Heres Another one. These fund guys have a HUGE interest in keeping the prison system full to benefit financially. It appears so much so that the parole system was changed to benefit the financial interests of the Fund.
STATE OF WISCONSIN CIRCUIT COURT __________ COUNTY
_____________________________________________________________
STATE OF WISCONSIN,
Plaintiff,
v. Case No.
***
Defendant.
_____________________________________________________________
REQUEST FOR DISCLOSURE
_____________________________________________________________
COMES NOW ***, by his attorney, Waring R. Fincke, upon all of the
files, records and proceedings had herein and the annexed affidavit of
counsel, respectfully requests the Court and all Prosecutors, Law
Enforcement Officers and other governmental workers or officials who
have worked on this case to disclose to the undersigned all financial interests,
direct or indirect, in Prison Realty Corporation, its predecessor,
Corrections Corporation of America, Inc., and/or its wholly owned
subsidiary, Transcor, Inc.
These disclosures are required so that mandatory and/or discretionary
disqualification of the Court and/or the Office of the District Attorney
for ______________ County can be considered and/or requested and
the credibility of the State's witnesses investigated further.
In support of this request, the Defendant respectfully shows the Court
the following.
1. In the past decade, the Wisconsin Legislature has criminalized more and
more behavior and extended the amount of prison time associated with
criminal convictions. It has been popular to be "tough on crime."
2. Wisconsin Judges have used this increased regulation of human behavior
to fill Wisconsin's prisons.
3. To meet the increased demand on our correctional bed space, the
Legislature considered building more prisons, an expensive and time
consuming process. Because the demand for prison beds outstripped the
taxpayer's willingness to build the prisons to hold them quickly enough,
the Legislature authorized the Wisconsin Department of Corrections (DOC)
to rent prison beds from other states and local governments. Wisconsin
then started to transport some of its prisoners to out of state prisons and
county jails under the provisions of sec. 301.21, Wis. Stats.
4. When the DOC transportation bills began to mount, buses driven and
staffed by union scale DOC guards were expensive, the Legislature
authorized use of private transportation services. sec. 301.21 (2m) (a), Wis.
Stats. In September, 1997, DOC contracted with Transcor, Inc. to transport
Wisconsin's traveling prison population. Transcor, Inc. was then a wholly
owned subsidiary of Corrections Corporation of America, Inc. Soon, many
Wisconsin sheriff's began to recognize that Transcor, Inc. could provide
services for local prisoner transport as well. Many Wisconsin Counties also
contracted with Transcor, Inc., to bring back extradited prisoners, and to
move prisoners within Wisconsin. Both types of contracts continue to this day.
5. As the national demand to lock up our citizens increased, public prison
beds became an increasingly scare commodity. Private prison providers,
driven by the corporate bottom line, stepped into the breach. These
corporate creatures started building prisons all over the world. By early
1998, Corrections Corporation of America, Inc. (CCA) was one of the
largest of the private prison players. See, correctionscorp.com.
6. Having increasing difficulty renting public prison beds around the same
time, Wisconsin's DOC obtained Legislative approval to rent private prison
beds as well. sec. 301.21 (2m) (a), Wis. Stats. On March 6, 1998, DOC
contracted with CCA to house up to 1,500 Wisconsin prisoners in its facility
in Whiteville, TN. That facility is now full and Transcor, Inc., took many of
these inmates there and will probably bring them back when asked. In addition,
DOC has approved placement of an additional 300 Wisconsin inmates at a
CCA facility in Sayre, OK. CCA gets paid $42.00 per day for each Wisconsin
inmate it warehouses which comes to $22,176,000 per year for the 1500
inmates at Whiteville, TN alone.
7. In 1997, CCA was a publicly owned corporation. Its stock was traded
on the New York Stock Exchange (NYSE) under the symbol CCA. In April,
1997, CCA created a Real Estate Investment Trust named Prison Realty Trust.
