provide some

preliminary instruction and we'll get to the testimony .

right.

All

MR . ALLEN:

Good .

Thank you .

THE COURT :

Those of you on the bar , again , thank you

for your service this morning.

Obviously we have a jury

that's been selected and we'll proceed with that .

excused , so you are very welcome to stay, but you are free to

go .

the clerk's office.

You are

If anybody need verification we'll get that for you in

(The following proceedings were held in open court ,

Out of the presence and hearing of the jury.)

THE COURT:

We're going on the record.

Mr. Rossing

spoke to one of the jurors who approached him in the hall

during a break, and the juror, as I understand it, and we

have the bailiff here to speak to this , that he has anxiety

concerns , so we'll reseat him .

He also said that he has some

50
1

urinary difficulties, and we'll reseat him closer to the

door.

and if they have a need for use of the restroom raise their

hand and be recognized in some manner and they will be --

we'll simply take a break to allow the juror to meet his need

or her needs.

heard part of that conversation with Mr . Rossing and also

that our reporter heard part of that conversation and sought

to assist Mr. Aquino in his concern or also to assist the

I will speak to the entire jury about taking breaks

I understand that the defense counsel here

juror in his concern .

on the record to speak to this.

questions at all about this?

MR. AQUINO:

I felt it was appropriate for us to go

Mr. Aquino, do you have any

Yes, Your Honor.

I think it would be

appropriate that I be able to ask some questions of

Mr. Doescher to make sure that he is able to actually

participate in the deliberation process .

17
18
19

THE COURT:

Do you want a mistrial on the balance or

go for 11 as a jury?
MR. AQUINO:

Well, that's something I would have to

discuss with my client what he would like to do if we think

that there is cause to strike him for his inability to

participate.

THE COURT:

Sure.

These things happen .

The first

step is I would like to understand exactly what the nature of

his infirmity is and whether that will affect his ability to

participate.

We'll bring him i nto chambers , although there

is some concern about conducting discussions such as this out

of the presence of the jury.

this be done as a group, or is this something that can be

successfully appropriately dealt with in chambers?

some cases that say don't you go into the chamber.

MR . ALLEN :

I'll defer to counsel.

I share that concern , Judge.

Should

We had

It might be

appropriate to raise the issue i n front of the entire panel

as well just so that if anyone else is feeling s i milar

anxiety that they can voice their concerns about it too .

MR . AQUINO :

I agree.

front of the entire panel.

THE COURT:

I think it should be done in

Do you want to talk to your client , a

couple of minutes to talk to your client about what ' s going

on?

MR . AQUINO :

He knows what's goi ng on .

I think

can go back in.

I will need only time to discuss with my

client what he wants to do, but I think we can begin with the

voir dire.

THE COURT:

Okay.

(The following proceedings were had in open court

in the presence and hearing of the jury . )

THE COURT :

During the break the bailiff was

contacted by a juror with concerns about attending to

personal matters and the concern about breaks for restroom

52
1

and so on .

need to use the restroom during the course -- I don't care

where we are in the testimony or the argument , if anyone

needs to use the restroom raise your hand and you are on your

way.

anyway.

do any of you have any kind of medical concern or

difficulties in being in a group such as this?

I want to assure you that if any of you have any

You can leave for that purpose .

I was going to get to that .

MR . DOESCHER:

THE COURT:

MR . DOESCHER :

THE COURT:

If any of you have - -

Si r ?

I have anxiety , but nothing serious .

Is there anything we can do to assist?

No .

I'm fine .

Do you feel that you can sit through the

proceedings?

MR. DOESCHER :

THE COURT:

We will take breaks

Yes.

Now, I can assure you that there will be

times when we simply allow you to get up and take a break .

MR . DOESCHER:

No .

I'l l be fine .

THE COURT:

Mr . Allen.

MR. ALLEN :

No.

THE COURT:

Mr . Aquino .

MR . AQUINO :

Do you have a diagnosed medical

condition related to anxiety?

MR. DOESCHER :

MR. AQUINO:

MR . DOESCHER :

No .

Just get nervous.

You don ' t take any medication for that?

No .

53
1

MR . AQUINO :

Do you feel that it may affect your

ability to participate in the deliberation?

MR . DOESCHER :

MR. AQUINO :

I don't think so .
Well, for example, i s your anxiety of

the sort where it may be possible that you may want to end

deliberation early because of your anxiety as opposed to

participating?

MR . DOESCHER:

MR. AQUINO :

No.
Have you ever served on a jury before?

MR . DOESCHER :

MR . AQUINO :

No .
Do you have any other -- have you had

any other opportunities in your life to engage in group

meetings?

MR . DOESCHER:

MR . AQUINO :

16
17

No .
Is that because it's something you avoid

because of your anxiety?

MR . DOESCHER:

Yes .

I mean , I'm not like this all

the time .

Just every now and then, you know , I ' m an old

farmer, so I'm not used to being in groups of people .

MR. AQUINO :

(A short discussion was had with hi s client off

the record.)

MR . AQUINO :

Okay.

Okay .

Thank you .

Thank you for answering those

questions.
THE COURT :

May we proceed?

54
1

MR. AQUINO : Yes . We may proceed .

THE COURT:

There are some preliminary instructions

that I'm going to read for you.

It will take a few minutes

to read this, and the design is that it will help you in the

perceptions that you have or proceedings, and hopefully it

will allow you to better understand your function as a juror

and how you mi ght conduct yourself during the trial.

have already seen, we have a concern for the i ndividuals.

have a concern for the group , and we try to respond to that.

As you
We

Your duty is to decide this case based only on the

10
11

evidence presented and the law which will be given to you by

the court.

prejudice about such things as race or religion or national

origin or sex or age affect your deliberations .

your deliberations or any discussion of the case until all

the ev i dence is presented and I have had the opportunity to

instruct you on the law .

yourselves or with anyone else until your final deliberations

in the jury room.

during the trial as we just noted.

the courtroom when it ' s necessary for me to hear legal

argument from the lawyers .

parties, the lawyers or witnesses, please do not speak with

them .

witnesses will not contact or speak with you .

Don't let any personal feel i ngs of bias or

Don't begin

Don't discuss the case among

We will stop or recess from time to time

You may be excused from

If you come in contact with the

For their part the parties , the lawyers and the

This is a

small courthouse .

You may bump i nto one another in the hall .

I may bump into the prosecutor, defense counsel or even a

party .

the time of day or whether it's raining.

to do it is don ' t do it .

about the case .

Please don't use your cell phone to seek further research on

the law or on any of the topics that are before us .

engage in any experimentation or research relating to the

You can make eye contact , but don't even talk about
Just the best way

Don't listen to a conversation

We asked you earlier about cell phones .

Don' t

issues, the facts , or the persons i nvolved .

dictionaries or computer web sites or other web sites or

materials for additional materials .

you to decide this case on the facts that come t o your

presentation .

presenting the facts upon which you may decide.

other things that you wonder about .

the course of the trial that you would be uncertain about .

You will be permitted to takes notes.

moment .

Why?

Don ' t consult

Because we want

That ' s why we have lawyers doing this

There may be

There may be things in

I'll get to that in a

I want to make again the point anything you may see

or hear outside this courtroom i s not evi dence .

You are to

decide this case solely on the evidence offered and received

at trial .

both on direct and cross-examination regardless of who called

the witness.

Evidence is first the sworn testimony of witnesses

Second, any exhibits the court receives whether

or not it goes to the jury room.

Third , any fact to which

the lawyers have agreed or stipulated or which the court may

direct you to find .

right and the duty to object to what they consider are

improper questions asked of witnesses and to the admission of

other evidence which they believe is not properly admissible .

You shouldn ' t draw any conclusions from the fact an objection

was made .

received over the objection of counsel this court is not

The attorneys for each side have the

By allowing testimony or other evidence to be

indicating any opinion about the evi dence.

the judges of the credibility of the witnesses and the weight

afforded to the testimony.

You jurors are

You are not required to do so, but you may take notes

during the tr i al .

statements and closing arguments .

court will provide you with materials .

it doesn't distract you from carefully listening to and

observing the witnesses .

refresh your memory during your deliberations, otherwise keep

them confidential, and after the trial the notes will be

collected and destroyed .

The exception bei ng during opening

No note taking then .

The

Just be careful that

You may rely on your notes to

During the course of this trial the attorneys may

refer to or use police reports with witnesses .

Normally

these police reports will not be provided to you .

not provided with a police report you should use your

If you are

collective memory regarding any reference to police reports .

In determining the credibility of each witness and

2
3

the weight you give to the testimony of each witness consider

these factors.

of interest in the result of the trial, the witness' conduct,

appearance and demeanor on the witness stand, the clearness

or lack of clearness of the witness' recollections , the

opportunity the witness had for observing and for knowing the

matters the witness testifies about , the reasonableness of

Whether the witness has an interest or lack

that wi tness' testimony , the apparent intelligence of the

witness, bias or prejudice, if any be shown, possible motives

for falsifying testimony and all other facts and

circumstances during the trial which tend to either support

or to discredit the testimony.

each wi tness the weight you believe it should receive .

is no magi c way for you to evaluate testimony .

your common sense and your experience .

determine for yourselves the reliability of things people say

to you.

Then give the testimony of

There

Instead use

In everyday life you

Do the same thing here .

The state has the burden of proof .

Regarding your

verd i ct examine the evidence with care and caut i on and act

with judgment, reason and prudence .

required to prove their innocence .

person charged with the commission of an offense to be

innocent.

Defendants are not

The law pr esumes every

This presumption requires a finding of not guilty

unless in your deliberations you find it is overcome by

evidence which satisfies you beyond a reasonable doubt that

the defendant is guilty .

fact necessary to constitute guilt is upon the state .

you can return a verdict of guilty the evidence must satisfy

you beyond a reasonable doubt that the defendant is guilty .

If you can reconcile the evidence upon any reasonable

hypothesis consistent with the defendant's innocence you

should do so and return a verdict of not guilty .

The burden of establishing every

Before

Now , the term reasonable means a doubt based upon

reason and common sense .

It's a doubt for which a reason can

be given arising from a fair and a rat i onal consideration of

the evidence or lack of evidence.

would cause a person of ordinary prudence to pause or

hesitate when called upon to act in the most important

affairs of life .

based on mere guesswork or speculation.

from sympathy or fear to return a verdict of gui l t is not

reasonable.

used to escape the responsibility of decision .

your duty to give the defendant the benefit of every

reasonable doubt, you are not to search for doubt.

to search for the truth .

It means such a doubt as

A reasonable doubt is not a doubt which is

A doubt which arises

A reasonable doubt is not a doubt which may be

While it is

You are

Our attorneys will now make their opening statements .

The purpose of an opening statement is to give the lawyers an

opportunity to tell you what they expect the evidence will

show so that you will better understand the evidence as it is

introduced during the trial.

the opening statements are not evidence.

I do caution you, however, that

At this time, Counsel, if you are ready to proceed.

MR . ALLEN:

Yes, Your Honor.

THE COURT :

You may.

MR. ALLEN:

Good morning .

"Fuck the fucking cops .

Can everyone hear okay?

They ain't shit but fucking racist

bastards and fucking all of y'all who is racist.

Fuck them

niggers policy bitches.

Not a dam

thing so fuck off dicks."

defendant, Thomas Smith, on the Facebook page of the vil l age

of Arena Police Department on July 21 of last year, and these

are the posts that gave rise to the criminal charges of

disorderly conduct and unlawful computer messaging that

brought us here today.

What the you got on us?

These were the posts made by the

Let ' s rewind a little bit further to July 19, 2012.

On that day which I alluded to during voir dire , officers of

the Arena Police Department arrested two out-of-state

juvenile males and one local juvenile male for a burglary

that had occurred in the village of Arena .

ability to appr ehend the suspects was due in large part to

assistance that the police received from some of the

residents of Arena .

