Prosecutors in pursuit of the last conviction of one of the five accused men in the killing of a Lac du Flambeau man just before Christmas 2017 are seeking a reconsideration of a hearing which would allow more time for a plea agreement.
Wisconsin special state prosecutors assistant attorney generals Richard Dufour and Chad Verbeten filed the motion for a Ludwig Hearing in Iron County Circuit Court late last week with former Marathon County Judge Gregory Grau. Grau took over the case after the passing of Judge Patrick Madden, who heard the original request for a Ludwig Hearing in the homicide trial of Curtis Wolfe, 28, Lac du Flambeau.
A Ludwig Hearing allows for a conversation between the judge, prosecution and defense regarding a proposed plea agreement. The discussion is meant to explain a plea deal openly between the prosecution, defense and defendant.
According to Verbeten and Dufour’s motion, “The court committed a manifest error of law … (when) it refused to conduct a colloquy with Mr. Wolfe after the state put the settlement proposal on the record ….”
Verbeten and Dufour are therefore requesting via the motion the court reconsider and hold a complete Ludwig Hearing regarding its proposed settlement plea agreement dated April 18.
That deal, as outlined at the hearing, called for Wolfe to plead guilty to an amended charge to felony murder/aggravated battery with repeater and party to a crime modifiers, felony hiding a corpse as party to a crime as a repeater as well as two counts of aiding a felon as party to a crime.
Those amended charges would be the same as settled upon for co-defendant in the crime James Lussier’s plea agreement, with the exception Lussier was not charged with hiding a corpse. Lussier, 21, Lac du Flambeau, was sentenced to 15 years in prison and 15 years of supervised release followed by eight years on probation. For Wolfe, the state and defense would have been free to argue sentencing following the completion of a pre-sentence investigation.
“Settlement negotiations in Mr. Wolfe’s case did not begin until after the trial of two of Mr. Wolfe’s co-defendants, Richard F.A. Allen (29) and Joseph D. Lussier (28), both of Lac du Flambeau). This was at the express request of Curtis Wolfe’s counsel,” the motion reads.
The first settlement proposal was given to Wolfe on Nov. 9, 2018, which Wolfe did not accept.
A jury trial was then set to start May 13. The state filed another revised settlement offer “more favorable to Wolfe” with an April 22 deadline, based on court records.
However, the state did not hear from Wolfe or his defense, so it filed a request for the Ludwig Hearing in open court to explain the settlement on the record with all parties present. That hearing took place April 30.
There, Wolfe’s public defense attorney Fred Bourg objected to discussing the settlement on record, citing possible prejudice against his client should that occur. The state argued it was appropriate at the Ludwig Hearing to discuss the proposal “… to ensure he … understood the settlement proposal and it was his … decision to accept or reject (it).”
Madden indicated he felt the Ludwig motion had been “complied with” and that Bourg had effectively conveyed the proposal to Wolfe, adding to inquire further “… would not be in the proper purview of the court.”
The prosecutors note the court “… committed a manifest error of law when it failed to conduct a colloquy with Mr. Wolfe” that day.
Verbeten and Dufour note in the motion that plea bargaining is important in cases, and while it isn’t doubting the defense counsel’s “competence,” but moving forward without further plea discussion could result in a post-conviction claim — even years later — that “… stakes the defendants assertions against trial counsel’s conduct …” and it is “… well worth the time” to hold.
A motion hearing in the Wolfe case is currently set for Oct. 8.
Wolfe is jailed on a $1 million cash bond at Iron County Jail.
Wolfe, along with the Lussier brothers and Allen, in addition to Evan Oungst, 29, Arbor Vitae, are said to have taken Wayne Valliere, Jr. 25, from Lac du Flambeau on a drug-fueled ride that ended in the remote parts of the town of Mercer where he was shot several times by Allen and then Joseph Lussier in the early hours of dawn. His body was then hidden and left. Motive remains unclear, though it has been indicated the defendants had some involvement in the Native Soldiers Gang and felt disrespected by Valliere. Others have cited theft of a pipe from one of the defendants on the part of Valliere.
Allen and Joseph Lussier were sent to life in prison last August by Madden after a week-long jury convicted them. Oungst plead guilty to amended charges of second degree reckless homicide plus several charges of harboring/aiding a felon and having prescription drugs before a substitute judge in Price County. He is in Iron County Jail — separated from Wolfe — and awaits sentencing Jan. 29, 2020. He was set for his fate to be determined in late September, however, his attorneys successfully argued Monday morning in court for a later date now that the pre-sentence investigation has been completed. Prosecution and the victim’s family had expressed their opposition to the pushback.