Its mission was to acquire, hold and operate private prison properties and
contracts. This was a publicly held company as well. Its stock was also listed
on the NYSE under the symbol PZN. See, correctionscorp.com
and prisonreit.com. The following financial institutions and mutual
funds currently hold significant numbers of PZN shares: 1. Pacific Life Insurance Co.;
2. Nicholas Co.; 3. Zweig-Dimenna Partners; 4. Baron Capital, Inc.; 5. Gilder
Gagnon Howe & Co.; 6. Baron Asset Fund; 7. Safeco Growth Fund; and 8.
Nicholas Fund.
8. In the December, 1998 issue of the Atlantic Monthly, Eric Schlosser wrote
an informative article titled, The Prison-Industrial Complex. He chronicled
the phenomenal growth of the private prison industry and its supporting
businesses. By then, CCA was one of two major players in the business.
9. On January 1, 1999, CCA and PZN merged into a newly constituted
Prison Realty Corporation which continues to trade on the NYSE under the
symbol PZN. CCA stock swapped for PZN shares and CCA stock stopped being
traded. Transcor, Inc. became a wholly owned subsidiary of PZN as part of
the deal. See, correctionscorp.com. PZN is now the world's largest
private prison provider and CCA is its major tenant.
See, prisonreit.com.
10. All Wisconsin judges, prosecutors, attorneys general, probation officers,
law enforcement officers, crime lab employees, DOJ agents, DOR agents and
state employed public defenders are required by law to participate in the
Wisconsin Retirement System. State employees can also participate voluntarily
in the Deferred Compensation Fund and shelter portions of their income from
income tax liability. All contributions the Retirement and Deferred
Compensation Funds are invested.
11. The Deferred Compensation Fund is invested by the State Retirement
Board in eight mutual funds. They are: 1. The Vanguard Group - Wellington
Fund; 2. T. Rowe Price Mid Cap Fund; 3. The Janus Fund; 4. Fidelity
Investments' Contrafund; 5. Dreyfus Third Century Fund; 6. Dimensional
Fund Advisors' DFA 9-10 Small Cap Fund; 7. Seligman Capital Fund;
and 8. American Century/Twentieth Century - Twentieth Century Select Fund.
The State's Deferred Compensation Fund managers cannot tell anyone which
individual stocks each of these funds hold or held at any given time.
12. The contributions to the State's retirement system are turned over to the
State of Wisconsin Investment Board (SWIB). There are two trust funds
comprised of retirement money managed by the SWIB. One is called the
Variable Retirement Trust Fund (Variable Fund). The contributions to this
fund were made by state employees, but the fund was closed to new
members in the late 1980s. Those in this fund when it closed could stay in
and the fund still exists. The bulk of the state's retirement money is held in
the Fixed Retirement Trust Fund (Fixed Fund).
13. During the fiscal year 1997 (7/1/96 through 6/30/97), the Variable
Fund held 112,200 shares of CCA stock which the SWIB's Annual Report
valued at $4,502,025.00 at the end of that fiscal year. During the fiscal year
1998, the Variable Fund continued to hold, as of 6/30/98, 159,818 shares
of CCA, valued in the SWIB's Annual Report at $3,755,723.00. In the same
period, the Fixed Fund held 1,190,182 shares of CCA stock valued in the
SWIB's Annual Report at $27,969,277.00. That same report noted that the
stock held in the funds had declined in value during the fiscal year. The
Fixed Fund CCA stock holding originally cost $34,902,761.00, showing
a loss in value of $6,933,484.00 for the year. The Variable Fund CCA
holding lost $1,734,021.00, during the same period. PZN recently reported
a first quarter share loss of $0.23 per share. See, prisonreit.com.
14. After the merger, the SWIB's CCA stock was converted to PZN stock.
As of May, 3, 1999, the Variable Fund held 59,932 shares of PZN and the
Fixed Fund held 240,068 shares of PZN. At the close of trading on May 5,
1999, PZN was trading at $21.25 per share for a value of $6,375,000.00
between these two funds.