The officers'

The next day, July 20, Officer Nicholas Stroik of the

Arena PD who also administers the Arena PD's Facebook page

posted a Facebook message on the PD's Facebook page thanking

those residents that assisted.

often does as page administrator, Officer Stroik reviewed the

contents of the Arena PD's Facebook page and in particular

those comments that were directed towards his thank you note

of the previous day, and included among those comments were

those made by Mr. Smith.

The next day , July 21 , as he

Within 20 minutes of reviewing

those comments Officer Nicholas Zimpel of the Arena PD

responded by contacting Mr. Smith and asking him to come to

the police department to discuss an issue .

immediately understood that the issue that Officer Zimpel

wanted to ask him about was the messages that he had posted

on Facebook, but he responded to Officer Zimpel 's request

simply by telling him that he had posted the messages and

that he did not regret it and that he meant it.

Zimpel again asked Mr . Smith to come to the police department

he indicated that he was not going to come in, and Officer

Zimpel would have to come find him.

simple facts that the state intends to introduce at the

trial , during the course of this trial .

the defense may attempt to introduce evidence of additional

comments posted by other individuals which were removed from

the Arena Police Department's Facebook page, but as you will

Mr. Smith

When Officer

These are the relatively

I ant i cipate that

see from the Arena PD's Facebook page they do reserve the

right to remove any content that they believe is

inappropriate for their purposes .

conduct is at issue and should be at issue in this case is

Mr . Smith.

The only person whose

After you have heard the facts and evaluated all of

6
7

the testimony you will be asked to apply the law of

disorderly conduct and unlawful computer messaging as you

will be instructed by the judge .

On the basis of the

language used by Mr. Smith the state wi ll ask you at this

time to find the defendant gu i lty beyond a reasonable doubt

of each charge .

Thank you .

THE COURT:

Thank you, Mr. Allen .

MR. AQUINO :

Thank you.

Mr . Aquino .

Good morning .

Mr. Allen

suggests that this case is about words , not about actions .

Mr. Smith is not accused of hitting someone or stealing

anything .

writing some words on Facebook .

Are they naughty words?

Sure.

No, they do not .

this case is fairly straightforward.

Arena Police Department has a Facebook page .

that last year the Arena Police Department posted a thank you

note to the community for thei r help in apprehend i ng some

What he is accused of, what his alleged crime is

Yes.

Now , you heard the words .

Were they unciv i l words?

Were they criminal words?

Did they amount to a crime?

Again , as Mr. Al len said, t he evidence in

You will see that the
You will see

62
1

youths.
Now, as I believe Mr. Allen said also, there were

.--...

some comments made on that Facebook page that thank you to

the community .

who will be testifying later, and her comment was "And don't

anybody say it isn't about race because it is when I ask the

cop specifically what they look like and his response is they

will stand out because they don't belong here."

then see it was after this comment and other comments that

One of those comments was made by Dana Willey

You will

Mr. Smith then posted his comments echoing the criticisms of

racism.

emphatic.

say they were fucking racist bastards and told them to fuck

off, but again these were just written words .

Mr. Smith did use stronger terms.

He did use the F word.

He was more

He did call them

he did

You will see that when he was -- there won't be any

evidence that when he was contacted by the police that he in

any way acted disorderly.

cursing at the police over the phone or when he was arrested,

so now why are these Facebook comments being charged?

again the state is arguing that these words are intimidating.

He wasn't yelling.

He wasn't

Well,

The evidence will be that there was no threats or

intimidating -- intent to intimidate with these words.

The

evidence will be instead that Mr. Smith was just emphatically

expressing his view that the police in that case acting

racist, and that he strongly disliked racists in general, and

63
1

that he wanted the police to leave them alone .

will also try and show that these statements tended to

provoke or cause a disturbance under the circumstances .

Well, again these are just words written on Facebook .

is not going to be any evidence of anyone reacting to those

words in any way.

street corner urging on a crowd of people to act against the

police or to otherwise disturb the peace .

again just comments on Facebook .

The state

There

That these weren't statements made on a

No .

These were

In conclusion, I expect the evidence to show that

Mr . Smith's words were not crimes.

the crime of disorderly conduct or using computer to send a

threatening/profane message .

to compel you to conclude that the state has failed to prove

beyond a reasonable doubt each element of each crime and you

will return not guilty verdict on both charges .

17
18

THE COURT:

That he did not commit

Instead I expect the evidence

Thank you .

The opening statements are complete.

you prepared to go forward with your first witness?

MR. ALLEN:

Yes, Your Honor .

THE COURT:

Call the officer.

MR . ALLEN:

I call Officer Nicholas Stroik .

THE COURT:

The bailiff will distribute the note

23
24
25

taking materials now.

Seat yourself on the witness stand , and as you do
tell us your name and spell your last name .

Are

64
1

THE WITNESS :

Nicholas Stroik, S-t-r-o-i-k .

THE COURT :

Thank you , sir .

MR. ALLEN :

Thank you, Your Honor .

Your witness .

NICHOLAS STROIK ,

4
5

called as a witness on behalf of the plaintiff , being first

duly sworn , was examined and testified as follows :

DIRECT EXAMINATION

7
8

BY MR. ALLEN :

What is your occupat i on , Mr . Stroik?

Police officer .

And where ar e you employed as an off i cer?

The village of Arena.

How l ong have you held that position?

Since March of 2007 .

And can you provide for the jury a brief description of

your education and training for law enforcement?

Technology in Wisconsin Rapids in criminal justice, and I

graduated the academy at the same college , and I just

recertified at the academy two years ago at Madison Technical

College .

How big is the Arena Police Department?

We have five officers .

How big is the village of Arena?

About six miles of roadway .

I received an associate's degree through Mid-State

Two square miles .

65
1

Population do you know off the top of your head?

Between 800 and 1 ,000.

Does the Arena Police Department maintain a Facebook

page?

Yes, we do .

Can you describe for the jury what Facebook is

generally?

A social media network.

And how long has the Arena Police Department maintained

a Facebook page?

Since August of 2011.

Why does the department have a Facebook page?

We use it to inform the public of upcoming events, our

monthly activity log for the department and any other

information that we feel the public should know .

Who administers the Arena PD Facebook page?

I could.

How long have you been doing that?

Since it started in August of 2011 .

What do you do as the Facebook page administrator for

the department?

said, the monthly police log, activity log, any upcoming

events, any information as far as weather or other

information that we feel the public should know about .

I post the relevant pictures, posts regarding, like I

Is the Arena PD Facebook page open to anyone in the

public?

Yes, it is.

Anyone with Internet access can view the department's

Facebook page?

otherwise once you are signed up yes, you are allowed to

view.

I believe you need to actually be a Facebook member, but

It's not blocked.

Can members of the public post messages also on the

Arena Facebook page?

Yes, they can.

And can they comment on messages that you have posted as

the administrator?

Yes , they can.

As administrator are there any general guidelines that

you have for use or posting on the department's Facebook

page?

MR. ALLEN :

19
20

We do.
I show you what's been marked as

Exhibit 1.
(Exhibit No. 1 marked for identification . )

21
22

Do you recognize that document , Officer Stroik?

Yes , I do .

about our Facebook page.

This is our Facebook page, our information

And in the general information section can you read for

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the jury the policies of the Facebook page holds?

people to contribute to conversations on this page and to

share content directly related to the village of Arena Police

Department.

posted on this page are expected to be relevant and

respectful.

delete any inappropriate content from this page, including

but not limited to irrelevant content, redundant content ,

"The Arena Police Department welcomes and encourages all

Wall posts, comments, photos and other content

The Arena Police Department has the right to

hateful content, malicious content , uncivil or disrespectful

content, attacks or complaints against an individual,

financial solicitations , endorsements of a political

candidate or party, and content that violates Facebook's

terms of use, code of conduct , or other policies .

that violates Facebook's policies may also be reported . "

As administrator of the page how often do you check it?

I try to check the page daily .

And have you in the past removed posts on the Arena PD's

Facebook page that you have deemed inappropr iate?

I have .

It's just l ike any private ind i vidual could remove

postings on their own Facebook page?

That ' s correct .

Were you the administrator of the Facebook page t hen for

the Arena PD in July of 2012?

Content

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Yes, I was .

And did you make a post on the PD ' s Facebook page on

July 20 at approximately 10:40 p.m.?

I did.
(Exhibit No . 2 marked for identification . )

recognize that document, Officer Stroik?

I do .

And what is it?

This is a post I made regarding an incident that took

place that week.

And can you read for the jury the content of that post?

"We would like to thank the citizens on Sharon Street ,

Thomas Place and Lois Lane that assisted the Arena Police

Department in attempting to locate two out-of -state juvenile

males .

an officer attempted to make contact with them late afternoon

on Thursday.

juvenile male were also arrested later the same evening for

burglary of a business in the village of Arena.

males were detained by residents until law enforcement

arrived .

time later after the K9 unit tracked him to a location near

State Highway 14."

I show you what's been marked as Exhibit No. 2 .

Do you

The juveniles ran from a Sharon Street address after

The same two males along with a third local

Two of the

The third male was located and arrested a short

MR. AQUINO:

I move to object and state that the

statement contains hearsay , and i t's introduced for i ts

hearsay purposes .

I understand that's

THE COURT :

Repeat the portion you regard as hearsay .

MR. AQUINO :

The entire statement is hearsay if it's

being introduced for the truth of the matter asserted that

these events did occur .

THE COURT :

I'll overrule the object i on .

It's part

of the milieu of this case .

assistance to the jury in recognition of the usages of the

It's such that it tends to be of

equipment and the social nature of its being .

Overruled.

BY MR. ALLEN:

What was the purpose of that post, Officer Stroik?

To inform the citizens of that subdivision that we did

locate who we were looking for with thei r assistance due to

the disruption that they encountered that day in their

neighborhood.

ethnicity of the juveniles that were detained?

No .

Did you review your posting on the following day around

5 : 00 p.m. for any comments that may have been made in

response to your posts?

I did .

Where were you when you viewed those comments?

At the Arena Police Department .

And did your post have any indications of the race or

No, sir .

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And that's in Iowa County?

That's correct.

What did you notice, if at all, about the comments in

response to your post?

posted on that -- on my post.

There were comments that were inappropriate that were

(Exhibit No. 3 marked for identification.)

I show you what's been marked as Exhibit 3.

recognize Exhibit 3?

Do you

Yes, I do.

What is that?

These are the comments that were flagged as

inappropriate or otherwise known as spam by another user on

the Facebook page.

And who made these particular posts?

Thomas Smith .

Can you read the posts that were made by Mr. Smith?

"Fuck the fucking cops.

racist bastards and fucking all of y'all who is racist."

second post is "Fuck them niggers policy bitches .

you got on us .

as inappropriate?

That's correct.

Was that flag done by the department or another user?

They ain't shit but fucking

The

What the

Not a dam thing so fuck off dicks."

I believe you indicated that that post had been flagged

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That was done

Do you know the identity of that user?

No, sir .

Is the defendant present in court today?

He is .

Can you identify him for the record?

At the defense table with the shorts and white sneakers

and black shirt on .

THE COURT:

another user .

Courtroom identification now for the

record.

Mr . Smith's post?

We attempted to contact Mr. Smith regarding the posts .

Did you contact him personally , or did another officer

contact him?

contacted him.

Mr . Smith because you deemed them inappropriate?

What actions , if any, did you take in response to

Officer Zimpel with the Arena Police Department

Did you remove posts i n add i tion to that posted by

Yes.
MR. ALLEN:

I have nothing f urther for you .

THE COURT :

Mr . Aquino , your cross .

MR. AQUINO:

Thank

you .

Yes .

I wanted to get my notes in order .

CROSS-EXAMINATION

1
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BY MR. AQUINO:

department's Facebook page, correct?

That's correct.

And that means you can upload posts onto Facebook,

correct?

correct .

Now, you are the administrator of the police

I can create posts on the Facebook page, yes, that's

Facebook users, correct?

I believe so, yes.

