Butler Police Officer Brian Pergande pleads not guilty to misconduct
Waukesha — Butler Police Lt. Brian Pergande pled not guilty to felony criminal misconduct charges following a preliminary hearing last week in Waukesha County Circuit Court, where his lawyer challenged the validity of District Attorney Brad Schimel's case against Pergande.
Attorney Michael J. Steinle raised questions about whether there was a proper "chain of evidence" linking Pergande to inappropriate photos of a woman he had arrested, and whether the Waukesha County Sheriff's Office may have violated Pergande's rights against self-incrimination.
A preliminary hearing is conducted to establish whether the district attorney's office has sufficient evidence of "probable cause" for defenders to be placed on trial for charges pending against them.
"I realize there are all kinds of issues involving the chain of evidence, but I feel the state has met its probable cause burden," said Court Commissioner Thomas J. Peiper.
Peiper set a trial date of June 9 at 11 a.m.
Arrest of dancer
According to the criminal complaint, Pergande in September of 2009 traveled to the Encore Gentleman's Club near Hawley Road and Interstate 94 in Milwaukee to arrest an exotic dancer on a warrant related to a municipal citation for obstructing a police officer issued in the village of Butler.
Pergande and two Milwaukee police officers placed the woman under arrest, accompanied her to a back room of the strip club, and watched as she removed her thong, bikini top and shoes and put on street clothes.
Pergande took her to the Butler police station where he "patted her down" and took photos of her bare breasts from various angles before taking her to the Waukesha County Jail, according to the criminal complaint.
"This entire series of events was lewd," Schimel told Peiper during the Thursday, May 8, preliminary hearing.
Schimel said Pergande engaged in criminal misconduct because he used his position of authority to engage in actions that embarrassed and humiliated the woman for personal rather than professional reasons.
Pergande has not denied taking the photos but has suggested that someone else may have cropped and edited the photos.
Sheriff's Detective Robert Wepfer testified that the photos were discovered in a village computer assigned to former Police Chief Michael Cosgrove that was confiscated by the sheriff's department as part of its investigation in early 2013 into Cosgrove's conduct. Cosgrove announced his retirement from the department in the midst of the investigation.
Wepfer acknowledge during cross examination by Steinle that he was not familiar with the process of importing digital photos from a digital camera onto a computer.
He admitted he did not know how many police officers other than Pergande may have had access to the camera.
He also admitted he did not know whether the photos could have been edited in the camera and then transferred onto Cosgrove's computer.
Wepfer also acknowledged he did not advise Pergande of his constitutional rights against self incrimination after informing Pergande that the interview related to a criminal matter for which he was being investigated.
"Why not?" asked Steinle.
"Because he wasn't in custody," Wepfer said, meaning Pergande was not being arrested at the time.
Use of evidence
Steinle also suggested the sheriff's office and the district attorney were violating state law because they were improperly using evidence against Pergande in a criminal proceeding that had been obtained during an internal police department investigation.
State law requires police officers to cooperate in internal department investigations, but says the information they provide cannot be used against them in a criminal proceeding.
Pergande was a central figure in the 2013 investigation requested by the village and conducted by the sheriff's office. Pergande and fellow officer Chad Rahn lodged the complaints against Cosgrove that triggered the investigation, in which they also were cited for bad conduct.
Schimel rebutted there was "a firewall" that separated the internal investigation of Cosgrove and the department from the criminal investigation of Pergande. The internal investigation was conducted primarily by Capt. Karen Ruff and Detective Michael Hecht.
Wepfer conducted the Sheriff's department investigation of Pergande, including interviewing the dancer. He testified that she told him she recalled being photographed by Pergande while she was at the Butler police department.
"She recalled at one point he deliberately lowered the camera further down her body," Wepfer testified.
"What part of her body?" Schimel asked
"Her chest area," Wepfer responded.
Wepfer testified that several Butler police officers told him that it was not the usual practice for officers to bring offenders to the Butler police station, but rather to take them directly to the Waukesha County Jail.
However, he later added that occasionally Butler police officers would take a defendant to the Butler station to give them an opportunity to make telephone calls to secure bail before taking them to the county jail.
Wepfer said Pergande discovered a plastic straw in a bag the dancer was carrying. Pergande told her there was evidence of cocaine in the straw, according to Wepfer.
However, Pergande never wrote a report about the evidence or logged the straw into the police department's evidence locker, Wepfer said.
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