Election fraud conviction overturned

By Kevin Murphy

Thursday, April 26, 2007 2:27 AM CDT

Special to The Journal Times

MADISON -

A state appeals court overturned a misdemeanor election fraud conviction in Racine County, concluding that the defendant's "poor supervision" of voter registrars in 2004 didn't amount to a crime.

The District 2 Court of Appeals ruling allows Damien Donnelle Jones of Milwaukee to withdraw his guilty plea, seek a new trial and set aside the 90-day jail term and two years of probation imposed by Circuit Judge Dennis Barry.

After the election clerk's office began receiving voter applications of individuals already on the rolls, the district attorney's office investigated and charged Jones and another individual. Jones, 27, was charged with eight counts of election fraud, including six felonies, in connection with his work as a supervisor of deputy registrars for Acorn's Project Vote.

Before trial, Racine County Deputy District Attorney Michael Nieskes dropped seven charges and allowed Jones to plead to a misdemeanor after agreeing that Jones didn't directly falsify any voter registration papers but supervised those who did.

Nieskes recommended Jones pay a fine and not engage in political campaign work for a year. However, at the June 21, 2005, sentencing, Barry ordered Jones to pay $500 to Racine Crimestoppers, not work in elections for two years and serve 90 days in jail.

After Barry refused to stay Jones' jail term, the District 2 court stayed Jones' jail term until the outcome of the appeal.

While separate statutes make it a crime to falsify voter registration information and aid someone in doing so, the state provided no evidence that Jones helped others submit false registrations, only that he didn't monitor those who did, wrote Judge Daniel Anderson in the seven-page opinion.

"We recognize the trial court's concern about voter fraud and we respect the integrity of the election process. However, one can not be convicted of a non-existent crime," he wrote.

In an interview Wednesday, Nieskes said he let Jones plead to a misdemeanor instead of a felony because of his lack of prior felony convictions. As the appeals court pointed out, the facts in the criminal complaint may not have fit the misdemeanor but Nieskes said they would support a felony

conviction.

"We'll file those charges. There were a number of persons Jones put pressure on to get people registered and other acts that clearly violated the statutes. He can have a trial on that if he wants," Nieskes said.

A decision whether to appeal the ruling won't be made without conferring first with the state's attorney general, said Nieskes.

While U.S. Attorney General Alberto Gonzales has come under fire recently for dismissals of federal prosecutors for not prosecuting voter fraud cases, Niekes denied there was any political pressure to charge Jones.

"There was none by anyone. We brought the charges we believe he's responsible for," Nieskes said.

Jones' attorney, Keith Miller of Racine, could not be reached Wednesday.

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