Only other registered Facebook users can post comments

onto those posts, correct?

That's correct.

So no comments on the Facebook page are anonymous ,

correct?

I don't believe so.

And Mr. Smith's weren't anonymous, were they?

No, sir.

You have been a police officer for how many years?

With the village of Arena six years.

Before that?

Wood County Sheriff's Department and Vesper Police

Department.

And those posts are only available to other registered

How long?

Two years.

Eight years total?

Yes, sir.

And as part of your training and experience as a law

enforcement officer you have learned how to deal with the

public, right?

Yes , sir.

And this training and experience includes how to deal

with people who may be angry, correct?

At times, yes .

People who might direct their anger at you, right?

Yes , sir.

And through your training and experience you have

learned not to retaliate anger directed toward you , correct?

Yes , sir, that's correct .

So i f someone insults you you are not going to insult

them back or pop them in the nose or anything l i ke that ,

right?

No, sir .

And when you read Mr . Smith's comments you did not seek

to retaliate against him by insulting him back or otherwise,

correct?

No, sir .
MR. AQUINO :

I would like to have this marked for

identification .

(Exhibit No. 4 marked for identification . )

MR. AQUINO :

THE COURT:

Your Honor , may I approach?

You may, sir .

I'll give you a moment to review that.

to review that?

Yes, sir .

This is

This is the same post I just read with all of the

comments on it .

page, I believe?

Yes , sir , they do .

And before then there are comments from other Facebook

users, correct?

Correct .

You said that you deleted addit i onal comments in

addition to Mr . Smith's comments , correct?

That's correct .

And one of those comments deleted was a comment from

Kim Marks .

Yes, sir .

Can you read that comment to the jury?

This has been marked as Exh i bit 4 for identification .

Did you get a chance

can you describe what Exhibit 4 is?

So those include Mr . Smith's comments on the second

That's the second comment down?

MR . ALLEN :

Objection .

Calls for hearsay, Your

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Honor .
THE COURT:

It's not offered for the truth of the

matter .

It's as I perceive it.

I'm going to let it in, and

as I did with the other objection, and deny your objection

because I believe there is a milieu in the use of the social

networks that needs clarification .

appropriate that we put before this jury the matters that

depend upon the activities complained about, so I'll let it

in for purposes of showing what Facebook participation can

I think that it's

be, is, maybe even ought to be.

part of the milieu of the case I don ' t believe it's offered

for the truth of the same , and it's a saying that is actually

unquestioned at this point.

MR . ALLEN:

In any event , because it's

I'll let it in .

If I can add for the record an objection

to the relevance, but I understand the court's r uling .

THE COURT :

Yes.

You surely may .

You may proceed with reading that comment.

From Kim marks it reads, "You're so very welcome .

Thanks for searching my house and accusing me of harboring

so-called dangerous fugitives that I don't even know .

Wasting time searching people's houses when the fugitives

were no where near there .

resident to point a gun at a couple of kid's heads?

was anyone else ' s kids pretty sure it would be a big deal .

Oh , wait though.

And since when is it okay for a

They were black so it's okay.

If that

Thanks to

everyone that made our town look like nothing but a racist,

prejudice place to live.

that kind of community .

that comment?

Yes , sir.

And the next comment from Dana Willey , that was made

after in time from Kim Marks' comment , correct?

Correct.

Can you read Ms. Willey's comment as well?

"And don't anybody say it isn't about race because it is

when I ask the cop specifically what they look like and his

response is they will stand out because they don't belong

here."

Do you see

Lodge the same objection to that

statement, Your Honor .

THE COURT :

If I were black I'd run too."

And the next comment is from Dana Willey.

MR. ALLEN:

I'm embarrassed to say I'm part of

Move it be stricken .

We'll note your objection and deny the

motion to strike .

Again , I think we'll allow the continuing

objection , but I'm going to allow the testimony to go on .

Ms . Marks and Ms. Willey , correct?

That's correct.

Can you tell from what's been marked as Exhibit 4 how

long after those comments Mr. Smith made his comments?

Now , Mr . Smith's comments come after the comments of

It looks l i ke possibly an hour to an hour and 40

minutes.

I can't say for sure.

There is no actual times on

here.

exhibit was printed that those comments were made and the

initial post was made, is that correct?

says 23 minutes ago or two hours ago?

from the time that I viewed it and it said 23 minutes ago

that had been posted 23 minutes prior to my viewing it.

Just the hours.

Exhibit 4 indicates the amount of time from when this

Do you see where it

Where it says 23 minutes ago that just means that yes,

So by looking at the other times you can tell the

relative time that the other comments were made?

Yes, sir.

Now let's go through Mr. Smith's comments .

comment in the first part he says, "Fuck the fucking cops.

They ain't shit but fucking racist bastards."

that to mean that Mr. Smith, like the other commentors, was

claiming that the Arena Police Department had been racist

that evening , correct?

Yes, sir.

You didn't perceive that part of the comment to be a

threat in any way?

A threat?

Right .

I did not perceive it as a threat, no, sir .

And the second part of that first comment he says

His first

You understood

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"Fucking all of y'all who is racist."

Do you see that?

Yes, sir.

You understand that he was denouncing all racists.

Would that be a fair interpretation of what he said or his

understanding of his intent there?

Yes, sir.

Again, there is nothing there that's threatening,

correct?

Not to myself, no, sir.

Now, after he is denouncing all racists with his

his emphatic language, he says, "Fuck them niggers."

policy, but we read that as "police bitches" .

that?

Yes, sir.

You didn't understand that to all of a sudden Mr. Smith

becoming a racist and using the term niggers as it might be

used by a stereotypical racist, correct?

Say it again, please.

Sure.

word there in a racist manner?

in
It says

Do you see

You didn't think that Mr . Smith was using the N

MR . ALLEN:

Objection.

THE COURT:

It does call for speculation.

Let me rephrase it .

Calls for speculation .

Sustained .

Was it your interpretation at the

time you read this comment that Mr. Smith intended to use

that term in a racist manner?

.-....

I don't think, given using the word niggers, is

appropriate in any manner.

a racist manner?

Was it your understanding that he intended to use it in

MR. ALLEN:

Objection.

THE COURT:

Sustained .

MR. AQUINO:

his understanding .

THE COURT:
MR. AQUINO:

Calls for speculation .

I ' m asking, Your Honor, if I may, about

How he i nterpreted the statement.
I accept that distinction .
Okay .

Thank you, Your Honor .

the you got on us?

correct?

Yes , sir.

And you understood that to mean that Mr. Smith wanted

the police off i cers to leave him alone, correct?

Yes , si r.

And there was no threat there in that comment?

In the second part of the second comment he says , "What

Not a dam thing so fuck off dicks,"

MR. ALLEN:

Objection .

Calls for speculation .

THE COURT:

I think he can make a subjective

determination as to what he perceives to be , and I'l l allow

the quest i on.

I was not personally threatened by that statement .

Now you eventually deleted Mr. Smith's comments ,

corr ect?

Overruled .

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viewers .

difference maybe.

because they were marked as spam there was no need to delete

them?

viewing several times , reviewing several times and printing .

At a later time I did delete the comments .

They were already marked as spam hiding them from other

Okay .

Did you later -- this is a distinction without a

Did you actually delete the comments , or

I believe I did delete them at a later time after

Ms. Marks and Ms . Willey?

Yes, I did.

You didn't delete all the comments, though, that were

made on that post , correct?

No, sir .

For example , the post from Rosemary Schroeder , "Good

job .

on the Facebook page , correct?

And did you similarly later delete the comments of

Keep up the good work, Iowa County , " that was left up

That's correct .

MR . AQUINO :

Bear with me one moment.

I apologize .

(Exhibit No . 5 marked for i dentification . )

MR . AQUINO :

THE COURT:

May I approach the witness?

You may, sir.

This has been marked for ident i fication as Exhibit 5.

Can you review that?

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1

Yes, sir.

Is Exhibit 5 how the Facebook page would appear

currently to a Facebook user in terms of the posts and the

comments, ignoring adds, will appear?

Yeah, I believe it does .

MR. AQUINO:

6
7

Thank you.

Nothing for me further .

Thank you.

THE COURT:

MR. ALLEN : Thank you, Judge.

Redirect.
Just to clear up on

the comments issue .

REDIRECT EXAMINATION

11
12

BY MR. ALLEN:

Comments are not anonymous.

That's correct .

I think you talked about Mr. Smith's posts being flagged

as spam .

I don't believe so.

You indicated that you do not personally feel threatened

by the posts of Mr . Smith, but you, I believe, also testified

that you have training on how to deal with aggressive

individuals?

That's correct.

The post of Ms. Marks, that didn't use any profanity,

did it?

You have to post your name?

Are you able to identify who does that?

No, sir .

No profanity.

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No N word?

No, sir.

Same for Ms. Willey, no profanity, no racial language?

Correct .

And again, your thank you note initially made no

indications whatsoever about race?

That's correct, it did not state the race.

And Mr. Smith's post was the first one that injected the

N word into the discussion?

The N word is not in the comment .

That's correct .

And Mr . Smith's post was the first post that used

several profanities directed towards the Arena Police

Department?

That's correct.

MR. ALLEN:

That's all I have.

Thank you.

THE COURT:

Any new material only?

MR. AQUINO:

Just to clarify.

RECROSS-EXAMINATION

BY MR. AQUINO :

it was the only comments that used profanity, correct?

That's correct.

And similarly his posts were not just the first but the

only posts to use the N word, correct?

Mr . Smith's use of profanity was not just the first but

That's correct.

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comments?

Is there a certain word you are looking for?

Just the issue of race in general .

The issue of race in general, yes, sir.

But the issue of race had been raised before Mr . Smith's

MR . AQUINO:

THE COURT:

Nothing further .
Thank you .

Thank you .

Off i cer , you may step down .

Thank you for your testimony , and you can leave the exhibits

there .

THE WITNESS:

Thank you, Your Honor .

THE COURT:

Is he excused?

MR. ALLEN:

If we can hold him .

I think we'l l get

through all of our testimony this morning yet , just to see if

there is any need to recall him .

15
16

19
20
21

Do you want to begin on your next

MR . ALLEN :

The state would call Officer Nicholas

witness?

17
18

THE COURT:

Zimpel.
MR. AQUINO :

Our witness needs to be back in

Middleton by 1 :00 for her job .

THE COURT :

I realize

Maybe we ought to take her out of order

and go into the noon hour , would that be acceptabl e , because

we're not going to get her to 1 : 00 if she testifies now .

24
25

MR. ALLEN :

My preference would be to charge forward

wi th Officer Zimpel and get Ms . Willey done as soon as we

can .

MR. AQUINO :

THE COURT:

That's fine .
Officer Zimpel , step up and be sworn and

take the stand.

(Witness duly sworn.)

THE COURT :

and spell your last name .

THE WITNESS :

8
9

Seat yourself, sir, and tell us your name

My name is Nicholas Zimpel ,

Z-i-m-p-e-1.
NICHOLAS ZIMPEL ,

10
11

called as a witness on behalf of the plaintiff, being first

duly sworn , was examined and testified as follows :

DIRECT EXAMINATION

BY MR. ALLEN :

Mr. Zimpel , what ' s your occupation?

I ' m a police officer .

Where do you work?

I work for the village of Arena Police Department .

How long have you been in law enforcement?

Just about seven years .

And can you give the jury just a brief run down of your

education and police training?

enforcement academy as well as numerous type of retrainings.

Currently an arson investigator for the city of Madison.

........

I have completed the 520-hour state mandated law

THE COURT : Jury, can you hea r?

Were you on duty for the vi l lage of Arena PD on July 21 ,

2012?

Yes .

And did you make contact with the defendant Thomas Smith

on that date regarding a message that he had posted on the

department's Facebook page?

I did .

Before contacting him had you had the opportunity to

view the comments that he posted?

I did .

If you can look at Exhibit 3, Officer Zimpel , sitting on

the bench before you there , do you recognize those as the

comments that Mr . Smith had posted?