15. According to Thomson Research, a respected stock analysis
information provider, the value of CCA/PZN has declined over the past
two years from a high of over $37 per share to a low of $15 per share.
The rebound to the current level is relatively recent.
16. Given the overcrowding in DOC's prisons, whenever a defendant is
arrested, prosecuted and sentenced to the prison system, another convict
has to leave DOC's control. Early parole has been reduced dramatically.
A released convict may then go to CCA/PZN's prison in Whiteville, TN,
or to a public prison or jail outside of Wisconsin. Most will get on a
Transcor van or bus to travel to their new home. Legislatively driven
pressure has overfilled the State's prison system. There is now, and there
has been since 1997, an additional financial incentive for those who
participate in the Wisconsin Retirement System to make sure the in-state
prison system stays full so that the out of state and privately owned prison
and prisoner transport systems, in which most of the criminal justice
system's participants are invested, will maximize their profits and returns.
17. Under these circumstances, the Defendant is entitled to know if
the individual participants in the criminal justice system which is supposed
to treat him fairly have additional financial incentives to put him in prison
beyond those in the participant's retirement accounts.
18. Judges must disqualify themselves if they have a "significant"
financial interest in the outcome of the case. sec.757.19 (2) (f), Wis. Stats.
This is an objective standard. If it exists, disqualification is mandatory.
The judge's subjective view of his partiality or bias, or lack thereof, is not
relevant to the analysis. State v. American T.V. & Appliance of Madison, Inc.,
151 Wis.2d 175, 186, 443 N.W.2d 662, 666 (1989); Dressler v. Racine
County Circuit Court, 163 Wis.2d 622, 642, 472 N.W.2d 532 (App. 1991)
19. Judges must also disqualify themselves if they are in fact biased or believe
that they are biased. sec. 757.19 (2) (g), Wis. Stats. This is a subjective
standard and only requires disclosure and a statement from the Judge which
says, here are the facts and I do not believe that these facts will interfere
with my ability to be fair in this case. City of Edgerton v. General Cas. Co.,
190 Wis.2d 510, 516-518, 527 N.W.2d 305 (1995); State v. American T.V.
& Appliance of Madison, Inc., supra;
20. Judges are also required to follow the dictates of SCR secs. 60.03 and 60.04
(4) to avoid the appearance of impartiality or bias and to disqualify themselves
if these standards are violated. A judge has the discretion to disqualify himself
under these standards when mandatory disqualification is not required. The
rules suggest that disqualification should take place in marginal situations to
insure a public perception of an impartial judiciary. A defendant cannot rely
on violation of these discretionary standards for reversal of a conviction, but
the judge is subject to discipline for violations of these standards.
21. Criminal defendants have a constitutional due process right to a financially
disinterested and an unbiased judge. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct.
437, 71 L.Ed.2d 749 (1927); State v. Walberg, 109 Wis.2d 96, 325 N.W.2d
687 (1982) State v. Washington, 83 Wis.2d 808, 833, 266 N.W.2d 597
(1978); State v. Rochelt, 165 Wis.2d 373, 378, 477 N.W.2d 659 (App. 1991).
Here, the standard is the appearance of impropriety or bias, plus prejudice, and
reversal is then required.
22. Prosecutors are subject to discipline for violating SCR 20:1.7 (b) and
SCR 20:1.8 (j). Disciplinary Proceedings Against Penn, 201 Wis.2d 405, 548
N.W.2d 526 (1996). The State has the right to conflict free representation
and self-disqualification by the prosecutor if a conflict exists. The defendant is
entitled to know if such a disqualifying condition exists, at least, to be able to