I do .

And how did you make contact with Mr . Smit h?

Via telephone .

What was the purpose of your contact?

I was contacting Mr . Smith to request him to come down

to the police department so I could interview him about the

comments he made on the Facebook page .

And what was his response to your request?

When I made the contact I asked him to come down to the

police department so we could talk.

he asked if this was in reference to what he had posted on

His response was that

__......._

Facebook .

asking him about?

Yes.

And did he make any specific statements to you about

those messages that he had posted?

he had meant it , and that he didn't regret posting them.

Did he seem at all apologetic for the posts?

No .

Did you again ask him to come to the police department

to further discuss those posts?

I did .

And what was his response?

He stated that I could come f i nd him .

So Mr . Smith had an inkling of what you were going to be

Yes.

He admitted that he had posted them, and he stated

MR . ALLEN:

That's all I have for you.

THE COURT:

Cross .

Thank you .

CROSS-EXAMINATION

18
19

BY MR . AQUINO:

What time did you call Mr. Smith?

I would have to look at the report .

approximately 5:20 p.m .

with you?

I believe i t was

When you spoke with Mr. Smith did he use any profanity

Not that I recall ; however, he was ki nd of evading my

questions.

But he didn't use any profanity?

Not that I recall.

And when you spoke with him when you asked him to come

in he told you he was on his way to the state fair, correct?

to give me a call as I would be on duty all night.

And the state fair was in Milwaukee, right? .

I don't recall where it was.

So he said that he didn't want to turn around going from

the state fair coming to the police department , right?

contact with me .

Correct .

No.

I requested him to -- when he was done there

He led me to believe that he didn't want to make

MR . AQUINO:

THE COURT:

Redirect.

MR . ALLEN:

None, Your Honor .

you for your help.

THE COURT:

State.

MR . ALLEN:

State has no further witnesses, Judge.

MR . AQUINO :

Nothing further .

Thank you.

Officer Zimpel, thank

You may step down.

Since it's the close of the state ' s

evidence I do have

THE COURT:

The state rested?

MR. ALLEN:

The state does rest.

MR. AQUINO:

THE COURT:

Okay.

Well --

Are you ready to go forward?

MR. AQUINO:

I first have some motions to make for

the record.
THE COURT:

We'll allow the jury to be excused .

What

we'll do then, Jury, we'll excuse you and you will come back

then at 1 : 15 - MR. AQUINO :

Actually I apologize, Your Honor , for

scheduling my witness .

If I can

THE COURT:

Let the jury be excused.

Jury, be back at 1 :15.

I'll hear you .

You are on you r own for

lunch.

Please, the admonition don ' t talk about the case to

anybody.

thoughts, so we want you to keep an open mind.

1 : 15.

See, when you talk about it it hardens your

See you at

Thank you .

(The following proceedings were had in open court ,

Out of the presence and hearing of the jury.)

THE COURT:

MR . AQUINO :

Okay.

I'll hear you.

Well , Your Honor , first just as a -- as

far as scheduling goes, as I said to Your Honor , my witness

needs to be back i n Madison by 1 :00 , so I was hoping to

reserve the right to present my motions if we could just

squeeze her in before the jury was excused .

THE COURT :

MR. AQUINO:

I'm sorry .
Well, okay.

Just to address the motions

first .
THE COURT :

Yes.

If you may .

MR. AQUINO:

First, we're moving to dismiss on three

grounds.

First is venue.

I don't think there is any

testimony that Mr. Smith's comments were actually made in

Iowa County.

that his comments were actually made in the county .

would state there was insufficient evidence that the comments

were sent with the intent to intimidate the police department

which goes to Count I.

I think that is important in this type of case

Also, we

As far as Count II that there is insufficient

evidence that the comments tend to cause or provoke a

disturbance, which is required for disorderly conduct

statute.

First Amendment grounds that were litigated earlier the same

issue.

comments fit within the First Amendment or one of the First

Amendment exceptions.

words exception that's been the state's basis for bringing

the charges, so for those reasons we would move to dismiss at

this time.

And then on the third grounds would be on the

The state has the burden of showing that these

It doesn't fit within the fighting

THE COURT :

Thank you, Counsel.

Mr . Allen.

MR. ALLEN:

As to venue, Your Honor, these comments

were posted on the village of Arena Police Department page,

which is maintained in Arena in Iowa County, and that's where

the comments were viewed by the officers, so I think that's

sufficient to support venue.

Notwithstanding the lack of

evidence as to where the post initiated from, it was

certainly distributed in Iowa County and viewed in Iowa

County, so I think that's sufficient to support venue.

As to Count I on the intimidation count , the elements

of the crime as stated in the jury instruction are that the

defendant sent a message on a computerized system , and the

message was intended to intimidate or abuse the victim, and

that in sending it the defendant used profane language .

Clearly the defendant sent a message and used profane

language .

was not personally intimidated or threatened by the message,

the tone of the instruction and the statute is the intent of

the defendant , not of the r eci pient, and part i cularly in a

case like this where the law enforcement officer testified

that he is trained to deal with aggressive persons and

incidents of this type of communication I think there is

sufficient evidence that still supports the finding that the

defendant i ntended to intimidate and abuse by the very nature

of the words and language used in the posts , so the state

would oppose the motion to dismiss on that count .

The question of intent, while the officer himself

And as to the fighting words exception, that matter

has been litigated multiple times in this case, and again for

all the reasons that we have stated on the record previously

I don't believe that the fighting word exception is

necessary .

This is not a situation of protected free speech.

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1

It ' s a situation of conduct.

and very abusive language on a public web site, so I don't

believe that this is of the type of language that is

constitutionally protected, and so the state would ask that

the court deny the motions to dismiss on all grounds.

THE COURT:

6
7

Conduct in posting very profane

Mr. Aquino, anything that you would like

to add?

MR. AQUINO:

THE COURT:

No, Your Honor.

The motion in its entirety is denied.

The first instance as to the venue, the court took testimony

from a uniformed officer who is by the very nature of his

uniform depict it to be Arena PD, Arena Police Department,

which is Iowa County, Wisconsin , and everybody has been

treating this matter in that sense.

venue question is clear .

reference to the Iowa County community of Arena.

was a display of hostility, provocatory language and inciting

or inviting controversy, inviting dispute, inviting what

would appear as the messages progressed to be intending to

incite illegal behaviors.

police department up to ridicule and contempt and contumely

equivalent to a contemporaneous contemptuousness.

I'm satisfied that the

That this Arena reference a

That there

That it held the community and the

That is part of the question before the court.

what level shall social media be held responsible for its

uses and to what extent is social media incapable of

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1

offensive behaviors?

In other words, what I'm trying to

determine here and what I hear in the motion is that we are

examining what language is inciting, what language is

hostile, what is inviting a public disturbance.

disorderly conduct elements in a public place engaged in

indecent, profane, boisterous conduct which tends to cause a

disturbance, I believe this behavior in these communications

are such that they do tend to cause a disturbance.

no way of knowing if you have two people arguing and one of

The

There is

them insults the other it's a pretty private conversation,

two people.

Facebook it's played to what extent, nationwide or

internationally.

know .

us.

the Exhibit 3.

fucking racist bastards.

Is that to become acceptable pattern of speech, or is that

speech reflective of protections of the First Amendment?

that speech disorderly to the extent it tends to cause or

provoke a disturbance?

believe the testimony thus far warrants our going forward

with this because of the importance that this court places on

the testimony that we have received and the exhibits that we

have received.

When you put it on an instrument such as

I'm not prepared to answer that.

I don't

I'm satisfied that that's one of the questions before

If this invites confrontation, as I believe is shown in
"Fuck the fucking cops.

They ain't shit but

Fuck all of y'all who is racist."

That's a question before us.

"Fuck them niggers policy bitches.

What you

got on us?

Not a dam thing so fuck off dicks."

That's

inviting a reply .

contemptuous attacks .

contemptuous activity is a form of intimidation .

those who can find themselves fluent in profanity are setting

a new standard, and whether it's on Facebook or whether it's

in a bar the language is designed to incite and invite

confrontation, as I perceive it, so I must therefore deny

your motions from top to bottom, and we ' ll be back for

It's inviting responses to scurrilous and

I believe that the scurrilous and
I think

testimony at 1 : 15.

chambers at 1 so we can page the jury instructions .

MR. AQUINO : I don't know if there has been a motion

to admit any of the exhibits into evidence yet.

MR. ALLEN :

14
15

I'll ask that the counsel meet with me in

I would move to admit Exhibits 1 through

exhibits by the state .

THE COURT:

MR. AQUINO : I'm sorry . Which

MR . ALLEN:

Objection?
exhibits?

State moves to ad mit Exhibits

through

3.
MR . AQUINO:

We object to admission o f Exhibits 2 and

which as I Underst and, are just the initial post , and No .

'
f
3 is just Mr . Smith's comments . Instead we would move or

the admission of Exhibit 4 which con t a1ns everything in

context.

Willey as We ll as Mr . Smith's comments.

The pos t ' the comments from Mr . Marks and Ms .

THE COURT:

I believe that exhibits as offered are

all a part of the fabric of this case.

It was , as we

discussed briefly in chambers prior to the commencement of

the proceedings , that the milieu of the case would cause the

court to look somewhat broader at the milieu to show where

these comments arose, and it was, I bel i eve, the defense

counsel even addressed that these matters were pertinent ,

relevant, though they were not for the truth of the matter,

they were part of which the accusations against defendant

arose, so I ' m denying -- I'm receiving over objection

Exhibits 1 through 6.

Thank you .

MR. AQUINO :

THE COURT:

(Whereupon, at 12 : 10 p.m. the trial was adjourned

For lunch.)

16
17
18
19

20
21
22
23
24
25

I believe there is only five exhibits.

Okay.

Five.

Thank you.

(AFTERNOON SESSION , AT 1 :15 P.M. THE TRIAL RESUMED . )

(The following proceedings were held in open court,

In the presence and hearing of the jury.)

THE COURT:

You may please be seated .

Appears we

have a full complement of jurors.

point where, Mr. Aquino , you are going to call your first

witness .
MR. AQUINO :

I believe we're at the

Yes , Your Honor.

The defense calls

Dana Willey to the stand .

THE COURT:

Step up here and be sworn.

(Witness duly sworn . )

THE COURT:

Seat yourself over here, and for our

record we'll ask you to tell us your name and spell your last

name.

THE WITNESS :

THE COURT:

MR. AQUINO:

Dana Willey , W-i-1-1-e-y.

Thank you.

Your witness, sir .

Good afternoon.

I'll get right to it.

DANA WILLEY ,

18
19

called as a witness on behalf of the defendant, being first

duly sworn , was examined and testified as follows :

DIRECT EXAMINATION

BY MR. AQUINO:

Are you a Facebook user?

Yes.

And how long have you been a Facebook user?

Probably three or four years.

And so you were a Facebook user in July, 2012?

Yes.

And how often are you on Facebook would you say?

Daily .

And you just describe what you view on Facebook when you

are on Facebook?

statuses .

Scroll through the news feeds, comment on statuses, post

MR. AQUINO:

And Your Honor, I would like to show the

witness what's been received into evidence as Exhibit 4.

chance to review this?

Yes.

And can you just describe what Exhibit 4 is?

Th i s is the comments that were posted on the Arena

Police Department page.

And did you post one of those comments?

Yes.

And which comment did you post?

Do you want me to read the comment?

Yes.

It says, "And don't anybody say it isn't about race

because it is when I ask the cop specifically what they look

like and his response is they will stand out because they

Take a moment to review that, please.

Have you had a

don ' t belong here."

to write this comment?

running through people's yards and breaking into houses that

night.

And why did you write this comment?

Because the officers came to my house and my friend's

house looking for these boys, and then this came up in my

And just briefly describe the incident that caused you

There were three African-American boys supposedly

news feed, and they were thanking the citizens of Arena for

helping them get these boys off the streets.

police officers?

I spoke with Officer Stroik, yes.

And can you just -- you read your comment .

tell us what

Could you

Well, Nick came to my house looking for them -MR . ALLEN:

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19

And did you have occasion to speak with one of the

The objection calls for hearsay.

He is

looking for what Officer Stroik said.

THE COURT:

Be on guard as to hearsay .

The question is can you just -- trying to show a

distinction between the comment that you wrote and your

testimony today .

that conversation .

Yeah .

Your memory as to what actually happened in

He came to my house looking for --

MR. ALLEN:

Objection again , Your Honor, as to

THE COURT:

Sustained .

MR . AQUINO:

1
2

hearsay .

introduce the officer's comment for the truth of what he

might have said at that point but just to show what happened

that caused her to write this comment .

MR . ALLEN:

8
9

I think that's been testified to already ,

Your Honor .

THE COURT:

Sir .

MR. ALLEN:

I believe that's been testified to

Well , Your Honor, we're not seeking to

already by Ms . Willey.

THE COURT :

Asked and answered .

MR . ALLEN :

Exactly , Your Honor .

MR . AQUINO :

Let me ask you this then .

Did you ask the police officer what the suspects looked

like?

Yes .

And what was the officer ' s response?

He said , "You will be able to tell because they don' t

belong here."

Facebook?

did a very good job in locating the suspects when the

Now, what prompted you to post this specific comment on

Because I don' t think that the Arena Police Department

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1

citizens of Arena are the ones that actually detained them .

Arena Police Department?

it showed up in my news feed .

Who was that?

Kim posted before I did, so Kim .

Are you referring to Kim Marks?

Yes.

Now , is your comment sti 11 on the Arena Police

Department Facebook page?

No, it is not.

Di d you delete it?

No , I did not.

Do you know who did delete it?

I do not .

And how did you become aware of this posting by the

Because somebody on my friend's list had commented, so

MR . AQUINO:

I have no further questions.

THE COURT:

Mr . Allen , your cross .

MR. ALLEN :

Thank you , Judge .

CROSS-EXAMINATION

20
21

BY MR. ALLEN :

Your post di d not use any profanity?

No .

And it di dn't use any rac i al slurs?

No .

Thank you.

100

But it did make veiled allegations of racism by the

Arena PD?

Yes.

You agree that the Arena Police Department has the right

to remove any posts from its Facebook page that it deems

inappropriate?

That they have the right to, yes.

MR. AQUINO :

THE COURT :

Objection.

Foundation.

Sustained.

Do you have Exhibit 1 in front of you, Ms. Willey?

Yes .

Do you recognize that document as the Arena Police

Department's Facebook page?

Just that one posting .

Department's home Facebook page?

Would I dispute that?

Right .

No.

In reading the general information it i ndicates that the

Arena Police Department has the r i ght to delete any

i nappropriate content from this page and goes on to l i st a

number of things that could be deemed inapprop ri ate?

To be honest , I have never read their Facebook page.

You wouldn't dispute that it ' s the Arena Police

Yes .

101

And so with that foundation laid would you agree that

the Arena Police Department has the right to remove posts

that it deems inappropriate?

Yes .

You were not arrested for the posting that you made?

No.

And no criminal charges have been filed against you as a

result of your post?

No.

MR. ALLEN:

MR. AQUINO:

THE COURT:

go .

Thank you.

That's all.

No redirect.
Thank you for your help.

You are free to

Sir .

MR. AQUINO:

THE COURT:

That's all from the defense counsel .

We'll excuse the jury.

What we have to

do now is complete the preparation of the jury instructions.

They were referred to earlier in my comments, and they will

take us a while to do that.

then takes the testimony and offers you the basis for

comparison with what the testimony said and what the law is.

Since you are the trier of fact we have some more preparation

to do, and we had to wait until the testimony was in before

we could do it.

and you may be called back, but you are free to go to the

jury room.

We have to do that because it

So we'll excuse your presence at this time ,

Please don't start deliberating until you have

10 2
1

heard the instructions.

Okay, thank you.

(The following proceedings were had in open court ,

Out of the presence and hearing of the jury.)

THE COURT:

If I may direct the questions to your

client.

MR. AQUINO:

Yes, Your Honor.

EXAMINATION BY THE COURT:

Sir, how old are you?

Twenty-four.

And how far did you go in school?

I graduated.

Read and write and understand the English language?

Yes, sir.

And do you understand the charges that are pending here

against you?

Yes , sir.

Do you understand that you have a -- as you have

exercised your right to have a trial?

Yes, sir .

You also have a right to testify at that trial?

Yes , sir.

Did anybody in any way discourage you from testifying?

No , sir.

You know that that's an unqualified right?

that?

You know

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1

Yes .

You know that it's also an unqualified right that you

remain silent?

Yes, sir.

And you have made a decision?

Yes .

Did you talk with your attorney about your decision?

Yes, sir .

Did he answer your questions?

Yes , sir .

Are you satisfied with the help he has provided you?

Yes, sir.

And you again -- now I'm going to repeat what I said.

You know you have a r i ght to testify?

Yes, sir .

And you have a right to not testify?

Yes, sir.

And you have made your choice, and it was free and

voluntary on your part?

Yes , sir .

It was?

Yes, sir .

Then I think that we'll accept that you do understand

your rights and that you are knowingly waiving your right to

testify?

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1

Yes, sir.

All right, sir?

Yes, sir.
THE COURT:

Now, sir, shall we address the remainder

of the work we have to do on the instructions?

MR. ALLEN:

Yes, Judge.

THE COURT:

This is a formal instruction conference.

We had a brief informal conference on the instructions, and

we'll now do this in a formal format.

We have, first of all,

the instruction that begins with No. 100.

If we may, let's

look at the special verdict pages before we get to the

instructions themselves.

Count I, Count II.

drafted?

You have before you special verdict

Is there any objection to the use as

MR. ALLEN:

No, Judge.

MR. AQUINO :

THE COURT:

MR. AQUINO:

MR. ALLEN:

No objection .

THE COURT:

No. 115 as drafted.

MR. AQUINO:

MR. ALLEN:

No objection.

THE COURT:

Now we're at the fighting words

No objection.
Jury Instruction No . 100.
No objection.

No objection.

instruction as proposed by defense counsel Mr. Aquino.

I'll

hear you on your request that this be one of the instructions

105
1

offered to the jury .

MR. AQUINO:

Right.

Well, as Your Honor is aware ,

our position from early on in this case has been that the

First Amendment protects Mr. Smith's speech, and the state

has responded that the fighting words exception allows the

state to bring these charges .

First Amendment is invoked because it involves speech as

opposed to conduct the Wisconsin and the US Supreme Court has

held that it's appropriate to instruct the jury as to exactly

what those limitations under the First Amendment are in order

to clarify that a statute which is presumed to be

constitutional doesn't cover conduct that's protected by the

First Amendment, so in the example cited i n my proposed

instructions when there is what's called a true threat, when

the question is whether there is a threat the Wisconsin

Supreme Court has reversed cases where a definition under

current First Amendment juris prudence is not read that

limits the definition of threat to a ''true threat", and so in

th i s case i t's again the state's pos i t i on has been that these

are fighting words, and so therefore fall outside of the

First Amendment protection .

jury to be instructed that in order for them to find that

this conduct fits within the statutes that they also have to

find that the words fit into the definition of fighting

words, otherwise you can have a case where the jury would

Now, in other cases where the

I think it's appropriate for the

1 06
1

find that they are not fighting words but still because of

their understanding of the statute would convict the

defendant where -- so that's the defendant's position on why

a fighting words instruction is appropriate.

THE COURT:

Mr. Allen.

MR. ALLEN:

Thank you, Your Honor.

The state opposes

the fighting word instruction .

This issue has been litigated

extensively prior to today, and it has been issued as a

matter of law that the language used by the defendant was not

protected free speech.

trying to get around the court's earlier decision and reargue

the issue in front of the jury.

confuse the jury .

think is necessary for them to take up.

At this point the defense is simply

I think that's likely to

It's a legal term of art that I don't

This is a conduct case in that he did act in posting

on Facebook speech that was profane and abusive and falls

under the disorderly conduct statute .

Additionally and even more problematic, is the

suggestion that the jury instruction would require the state

to prove an element not included within the disorderly

conduct statute.

Court yesterday, State versus Courtney Beaman, 2013 Wisconsin

47 the court concluded at paragraph 3 that jury instructions

that add requirements to what the statute sets out as

necessary to prove the commission of a crime are erroneous .

In a decision filed by Wisconsin Supreme

1 07

Further along in the decision the Supreme Court noted that

allowing parties or courts to establish the requirements

necessary to constitute a crime is contrary to the

established principle in Wisconsin that there are no common

law crimes and all crimes are defined by statute.

paragraph 23 .

instructions as issued are sufficient and proper, and there

is no need to craft a new fighting word instruction on the

facts before the court in this case .

That's at

For all those reasons I think that the

THE COURT:

MR. AQUINO:

Thank you, Counsel.

Last word.

Well, I have not had a chance to review

the case referred to by counsel, so I don't know whether

that's a case that involves constitutional questions about

whether that was the reason why the court in that case had

decided to add additional elements.

On the cases referred to in our proposed jury

instructions I would just reiterate in order for a status to

be constitutional it has to be consistent with the First

Amendment , and that's why courts have required that jury

instructions advising the jury as to what those limits are

under the First Amendment are appropriate.

failure to do so is reversible error in State versus Douglas ,

2001 Wisconsin 47 case .

24
25

THE COURT:

Thank you, Counselor.

In fact , the

The court will

respectfully deny your motion for fighting words instruction

108
1

as prepared by counsel.

For one purpose, the earlier ruling

as to fighting words I believe stands, and I am satisfied

that the amended complaint and the jury instructions as

proposed fit one another without opening the door to the hand

making of additional instruction and the elements that would

define it.

instructions committee to address.

believe that the two instructions at 1909 and 1900 are

adequate for this case, for this case and for this trial , and

I believe that that's better left to the jury

In this instance I

that the motion to adopt the new completely independent

version of fighting words is beyond the capabilities of this

court.

It's also beyond the necessities that this court

finds.

We have addressed the issue on one occasion.

on it.

I will determine again, if called upon to do so, that

the testimony indicates today that there was a capability of

interpreting the rules as intimidating, as hostile, as

contemptuous of the department, and it invited further

controversies , and it incited the peace and good order of the

community.

I believe that all the things put together are such that,

particularly because I offered an opinion earlier on this, I

stand by that opinion, and I do not think that it provokes

the need for additional instruction .

continue with the packet.

I ruled

It was holding the community up for ridicule, and

If we may, let's

The unnumbered page, page 3 be the unnumbered

109
1

instructions is now deleted.

We're at 1900, that of a

disorderly conduct instruction.

MR. ALLEN:

Did we agree on 1909?

THE COURT:

I just realized I jumped past 1909.

MR. AQUINO :

MR. ALLEN :

No objection .

THE COURT:

Now we go to 1900.

MR. ALLEN:

No objection, Your Honor .

No objection .

Upon further

reflection, although I would note on page 7 it looks like

there is a hanging sentence in the meaning of tend to cause

or provoke a disturbance, the very last sentence appears to

have been cut off.

THE COURT:

Yes.

Do you see that, Lia?

In its

absence we'll have to go back to the computer edition and

bring forth the additional miss i ng language on 947.01.

MR. ALLEN:

I have the missing language .

It will be

this element requires that the conduct of the defendant under

the circumstances as they then existed, tended to cause or

provoke a disturbance , peri od.

THE COURT :

MR. AQUINO:

That addition?
Yes.

left out inadvertently .

f i ne.

I'm making sure that nothing was

No .

With that addition, that's

THE COURT:

140 , burden of proof .

MR. ALLEN:

No objection.

I read to them .

110

.---..

MR. AQUINO:

No objection.

THE COURT :

145, complaint.