remind the prosecutor of his professional responsibility or, to report his
violation of Supreme Court Rules as required by SCR 20:8.3. See also,
Wisconsin Ethics Opinion E-84-9
23. There is a due process right to an impartial prosecutor unencumbered
by a financial interest in the outcome of the case. See, Marshall v. Jerrico,
446 U.S. 238, 242 (1980). Disqualification of a conflicted or apparently
conflicted prosecutor is within the trial court's discretion. State v. Smith,
198 Wis.2d 584, 543 N.W.2d 512 (App. 1995); State v. Retzlaff, 171
Wis.2d 99, 490 N.W.2d 750 (App. 1992); Burkes v. Hales, 165 Wis.2d
585, 590, 478 N.W.2d 37, 39 (App. 1991). Disclosure of grounds for
disqualification is essential to a fair proceeding. See, State v. Stehle,
217 Wis.2d 50, 537 N.W.2d 29 (App. 1998).
24. The existence of a financial interest in the outcome of the case by law
enforcement officers or other governmental workers involved in the case
certainly goes to their credibility and is discoverable under Kyles v. Whitley,
514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Giglio v. United
States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
For the foregoing reasons, the Court is requested to disclose to the parties
all of his personal and familial investments in CCA/PZN stock in addition
to his holdings in the two state retirement funds mentioned above during
the time this case has been pending. This should include, but is not limited
to actual holdings of this stock, but also indirect holdings as part of the
State's Deferred Compensation Fund, other mutual funds, annuity funds,
trusts or other such financial asset holding vehicles.
For the same reasons, the District Attorney of ___________ County
must make similar disclosures and require similar disclosures of all
of the Assistant District Attorneys, Assistant Attorneys General, special
prosecutors, investigators, law enforcement officers and other government
officials or workers who had or will have any involvement in this case. In
addition, disclosure of all current and past contracts between __________
County law enforcement agencies and Transcor, Inc. is requested.
________________________
Waring R. Fincke
State Bar No.
Attorney for _________________
Waring R. Fincke
Attorney at Law
1784 Barton Avenue, Suite 17
West Bend, Wisconsin 53090
(414) 334-1030 (voice)
(414) 334-1035 (fax)
email - wrfincke@mail.execpc.com
website - execpc.com
--------------------------------------------------------------------------------
STATE OF WISCONSIN CIRCUIT COURT __________ COUNTY
_____________________________________________________________
STATE OF WISCONSIN,
Plaintiff,
v. Case No.
****
Defendant.
_____________________________________________________________
AFFIDAVIT IN SUPPORT OF REQUEST FOR DISCLOSURE
_____________________________________________________________
STATE OF WISCONSIN }
} ss.
WASHINGTON COUNTY }
COMES NOW Waring R. Fincke who, being duly sworn according to law,
deposes and says that:
1. He is an attorney licensed to practice law in the State of Wisconsin and
represents *** in the above-captioned matter.
2. He makes this affidavit in support of the Request for Disclosure to which
it is annexed.
3. He has read the foregoing Request for Disclosure and the facts contained
therein are true and correct to the best of his knowledge, information and belief
being based upon is personal experience in the full time practice of criminal law
in Wisconsin since 1979, his service as Chair of the Criminal Law Section of the
State Bar of Wisconsin from 1994-1997, his review of the Internet sites of
Transcor, Inc., Prison Realty Trust, and the Corrections Corporation of
America, Inc., his review of the 1999 Securities and Exchange Commission
filings of Prison Realty Corporation, his review of the Annual Reports of the
State of Wisconsin Investment Board for the fiscal years 1997 and 1998, his
review of the contracts between Wisconsin's Department of Corrections and
Transcor, Inc. , and Corrections Corporation of America, email
correspondence with the directors of the State of Wisconsin Retirement Board
and Deferred Compensation Fund and with the Information Officer of the
State of Wisconsin Investment Board and his review of the stock performance
of Prison Realty Corporation and Corrections Corporation of America, Inc.
through Thomson Financial Services (http://www.netcenter.com).
_________________________
Waring R. Fincke
Subscribed and sworn to
before me this _____ day
of _______________, 1999
_________________________________
Notary Public, State of Wisconsin
My Commission ________________________
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