MR. ALLEN:

No objection.

MR. AQUINO:

No objection other than I don't know if

you wanted to change the caption to complaint as opposed to

information, not evidence .

THE COURT:

Yes .

MR. ALLEN:

No objection.

MR. AQUINO:

Evidence, 103.

No objection.

THE COURT:

Improper questions .

MR. ALLEN:

No objection .

MR . AQUINO:

THE COURT:

Evidence received over objection.

MR. ALLEN:

No objection.

MR . AQUINO:

THE COURT:

150, strike.

MR. ALLEN:

Agreed.

No objection.

testimony that was stricken.

MR. AQUINO:

Agreed.

I don't think there was any

There was no stricken testimony

so you can take that out .

THE CLERK:

Take it out?

THE COURT :

Yes.

MR. ALLEN:

No objection .

THE COURT:

And to again make note that there were

Exhibits.

five exhibits, and those were presented, and they were

111
1

received and approved by the court for inclusion .

counsel .

Weight of the evidence.

MR. ALLEN :

MR . AQUINO:

THE COURT:

Jurors knowledge .

No objection to any of the three .

No objections.
On 300 the credibility.

We'll strike the

language in parenthes i s.

MR. ALLEN :

MR. AQUINO:

THE COURT:

No objection .
Correct, Your Honor .
Picking up on page 14 after deleting the

language in paragraph -- in brackets .

at the top of the page in brackets .

315, welcome testimony .

There is one paragraph

That's to be deleted .

Welcome instruction.

MR. ALLEN:

MR . AQUINO :

THE COURT:

Closing arguments.

MR. ALLEN :

No objection .

MR. AQUINO:

THE COURT :

Closing instructions .

MR. ALLEN :

No objection .

MR . AQUINO:

THE COURT:

Remarks of

No objection .
No objection .

No objection .

No objections .
And a separate verdict form we addressed

it at the top of the page here.

MR. AQUINO :

MR. ALLEN:

No objection .

THE CLERK:

484 is as is?

No. 515.

No objection .

112
1

MR . AQUINO:

Yes.

THE COURT:

Okay.

No objection to 484.
Be there anything else at this

ti me?
MR . AQUINO:

Oh, I just for the record now that all

the evidence is closed, I would renew my motions to dismiss

that were made at the end of the state's case.

The state opposes for the same reasons as

MR. ALLEN:

previously stated .

THE COURT:

The record will show the objection.

MR. ALLEN:

Just looking back at 1909, I notice the

caption says unlawful use of a computerized communication

system.

profane.

15
16
17

18
19

Use of obscene language.

THE COURT:

Yes.

1909.

It should be changed to

Mr. Allen, again what was

your request as to 1909?

MR. ALLEN:

Just in the caption on the instruction

profane instead of obscene language.

THE COURT :

Oh, okay.

Thank you.

We'll take a break

whi 1e those are being run and come back in about ten mi m~tes.

(A short recess was taken at this time.)

THE COURT:

We have now on the record returning to

State v Smith.

We have a proposed packet and proposed jury

instructions and the special verdict forms.

verdict forms as submitted now for our consideration

acceptable to you, Counsel?

Are the special

113

MR. ALLEN:

1
2

instructions.

submitted .

Yes, Judge.

Well, yeah , just the

They are acceptable to the state as previously

THE COURT:

MR . AQUINO:

THE COURT:

Do you want to review it?

Sure.

Yes.

Thank you.

The special verdict form is approved.

Now, as to the instructions there are some changes that were

agreed upon, and a couple of them -- the one that was

ordered.

Does this packet as now placed before you meet your

needs?

MR. ALLEN:

MR . AQUINO:

objections previously noted.

THE COURT:

Yes, Judge .
Yes, Your Honor.

I respect that.

Subject to the

Then if we may , we'll

call the jury in.

I will read the instructions and then you will have your

closing arguments.

I'll tell them that we've determined that

Mr . Aquino, again one last.

Are you satisfied about

Mr. Smith's decision not for approving or disapproving, but

that he made it knowingly and voluntarily and intelligently .

MR. AQUINO:

THE COURT:

MR. AQUINO:

THE COURT:

covered on that?

His decision not to testify?

Yes.
Yes.

Thank you , Your Honor .

Is there anything else that needs to be

114
1

MR . AQUINO:

No, Your Honor .

THE COURT:

(The following proceedings were had in open court,

In the presence and hearing of the jury.)

THE COURT:

Then let's see the jury.

The attorneys and I have now completed

our work on the jury instructions.

It's been agreed between

counsel that the jury instructions will be read to you now,

and then we'll hear their final and closing arguments.

remind you that the arguments are not subject of your note

taking, and the jury instruction packet will follow you into

the jury room so you will have it at all times to refer to .

These take some patience.

there is no substitute for our reading them.

that I can just kind of ad-lib the instructions to you.

wouldn't be fair .

instruction format that's been prepared for court's use, so

that for similar activity in another county these would be

basically the same instructions , so I think you will perhaps

recognize a bit of the language because I have read a couple

of these to you already .

I'll read them as best I can, but

It's not such
It

But importantly, we have a jury

The court will instruct you upon the principles of

law which you are to follow in considering the evidence in

reaching your verdict.

instructions regardless of any opinion you may have about

what the law is or ought to be .

Now, its your duty to follow these

You must base your verdict

115
1

on the law that I give you in this instruction.

Apply that

law to the facts in the case which have been properly proven

by the evidence.

this trial and the law as given to you by these instructions

and from these alone guided by your sound reason and your

best judgment reach your verdict .

Consider only the evidence received during

If any member of the jury has an impression of my

opinion as to whether this man is guilty or not guilty

disregard that impression entirely and decide the issues of

fact solely as you view the evidence.

sole judges of the facts.

only .

You the jury are the

This court is the judge of the law

The first count of this complaint charges that the

above-named defendant on or about Saturday , July 21, 2012 in

the village of Arena, Iowa County, Wisconsin did with intent

to intimidate another person send a message to officers of

the Arena Police Department on an electronic mail or other

computerized communication system and in that message used

profane language .

plea of not guilty which means the state must prove every

element of the offense charged beyond a reasonable doubt.

To this charge the defendant has entered a

The second count of the complaint charges that this

above-named defendant on or about Saturday, July 21, 2012 in

the village of Arena, Iowa County, Wisconsin while in a

public place did engage in indecent , profane and boisterous

116
1

conduct under circumstances in which such conduct tended to

cause a disturbance.

entered a plea of not guilty which mean the state must prove

every element of the offense charged beyond a reasonable

doubt.

To this charge the defendant has also

Unlawful use of a computerized communication system.

Unlawful use of a computerized communication system as

defined in Chapter 947.0125(2)(c) of the Criminal Code of

Wisconsin is committed by one who with intent to intimidate

another person sends a message to the person on a

computerized communication system and uses any profane

language.

Before you may find the defendant guilty of this

offense the state must prove by evidence which satisfies you

beyond a reasonable doubt that the following three elements

were present.

Arena Police Department Facebook page on a computerized

communication system .

the Arena Police Department Facebook page with intent to

intimidate the Arena Police Department .

intimidate means that the defendant acted with the mental

purpose to intimidate another person or was aware that the

conduct was practically certain to cause that result.

sending the message the defendant used any profane language.

If you are satisfied beyond a reasonable doubt that all three

First , the defendant sent a message to the

Two, the defendant sent the message to

With intent to

117
1

elements of this offense had been proven you should find the

defendant guilty .

the defendant not guilty.

If you are not so satisfied you must find

Disorderly conduct as defined in Section 947 . 01 of

the Criminal Code of Wisconsin is committed by a person who

in a public or private place engages in indecent , profane or

boisterous conduct under circumstances in which such conduct

tends to cause or provoke a disturbance .

the defendant guilty of this offense the state must prove by

Before you may find

evidence which satisfies you beyond a reasonable doubt that

the following two elements were present.

engaged in indecent , profane or boisterous conduct .

conduct of the defendant under the circumstances as they then

existed tended to cause or provoke a disturbance .

One, the defendant

Two, the

Disorderly conduct may include physical acts or

language or both .

The pr inciple upon which this offense is

based is that in an organized society a person should not

unreasonably offend others in the community .

mean that all conduct that tends to distu r b another is

disorderly conduct .

the sense of decency or propriety of the community is

included.

tolerated by the community at large but that might disturb an

oversensitive person.

disturbance must have resulted from defendant's conduct .

This does not

Only conduct that unreasonably offends

It does not include conduct that is generally

It is not necessary that an actual

The

11 8

law requires only that the conduct be of the type that tends

to cause or provoke a disturbance under the circumstances as

they then existed.

the conduct but also the circumstances surrounding that

conduct.

be improper under other circumstances.

that the conduct of the defendant under the circumstances as

they then existed tended to cause a disturbance .

satisfied beyond a reasonable doubt that both elements of

You must consider not only the nature of

What is proper under one set of circumstances may

This element requires

If you are

this offense have been proven, you should find defendant

guilty.

defendant not guilty.

If you are not so satisfied you must find the

In reaching your verdict examine the evidence with

care and caution.

Act with judgment, reason and prudence.

Defendants are not required to prove their innocence.

law presumes every person charged with the commission of an

offense to be innocent .

of not guilty unless in your deliberations you find it is .

overcome by evidence which satisfies you beyond a reasonable

doubt that the defendant is guilty.

establish i ng every fact necessary to constitute guilt is upon

the state.

evidence must satisfy you beyond a reasonable doubt that the

defendant is guilty .

any reasonable hypothesis consistent with the defendant's

The

This presumption requires a finding

The burden of

Before you can return a verdict of guilty the

If you can reconcile the evidence upon

11 9
1

innocence, you should do so and return a verdict of not

guilty.
The term reasonable doubt means a doubt based upon

reason and common sense.

It's a doubt for which a reason can

be given arising from a fair and rational consideration of

the evidence or lack of evidence.

would cause a person of ordinary prudence to pause or

hesitate when called upon to act in the most important

affairs of life.

It means such a doubt as

A reasonable doubt is not a doubt which is

based on mere guesswork or speculation.

merely from sympathy or from fear to return a verdict of

guilt is not a reasonable doubt.

doubt such as may be used to escape the responsibility of a

decision.

benefit of every reasonable doubt you are not to search for

doubt.

nothing more than a written formal accusation against a

defendant charging the commission of one or more criminal

acts.

defendant in any way.

guilt.

A doubt which arises

A reasonable doubt is not a

While it's your duty to give the defendant the

You are to search for the truth.

The complaint is

You are not to consider it as evidence against

th~

It does not raise any inference of

Evidence is first the sworn testimony of witnesses

both on direct and cross-examination regardless of who called

the witness .

whether or not an exhibit goes to the jury room.

Second, the exhibits the court has received,

Third, any

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1

facts to which the lawyers have agreed or stipulated or which

the court has directed you to find.

seen or heard outside this courtroom is not evidence .

are to decide the case solely on the evidence offered and

received at trial.

Anything you may have

You

You shall disregard entirely any question the court

did not allow to be answered.

witness' answer might have been.

suggested that certain information might be true, ignore the

10
11

Don't guess at what the

If the question itself

suggestion and do not consider it as evidence .

Attorneys for each side have the right and the duty

to object to what they consider are improper questions asked

of witnesses and to the admission of other evidence which

they believe is not properly admissible.

any conclusions from the fact that an objection was made.

allowing testimony or other evidence to be received over the

objection of counsel the court is not indicating any opinion

about the evidence.

credibility of the witnesses and the weight of the evidence.

You should not draw

You jurors are the judges of the

Now, an exhibit becomes evidence only when received

by the court.

An exhibit marked for identification and not

received is not evidence.

whether or not it goes to the jury room.

attorneys are not evidence.

facts not in evidence, disregard the suggestion.

An exhibit received is evidence

Remarks of the

If the remarks suggested certain

The weight

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1

of evidence does not depend on the number of witnesses on

each side.

entitled to greater weight than that of another witness or

even of several other witnesses .

you may take into account matters of your common knowledge,

your observations and your experience in the affairs of life.

It's the duty of the jury to scrutinize and weigh the

You may find that the testimony of one witness is

In weighing the evidence

testimony of witnesses and to determine the weight of the

evidence as a whole .

You are the sole judges of the

credibility, that is the believability of the witnesses and

of the weight to be given to their testimony.

the credibility of each witness and the weight you give to

the testimony of each witness consider these factors.

Whether the witness has an interest or lack of interest in

the result of the trial, the witness' conduct, appearance and

demeanor on the witness stand, the clearness or lack of

clearness of the witness' recollections, the opportunity the

witness had for observing and for knowing the matters the

witness testified about, the reasonableness of the witness '

testimony, the apparent intell i gence of the witness , bias or

prejudice , if any has been shown, possible motives for

falsifying testimony , and all other facts and circumstances

during the tri al which tend to either support or discredit

the testimony .

the weight you believe it should r eceive .

In determining

Then give to the testimony of each witness

There is no magic

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1

way for you to evaluate the testimony.

Instead you should

use your common sense and experience.

In everyday life you

determine for yourselves the reliability of things that

people say to you.

You should do the same thing here .

Now, a defendant in a criminal case has the absolute

constitutional right not to testify .

decision not to testify must not be considered by you in any

way and must not influence your verdict in any manner .

The defendant's

Consider carefully the closing arguments of the

attorneys.

Their arguments, their conclusions, their

opinions are not evidence.

evidence and decide upon your verdict according to the

evidence under the instructions given to you by the court.

Draw your own conclusions from

Now, members of the jury , the duty of counsel

includes a closing statement, and we begin now wi t h the state

who will go first , and then because they have the burden of

proof they will also go l ast.

MR. ALLEN:

Mr. Allen , if you may, sir .

Thank you , Judge.

There are three types

of Facebook comments in this world.

Appropriate ,

inappropriate and then criminal comments.

Mr . Smith on the Arena Police Department's Facebook page are

beyond a reasonable doubt cr iminal comments.

this case support a find i ng of guilt on two criminal charges.

Under one of these , which will be Count II of the special

verdict form that you will review is for disorderly conduct ,

The posts made by

The facts of

12 3
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and the state has shown beyond a reasonable doubt that each

of the elements of disorderly conduct have been met .

that the defendant engaged in indecent, profane or boisterous

conduct, and second, that the defendant's conduct tended to

cause or provoke a disturbance .

As the judge instructed you, the term disorderly

conduct includes physical acts or language or both, and this

includes conduct that unreasonably offends the sense of

decency or propriety of the community .

As a jury of

Mr . Smith's peers you make the call whether these posts have

fallen below these standards of acceptability .

took affirmative action in seeking out the Arena PD's

Facebook page and posting language on that is most certainly

indecent and profane.

language that would tend to cause or provoke a disturbance .

On this point , as you were instructed by the judge , there is

no requirement under the law that an actual disturbance had

occurred .

the type that tends to cause or provoke a disturbance .

--...

First,

Mr . Smith

Even more, that it was the type of

It is sufficient to show that the conduct is of

I would propose that calling someone names like a

racist bastard or a dick or telling someone to fuck off or

using the N word are more than sufficient to cause a

disturbance, and I suspect that many f i ghts i n this world

have started over far less than that particular language.

Mr. Smith's posts were all the more di sturbing in

12 4
1

this case , because although clearly directed to the officers

of the Arena Police Department on their page , they were

posted on a public web site open to anyone with a Facebook

account regardless of their age or maturity level .

the indecent and profane language used by Mr. Smith was

sufficient to cause or provoke a disturbance both elements of

the crime of disorderly conduct have been met.

find the defendant guilty of that charge.

Because

You should

The state also has shown beyond a reasonable doubt

that all three elements of the crime of unlawful use of a

computerized communication system has been committed.

Count I on your verdict form.

message to the officers of the Arena Police Department on a

computerized message system, the Arena PD's Facebook page.

Second , that the message was sent with an intent to

intimidate the officers of the police department , and third,

that in sending the message the defendant utilized profane

language.

That's

First, the defendant sent a

As to the first element Mr. Smith acknowledged to

Officer Zimpel that he posted the comments on the Arena PD

Facebook page .

clearly use profane and vulgar language.

of intent to intimidate requires the state to prove that

Mr. Smith acted with mental purpose to intimidate someone or

was aware that his conduct was practically certain to

As to the third element the posts again

The second element

..-....

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intimidate someone .

profanity-laced comments to the Arena PD accidentally.

chose the specific course of conduct in logging onto the PD

Facebook page and to post his profane and intimidating

message to the officers.

Now , the fact that the officers showed restraint in

responding to Mr . Smith's profane comments and were not

personally intimidated is a credit to their training and

performance as law enforcement officers, but it's not a

reason to allow the profane and intimidating posts to go

unpunished .

intimidating, and the intentional nature of his posts were

reinforced by statements to Officer Zimpel that he made the

posts and that he did not regret it and he meant the words

that he had posted .

Mr . Smith's comments are by the very nature

In conclusion , based on the elements of the crime and

the facts as you have heard them the burden of proof has been

met by the state .

committed the crimes of disorderly conduct and unlawful use

of a computerized communication system.

you retire to the jury room I would ask that you find

Mr . Smith guilty on both charges.

.......

Again, Mr . Smith did not direct his

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25

THE COURT:

Beyond a reasonable doubt Mr . Smith

For that reason when

Thank you .

Thank you, Mr . Allen .

Your closing,

Mr. Aquino.
MR . AQUINO :

Thank you for being here today.

Soon

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1

you will be making the decision about whether Mr. Smith's

words were crimes or not.

decision is whether these words are crimes under the

statutes.

approve or disapprove of those comments.

sense about whether you think those comments should have sent

him to the principal 's office or deserves his mouth being

washed out with soap.

words fit the elements of the crimes that he is being charged

Now, I want to emphasize that the

The question of you today is not whether you

In a more general

No, the question is whether these

with.

There is no question that context is important in this

case.

It's not just what words were said but when they were

said and how they were said.

loud by the officer and by Mr. Allen.

to remember that that's not how those words were expressed.

The words here they were written down.

in the presence of other people who might react to those

words.

No.

You heard the words read out

Well, that's important

They were not spoken

They were written down on Facebook.

Turning to the specific statutes here, as Mr. Allen

said, the defendant has been charged under two separate

criminal statutes.

computer to send an intimidating and profane message, and I

want you to focus on that second element, intent to

intimidate, remembering that these comments were written on

Facebook, not anonymously, but not in the presence of any

officer, and these comments went out to any Facebook user

The first one, Count I, is using a

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that's true, and when you look at the comments they weren't

directed specifically to the Arena Police Department .

is nothing that specifically in the comments themselves

direct them to the Arena Police Department.

There

Just going through the statements which you have

before you in the first part Mr. Smith's comment his first

comment he writes "Fuck the fucking cops.

but fucking racist bastards."

No intimidation .

They ain't shit

There is no threat in there.

Yes, strong language.

He is emphasizing

his point, but he is simply communicating the idea that he

thought the police were racist, and he just don't like them.

Similarly , the second part of that first comment Smith says,

''And fucking all of y'all who is racist."

expanding the scope.

anyone who is racist, not just the police.

intent to intimidate there .

language.

not prove beyond a reasonable doubt the intent to intimidate.

So there is

He is saying he really don't like

There is no

There is no threatening

Strong language, but that in and of itself does

Going on to the second comment he starts off saying ,

"Fuck them nigger bitches."

There has been no -- there might

have been a suggestion that that was somehow racist on his

part to use that term, but I think it's clear he is using it

in an ironic sense after one hand he decries racism , he is

not going to use a racist term .

experience you may be aware that the N word has been used in

I think in your common

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1

an ironic sense by people in various communities .

the second comment Smith says, "What the you got on us.

a dam thing so fuck off dicks."

intent to int i midate anyone.

It's not threatening any action against any police officer.

Again, puts these comments in context the allegation is that

Mr . Smith was intending to intimidate police.

to you that that doesn't make sense if that's what his intent

is, especially when his name is on the post and when you

consider that police officers carry guns and they are in

their uniform.

Mr. Smith's intent there was to intimidate a police officer.

The end of
Not

That's not suggesting any

It's simply saying go away .

I will submit

It's not -- it's not reasonable to think that

Under the second charge, t he disorderly conduct

charge , that requires proof beyond a reasonable doubt that

these kinds of words tend to provoke or cause a di stu r bance

under the circumstances.

case where a defendant walks up to a police officer and says

those words .

that that would lead to some ki nd of confrontation , some kind

of disturbance of the peace as it were .

were written down .

evidence that he was anywhere near any police officer when

the statement was made .

police officer or disturb the peace that would have happened.

You heard that when he was -- when the pol i ce officer spoke

Again, keep in mind this is not a

In such case it might be reasonable to think

Here these comments

They were on Facebook, and there is no

If he intended to int i midate the

129

with him on the phone there was no evidence of any profanity

or any anger directed to the police at that point, and I

tried to make a point that he didn't voluntarily go to the

police at that point.

officer that he was on his way to the state fair, so I don't

think the fact that he didn't just voluntarily go to the

police department should be held against him .

8
9

You heard him.

He explained to the

When it comes time to make your decision I would

remind you, as the judge instructed, that you need to find

beyond a reasonable doubt on every single element under each

of the charged crimes, and all 12 of you have to agree.

think also, just backtracking a little bit, about whether

there was any -- whether this would cause a disturbance .

heard that the officers -- the one officer testified that he

didn't feel any threat, didn't feel intimidated, and I would

suggest to you that under the circumstances that no police

officer who viewed this would have really felt threatened or

intimidated, and that in no circumstance would this actually

lead to any kind of breach of the peace, any kind of argument

or fight involving the police officer and someone who wrote

something on Facebook.

happened after Mr. Smith -- what happened in this case was

not only was Mr. Smith's comments deleted, but so were the

other comments that were critical of the police department.

I think that suggests to you a little bit about what is

You

I think it's also telling what

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2

motivating the police officers in this case.

For those reasons I'm going to ask that when you

retire to the jury room and consider all the facts that you

return not guilty verdicts on both counts .

Thank you.

THE COURT:

Thank you .

Mr. Allen .

MR. ALLEN:

I want to point out that the disorderly

conduct statute and instruction makes clear that language

alone is sufficient to meet these standards for a finding of

guilt, and there is no requirement that the language be

verbal as opposed to written, although he somewhat brashly

told Officer Zimpel that he meant what he said.

now trying to evade accountability for his actions by arguing

that it was only in writing .

talked a little bit about in voir dire, where more

communication is done by e-mails and texts and social media

it's all the more important that standards be enforced with

respect to written comments such as the ones posted by

Mr . Smith.

then there would be not much of a point in having a law

prohibiting the computerized use of a message system to send

a profane or intimidating message.

of any language that could be more abusive or profane or

intimidating than the language that was used by Mr . Smith and

posted for anyone to see again.

Mr. Smith is

In this day and age as we

If such standards were not meant to be enforced

It ' s difficult to think

On the tendency to cause a disturbance point, again

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1

the officers are trained officers .

react to something like this in the way that someone else

might, but I think it's telling that Officer Stroik testified

that Mr. Smith's comments even before Officer Stroik looked

at them had been flagged as inappropriate by another user.

Mr. Smith should not now be permitted to evade accountability

for his conduct by hiding behind the screen of a computer or

telephone .

They are not going to

The language was directed to the officers of the

Arena Police Department Facebook page.

its very nature it's intimidating language , and Mr . Aquino

noted that context matters .

immediately off the heels of a burglary in a small town in

which three suspects ran through yards and were ultimately

apprehended with the help of residents of the village .

is fresh in the mind of the vi l lage, and it certainly could

have been a tense situation, and interjecting language like

this into the public domain by posting that on the PD's

Facebook page certainly I think goes to the point of

provoking a disturbance .

provoked with the officers specifically , others reading who

maybe participated i n the apprehension of the suspects could

certainly find those comments to be very provocative.

24
25

I think again that by

In this case this was coming

This

Even if the disturbance hasn't been

Ultimately I think there is a pretty clear line

between what I spoke of in my initial closing argument

1 32

between comments that are merely inappropriate like those of

Ms. Willey and Ms. Marks and those that rise to the level of

criminal conduct.
As the testimony indicated, the other comments

4
5

preceding Mr . Smith's did not use profanity.

use the N word .

why we're here prosecuting Mr . Smith's posts.

No vulgar comments or attacks, and that's

The defense would have you believe that Mr . Smith's

They did not

conduct should be excused on the unfounded allegations of

racism.

indication of the race and anyone who assisted in

apprehending those suspects.

raised by a couple of the other posters, those individuals

did so in a comparatively civil manner compared to the

sharpened and profane language used by Mr. Smith who was the

first and only one to use such language, and I think it i s

ironic that he raises the issue of racism while in the same

comments employing a word that is certainly one of the most

charged racial words out there used today.

Notably absent from the Arena PD's posts was any

Although race was an issue

The focus in this case is and properly should be on

Mr. Smith's conduct for which he can and should be held

accountable .

fucking raci st bastards and fuck all of y'all who i s racist.

Fuck them niggers policy bitches.

Not a dam thing so fuck off dicks . "

"Fuck the fucking cops .

They ain't shit but

What do you got on us?

These facts require a

133

guilty verdict on each count because the elements of the two

crimes charged, as has been instructed, disorderly conduct

and unlawful use of a computer, have been met in this case

beyond a reasonable doubt .

on behalf the state of Wisconsin that you find the defendant

Thomas Smith guilty on both charges .

time .
THE COURT:

For that reason I would again ask

Thank you for your

Thank you, Mr . Allen.

Now, members of

the jury , the duty of counsel and the court have been

performed.

has instructed you regarding the rules of law which should

govern you in your deliberations .

burden of reaching a just , fair and conscientious decision of

this case is to be thrown wholly upon you the jurors selected

for this important duty .

You wi l l not be swayed by sympathy

or prejudice or passion .

You will be very careful and

deliberate in weighing the evidence , and I charge you to keep

your duty steadfastly in mind , and as upright citizens to

render a just and true verdict .

whether the defendant is guilty or not guilty of the offenses

charged .

the court alone to decide and must not affect your

deliberations .

The time has come when the

You ar e to decide only

Any consequences of your verdict are matters for

The following four forms of verdict will be submitted

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25

The case has been argued by counsel and the court

to you .

They are on these pages concerning the charges

134
--..

against the defendant Thomas G. Smith.

One reads "We the

jury find the defendant Thomas G. Smith guilty of computer

message threaten/profanity as charged in Count I of the

complaint.

Thomas G. Smith not guilty of computer message

threaten/profanity as charged in Count I of the complaint . "

As to Count II, "We the jury find the defendant Thomas G.

Smith guilty of disorderly conduct as charged in Count II of

the complaint," and another reads "We the jury find the

Another reading "We the jury find the defendant

defendant Thomas G. Smith not guilty of disorderly conduct as

charged in Count II of the complaint."

It is for you to determine whether the defendant is

guilty or not guilty of each of the offenses charged.

must make a finding as to each count of the complaint .

count charges a separate crime.

separately .

must not affect your verdict on any other count.

criminal, not a civil case; therefore, before the jury may

return a verdict which may be legally received the verdict

must be reached unanimously.

jurors must agree in order to arrive at a verdict .

You
each

You must consider each one

Your verdict for the crime charged in one count

This is a

In a criminal case all 12

When you retire to the jury room select one of your

members to preside over your deliberations .

The presiding

juror's vote is entitled to no greater weight than the vote

of any other juror .

135

If you need to communicate with the court whi l e you

ar e deliberating send a note th r ough the bailiff signed by

the presiding juror .

it's important that you communicate with the court by written

note .

attorneys before answering, so it may take some time .

should continue your deliberations while you wait for an

answer .

necessary orally here in court .

To have a complete record of this trial

If you have questions the court wi ll talk with the

You

The court will answer any questions i n writing or if

When you have agreed upon

your verdict have i t signed and dated by the person you have

selected to preside .

presiding juror will notify the bailiff that a verdict has

been reached and everyone will return to the courtroom and

the verdict will be read into the record i n open court and

the court may ask each of you if you agree with the verdict .

After you have reached a verdict the

Our bail i ffs today are Wanda McKutchin and Randy

Rossing , and they will be taking you to a private place to

complete your deliberations .

Please swear the officers.

(Bail i ffs duly sworn . )

(The following proceedings were had in open court ,

Out of the presence and hearing of the jury .)

THE COURT:

I failed to ask if there were any

additions or corrections as to the instructions read .

MR. ALLEN:

MR . AQUINO :

No .
No , Your Honor.

136

THE COURT:

MR. AQUINO:

Will all the exhibits be going to the

jury room?

5
6

We'll mark the

instructions as Exhibit 6, and they'll go to the jury room.

You folks can be seated.

THE COURT:

That's a choice that the two of you may

MR. ALLEN:

I would object to all of the exhibits

make.

7
B

going to the jury room, Your Honor.

I think we shouldn't

send anything back unless it's requested .

THE COURT:

Say again.

MR. ALLEN:

My position would be nothing goes back

unless requested.

THE COURT:

MR. AQUINO:

Does that work?

No.

Your Honor, I think they should see

the comments as they were written and observed by the police

officer .

I think it's important they see them in the context they were

made, so I would ask that Exhibit 4 I believe it is

These comments have only been spoken to the jury.

THE COURT:

Let's send 1 through 5 .

have been marked as No. 6.

The instructions

MR. AQUINO:

Fine.

THE COURT:

I'm granting your request.

MR. ALLEN:

For the record, the state does object to

submitting Exhibit 4 given that it contains several comments

that weren't even testified to in the case.

A number which

137
1

3
4

are hearsay, but over that objection I understand.

MR. AQUINO:

It was received into evidence.

I think

officer had testified that it was a true and accurate copy.

THE COURT:

I think, if I may, this arises also to

the milieu that I have referred to several times, and I think

that it's my ruling that it's going to go in there to let

people know on the jury what the patterns of behaviors were

in that circumstance, so I think it goes to circumstance and

we'll let it go.

(The following proceedings were had in open court,

In the presence and hearing of the jury.)

THE COURT:

the verdict in your hand?

FOREPERSON:

THE COURT:

Please be seated.

Ms. Houtakker, is that

Has the jury reached a verdict?

We have.
Please hand it to the bailiff.

As I now

read the verdict on behalf of both parties to this lawsuit

thank you.

an excellent jury.

excellent jury.

Your service is -- you were attentive.

You were

Whatever the result is here you are an

You did a good job.

Thank you.

As to the special verdict Count No. I we the jury

empaneled and sworn to try the issues in the above-entitled

action do hereby make answers as follows:

the defendant Thomas G. Smith guilty of computer message

threaten/profanity as charged in Count I of the complaint,

dated at Dodgeville, May 30, 2013.

We the jury find

Members of the jury, as

1 38
1
2

ALL JURORS:

THE COURT:

4
5

Yes.
Is that your -- it appears to be

unanimous.
As to Count No . II, we the jury duly empaneled and

sworn to try the issues in the above-entitled action do

hereby make answers as follows:

defendant Thomas G. Smith guilty of disorderly conduct as

charged in Count II of the complaint dated at Dodgeville ,

Wisconsin , 30th day of May, 2013.

this your verdict?

ALL JURORS:

THE COURT :

ALL JURORS:

THE COURT:

MR. AQUINO:

THE COURT:

Mr . AQUINO:

THE COURT:

to you all is this your verdict?

We the jury find the

Members of the jury , is

Yes.
So say you all .
Yes .
Is there a request to poll?
Yes, Your Honor .
There is?
Yes.
Juror No . 1 in the far corner back there,

Ms. Gullickson, is this your verdict?

JUROR GULLICKSON :

THE COURT:

JUROR:

THE COURT:

JUROR:

Yes .

Juror 2, is this your verdict?

Yes .

Yes.

Juror No . 3, is this your verdict?

139
1

THE COURT:

JUROR:

THE COURT:

JUROR:

THE COURT:

JUROR:

THE COURT:

Juror No. 4 , is this your verdict?

Yes.
Juror No. 5, is this your verdict?

Yes.
Juror No.

is this your verdict?

Yes .
No . 7, is this your verdict, Ms .

Schwartz?
JUROR SCHWARTZ : Yes .

THE COURT:

JUROR:

THE COURT:

JUROR:

THE COURT:

JUROR:

THE COURT :

JUROR:

THE COURT:

JUROR :

THE COURT :

MR. AQUINO :

THE COURT:

Is this your verdict, No . 8?

Yes.
No . 9?

Yes.
No . 10?

Yes .
No . 11?

Yes .
And Juror 12?

Yes .
It appears to be unanimous, si r.
Thank you.
Members of the jury, the final

instruction is the one after verdict has been received ,

No. 525.

have to answer questions about this case from anyone other

Your service i n this case is complete.

You do not

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1

than this court .

There is no req uirement that you maintain

secrecy concerning what happened in the jury room, but you do

not have to discuss the case wi th anyone or answer any

questions about it .

that we may all r ise and the jury is excused .

The choice is yours .

It appears then

(The following proceedings were had in open court,

Out of the presence and hearing of the j ury . )

THE COURT:

Counsel, please be seated .

I wi ll then

affirm the j udgment of the jury and have the docket shown

that a decision was made and confirm the verdict .

anything else for the court?

MR. ALLEN :

No .

THE COURT :

Sir .

MR . AQUINO :

THE COURT :

your help .

Is the r e

No , Your Honor.
Thank you for your help .

Thank you f or

It ' s a pleasure working with both of you .

MR . ALLEN :

We need to set a sentencing date.

THE CLERK :

Normal criminal day or off day?

THE COURT :

It's own i nd i vidual day .

THE CLERK :

June 26.

MR . ALLEN :

I will be out of state .

THE CLERK :

We can do i t next week .

MR. AQUINO :

THE CLERK :

MR . AQUINO :

Is that too far out?

Can we do it on Thursday of next week?

We can do Thursday at 9 : 30.
I'm not available that day .

141
1

THE CLERK:

MR . AQUINO:

THE CLERK :

Wednesday.
What about June 13?
No , Judge .

Judge , can we do this before

the court trial on a paternity action next Tuesday and

Wednesday.

week -- the week after is full .

12 we can do 3:00 on the 12th .

MR. AQUINO :

8
9

Can we do it before that, otherwise we're -- next

No .

8 :45 on June 11 or 12 .

I ' ll be in Wood County on another

case .

THE CLERK :

MR. AQUINO :

MR. ALLEN:

Okay .

THE COURT :

See you then .

(The t r ial came to a close at 3:06 p.m .)

15
16

17
18

19
20

21
22
23

24
25

June

June 10 at 11 :50.
That ' s fine .

I have all exhibi ts .

142

C E RT I F I CAT E

2
3

STATE OF WISCONSIN
5

COUNTY OF IOWA

)
)
)

7
8

I, Denise Severson, Official Court Reporter, in and

for the State of Wisconsin, Iowa County, do hereby certify

that the foregoing is a true and accurate transcription of

the proceedings held on May 30, 2013 , in the above-captioned

case, before Honorable William D. Dyke, Circuit Judge , Iowa

County, State of Wisconsin, in accordance with my

stenographic notes made at said time and place.

Dated th i s 23rd day of September, 2013.

17
18
19
20

21
22

23
24

Denise Severson, RMR

Official Court Reporter
Iowa County Courthouse
222 N. Iowa Street
Dodgeville, WI 53533

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